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[2023] ZAKZPHC 57
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Dlomo v Premier of KwaZulu-Natal and Others (4491/18P) [2023] ZAKZPHC 57 (29 May 2023)

IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case no: 4491/18P
In the matter between:
MKHULULEKI CYVION
DLOMO

APPLICANT
And
THE PREMIER OF
KWAZULU-NATAL

FIRST RESPONDENT
MEC THE DEPARTMENT OF
COOPERATIVE
GOVERNANCE
AND TRADITIONAL AFFAIRS
KWAZULU-NATAL

SECOND RESPONDENT
MANDLAKHE JUSTICE
DLOMO

THIRD RESPONDENT
JUDGMENT
MADONDO DJP
Introduction
[1]
On 14 March 2016, under case number
6236/2013, this Court granted the following order in favour of the
third respondent against
the applicant:
(a)
reviewing and setting aside the decision of
the first respondent recognising the applicant as an Inkosi of the
Dlomo Traditional
Community;
(b)
directing the first and second respondents
to do all things necessary and publish all notices to withdraw the
appointment of the
applicant; and
(c)
directing the first and second respondents
to pay the costs.
[2]
The
applicant now seeks an order reviewing and setting aside the decision
of the first respondent not to appoint him as Inkosi of
the
eMakhabeleni Community (Dlomo Traditional Community) in terms of the
KwaZulu-Natal Traditional Leadership and Governance Act
(KZN
Governance Act),
[1]
and among
other relief, directing the first respondent to take all the
necessary steps in recognising the applicant as such. In
fact, the
applicant demands that he should be reinstated in the position he
held prior to the setting aside of his recognition
as Inkosi, within
90 days of the order sought.
[3]
The applicant’s application is based
on the ground that the uMndeni weNkosi has every right to appoint any
person as Inkosi.
The applicant contends that the order setting aside
his recognition as Inkosi did not preclude him from being identified
and nominated
as Inkosi in the future. It only set aside his
appointment. The applicant states that he was appointed by the
uMndeni weNkosi on
the recommendation of Luthuli Sithole Attorneys
and that it now rests with the first respondent whether it carries
out that recommendation.
According to the applicant, the matter was
referred back to the uMndeni weNkosi and that the latter identified
and nominated him
for re-appointment. It was contented that the first
respondent should accordingly recognise him as Inkosi - as the KZN
Governance
Act directs.
[4]
The third respondent has lodged a
counter-application in which he seeks the following order:
(a)
declaring him to be the Inkosi of the Dlomo
Traditional Community;
(b)
directing the first and second respondents
to do all things necessary in compliance with the KZN Governance Act
to appoint him as
Inkosi of the Dlomo Traditional Community;
(c)
directing the first and second respondents
to issue a certificate appointing him as Inkosi of the Dlomo
Traditional Community; and
(d)
ordering the applicant to pay the costs of
the counter-application.
[5]
The third respondent grounds his
counter-application on three grounds. Firstly, that as the oldest son
of the deceased Inkosi, he
is in terms of Zulu law and customs
entitled to succeed his father. Secondly, that the applicant does not
in terms of customary
law and traditions qualify to assume the
position of Inkosi and he is therefore not a rightful heir to the
throne. Thirdly, that
as the third respondent’s grandmother,
MaGasa II, was affiliated to the house of MaGasa I, and, ultimately,
to the great
house as seed-raiser, his oldest uncle, Khumukani, was
entitled to succeed Bubula, the son of MaGasa I, and the late Inkosi
Zingelwayo.
Factual background
[6]
Zingelwayo, the son of Mkhuzangwe of Gayede
and of Makhedama, the founder of the Dlomo Traditional Community, was
the Inkosi of
the Dlomo Traditional Community from 1936 to 1972. He
passed away on 19 June 1972.  The Dlomo Traditional Community is
situated
between Kranskop and Nkandla.
[7]
Inkosi
Zingelwayo had 14 wives. However, for the purposes of determining the
issues in this matter, emphasis will be placed on four
of his wives,
namely, MaNgcobo, MaGasa, MaGasa and MaBhengu, who are prominent, and
relevant to the matter, as well as on four
of his sons, Bubula,
Zenzo, Khumukani and Muntukaboni.
[2]
For clarity sake, the first MaGasa will hereinafter be referred to as
MaGasa I and the second as MaGasa II.
[8]
The Dlomo Traditional Community consists of
five royal homesteads, namely Sokheni, Qhudeni, Nhlanhleni,
Gulukudela and Ndumakude.
The second wife of the late Inkosi
Zingelwayo was MaGasa I, and the third wife was MaNgcobo, the great
wife (undlunkulu), from
whom the successor to the chieftainship had
to be drawn. MaNgcobo was a daughter of another Inkosi and her lobolo
had been contributed
by the Dlomo Traditional Community. The fourth
wife was MaBhengu.
[9]
Inkosi Zingelwayo moved from his father’s
homestead, Qhudeni, to establish his own royal homestead, Nhlanhleni.
He took along
his four wives, MaNgcobo, MaGasa I, MaBhengu and
MaMsane, who does not feature much in this matter. The Nhlanhleni
homestead is
traditionally recognised as the bearer of an heir to the
throne of the Dlomo Traditional Community. At Nhlanhleni royal
homestead,
MaNgcobo’s house was the main house, iNdlunkulu,
situated at the top centre of the homestead. The house of MaGasa II
was
rank immediately next to the iNdlunkulu on the right-hand side,
and MaBhengu was on the left-hand side and so was MaMsane’s

house.
[10]
Inkosi Zingelwayo fixed the status of his
wives who were at Nhlanhleni as follows: MaNgcobo, as she was the
daughter of an Inkosi,
and whose lobolo was contributed by the Dlomo
Traditional Community was ranked as undlunkulu. MaGasa I was
affiliated to the house
of MaNgcobo, the Great House (iNdlunkulu),
and MaBhengu was allegedly affiliated to the house of MaNgcobo, as
the second affiliate.
No specific status was accorded to MaMsane.
[11]
MaNgcobo only had a daughter, Sizani.
MaGasa I had only one son, Bubula Sipho Alias and MaBhengu had two
sons, Zenzo and Langa.
When it became apparent that MaNgcobo could
not have any more children due to ill health, Inkosi Zingelwayo, on
12 June 1972, nominated
his son by MaGasa I, Bubula, to be his
general heir and successor. Such nomination was witnessed by
Zephaniah Dlomo, Z Ndlovu and
others. Bubula then became MaNgcobo’s
son. This translated to mean that Bubula was implanted in the womb of
MaNgcobo in order
to provide an heir. However, this was preceded by
the affiliation of Bubula’s mother to the house of MaNgcobo.
The late Inkosi
Zingelwayo then registered Bubula at the Nkandla
Magistrate as his general heir and successor.
[12]
MaGasa I died, leaving her son, Bubula, a
teenager. In order to ensure that the house of MaGasa I was revived
and that Bubula was
well cared for, Inkosi Zingelwayo married MaGasa
II, the sister of the MaGasa I. This was seen as a practical and
reasonable solution
to the problem. She was a blood relation of
Bubula and was more likely to take good care of him. However, MaGasa
II was not only
brought to Nhlanhleni royal homestead as a foster
mother to Bubula, but was to replace her sister in all respects. She
was affiliated
to the house of MaGasa I. In fact, MaGasa II was put
at Nhlanhleni as seed-raiser and as replacement for MaNgcobo.
MaNgcobo approved
of her substitution of MaGasa I and her
incorporation into the senior house. MaGasa II gave birth to six
sons, Khumukani Ntandoyenkosi
Dlomo, Muntukaboni Jabulani Dlomo, and
four others.
[13]
After the death of Inkosi Zingelwayo on 19
June 1972, the uMndeni weNkosi convened a meeting on 11 October 1973
and formally identified
and nominated Bubula for appointment as the
rightful heir and successor to the deceased Inkosi Zingelwayo. The
uMndeni weNkosi
thereby endorsed the deceased Inkosi Zingelwayo’s
wishes of appointing Bubula as his heir and successor. Such meeting
was
chaired by Zephaniah Dlomo. The Acting Chief (ibambabukhosi)
Mlingo Mahlaba was also present at the meeting and announced that he

would step down as soon as the new Inkosi assumed the position.
[14]
On 25 October 1973, the uMndeni weNkosi,
being accompanied by the ibambabukhosi, the Tribal (Traditional)
Secretary and headmen
(izinduna) presented Bubula to the Nkandla
Magistrate for appointment as the successor to the deceased Inkosi
Zingelwayo. Unfortunately,
Bubula died of a snake bite soon after the
letters of his appointment as Inkosi had been issued to him. His wife
was pregnant at
the time, and later gave birth to a baby girl. As a
consequence, Bubula died without a male heir.
[15]
The late Inkosi Zingelwayo, before his
passing, had properly arranged his affairs and fixed the status of
his wives, according to
his election. The untimely death of Bubula,
offered a section of the uMndeni weNkosi, led by Majubane Dlomo, an
opportunity to
purportedly alter all what the late Inkosi Zingelwayo
had done. At the uMndeni weNkosi’s meeting held in 1974, a
night preceding
the burial of Bubula, such section of the uMndeni
weNkosi nominated Zenzo as the general heir and successor of the late
Inkosi
Zingelwayo. Sihlangu Dlomo presided over this meeting. The
basis for nominating Zenzo was allegedly that MaBhengu was affiliated

