Zulu v Mathe and Others (2751/2021P 2752/2021P) [2022] ZAKZPHC 6 (2 February 2022)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
>>
2022
>>
[2022] ZAKZPHC 6
|

|

Zulu v Mathe and Others (2751/2021P 2752/2021P) [2022] ZAKZPHC 6 (2 February 2022)

REPORTABLE
IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case Number: 2751/2021P
Consolidated
with Case No: 2752/2021P
In the matter between:
QUEEN SIBONGILE
WINNIFRED
ZULU

APPLICANT
and
QUEEN BUHLE
MATHE

FIRST RESPONDENT
QUEEN SHIYIWE
MANTFOMBI DLAMINI

SECOND RESPONDENT
QUEEN THANDEKILE JANE
NDLOVU

THIRD RESPONDENT
QUEEN NOMPUMELELO
MCHINZA

FOURTH RESPONDENT
QUEEN ZOLA ZELUSIWE
MAFU

FIFTH RESPONDENT
PRINCESS THEMBI
NDLOVU

SIXTH RESPONDENT
PRINCE MBONISI
ZULU

SEVENTH RESPONDENT
PRINCE THULANI
ZULU

EIGHT RESPONDENT
PRINCESS LINDI
ZULU

NINTH RESPONDENT
PRINCE VULINDLELA
ZULU

TENTH RESPONDENT
PRINCE MXOLISI
ZULU

ELEVENTH RESPONDENT
PRINCE MATHUBA
ZULU

TWELFTH RESPONDENT
QUEEN MAVIS
ZUNGU

THIRTEENTH RESPONDENT
OTHER PERSONS WHO MAY
BE
MEMBERS
OF
UMNDENI
WESILO
FOURTEENTH RESPONDENT
MEMBERS OF THE ROYAL
FAMILY
LISTED IN ANNEXURE
‘A’

FIFTEENTH RESPONDENT
SIPHO JEROME
NGWENYA

SIXTEENTH RESPONDENT
THE PREMIER OF
KWAZULU-NATAL

SEVENTEENTH RESPONDENT
THE PRESIDENT OF THE
REPUBLIC
OF
SOUTH
AFRICA

EIGHTEENTH RESPONDENT
THE MASTER OF THE HIGH
COURT

TWENTIETH RESPONDENT
SANLAM
TRUST (PTY) LTD

TWENTY FIRST RESPONDENT
Case Number: 2751/2021P
Consolidated
with Case No: 2752/2021P
In the matter
between:
PRINCESS NTANDOYENKOSI
ZULU

FIRST APPLICANT
PRINCESS NTOMBIZOSUTHU
ZULU-DUMA

SECOND APPLICANT
and
QUEEN BUHLE
MATHE

FIRST RESPONDENT
THE EXECUTOR OF THE
ESTATE LATE:
HER MAJESTY QUEEN MS
DLAMINI-ZULU

SECOND RESPONDENT
QUEEN THANDEKILE JANE
NDLOVU

THIRD RESPONDENT
QUEEN NOMPUMELELO
MCHIZA

FOURTH RESPONDENT
QUEEN ZOLA ZELUSIWE
MAFU

FIFTH RESPONDENT
THE MEMBERS OF THE
ROYAL FAMILY
LISTED IN ANNEXURE
‘A’

SIXTH RESPONDENT
SIPHO JEROME
NGWENYA

SEVENTH RESPONDENT
SANLAM TRUST (PTY)
LTD

EIGHTH RESPONDENT
PREMIER OF KWAZULU
NATAL PROVINCE

NINTH RESPONDENT
THE MASTER OF THE HIGH
COURT

TENTH RESPONDENT
THE PRESIDENT OF THE
REPUBLIC OF
SOUTH
AFRICA

ELEVENTH RESPONDENT
PRINCE MISUZULU
ZULU

TWELFTH RESPONDENT
THE MEMBER OF THE
EXECUTIVE COUNCIL
FOR COOPERATIVE
GOVERNANCE AND
TRADITIONAL
AFFAIRS

THIRTEENTH RESPONDENT
Case
number: 10879/2021P
In the matter between:
PRINCE MBONISI
BEKITHEMBA
ZULU

APPLICANT
and
PRINCE MISUZULU
KAZWELITHINI ZULU

FIRST RESPONDENT
PRINCE MANGOSUTHU
BUTHELEZI

SECOND RESPONDENT
THE PRESIDENT OF THE
REPUBLIC
OF SOUTH
AFRICA

THIRD RESPONDENT
PREMIER OF
KWAZULU-NATAL PROVINCE

FOURTH RESPONDENT
THE HOUSE OF
TRADITIONAL AND KHOI-SAN
LEADERS OF
KWAZULU-NATAL PROVINCE

FIFTH RESPONDENT
THE HOUSE OF
TRADITIONAL AND KHOI-SAN
LEADERS,
NATIONAL

SIXTH RESPONDENT
OTHER PERSONS WHO MAY
BE MEMBERS
OF
UMNDENI
WESILO
SEVENTH RESPONDENT
MEMBERS OF THE ZULU
ROYAL FAMILY
AS LISTED IN ANNEXURE
‘A’ TO
THE
NOTICE OF
MOTION

