Case CCT285/17
[2018] ZACC 50

Hearing Date: 02 August 2018
Judgement Date: 06 December 2018

Post Judgment Media Summary  

The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.

On Thursday 6 December 2018, the Constitutional Court handed down judgment in an application for leave to appeal against an order of the High Court of South Africa, KwaZulu-Natal Division, Pietermaritzburg (High Court).  The matter concerned the High Court’s interpretation of an earlier order of the Supreme Court of Appeal whether the High Court had erred in deciding the merits of the case rather than dismissing it as a matter already decided by a court.

The applicant is Ms Sithembile Mkhize, acting in her capacity as executrix of the estate of her deceased husband, the late Zwelibhekile Mbuyazi (the deceased).  The first and fourth respondents are the Premier of KwaZulu-Natal (Premier) and the Member of the Executive Council of the Department of Co-operative Governance and Traditional Affairs (MEC) in KwaZulu-Natal, respectively.  The second respondent is Mr Mkhanyiseni Mbuyazi, the deceased’s younger brother

In 2010, the MEC removed the deceased as Inkosi of the Mbuyazi Community and appointed the second respondent as the new Inkosi.  The deceased launched an application in the High Court seeking to review and set aside his removal from office (review application).  The deceased also sought an interim order preventing either himself or the second respondent from holding the position of Inkosi until the matter had been resolved.  The interim order was granted and the matter was referred to trial for determination.  However, the deceased died before the commencement of the trial.

Following the deceased’s death, the second respondent launched an application in the High Court seeking an order, amongst others, (1) rescinding the interim relief; and (2) dismissing the deceased’s application for review.  Ms Mkhize brought a counter-application seeking to be substituted as the first applicant in the review application in her capacity as executrix of the deceased’s estate and also to be joined as the second applicant in her capacity as legal guardian of the deceased’s minor son, Phathokuhle.  Ms Mkhize also sought an order directing the Premier to pay to the deceased’s estate the further amounts to which the deceased was entitled as salary from 2010 until his death in 2012 (salary claim).  The High Court dismissed Ms Mkhize’s counter-applications to be substituted as the applicant in the deceased’s review and to join her as the second applicant.  The High Court also rescinded the interim order, thereby allowing the second respondent to become Inkosi.

Ms Mkhize appealed to the Supreme Court of Appeal which granted her substitution application in the deceased’s monetary claims but dismissed her application to be substituted or joined as guardian of Phathokuhle in the review application on the basis that the deceased’s claim to be reinstated as Inkosi was a personal right and not transmissible.  The second respondent’s application for rescission of the interim order was unsuccessful.  The Court held that the question of the deceased’s wrongful removal should still be determined at trial in order to determine the monetary claims and the deceased’s rightful successor.

In 2015, the second respondent launched an urgent application in the High Court seeking rescission of the order referring the matter to trial.  Ms Mkhize counter-applied to consolidate this application, the salary claim, and her separate action on behalf of Phathokuhle in his succession claim.  Sishi J for the High Court held that: (1) the effect of the Supreme Court of Appeal’s judgment was that Ms Mkhize had no legal claim to pursue a review of the deceased’s removal and therefore the review application must fall away because there is no longer any applicant; (2) the monetary claim was separate from the review application and unrelated to whether or not the deceased was unlawfully removed; (3) Ms Mkhize and the deceased’s son’s claim was unlikely to achieve anything and so the counter-application for consolidation of the applications should be dismissed; and (4) the interim order should be rescinded.

Ms Mkhize then applied for leave to appeal to the Full Court, this was dismissed.  Thereafter, she applied to the Supreme Court of Appeal for leave to appeal; that application was also dismissed.

Before the Constitutional Court, Ms Mkhize argued that Sishi J in the High Court misinterpreted and effectively overruled the judgment of the Supreme Court of Appeal, and failed to appreciate the principle of res judicata which prevents the High Court from adjudicating a matter already decided by the Supreme Court of Appeal.  Ms Mkhize also submitted that the matter must go to trial because the monetary claim and the deceased son’s succession claim both depended on a finding that the deceased’s removal was unlawful.  The Premier, MEC and the second respondent contended that the decision to remove the deceased from office was an administrative decision and that an administrative decision can only be set aside on review.  However, because the applicant in the review application is now deceased, the review application must fall away and the deceased’s removal from office is therefore valid.

In a unanimous judgment penned by Dlodlo AJ, the Constitutional Court considered the judgment of the Supreme Court of Appeal and held that the Supreme Court of Appeal had concluded that Ms Mkhize could not be substituted in the review application only insofar as the original review application sought the reinstatement of the deceased.  The right to reinstatement was a personal right of the deceased that could not be transferred.  However, in terms of the Promotion of Administrative Justice Act, the right to pursue a judicial review of administrative action is not a personal right and anyone can seek such a review.  The Supreme Court of Appeal could not have intended to limit the right to seek an administrative review.  On this basis, the Constitutional Court held that the High Court, per Sishi J, did not give due consideration to both the binding effect of previous judgments and matters already decided.  In terms of the binding effect of previous judgments, the High Court was bound by the legal principles applied by the Supreme Court of Appeal, and in terms of the matter already being decided, the High Court could not re-adjudicate the same issues between the same parties.  Though it was not central to the issue at hand, the Constitutional Court also held that courts should not consider customary law matters through a common law lens, but should adjudicate customary law matters using the customary law.

Consequently, the Constitutional Court issued an order granting leave to appeal and upholding Ms Mkhize’s appeal.  The Premier and the MEC were ordered to pay the costs of the application.             


The Full judgment  here.