to the house of MaNgcobo (iNdlunkulu), and as she was holding such a
positon, she was entitled to bear an heir for the Dlomo
chieftainship.
By identifying and nominating Zenzo as successor, the
uMndeni weNkosi purported to revert to the custom and tradition of
the Dlomo
Traditional Community and thereby restore order in the
family. The meeting was said to not have been properly convened and
was
not representative of the uMndeni weNkosi, and therefore invalid.
[16]
At the funeral of Bubula, Majubane made an
impromptu announcement, and announced Zenzo as the successor to
Bubula. According to
witnesses, Majubane did not have the authority
to do so. The unruly and unlawful behaviour of Majubane in making
such announcement
without the necessary permission to do so,
infuriated the senior members of the family. A few months after the
death of Bubula,
an uMndeni weNkosi meeting was held in 1975, and
such meeting culminated in the identification and nomination of
Khumukani, the
first-born son of MaGasa II, as the successor to
Bubula. Consequently, at that meeting, the nomination of Zenzo for
appointment
as successor to Bubula was rejected. The basis for such
rejection was that MaGasa II, not MaBhengu, was affiliated to
iNdlunkulu
as a seed-bearer. The 1975 uMndeni weNkosi meeting was
later said at the Commission of Inquiry to have been properly
convened and
was representative of the uMndeni weNkosi.
[17]
The ruling by the uMndeni weNkosi was
objected to by the Ethnological Section of the KwaZulu Government on
the grounds that Sihlangu
was by birth the most senior family member
and, he being overruled by the junior members of UMndeni weNkosi was
unacceptable. The
Ethnological Section concluded by saying that the
1974 meeting, and not the 1975 meeting, was representative of the
uMndeni weNkosi.
As a consequence, the Cabinet directed that a
further investigation into the dispute should be made. Nevertheless,
the nomination
of Zenzo as an heir and successor kept on being
confirmed by various ethnologists, namely Mr Bradley in 1976 and a Mr
Brink in
1977.
[18]
In a letter dated 7 July 1978, addressed to
the then Chief Minister of KwaZulu Government, Prince MG Buthelezi,
Mr ME Dlomo indicated
that Zenzo was not the rightful heir to the
throne of the Dlomo Traditional Community and warned that Zenzo’s
appointment
would lead to a split in the family and bloodshed. He
then requested the KwaZulu Government to investigate the matter
through a
commission of inquiry. Zenzo was, despite strong objection
by the senior members of the uMndeni weNkosi, appointed Inkosi on 3
June 1978.
[19]
Zenzo ruled the Dlomo Traditional Community
for eight years and was murdered by Khumukani, the oldest son of
MaGasa II, on 6 May
1986 over the chieftainship dispute. Zenzo was
survived by two wives, MaNtuli and MaNgcobo. MaNtuli had two sons,
Phiwokuhle and
Mkhululeki, and MaNgcobo had only one son, Siphephelo.
[20]
The appointment of Zenzo and his subsequent
murder caused dissension in the community with resultant violence,
which claimed the
lives of more than fifty people. However, after the
investigation by the ethnologists, the appointment of Zenzo was once
again
confirmed by Ms Mhlongo in 1987 and by Mr Van Vuuren in 1989.
Nevertheless, it was felt that the situation in the community had

deteriorated to the extent that an inquiry into the chieftainship
should be held.
[21]
The uMndeni weNkosi held a number of meetings but was divided over
the issue of a successor,
and it split into the MaBhengu and the
MaGasa II factions. The Ethological Section proposed that Langa
Dlomo, the brother of Zenzo,
be appointed an Acting Chief
(ibambabukhosi) to act on behalf of Phiwokuhle, the minor son of
Zenzo. However, the uMndeni weNkosi
could not agree on such proposal.
As a consequence, the Commission of Inquiry (the Commission) into the
Dlomo chieftainship was
appointed in terms of s 11(1) and (2) of the
KwaZulu Act on the Code of Zulu Law
[3]
to inquire into the rightful heir and successor to the throne and to
make its recommendation to the Cabinet.
[22]
The Commission commenced carrying out its mandate in 1989 by
conducting investigations, taking
affidavits from possible witnesses
and held sessions in 1991 for the hearing of oral evidence by
witnesses from both factions.
Such witnesses were cross-examined, as
cross-examination is viewed as the greatest machinery for the
discovery of truth. I will
not delve into the entire evidence
tendered before the Commission and will only refer to salient
features of the testimony which
is necessary and crucial for the
determination of this case. In issue at the Commission, was whether
MaBhengu was second affiliated
to the iNdlunkulu. The uMndeni weNkosi
was divided; some said it was MaBhengu, Inkosi Zingelwayo’s
twelfth wife, in the order
of his wives’ marriage, and others
maintained that it was a younger sister of MaGasa I, Inkosi
Zingelwayo’s thirteenth
wife.
[23]
The Commission heard evidence by prominent members of the uMndeni
weNkosi and persons of authority
in the traditional community. The
testimony of Anthony Dlomo was that the late Inkosi Zingelwayo fixed
the status of his wives
by affiliating MaGasa I (the second wife) to
the house of MaNgcobo (the third wife) as the seed-raiser because
MaNgcobo (undlunkulu)
could not have children. When MaGasa I died in
order to ensure the status of seed–raiser, the late Inkosi
Zingelwayo married
MaGasa II, the sister to MaGasa I. By marrying
MaGasa II, Inkosi Zingelwayo revived and resurrected MaGasa I’s
house as the
seed–raiser. The former acquired all the rights
and obligations of her deceased sister. MaNgcobo also approved of the
substitution
of MaGasa II for MaGasa I, and the subsequent
incorporation of MaGasa II as the seed-raiser into the senior house.
Anthony denied
the allegation that MaGasa II only came to Nhlanhleni
as a “nanny” to take care of the late Bubula, and he
labelled
the word “nanny” as ridiculous in the Zulu and
Dlomo customs.
[24]
Anthony also testified as to how Majubane illegally pronounced Zenzo
as the next chief. Mhlabuhlangene
Edward Dlomo, the first son of
Inkosi Zingelwayo by his first wife, disapproved of the announcement
by Majubane and disassociated
himself from Majubane and his
followers. This piece of evidence found support in the affidavit made
by Mhlabuhlangene. The evidence
of Anthony found support in the sworn
affidavit of Makhosonke Cornelius Dlomo, regarding the marriage of
MaGasa II as a seed-raiser
and that MaNgcobo accepted MaGasa II and
willingly incorporated her into the senior house as the seed raiser.,
Anthony went on
to state that he took minutes of the meeting at which
Khumukani, the first born son of MaGasa II, was elected chief. The
evidence
of Anthony was not contradicted by any other evidence. In
his testimony, Anthony stated that in terms of Zulu custom, an heir
to
Bubula ought to have been the first son of the second seed–raiser,
Khumukani Thandinkosi Dlomo.
[25]
Anthony supported his statements with factual occurrences and
supporting details. Anthony went
on to testify that MaGasa II, given
all the responsibilities and obligations of the seed-bearing wife,
was entitled to use and
did in fact use the belongings of MaGasa I
and MaNgcobo after their death. He stated that MaGasa II was
therefore certainly
elevated to the status of being a seed-bearing
wife. Under customary practices and tradition, the serving of meat to
the women
of the uMndeni weNkosi is done by a senior wife. At
Nhlanhleni royal homestead, this task was performed by MaGasa II.
Furthermore,
it was MaGasa II who cashed the late Inkosi Zingelwayo’s
cheque for him when he had died. Seeing that Khumukani might be
disqualified due to his murder conviction, Anthony recommended
Muntukaboni Jabulani Dlomo, the second born son of MaGasa II, as
a
suitable candidate for appointment. In support of his claim that
Muntukaboni should be appointed as Inkosi, Anthony stated that
the
latter had also “ngenaed” the wife of the late Bubula and
thereby taken the responsibility of looking after her
as his own
wife.
[26]
The testimony of Vusumuzi George Dlomo, the chairman of the uMndeni
weNkosi, related to verifying
the fact that a unanimous decision
nominating Khumukani as heir and successor to the chieftainship was
taken in 1975 at a meeting
which was representative of the uMndeni
weNkosi. He denounced the 1974 uMndeni weNkosi meeting. Japheth Dlomo
testified that he
was much closer to the late Inkosi Zingelwayo and
that he had told him that Khumukani was in line as chief after
Bubula. He testified
as to how much unhappiness the unilateral
decision of Majubane announcing Zenzo as Inkosi brought, in
particular, to the senior
members of the uMndeni weNkosi. Japheth
attended the 1975 uMndeni weNkosi meeting held at Qhudeni royal
homestead and prominent
members of the uMndeni weNkosi were present
at such meeting. Magubane, Mshini and others signed the minutes
formally nominating
Khumukani as Inkosi.
[27]
Cornelius Gasa, who was an Acting Chief during 1974, testified that
the magistrate had told him
that ethnologists would return to the
traditional community in order to find a solution. They did not
return, and instead, Zenzo
was suddenly appointed as Inkosi. Reverend
Johannes Dlomo, who was a Tribal Secretary at the time, testified
that at the meeting
held with the then Chief Minister of the KwaZulu
Government, Prince MG Buthelezi at his office, the Chief Minister
upon seeing
a copy of the minutes of the uMndeni weNkosi meeting
nominating Khumukani for appointment as Inkosi stated that he was not
in a
position to send back Zenzo’s appointment. He then
suggested that a Commission of Inquiry be held in order to finally
determine
the issue. Despite the objection of the senior members of
the uMndeni weNkosi, Zenzo was taken to the Nkandla Magistrate where
he was surreptitiously appointed as Inkosi. All of these witnesses,
with the exception of Magubane and Mhlongo, supported the appointment

of Muntukaboni as Inkosi instead of Khumukani.
[28]
Magubane, the only witness called by the Zenzo faction, testified
that the sons of the late Inkosi
Zingelwayo had relayed to him that
there were very few people who supported Zenzo. The overwhelming
majority of the Inkosi’s
sons supported Khumukani. He conceded
under oath that there was no such thing as a “nanny” in
their custom. He did
not believe that MaGasa II would have been a
“nanny”. Magubane had sour relations with the late Inkosi
Zingelwayo.
As a result, he did not visit the late Inkosi Zingelwayo
when he was ill in hospital. Nor did he attend his funeral. He was
present
at the meeting held in 1974, a night prior to Bubula’s
funeral, where Zenzo was nominated for appointment as Inkosi. He was

also present when Majubane made an impromptu announcement of Zenzo’s
nomination as Inkosi at Bubula’s funeral on the
following day.
Magubane was hard put to explain why such an important decision
nominating Zenzo was taken in such a quick, spontaneous
manner
without proper representation of the uMndeni weNkosi, without notice
being issued to anyone, without minutes being taken
and why it should
have taken place at the funeral of Bubula.
[29]
When asked how it happened that Mshini registered Zenzo with the
magistrate when Mshini was in
Johannesburg at the time, Magubane
struggled to answer. However, he later stated that if Mshini had not
done Zenzo’s registration,
it would not have been done.
Magubane was present at the uMndeni weNkosi meeting of 1975 and also
signed the minutes of the meeting
nominating Khumukani as Inkosi. He
was also tasked with telling MaGasa II about Khumukani’s
nomination, which he willingly
carried out.
[30]
Apart from the evidence of the prominent members of the uMndeni
weNkosi and the tribesmen of
authority, Ms F S Mhlongo testified
before the Commission in her capacity as an ethnologist. She stated
that the death of MaGasa
I meant that MaBhengu was the next
iNdlunkulu affiliate, considering the order in which they came into
iNdlunkulu, and it would
have been unreasonable for Inkosi Zingelwayo
to move MaBhengu into the house of MaGasa I. However, she did not
provide any substantiation
for her contention. According to the
Commission, the evidence of Anthony annihilated her argument.
[31]
Her second argument was that MaBhengu was the daughter of the son of
Inkosi of the Ngcolosi Traditional
Community and that as such she
could not compete with a commoner’s daughter, MaGasa II.
However, such conclusion was once
again unsubstantiated. The
customary union register kept at Kranskop mentioned nothing about
MaBhengu being affiliated to the Great
House upon her marriage.
[32]
When weighing, evaluating and assessing all the evidence tendered
before it, the Commission found
Anthony to be ‘an absolutely
credible witness who supported his statements with factual
occurrences and supporting details’.
His evidence was clear and
strong and not contradicted. He explained the Dlomo Traditional
Community’s customs clearly and
in a convincing manner.
[33]
The Commission found Vusumuzi George Dlomo to be a credible witness
‘with a position of
authority going back many a year who had no
reason to hide anything’. The demeanour of Cornelius Gasa was
found to be sincere
and his factual account fortified the submissions
of previous witnesses. The Commission was impressed with Johannes
Dlomo’s
clarity and forthrightness. He spoke unhesitatingly and
clearly. As a Tribal Secretary, he knew the ways of the Dlomo
Traditional
Community very well. He was constantly involved in trying
to end the dispute after it had flared up. The Commission found
Japheth
Dlomo to have presented a piece of evidence that was simply
amazing for his knowledge.
[34]
Upon considering the evidence of Magubane, the Commission found his
evidence to have destroyed
‘any vestige of truth or any doubt
the Commission might have had regarding the authority of Zenzo’s
appointment’.
The Commission found, Ms Mhlongo, to not be a
credible witness mainly because she often confused the factual
situation in the Zulu
custom or Dlomo Traditional Community with her
perception of Zulu custom as might have been applied in other
traditional communities
that she had studied. She contradicted her
evidence on the application of ‘ukungenisa isisu’ and
‘ukuvusa indlu’.
She demonstrated a scant knowledge of
custom. She was wrong on the chronological genealogy of the wives of
the chieftainship. Ms
Mhlongo had no knowledge and could not comment
on the validity of the installation of the late Inkosi Zenzo. She
quoted in her
report the survey done by a Mr Bradley in 1976 and a Mr
Brink in 1977 but she could not produce these reports when asked to
do
so. As a consequence, the Commission rejected her evidence as
paltry and doubtful and not being credible.
[35]
The Commission found that the decision taken at the meeting on the
night preceding the funeral
of Bubula in 1974, nominating Zenzo as
successor, was suspect since it was taken at the funeral without the
uMndeni weNkosi being
properly represented. Zenzo’s supporters
went behind the backs of the leaders of the traditional community and
had him surreptitiously
appointed by the magistrate. This did not
have the support of senior members and the traditional community. As
a result, the Commission
concluded that the meeting nominating Zenzo
as Inkosi was clandestine and, therefore, invalid.
[36]
The Commission, on the basis of the evidence tendered before it,
finally concluded that the chieftainship
of the Dlomo Traditional
Community, in terms of the customary law, customs and traditions
resided with the house of MaGasa II.
It was accordingly held that the
oldest son of MaGasa II, Khumukani, should succeed. However, in view
of the fact that Khumukani
had a conviction for the murder of the
late Inkosi Zenzo, the Commission recommended that Muntukaboni
Jabulani Dlomo, the second
born son of the seed-bearing wife, MaGasa
II, should instead succeed Bubula. The second reason for the
Commission’s recommendation
of Muntukaboni as a fit and proper
person for such appointment was that Muntukaboni had ngenaed the
widow of Bubula and took the
responsibility of maintaining her as his
own wife.
[37]
Muntukaboni was formally appointed Inkosi of the Dlomo Traditional
Community in March 1994, ruled
the community for 14 years and died in
a car accident on 4 March 2008. He was survived by his first born
son, the third respondent,
who is now clamouring for succession to
his father, as his heir and successor.
[38]
Upon the death of Inkosi Muntukaboni, the uMndeni weNkosi could not
agree on his successor. The
MaBhengu faction insisted that the third
respondent could not be a successor to Muntukaboni because
Muntukaboni’s identification
and appointment was made by the
Secretary and/or the Commission without the involvement of the
uMndeni weNkosi. The procedure that
was followed in the appointment
of Muntukaboni was allegedly somehow manipulated. According to the
MaBhengu faction, Muntukaboni
was not supposed to be an Inkosi in the
first place. They want the position of Inkosi to be restored back to
the house of the late
Inkosi Zenzo, who was murdered by Khumukani.
The applicant demands the throne on the ground that the uMndeni
weNkosi ought to have
identified and nominated him for appointment as
successor, as the first born son of Inkosi Zenzo.
[39]
At a meeting held on 6 March 2010, the uMndeni weNkosi resolved to
appoint Nhlamvukayingeni (Khapha)
Thandazani Dlomo as ibambabukhosi
pending the resolution of the dispute. The first and second
respondents endorsed the resolution
and Thandazani Dlomo was
appointed as ibambabukhosi for a period of one year and his
appointment has since expired.
[40]
The second respondent, realising that the dispute still existed and
that the uMndeni weNkosi
was not agreeing on the successor, appointed
Luthuli Sithole Attorneys as independent investigators, to
investigate, mediate and
identify the rightful successor to the
throne of the Dlomo Traditional Community. The uMndeni weNkosi is
constituted by five royal
homesteads and all the descendants of
Makhedama, the founder of the Dlomo Traditional Community, regardless
of gender, were allowed
to participate in the process of identifying
and nominating a suitable person for recognition as Inkosi of the
Dlomo Traditional
Community. In carrying out its mandate, Luthuli
Sithole Attorneys obtained affidavits and statements from the members
of the uMndeni
weNkosi and other persons of authority in the Dlomo
Traditional Community.
[41]
The investigation established that the wishes of the incumbent Inkosi
are followed even if they
depart from the customs and traditions
practised by the Dlomo Traditional Community. Such wishes supersede
the customs and traditions
and become binding on the traditional
community only if the incumbent Inkosi has made them known. Luthuli
Sithole Attorneys found
that the late Inkosi Zingelwayo moved MaGasa
I from Qhudeni royal homestead to Nhlanhleni and had appointed her
son, Bubula, as
his heir and successor. According to them, such
action was contrary to the custom and tradition practised by the
Dlomo Traditional
Community, and it was also against the wishes of
the community. They went on to state that MaGasa I was allegedly
ikhohlwa of another
homestead, Qhudeni, and that she was older than
MaNgcobo. Consequently, Luthuli Sithole Attorneys concluded that the
uMndeni weNkosi
was correct in recognising and appointing Zenzo as
the successor of Inkosi Zingelwayo in the absence of his nominee,
Bubula. Upon
the death of Inkosi Zenzo, the uMndeni weNkosi ought to
have convened a meeting and appointed his successor, Mkhululeki.
[42]
Luthuli Sithole Attorneys pointed out that the Commission erred in
recognising and appointing
Muntukaboni as Inkosi. If there was any
validity to the claim that MaGasa II became the senior wife, then
failing Khumukani due
to disqualification, the male heir of Khumukani
ought to have succeeded as Inkosi and not Muntukaboni. They then
recommended that
the second or first respondent should, in terms of
section 19(1) of the KZN Governance Act recognise the applicant as
Inkosi of
the Dlomo Traditional Community.
[43]
On 21 November 2012, the first respondent appointed the applicant as
Inkosi of Dlomo Traditional
Community) in terms of s 19 of the
KZN Governance Act. The recognition of the applicant as Inkosi of
such traditional community
was published in the
Provincial
Gazette
of 7 March.
[4]
[44]
On 5 June 2013, the third respondent lodged an application to this
Court under case number 6236/2013
in which he sought an order:
(1)
declaring him as Inkosi of the Dlomo
Traditional Community;
(2)
reviewing and setting aside the first
respondent’s recognition of the applicant; and
(3)
directing the first respondent to publish
notices withdrawing the applicant’s recognition, and appointing
the third respondent
as Inkosi.
[45]
The application for the relief sought was grounded, firstly, on the
basis that the process leading
to the appointment of the applicant
was invalid for failure to comply with s 19 of the KZN Governance Act
and the Promotion of
Administrative Justice Act (‘PAJA’).
[5]
Secondly, that the appointment of the applicant as Inkosi was
incompetent under customary law, customs and traditions and, that
as
a result, the applicant’s claim was inherently flawed. The
third respondent asserted that he was the rightful heir.
[46]
The applicant did not oppose the application. However, the first and
second respondents opposed
the application, mainly on the basis that
the applicant was duly identified and nominated for recognition as
Inkosi. The first
and second respondents contended that the first
respondent had logically accepted the nomination of the applicant as
Inkosi and
recognised him as such, and contended that the first
respondent’s decision was rational and reasonable.
[47]
The matter served before Chetty J on 14 March 2016. The learned judge
granted an order that:
‘
(1)
The decision of the third respondent recognising the first respondent
be and is hereby set aside.
(2)
The third respondent together with the fourth and fifth respondents
are directed to do all
that is necessary and publish all notices to
withdraw the appointment of the first respondent.
(3)
The third, fourth and fifth respondents pay the applicants costs.’
[48]
The applicant did not apply for the rescission of the order nor did
he appeal against it. The
applicant avers that the reasons for his
inaction were, firstly, that he intended to avert a civil war which
might unnecessarily
result in the loss of many lives, and result in
protracted and costly litigation. Secondly, that the uMndeni weNkosi
wanted to
move on, convene a meeting and appoint an Inkosi.
[49]
The first respondent published the notice of withdrawal of the
recognition of the applicant in
the
Provincial
Gazette
dated 1 June 2016.
[6]
On 27
August 2016, the officials of the second respondent advised the
uMndeni weNkosi that the applicant’s recognition as
Inkosi of
the Dlomo Traditional Community had been set aside by the court, and
that the Government Notice withdrawing the applicant’s

recognition was issued on 1 June 2016.
[50]
The applicant mistook the setting aside of his recognition as Inkosi
as having the effect of
automatically referring the matter back to
the uMndeni weNkosi for reconsideration and resolution. Subsequently,
the MaBhengu faction
convened a meeting on 18 September 2016 and
re-nominated the applicant for recognition as Inkosi of the Dlomo
Traditional Community,
and submitted the minutes of such meeting to
the second respondent.
[51]
On 15 October 2016, the MaGasa faction convened the meeting, chaired
by the ibambabukhosi, which
culminated in the unanimous
identification and nomination of the third respondent for recognition
as Inkosi of the Dlomo Traditional
Community and such minutes were
forwarded to the first and second respondents. When the officials of
the second respondent visited
the uMndeni weNkosi in order to verify
the two sets of minutes, they discovered that the uMndeni weNkosi
could not unanimously
agree on a successor
.
[52]
In December 2016, the second respondent met the uMndeni weNkosi
again, but it still could not
agree on a successor. On 1 April 2018,
the second respondent once again met with the uMndeni weNkosi and
advised it to appoint
a regent (ibambabukhosi) until the impasse was
resolved in order to ensure that service delivery in the area was not
disrupted.
On a later date, the second respondent once again visited
the uMndeni weNkosi but still no solution could be found for the
dispute.
The uMndeni weNkosi then undertook to inform the second
respondent on further developments in the matter.
[53]
There was nothing forthcoming until the applicant instituted the
present application on 19 April
2018, in which he seeks an order
compelling the first respondent to reinstate him as Inkosi, with
further relief against the first
and second respondents, claiming
among others, that the first respondent should take certain steps in
recognising him as such.
[54]
When the matter came before this Court on 3 June 2018 the court
directed that Mandlakhe Justice
Dlomo (the third respondent) should
be joined as a respondent, as he had an interest in the matter. On 29
June 2018 the first and
second respondents withdrew their notice of
opposition, and elected to abide by the court’s decision.
[55]
The reports by the Commission and Luthuli Sithole Attorneys, evidence
tendered before the Commission,
the affidavits by witnesses, the
findings and recommendations thereof, submissions made by both the
MaBhengu and MaGasa II factions,
and other relevant information, have
been incorporated into the papers as evidence upon which the parties
rely for their claims,
assertions and relief sought. For that reason,
it has not been necessary to refer the matter for the hearing of oral
evidence.
In any event, the witnesses who testified before the
Commission, for instance, have since passed away.
Applicant’s
submissions
[56]
The applicant contends that the order granted against him under case
number 6236/20213P did not
preclude him from again being identified
and nominated by the uMndeni weNkosi, for recognition as Inkosi.
According to the applicant,
the identification and nomination of a
person by the uMndeni weNkosi as Inkosi is paramount. Once the first
respondent is satisfied
that the identification of the nominated
Inkosi is correct, it should recognise such person as an Inkosi.
[57]
The applicant goes on to argue that even if the father of the third
respondent had correctly
been appointed, the third respondent cannot
stand in the way of the uMndeni weNkosi appointing the rightful heir.
The applicant
argues that the process of identification has already
been done but that the first and second respondents have failed to
act in
terms thereof.
[58]
The applicant admits that he was cited under case no 6236/2013P and
disputes that he was served
with the necessary papers and documents.
The applicant states that had he been served with papers, he would
have opposed the application.
The applicant avers that his claim to
chieftainship is based on the fact that his father was the last
Inkosi recognised by the
uMndeni weNkosi whereas the third
respondent’s father had not been appointed by the uMndeni
weNkosi.
[59]
The applicant avers that where the great wife has no male issue at
the death of an Inkosi, the
uMndeni weNkosi had the authority to
decide the successor from the sons of other wives. It is the
contention of the applicant that
since MaGasa I was senior to
MaNgcobo she could not have been affiliated as a seed-raiser to a
bride who was younger than her.
The applicant contends that such a
decision of the late Inkosi Zingelwayo was against the custom and
tradition and the wishes of
Dlomo Traditional Community.
[60]
The applicant goes on to contend that as MaGasa I already had a
child, Babula, MaGasa II could
not have been affiliated to MaGasa I.
He goes on to contend that although MaGasa II was taken to iNdlunkulu
by her sister, she
was not affiliated to iNdlunkulu. Therefore, the
house of MaGasa II was junior to the house of MaBhengu, and MaBhengu
was instead
affiliated to iNdlunkulu. According to the applicant, it
was thus impossible for either MaGasa I or MaGasa II to have been
affiliated
to MaNgcobo.
[61]
The applicant avers that MaBhengu was implanted in the womb of
MaNgcobo, and that the argument
that MaGasa II was affiliated to
MaGasa I, as a seed-bearer was totally flawed since Bubula was
already in the iNdlunkulu.
[62]
The applicant disputes that the son of MaGasa II had to succeed
Bubula. According to the applicant,
the decision to appoint an Inkosi
lies solely with the uMndeni weNkosi, and Inkosi Muntukaboni was
appointed by the Secretary.
Such decision was against the law as the
Secretary could not usurp the power and authority of the uMndeni
weNkosi to nominate and
appoint an Inkosi. The applicant avers that
Babula died three weeks prior to his anointment and thus never became
the Inkosi. His
death marked the end of his lineage.
Third respondent
[63]
The third respondent contends that the decision of the first
respondent on 1 April 2013 recognising
the applicant, the oldest son
of Zenzo as Inkosi of the Dlomo Traditional Community was impugned in
that the decision was incompetent
under customary law and traditions
and did not follow the prescripts of administrative fairness.
[64]
The third respondent contends that the process of appointment relates
to the appointment of a
person who qualifies to assume the position
of an Inkosi in terms of customary law and traditions. The basis of
such appointment,
according to the third respondent, is the custom,
tradition and norms of a particular traditional community, and not
the preference
of the uMndeni weNkosi per se.
[65]
The third respondent argues, firstly, that the decision to appoint
the applicant at the first
instance, was materially influenced by an
error of law as such appointment or recognition was contrary to
customary law and traditions.
Secondly, the decision was taken for a
reason not authorised by the empowering provision in that in terms of
s 19(1) of the KZN
Governance Act, the uMndeni weNkosi must identify
the person who qualifies under customary law to assume the position
of Inkosi.
Thirdly, the appointment was procedurally unfair and in
violation of the rules of natural justice in that the uMndeni weNkosi
was
not notified of the impending decision to appoint the applicant,
and that the uMndeni weNkosi was not given an opportunity to make

representations and submissions in terms of PAJA.
[66]
The third respondent avers that as the oldest son of the deceased
Inkosi, Muntukaboni Jabulani
Dlomo, is in terms of customary law and
traditions in line for succession to his father. According to him,
the uMndeni weNkosi
has correctly identified and nominated him for
recognition as the Inkosi of the Dlomo Traditional Community.
[67]
The third respondent asserts that he is the rightful Inkosi of the
Dlomo Traditional Community
and that Zenzo and his son, the
applicant, have virtually no claim to chieftainship of this
community.
[68]
The third respondent avers that MaGasa II took, acquired and assumed
all the rights and obligations
of her deceased sister, MaGasa I, in
the Great House. The third respondent states that notwithstanding the
decision of the uMndeni
weNkosi appointing Khumukani, the oldest son
of MaGasa II, as Inkosi of the Dlomo Traditional Community, the
supporters of Zenzo
went behind the backs of the uMndeni weNkosi and
fraudulently substituted the name of Zenzo for Khumukani at
Magistrate for appointment
as Inkosi of the Dlomo Traditional
Community.
[69]
The third respondent avers that the proper person to be identified
and recommended to succeed
Bubula was the second born son of MaGasa
II, Muntukaboni Jabulani Dlomo, as the uMndeni weNkosi had
recommended.
[70]
The third respondent argues that there is no basis under customary
law and traditions for the
recognition of both Zenzo and the
applicant as Inkosi of the Dlomo Traditional Community.
Common cause facts
[71]
The following are common cause facts:
(a)
MaGasa I was affiliated to the house of MaNgcobo, iNdlunkulu, and
that it was against that
background that the late Inkosi Zingelwayo
nominated her son, Bubula, as his heir and successor.
(b)
Once the deceased Inkosi has declared the status of his wives during
his lifetime, the uMndeni
weNkosi is not entitled to alter such
status after his death.
(c)
The Dlomo Traditional Community determines the question of hereditary
succession in
accordance with Zulu law, custom and tradition.
(d)
MaBhengu was on the ikhohlwa side of the Nhlanhleni royal homestead.
(e)
The third respondent is the firstborn son of the deceased Inkosi
Muntukaboni Jabulani Dlomo.
(f)
The applicant was cited as a party in the proceedings under case
number 6236/2013P
Issues
[72]
The issues that arise in the matter are:
(a)
Was the applicant entitled to disobey the court order granted against
him on the subject
matter and institute a fresh application
proceedings?
(b)
Was the matter
res judicata
?
(c)
Was MaBhengu affiliated to iNdlunkulu?
(d)
Was the 1974 uMndeni weNkosi meeting and the resultant nomination of
Zenzo legitimate, lawful
and valid?
(e)
Is the applicant or the third respondent the rightful heir and
successor to the throne of
Dlomo Traditional Community?
(f)
Was the Commission correct in recommending Muntukaboni, the second
born son of MaGasa
II, for appointment as Inkosi, instead of the male
issue of Khumukani?
Analysis
Disobeying a court
order
[73]
It is common cause that the applicant did not abide by the order of
this Court, granted against
him on 14 March 2016. Instead, he
instituted fresh application proceedings without in any way having
challenged such order. The
applicant did not seek an order rescinding
the order nor did he appeal against it. In his replying affidavit,
the applicant states
that the reason for not taking any action was
that the uMndeni weNkosi had decided not to rescind the court order
or to appeal
against it since it was going to delay the process of
appointing an Inkosi. The uMndeni weNkosi wanted to move on, convene
a meeting
and appoint an Inkosi. To me such an explanation by the
applicant seems to far-fetched.
[74]
It is a general principle of law that a court stands by its decision
even where a judgment is
a nullity for technical reasons.
[7]
The rationale behind this, ‘. . . is to avoid uncertainty and
confusion, to protect vested rights and legitimate expectations
as
well as to uphold the dignity of the court’.
[8]
If a court gives an order or judgment and that order or judgment is
simply ignored with impunity, the administration of justice
will
collapse.
[75]
The applicant cannot be allowed to defy the court order and demand
that he should be reinstated
in the position he held prior to the
order. Even if the order had been granted in default, the applicant
was required to either
have the order rescinded or appealed against
and set aside, before embarking on the next course of action.
[9]
The first respondent denies that it failed or refused to process the
applicant’s application but states that it has been
acting in
compliance with the court order. The first respondent further states
that it cannot recognise any claimant until the
dispute is resolved.
Is the matter res
judicata?
[76]
Res
judicata
is defined as ‘. . . the legal doctrine that bars continued
litigation of the same case, on the same issues, between the
same
parties’.
[10]
The order
or judgment must have a final effect for the doctrine to apply.
[77]
Both parties seek the same relief on the same cause of action, namely
that each should be recognised
by the first respondent as Inkosi of
the Dlomo Traditional Community on the basis that each has been
appointed by the uMndeni weNkosi
as Inkosi, and each of them claims
to be the rightful heir and successor in terms of customary law and
traditions.
[78]
The cause of action has been litigated to finality between the same
parties on the previous occasion.
[79]
The applicant, in his heads of argument filed on 29 July 2014,
[11]
has admitted that the matter under case number 6236/2013P was finally
dealt with on 14 March 2016, when this court granted an order

withdrawing the applicant’s recognition as Inkosi of the Dlomo
Traditional Community.
[80]
That order was final and there was nothing to show that it had been
fraudulently obtained. Therefore,
it could not be said that the court
was misled into pronouncing a judgment, but for the fraud, it would
not have done.
[81]
The applicant admits that he was cited as a party in the proceedings
under case number 6236/2013P
but denies receiving the notice of set
down. Therefore, he had no knowledge of such proceedings. His
allegation was met with a
rebuttal by Mr Nkosinathi Joel Mpungose,
the Deputy Director-General in the employ of the second respondent,
in his affidavit on
behalf of the first and second respondents. He
categorically states that the applicant had been served with the
court papers under
case number 6236/2013P and chose not to oppose the
matter. Mr Mpungose goes on to state that the returns of service
indicated that
service was effected on the applicant - both at his
office and at his home. At his office, the court papers were handed
to and
received by one Cabangile Dlomo and at his home by one Sabani
Dlomo.
[82]
In the public interest, ‘. . . effect must be given to a final
judgment, even if it is
erroneous’.
[12]
Public policy requires that ‘. . . litigation should not be
endless’.
[13]
The
enquiry in respect of
res
judicata
,
‘. . . is not whether the judgment is right or wrong, but
simply whether there is a judgment’.
[14]
For this reason, the law allows a defendant ‘. . . to rely upon
res
judicata
notwithstanding that the judgment is wrong’.
[15]
There should be no uncertainty as to the rights of the plaintiff or
defendant. The requirements of good faith do not permit that
the same
thing must be demanded more than once.
[83]
Has it not been for the applicant’s averment that the uMndeni
weNkosi has a prerogative
to identify and nominate any person it
prefers as Inkosi, as well as the counter-application, I would have
ended the judgment here
and found in favour of the third respondent.
Was MaBhengu
affiliated to iNdlunkulu and the bearer of an heir?
[84]
In dispute is whether MaBhengu was affiliated to iNdlunkulu and the
bearer of an heir. The applicant
contends that MaBhengu, a royalty,
was affiliated to the house of MaNgcobo, iNdlunkulu, and that she was
therefore the bearer of
an heir and a successor to the Dlomo
Traditional Community.
[85]
The Natal Code of Zulu Law
[16]
defines the concept “affiliation” as meaning
‘
the
attachment of one or more junior houses to a senior or superior
house, either the
indlunkulu
,
the
ikhohlo
or the
iqadi
,
for the purpose of providing against the failure of an heir in such
senior or superior house, and “affiliated” has
a
corresponding meaning’.
[17]
[86]
Apart from the applicant’s assertion that the death of MaGasa I
meant that MaBhengu was
the next iNdlunkulu affiliate, there is no
concrete evidence to the effect that MaBhengu was at any stage
affiliated to iNdlunkulu.
Such an assertion is merely based on the
consideration of seniority of the wives of the late Inkosi
Zingelwayo, and how they were
taken into iNdlunkulu. Such a
consideration, in turn, is based on the contention by the MaBhengu
faction that MaBhengu, as royalty,
could not be equated with MaGasa
II, a commoner.
[87]
The applicant has argued that MaGasa I was older than MaNgcobo. She
could not, therefore, be
affiliated to a wife who was younger than
her. This does not hold any water since the status of the wives of an
Inkosi is not declared
until after the assumption by the Inkosi of
his chief wife (undlunkulu), who is usually taken later than the
first and second  wives.
[18]
In the present matter, MaNgcobo in her capacity as undlunkulu was
senior to MaGasa I and nothing could bar the late Inkosi Zingelwayo

from fixing the status of his wives as he chose to do it.
[88]
It is apparent that MaBhengu had only an expectation that after the
death of MaGasa I, she would
be affiliated to iNdlunkulu which did
not occur. This is the evident from the conduct of the MaBhengu
faction after the death of
Bubula. They purported to revert to the
custom and traditions of the Dlomo Traditional Community by
identifying and nominating
Zenzo, the oldest son of MaBhengu, for
appointment as the successor to Bubula, the son of MaGasa I. In their
version, by so doing,
there were restoring the position.
[89]
The applicant contends that MaBhengu was implanted in the womb of
MaNgcobo. However, customarily,
a wife cannot be implanted in the
womb of another wife. In the event of a failure of an heir or if a
particular wife does not have
children, a child of one wife is
implanted in the womb of another wife, who cannot bear an
heir/children. The applicant might be
confusing affiliation with the
implanting of a child in a womb of a wife who cannot have children,
or who cannot bear an heir,
as it happened to Bubula.
[90]
Even the witnesses who testified at the Commission could not explain
by means of any factual
occurrences, incidents, and details the
circumstances surrounding the alleged affiliation. Instead, they
reiterated that MaGasa
II’s house was junior to that of
MaBhengu, a royalty.
[91]
In support of the allegation that MaBhengu was affiliated to
MaNgcobo, the applicant states that
when Inkosi Zingelwayo realised
that the health of MaNgcobo was deteriorating, he married MaBhengu as
‘umakoti wendlunkulu’
(a newly wedded or married wife
helping in the great house). However, this statement is silent on the
fixing of MaBhengu’s
status. Nor is there anything to show that
she was affiliated to the house of MaNgcobo and that such alleged
affiliation was announced.
[92]
The evidence of Sizani, the daughter of MaNgcobo, and the evidence of
others who testified or
made statements before Luthuli Sithole
Attorneys that MaBhengu was a daughter of an Inkosi and that she was
affiliated to the house
of MaNgcobo is not borne out by the customary
union register, which was kept at Kranskop.
[19]
According to the register, MaBhengu’s father was not an Inkosi,
as it is alleged, but his status is described as a ‘headman’

(an induna) and does not accord any status to MaBhengu. Customarily,
the daughter of an induna does not enjoy a higher status than
the
daughter of an ordinary person. The Inkosi was in terms of the Natal
Code of Zulu Law,
[20]
‘.
. . upon the assumption of his chief wife, to report to the Secretary
through the Commissioner or Magistrate the name
of his various wives
and the status of each’. In which event she could not have
escaped to have her status declared upon
marriage, if she was
affiliated to indlunkulu or was an heir bearer, as it is claimed. A
register of customary marriages is ‘kept
in the office of the
Commissioner or Magistrate in the form prescribed . . . and shall be
open at all convenient times for inspections,
free of charge. .
.’.
[21]
From when the
Commission was held during 1991 to date, the applicant has not
produced any evidence contrary to the entry made in
the customary
marriages register or provided actual proof that MaBhengu was
affiliated to the iNdlunkulu as an heir bearer. In
the circumstances,
I deem it appropriate to conclude that the entry made in the register
in this regard provides conclusive proof
that the status of MaBhengu
was never fixed.
[93]
The evidence tendered before the Commission places MaBhengu on the
‘ikhohlwa’ side
in that her hut was on the left-hand side
of the Nhlanhleni royal homestead. This finds confirmation in the
submission by Mr Zondi,
for the applicant, when addressing the court
in this regard. He repeatedly stated that MaBhengu was on the
ikhohlwa side. However,
when I mentioned that if she was on the
ikhohlwa side, her son could not be in line for succession, Mr Zondi
then argued that whatever
the position was, the uMndeni weNkosi has
the prerogative to identify and nominate any person it prefers to be
recognised as Inkosi.
[94]
On the other hand, the evidence relating to the status of MaGasa II
being the seed-raiser in
the house of MaGasa I and, ultimately, in
the house of MaNgcobo, iNdlunkulu, is concrete and unshaken. That
MaGasa I was affiliated
to iNdlunkulu is borne out by the customary
marriages register. The evidence tendered both before the Commission
and Luthuli Sithole
Attorneys, shows that MaGasa I was occupying a
right-hand house and when she died she was replaced by MaGasa II, who
took care
of Bubula until he died.
[95]
Since it was the special function of MaGasa II to bear an heir for
the house of MaGasa I, she
created no house of her own but was an
auxiliary wife of the house of MaGasa I. As MaGasa II revived MaGasa
I’s house who
was affiliated to iNdlunkulu, she was entitled to
take MaGasa I’s house as well as that of MaNgcobo. Her son was
also entitled
to succeed Bubula, the son of MaGasa I, who had died
without a male issue.
[96]
It was common cause at the Commission that MaGasa II used the
belongings of MaGasa I and those
of MaNgcobo after their death, and
that she moved into their houses. There is also no evidence
substantiating that MaBhengu was
second to be affiliated to
iNdlunkulu. Further, there is no evidence supporting that as the
daughter of an Inkosi she was the next
seed-bearer. The customary
marriages register is silent on MaBhengu being affiliated to
iNdlunkulu upon marriage.
Altering the status
of the wives of the late Inkosi Zingelwayo
[97]
There was a failure of an heir in the iNdlunkulu. As a practical
solution to the problem, the
late Inkosi Zingelwayo affiliated MaGasa
I to the house of MaNgcobo, iNdlunkulu, as a seed-raiser. He then
placed, Bubula, the
son of MaGasa I, in the iNdlunkulu with a view to
providing an heir. The applicant contends that such a decision by the
late Inkosi
Zingelwayo was against the custom and tradition and the
wishes of the Dlomo Traditional Community.
[98]
The applicant argues that according to the custom and tradition
practised by the Dlomo Traditional
Community, MaBhengu was a rightful
wife to enter into the womb of MaNgcobo, as she was young. He goes on
to argue that MaBhengu
was the third in line according to the
hierarchy of the wives at the Nhlanhleni royal homestead.
[99]
Luthuli Sithole Attorneys found that MaGasa I was ikhohlwa of another
kraal, Qhudeni, and that
she was older than MaNgcobo. According to
tradition, she could not be implanted in the womb of MaNgcobo. They
went on to find that
when Bubula died three weeks before he was
anointed, Inkosi Zingelwayo’s wishes came to an end.
[100]
In the absence of Inkosi Zingelwayo’s nomination, Luthuli
Sithole Attorneys found that it was correct for
the uMndeni weNkosi
to revert back to the custom and tradition in order to solve the
problem. It is common cause that once the
late Inkosi has fixed the
status of his wives during his life time, the members of the uMndeni
weNkosi are not entitled to alter
such status, let alone for the
worse.
[22]
[101]   Members
of the uMndeni weNkosi are only entitled to confer status upon the
wives of the deceased Inkosi or family
head, if he died having not
fixed their status. In the present case, the late Inkosi Zingelwayo
fixed the status of his wives during
his lifetime. Interfering with
such status by the uMndeni weNkosi was unlawful and had the effect of
subverting customary law and
traditions, and thereby frustrated the
wishes of the late Inkosi. In addition, it was unfair and prejudicial
to MaGasa II, for
instance, who had been appointed as seed-raiser and
heir bearer by her late husband. Her children were thereby precluded
from succeeding
to Bubula, their half-brother.
1974uMndeni
weNkosi meeting with the resultant nomination of Zenzo
[102]
Following the wishes of the late Inkosi Zingelwayo, Bubula, the
oldest son of MaGasa I, was appointed Inkosi of
the Dlomo Traditional
Community after his death. However, his appointment was short lived
as he died of a snake bite prior to his
formal anointment. The
MaBhengu faction met on a night preceding the burial of Bubula and
resolved that Zenzo, the oldest son of
MaBhengu, should be nominated
for appointment as Inkosi and at the gravesite, on the following day,
Majubane without the approval
of the elders of the uMndeni weNkosi
announced that Zenzo would succeed as Inkosi.
[103]   The
clandestine appointment of Zenzo did not enjoy the support of the
senior members of the uMndeni weNkosi and
the community. Zenzo and
his supporters went behind the backs of the elders of the tribe and
had him quickly appointed by the Nkandla
Magistrate.
[104]   The
Commission correctly found that the appointment of Zenzo was
incompetent under customary law and traditions,
as it was done
without the sanction of the senior members of the uMndeni weNkosi. In
its own words, the Commission said in this
regard:
‘
It
became apparent that the clandestine decision to appoint Zenzo was
entirely wrong. It did not have the support of the tribe and
was not
the decision of the senior members of the Dlomo family. Instead Zenzo
Dlomo and his supporters went behind the backs of
the leaders of
[the] tribe and had him appointed quickly and surreptitiously by the
magistrate.’
[105]   It is
quite evident from the finding of the Commission that the 1974
uMndeni weNkosi meeting lacked legitimacy
and that it was unlawful.
It follows therefore that no lawful effect could be produced by such
a meeting, and as a result it was
invalid. In the circumstances, the
Commission correctly came to the conclusion that in terms of the
customs and traditions the
chieftainship of the Dlomo Traditional
Community resided with the house of MaGasa II. The contention by the
applicant that since
Bubula died three weeks before his anointment he
never became an Inkosi, lacks substance in that the uMndeni weNkosi
had unanimously
identified and nominated him for appointment. At the
time of his death, the letters of appointment had already been issued
to him.
His anointment in the circumstances was a mere formality, as
the actual appointment had already taken place.
[106]
Accordingly, the recommendation by Luthuli Sithole Attorneys that the
uMndeni weNkosi was correct in identifying
and nominating Zenzo, the
oldest son of MaBhengu, as heir and successor, was therefore wrong.
It was not based on genealogical
outcomes and the truth. The 1975
uMndeni weNkosi meeting which had been properly convened and
representative of the family put
it clearly that an Inkosi should
come from MaGasa II because she was affiliated to iNdlunkulu as the
seed-raiser and the bearer
of an heir.
A rightful heir and
successor
[107]   The
third respondent asserts that he is the rightful heir and successor
to the throne of the Dlomo Traditional
Community, and that in terms
of customary law and traditions the applicant has no legitimate claim
to the throne. According to
the third respondent the proper person
who should have succeeded Bubula was the second born son of MaGasa
II, Muntukaboni Jabulani
Dlomo, the third respondent’s
biological father.
[108]   It is
common cause that the Dlomo Traditional Community practises Zulu law,
customs and traditions when choosing
an Inkosi. In this regard
section 81(1) of the Natal Code of Zulu sets out the principles
applicable and the procedure followed
when the succession of an
Inkosi is determined. Succession
‘
come[s]
to pass upon and through males only in accordance with the following
table-
(a
)
the eldest son of the
indlunkulu
or
if he be dead such eldest son's senior male descendant:
(
b
)
failing such eldest son or any male descendant through him, the
second son of the
indlunkulu
, or if he be dead his senior male
descendant and so on through the sons of the
indlunkulu
and
their male descendants in due order of seniority:
(
c
)
if there be no son or male descendant of any son of the
indlunkulu
the eldest son of the house first affiliated to the
indlunkulu
or his senior male descendant and so on through the sons of such
first affiliated house and their male descendants in due order of

seniority:
(
d
)
if there be no son or male descendant of any son of the house first
affiliated to the
indlunkulu
the eldest son of the house
second affiliated to the
indlunkulu
or his senior male
descendant and so on through the sons of such house and their male
descendants in due order of seniority and
through the various
affiliated houses in the order of their affiliation:
(
e
)
If there be no heir in the
indlunkulu
or in any house
affiliated thereto, recourse will be had to the
iqadi
for a
general heir and thereafter to the affiliated
iqadi
houses in
order of their affiliation to the
iqadi
. If there be no heir
in any
iqadi
house, recourse will be had to the
ikhohlwa
with subsequent recourse to the affiliated
khohlwa
houses
in the order of their affiliation:
(
f
)
If there be no heir in the
iqadi
or
ikhohlwa
sections
of the family home, the father of the deceased, or if he be dead, the
family head's eldest brother of the same house or
his senior male
descendant and so on through the brothers of that house and their
male descendants in order of seniority:
(
g
)
If there be no brother of the deceased of the same house or male
descendant of any such brother,
the deceased's eldest brother of the
allied or affiliated house of higher rank or the next rank as the
case may be or his senior
male descendant and so on through the
brothers of such allied or affiliated house and their male
descendants in order of seniority
and thereafter through the brothers
of the remaining houses in order of rank and their male descendants:
(
h
)
If there be no brother of the deceased or male descendant of any
brother of any house, the
paternal grandfather and failing such the
foregoing principles shall in like manner be applied until the male
lines of next-of-kin,
both collaterals and ascendants, are
exhausted.’
[109]   MaGasa
I was affiliated and seed-raiser to iNdlunkulu, the house of
MaNgcobo. When MaGasa I died, her place was
taken by MaGasa II, as a
replacement. In that way, MaGasa II assumed all the rights and
obligations of her deceased sister, MaGasa
I, and virtually stepped
into her shoes. The affiliation and the seed-raiser status of MaGasa
I was thereby revived and resurrected.
The senior wife, MaNgcobo, who
was still alive, approved of the substitution of MaGasa II for MaGasa
I and she incorporated her
(MaGasa II) into her senior house as the
seed-raiser.
[110]
The author JC Bekker,
[23]
has
the following to say regarding the position and function of a
seed-raiser:
‘
.
. . if a family head marries a wife as seed-raiser to a main wife who
is barren or has died or whose customary marriage has been
dissolved,
the seed-raiser does not create a house, but is absorbed into the
house into which she has been placed; if the original
wife of that
house has died or been divorced, the seed-raiser takes her place in
all respects. The position of an intended seed-raiser
must be
publicly announced at the time of her marriage, otherwise she creates
a house which takes its normal rank in her husband’s
family
home.’
[111]   In this
case, MaGasa II satisfied all these requirements. Her status as being
an affiliate and seed-raiser in
the iNdlunkulu was entered into the
customary union register, and its announcement is substantiated by
the evidence tendered at
the Commission, and in particular, the
evidence by Makhosonke Cornelius Dlomo and Anthony Dlomo.
[112]   In the
circumstances, when Bubula died the uMndeni weNkosi should not have
looked further than the children of
MaGasa II, as substitute for
MaGasa I, for succession purposes. It is not correct that the uMndeni
weNkosi had no option but to
resort to customary laws and tradition.
MaBhengu was neither the de jure nor the de facto main wife in the
Nhlanhleni royal homestead.
[113]
MaGasa II was given all the responsibilities and obligations of the
seed-bearing wife. In such a position, capacity
and status, MaGasa II
was fully entitled to and used all the belongings of MaGasa I and
MaNgcobo, the undlunkulu. After their death
she was therefore
elevated through the status of being a seed-bearing wife into the
senior house, to the exclusion of all other
wives in the homestead.
It was common cause at the Commission that MaGasa II used the
belongings of MaGasa I and MaNgcobo, after
their death and that she
moved into their houses.
[24]
[114]   The
Commission correctly found that the concept of a ‘nanny’
or ‘nurse-maid’ or ‘child-minder’
was totally
foreign to the Dlomo Traditional Community. Anthony labelled it as
ridiculous when he testified before the Commission.
This also finds
support in the evidence of Magubane who testified in favour of the
Zenzo faction. The evidence clearly establishes
that MaGasa II was
purely married for the purposes of becoming a seed-raiser and an heir
bearer - not a child-minder.
[115]   The
evidence does not even establish that MaBhengu was the second
affiliated wife to iNdlunkulu. Instead, it establishes
that she was
on the ikhohlwa side, and therefore in the left-hand section of the
homestead. MaGasa II’s house was on the
right-hand section,
which is immediately subordinate to the great house (iNdlunkulu) and
precedes the left-hand section in regard
to succession to iNdlunkulu.
There must have been iqadi, however in this case it is not known
which house was iqadi. Iqadi is also
a right-hand house which is
established for the purpose of providing against the failure of an
heir in a senior or superior house.
The evidence establishes that
MaMsane was also in the ikhohlwa side, and she could therefore not
have been an iqadi. It is apparent
that had MaGasa I not been not
affiliated to the iNdlunkulu as a seed-raiser, she could have been
iqadi wife, regard being had
to the fact that her hut was on the
right-hand side.
[116]
MaBhengu, being an ikhohlwa, meant that recourse could only have been
had to her house, if there was no heir in
the affiliated house, in
the iqadi house and in the houses affiliated to it, in terms of s
81(1)
(e)
of the Natal Code of Zulu Law.
[117]   I now
turn to deal with the applicant’s contention that it is the
prerogative of the uMndeni weNkosi to
identify and nominate any
person for recognition as inkosi. In this regard, s 19 of the KZN
Governance Act, provides that:
‘
19   Recognition
of an
Inkosi
(1)
Whenever the position of an
Inkosi
is
to be filled, the following process must be followed-
(a)
Umndeni wenkosi
must,
within a reasonable time after the need arises for the position of
an
Inkosi
to
be filled, and with due regard to applicable customary law and
section 3-
(i)   identify
a person who qualifies in terms of customary law to assume the
position of an
Inkosi
after taking into account
whether any of the grounds referred to in section
21(1)
(a)
,
(b)
or
(d)
apply
to that person;
(ii)   provide
the Premier with the reasons for the identification of that person as
an
Inkosi;
and
(iii)   the
Premier must, subject to subsection (3) of this section and section
3, recognise a person so identified
in terms of subsection (1)
(a)
(i)
as
Inkosi
. . .’
[118]
Section 11(1)
(a)
of the Traditional Leadership and Governance Framework Act,
[25]
and s 8(1)
(a)
of the Traditional and Khoi-San Leadership Act
[26]
(which repealed the former), contain similar provisions.
[119]
While it is correct that it is the prerogative of the uMndeni weNkosi
to identify and nominate a suitable person
for recognition as Inkosi,
it must do so in terms of customary law, customs and traditions.
[27]
In this regard, Mossop J in
Mtungwa
and another v Premier of KwaZulu-Natal and others
,
[28]
remarked that:
‘
A
person is elevated to the position of iNkosi because of the
observance of the time-honoured practices of custom, tradition, and

the prescripts of customary law
.’
[120]   The
uMndeni weNkosi’s identification of a person is circumscribed
by the statutory requirement that the
person identified must, in
terms of customary law, custom and tradition qualify to assume the
positon of Inkosi.
[121]   It
therefore follows that the uMndeni weNkosi does not have an
unfettered prerogative to identify and nominate
any person for
recognition as an Inkosi simply because it prefers him to be an
Inkosi, irrespective of whether such person in terms
of customary
law, customs and tradition qualifies to assume such position.
Allowing the uMndeni weNkosi to do so will be subversive
of the
identification and nomination process and, ultimately, turn it into a
mockery.
[122]   In the
present case, the evidence has established that the applicant does
not in terms of customary law, custom
and tradition qualify to assume
the position of Inkosi of the Dlomo Traditional Community. He does
not have a legitimate claim
to the Dlomo chieftainship. In the
premises, the heir and successor should come from the house of MaGasa
II, the seed-raiser and
bearer of an heir in terms of customary law
and traditions. The applicant was therefore lawfully removed from the
position, and
has not made out any case for reinstatement.
Recommendation of
the second born son of MaGasa II for appointment instead of a male
issue of her first born son, Khumukani
[123]   Luthuli
Sithole Attorneys stated that if there was claim for chieftainship by
the MaGasa II faction, the first
born son of Khumukani should
succeed, and not Muntukaboni, the second born son of MaGasa II.
Firstly, Khumukani was disqualified
due to his conviction for the
murder of Zenzo Dlomo, his half-brother. As a result, he forfeited
his right to succeed. Accordingly,
he could not transfer a right to
his children which he did not have. Therefore, the succession to
chieftainship had correctly passed
on to the second born son of
MaGasa II, Muntukaboni Jabulani Dlomo, in terms s 81(1)
(c)
of
the Natal Code of Zulu Law. Secondly, little is known of the children
of Khumukani. They have shown no interest in the Dlomo
throne and,
consequently, they are not parties before this court. This is evident
from the confirmatory affidavit to the third
respondent’s
counter-application, filed by Vusi Emmanuel Dlomo, the firstborn son
of Khumukani, supporting the appointment
of the third respondent as
Inkosi of Dlomo Traditional Community.
Conclusion
[124]   The
applicant’s claim rests on two main pillars, firstly, that
MaBhengu, a royalty, could not be equated
to MaGasa I, a commoner,
and secondly, that MaBhengu was affiliated to iNdlunkulu and an
heir-bearer. Alternatively, that the uMndeni
weNkosi has the
prerogative to embark on an identification process and nominate any
person it prefers as Inkosi.
[125]
However, the applicant’s averments have not been substantiated
by any concrete and tangible evidence. The
customary marriage
register is silent on whether MaBhengu was a daughter of an Inkosi
and affiliated to iNdlunkulu (the main house).
It has also not been
alleged that the lobolo of MaBhengu had been paid out of the property
of iNdlunkulu, and that she could have
thereby been deemed to be
somehow affiliated to iNdlunkulu.
[126]
In addition, the applicant could not sustain the allegation that
MaBhengu was a daughter of Inkosi and therefore
entitled to enjoy a
better right than a commoner. To the contrary, the customary
marriages register describes the status of her
father as an induna.
Absent proof that MaBhengu was attached to the main house upon her
marriage, it could reasonably be inferred
that she was simply an
unattached woman, creating a junior house.
[29]
[127]   In
terms of statutory provisions, the uMndeni weNkosi has a prerogative
to identify and nominate a person for
recognition as an Inkosi
provided that such person is in terms of customary law, custom and
tradition qualified to assume the position
of an Inkosi. The
applicant has not proved that he qualifies to assume the position of
Inkosi.
[128]
An Inkosi under traditional law is appointed on the basis of the
status of his mother.
[30]
Regard being had to the fact that the status of MaBhengu was not
fixed, Zenzo had no basis to succeed to the chieftainship, and
so too
the applicant, as he alleges that he is entitled to succeed through
MaBhengu. In the premises, the applicant has failed
to prove his
claim to chieftainship of the Dlomo Traditional Community Leader.
[129]   On the
other hand, that MaGasa II was affiliated to iNdlunkulu, and that she
was a seed-raiser is borne out by
evidence tendered before the
Commission as well as the customary union register. The resolution
taken at the properly convened
and fully representative 1975 uMndeni
weNkosi meeting, nominating Khumukani, confirmed that MaGasa II was
affiliated to iNdlunkulu
and a seed-bearer, and that, therefore, an
Inkosi should come from her house.
[130]   The
applicant’s contention that the third respondent cannot expect
to succeed his father, Muntukaboni, because
Muntukaboni was not
appointed by the uMndeni weNkosi but by the Secretary to the
Department of the Chief Minister, KwaZulu Government
or the
Commission as well as his allegation that Muntukaboni’s
appointment process was somehow manipulated, is unfounded
and
inappropriate. Indeed, the appointment of Muntukaboni resulted from
the findings and recommendations of the Commission which
was
established through statutory provisions to inquire into the rightful
heir and to recommend to the Cabinet who the rightful
heir was. All
the prominent members of the uMndeni weNkosi and persons of authority
in the Dlomo Traditional Community recommended
and supported the
appointment of Muntukaboni as Inkosi. On the basis of the evidence
tendered before it, the Commission made findings
and recommendations,
which, in my view were correct.
[131]
Khumukani was disqualified from succeeding to Bubula on the ground
that he had a conviction for murder. The members
of the uMndeni
weNkosi suggested that Muntukaboni would be a better candidate for
appointment for the reasons stated above. The
chieftainship was still
within the house of MaGasa II, an heir bearing wife, where it
belonged. Luthuli Sithole Attorneys misdirected
themselves on the
question of facts, customary law and tradition when concluding,
firstly, that MaGasa II was an ikhohlwa of the
Qhudeni royal
homestead and older than MaNgcobo in terms of age, as such a finding
is not substantiated by any evidence. The evidence
established that
the late Inkosi Zingelwayo only fixed the status of his wives when
they were at Nhlanhleni royal homestead. Secondly,
they misdirected
themselves in finding that after the death of Bubula, the members of
the uMndeni weNkosi where entitled to revert
to customs and
traditions in order to resolve the problem of succession. Prior to
such finding, Luthuli Sithole Attorneys had established
that the
wishes of an incumbent Inkosi are binding on the members of the
traditional community if an incumbent Inkosi had announced
them. It
was well-known how the late Inkosi Zingelwayo had ranked his wives
and that he appointed Bubula as his successor. This
was the position
such members intended to change since they were of the view that such
an action by the late Inkosi was against
customary law and traditions
and Luthuli Sithole Attorneys subscribed to such a view of the
members of the uMndeni weNkosi. Such
members not only altered the
status of the wives, but also changed it for the worse for MaGasa II
and her children.
[132]   MaGasa
II had specifically been married to replace MaGasa I as the
seed–raiser and an heir bearer, and thereby
revived the
latter’s house. The unlawful nomination of Zenzo as the next
Inkosi caused MaBhengu to wrongly precede MaGasa
II and for her
children to preclude the children of MaGasa II from succeeding
Bubula, their half-brother. It is common cause that
members of the
uMndeni weNkosi were not entitled under customary law and tradition
to alter the status of the wives after the death
of the late Inkosi
Zingelwayo. By their conduct, the members of the uMndeni weNkosi had
therefore subverted customary law, custom
and tradition and such
conduct was, accordingly, unlawful and wrongful.
[133]   Luthuli
Sithole Attorneys also misdirected themselves in recommending that
the first respondent should recognise
the applicant as Inkosi. The
evidence led at the Commission established that the meeting which
culminated in the appointment of
Zenzo was improperly convened,
clandestine and not supported by the traditional community and was
not sanctioned by the senior
members of the uMndeni weNkosi. Such a
meeting was therefore unlawful and invalid, and could not produce a
lawful result. The end
result is that Zenzo was not legitimately and
lawfully identified and nominated for appointment, and was thus not
lawfully appointed.
[134]   Luthuli
Sithole Attorneys were wrong and demonstrated a lack of knowledge of
customary law, customs and tradition
when it concluded that the death
of Bubula ended his lineage and the wishes of the late Inkosi
Zingelwayo. The death of MaGasa
I did not create a vacuum in her and
MaNgcobo’s house nor did it affect the hierarchy and status of
the late Inkosi Zingelwayo’s
wives. This is especially if
regard is had to the fact that MaGasa II stepped into the shoes of
both MaGasa I and MaNgcobo, as
the seed-raiser and an heir bearer,
and thereby revived and resurrected both houses as one. In the
circumstances, the death of
MaGasa I did not create a space for
MaBhengu since the position and status of MaGasa I and MaNgcobo had
been taken by MaGasa II
who substituted both of them.
[135]
The decision of the faction of the uMndeni weNkosi that identified
and nominated Zenzo as well as his son, the
applicant, for
appointment as Inkosi for Dlomo Traditional Community was based on
false premises. Firstly, that MaBhengu was the
daughter of an Inkosi
who could therefore not compete with MaGasa II, a commoner and,
secondly, that she was affiliated in iNdlunkulu.
Both assertions are
not substantiated by any evidence. In addition, that the uMndeni
weNkosi has every right in law to embark on
a process of identifying
and nominating any person for recognition as an Inkosi. In
identifying and nominating a suitable person
for recognition as an
Inkosi, the uMndeni weNkosi must apply customary law, customs and
traditions.
[31]
This is also
required by statute. The Premier is obligated to ensure that such
process was in accordance with customary law, customs
and traditions.
The evidence tendered before the Commission established that Zenzo,
in terms of customary law and tradition, did
not qualify to assume
the position of an Inkosi and so too his son, the applicant.
[136]   In the
premises, the legitimacy or appropriateness of identifying and
nominating Zenzo, and later his son, the
applicant, as a successor to
the throne falls away, and so too the applicant’s claim to the
throne. As the matter relating
to the disputed chieftainship was
finally dealt with when Chetty J granted the order withdrawing the
applicant’s recognition
as an Inkosi of the Dlomo Traditional
Community, the matter is now also res judicata between the parties.
[137]   The
third respondent has, therefore, succeeded in proving his claim to
chieftainship, and in my view, his claim
is legitimate and genuine.
Since there is no other contender from the house of MaGasa II, and
the third respondent has unanimously
been identified and nominated
for recognition as Inkosi of the Dlomo Traditional Community, and the
matter has since 1973 been
the subject of investigations and a
Commission, with resultant loss of life, I do not deem it necessary
and prudent to refer the
matter back to the uMndeni weNkosi for
reconsideration and resolution. When this court granted an order in
2016 it also did not
refer the matter to the uMndeni weNkosi for
consideration and resolution, because it was then finalised. The
overwhelming evidence
has established that under customary law,
custom and tradition, the third respondent is the undisputed heir and
successor to the
throne of the Dlomo Traditional Community,
eMakhabeleni.
Costs
[138]   The
evidence establishes that the applicant was lawfully removed from the
positon he held as Inkosi. He did not
challenge the order which had
resulted in the withdrawal of his recognition as Inkosi. Instead, he
instituted fresh proceedings,
purportedly seeking an order reviewing
and setting aside the decision of the first respondent not
recognising him as Inkosi, in
defiance of the court order.
[139]   It can
reasonably be inferred from his conduct that he knew that does not
qualify to hold the position of Inkosi.
[140]   The
applicant thereby unnecessarily hauled the third respondent to court
to oppose a frivolous application and,
consequently, impoverished
him. In any event costs must follow the results.
Order
[141]   The
following order is granted:
1.
The main application is dismissed with costs.
2.
It is declared that Mandlakhe Justice Dlomo is the Inkosi of the
Dlomo Traditional
Community.
3.
The first and second respondents are directed to do all things
necessary in compliance
with the provisions of s 19 of the
KwaZulu-Natal Traditional and Governance Act 5 of 2005 to appoint
Mandlakhe Justice Dlomo as
Inkosi of the Dlomo Traditional Community.
4.
The first and second respondents are directed, after due compliance
with paragraph
3, to issue a certificate appointing Mandlakhe Justice
Dlomo as Inkosi of the Dlomo Traditional Community.
5.
The applicant is directed to pay the costs of the main and
counter-applications.
MADONDO DJP
Date
Reserved:
28
April 2023
Date
delivered:
29
May 2023
Counsel
for Applicant:
Adv
Zondi
Instructed
by:
Ms
Dlamini Attorneys
Email:
msdlaminiattorneys@gmail.com
TEL:
0710156389
Counsel
for the Respondents:
Adv
Van Jaarsveld
Instructed
by:
PKX
Attorneys
2
nd
Respondent
TEL:
033-3475354
REF:
M POTGIETER
Kunene
Attorneys
3
rd
Respondent
Email:
kunene.attorneys@gmail.com
Email:
info@kuneneattorneyspmb.co.za
TEL:
033 3453767
REF:
MR KUNENE/ad/D0015/21
[1]
Act
5
of
2005.
[2]
For the sake of convenience, the first names of all the parties will
be used throughout the judgment. No disrespect is intended
thereby.
[3]
KwaZulu
Act on the Code of Zulu Law 16 of 1985.
[4]
Recognition
of Amakhosi as Contemplated in section 19(2)
(a)
of
the Kwazulu-Natal Traditional Leadership and Governance Act,
2005,
PN 16
,
KZN
PG
913,
7 March 2013.
[5]
Promotion
of Administrative Justice Act 3 of 2000
.
[6]
Withdrawal
of Recognition of Mkhululeki Cyvion Dlomo as Inkosi of the Gcothoyi
Traditional Community, as contemplated in
section 21(1)
(c)
of
the Kwazulu-Natal Traditional Leadership and Governance Act,
2005,
PN 99
,
KZN
PG
1680,
1 June 2016.
[7]
Municipal
Manager OR Tambo District Municipality and another v Ndabeni
[2022] ZACC 3
;
2022 (10) BCLR 1254
(CC) para 24;
Trade
Fairs and Promotions (Pty) Ltd v Thomson and another
1984
(4) SA 177
(W) at 187.
[8]
Patmar
Explorations (Pty) Ltd and others v Limpopo Development Tribunal and
others
[2018] ZASCA 19
;
2018 (4) SA 107
(SCA) para 4; see also
Ex
Parte Minister of Safety and Security and others: In re S v Walters
and another
[2002]
ZACC 6
;
2002
(4) SA 613 (CC);
2002
(7) BCLR 663 (CC).
[9]
Section
165(5) of the Constitution.
[10]
S
v Molaudzi
[2015] ZACC 20
;
2015 (2) SACR 341
(CC);
2015 (8) BCLR 904
(CC)
para
14.
[11]
Para
9.
[12]
African
Farms and Townships Ltd v Cape Town Municipality
1963
(2) SA 555
(A) at 564C-D.
[13]
Bertram
v Wood
(1893)
10 SC 177
at 180.
[14]
African
Farms and Townships Ltd v Cape Town Municipality
1963
(2) SA 555
(A) at 564D.
[15]
African
Farms and Townships Ltd
at
364F.
[16]
Natal
Code of Zulu Law Proclamation R151 of 1987.
[17]
Section
1.
[18]
Section
75(1) of the Code of Zulu Law.
[19]
Annexure
‘F’.
[20]
Section
75(3).
[21]
Section
44 of the Natal Code of Zulu Law.
[22]
See
also J C Bekker
Seymour’s
Customary Law Southern Africa
5 ed (1989) at 129 (‘
Seymour’s
Customary Law
’);
Dhlamini
v Dhlamini
1939 NAC (T&N) 95.
[23]
Seymour’s
Customary Law
at
132.
[24]
Commission’s
report at
6.
[25]
Traditional
Leadership and Governance Framework
Act
41 of 2003
.
[26]
Traditional
and Khoi-San Leadership Act 3 of 2019
.
[27]
Maxwele
Royal Family and another v Premier of the Eastern Cape Province and
others
[2021]
ZAECMHC 10 para 68;
Molosi
and others v Phahlo Royal Family and others
[2022] ZAECMHC 101;
[2022]
3 All SA 160
(ECM)
;
Zulu
v Mathe and others
[2022] ZAKZPHC 6 paras 91 and 99.
[28]
Mtungwa
and another v Premier of Kwazulu-Natal and others
[2022] ZAKZPHC 74
para
41.
[29]
See
Seymour’s
Customary Law
at
130;
Dhlamini
v Dlamini
1939 NAC (T&N) 95.
[30]
Madondo
MI
The
Role of the Traditional Courts in the Justice System
(2017) para 45.
[31]
Umndeni
(Clan) of Amantungwa and others v MEC, Housing and Traditional
Affairs, KwaZulu-Natal and another
[2010] ZASCA 142
;
[2011] 2 All SA 548
(SCA).