EIGHTH RESPONDENT
ORDER
The
following orders are granted:
In case number
2751/2021P:
The
application is dismissed with costs, such costs to include those
costs consequent upon the employment of senior counsel.
In case number
2752/2021P:
1.
The execution of the last will and testament of his late Majesty King
Goodwill
Zwelithini Zulu be and is hereby suspended pending the final
determination of the action referred to in paragraph (3) of this
order;
2.
The seventh respondent be and is hereby interdicted and restrained
from performing
any functions or duties assigned to him in terms of
the provisions of the last will and testament of his late Majesty
Goodwill
Zwelithini Zulu;
3.
The applicants are directed to institute an action challenging the
authenticity
and validity of the will referred to in paragraph (1)
above, within fifteen (15) days of the date of this order, failing
which
the relief granted in paragraph 1 of this order shall lapse;
4.
The costs are reserved for the trial court; and
5.
The application for the relief sought in prayers (c), (d), and (e)
and (f) of
the notice of motion is dismissed with costs, such costs
to include costs consequent upon the employment of two counsel.
In case number
10879/2021P:
The
application is dismissed with costs, such costs to include the costs
of two counsel.
JUDGMENT
MADONDO
AJP
Introduction
[1]
Three applications are brought by various members of the Zulu Royal
Family against
certain members of the same family and other parties.
The relief sought is, in some instances similar, but it is also
different.
Since these matters arose from almost the same facts and
circumstances against the same or slightly different respondents and
are
interrelated, this court has deemed it appropriate to consolidate
case numbers 2751/2021P, 2752/2021P and 10879/21P respectively
to
facilitate their hearing and to avoid conflicting judgments on the
same set of facts. The first two applications were consolidated
on 25
May 2021, and on 2 December 2021 this court simply adjourned the
third application and ordered that it should be heard together
with
the other two applications.
Queen Sibongile
Winnifred Zulu v Queen Buhle Mathe and others - 2751/2021P
Introduction
[2]
In this application, Queen Sibongile Winnifred Zulu (‘the
applicant queen’),
being the first wife of the late King
Goodwill Zwelithini ka Bhekuzulu Zulu (‘the late
Isilo
’)
who passed away on 12 March 2021, seeks an order in the following
terms:
(a)
a
declaratory order that she was married to the late
Isilo
in terms of civil law, in community of property and profit and loss,
and that her marriage was subject to the Marriage Act 25 of
1961;
(b)
an
order directing the executor of the estate of the late
Isilo
to disregard and to not give effect to any of the provisions of the
last will and testament of the late
Isilo
which is at variance with the terms of the declaratory order;
(c)
interdicting
the sixth to the fourteenth respondents from declaring, endorsing,
proclaiming or appointing the second respondent
(Queen Shiyiwe
Manthfombi Dlamini) or any of the respondent queens as
ibambabukhosi
or successor to the throne as
Isilo
samaZulu pending the final determination of the relief sought herein;
(d)
interdicting
the seventeenth and eighteenth respondents from enforcing and putting
into effect any decisions that may have already
been taken to appoint
or to recommend the appointment of the second respondent or any other
respondent queen as regent or successor
to the throne by giving
effect to the will pending the finalisation of this application;
(e)
directing
the seventeenth respondent to furnish and deliver to the applicant
queen’s attorneys the last list (if any) of the
Zulu Royal
Family which was signed and submitted by the late
Isilo
to the office of the Premier of KwaZulu-Natal as contemplated by the
provisions of section 4(1) of the KwaZulu-Natal Zulu Royal
House
Trust Act 3 of 2018 (the Royal House Trust Act) and directing the
applicant, with the leave of this court, to publish the
order in the
Ilanga, Isolezwe and Mercury newspapers so that any person or persons
who are not cited herein and whose membership
of the
uMndeni
weNkosi (weSilo)
is unknown to the applicant queen and who has a direct and
substantial interest in the application or whose rights will be
affected
by the relief  sought, are informed.
[3]
However, the applicant queen amended prayer 2(b) and 2(c) of her
notice of motion
to read as follow:
(b)
A declaratory order is sought that the late
Isilo
was
precluded from entering into a customary union with any other person
while the marriage between him and the applicant queen
subsisted;
(c)
That the executor excises and disregards any provision of the will
that is at variance
with the marriage being in community of property.
The
applicant queen indicated further that she was not persisting with
paragraphs 2(d) and 2(e) of her notice of motion, since the
relief
sought therein had been overtaken by the passing of Her Majesty Queen
Shiyiwe Manthfombi Dlamini-Zulu (‘the late Queen’).
She
now only seeks relief in terms of prayers 2(a), 2(b) and 2(c) of her
notice of motion, as amended.
Parties
[4]     The
applicant is Queen Sibongile Winnifred Zulu, the first wife and one
of the widows of the late
Isilo
,
of kwaKhethomthandayo Palace
.
[5]     The
first to fifth respondent are the wives (now widows) of the late
Isilo
of various palaces. The sixth respondent is Princess Thembi Ndlovu of
E 9003 Madadeni, Newcastle, a sister to the late
Isilo
.
The seventh respondent is Prince Mbonisi Zulu, a half-brother to the
late
Isilo
of Ikhwezi homestead, Lindizwe area, Nongoma. These respondents, as
well as the eighth to thirteenth respondents, are all cited
as
members of the
uMndeni
weSilo
.
[6]     The
fourteenth respondent consists of all unknown members of
uMndeni
weSilo
as contemplated in the definition section of the KwaZulu-Natal
Traditional Leadership and Governance Act 5 of 2005 (‘the
KZN
Act’) but whose names and identity are not known to the
applicant. The fifteenth respondent are members of the Zulu Royal

Family as contemplated in the definition section of the KZN Act, read
with section 4 of the Royal House Trust Act. The sixteenth
respondent
is Mr Sipho Jerome Ngwenya, the chairperson of the Ingonyama Trust
Board, cited herein as the person who is assigned
certain duties in
terms of the provisions of the last will of the late
Isilo
,
and as an interested party in this application.
[7]     The
seventeenth respondent is the Premier of the KwaZulu-Natal Province.
The eighteenth respondent
is the President of the Republic of South
Africa and the nineteenth respondent is the Master of the High Court.
The twentieth respondent
is Sanlam Trust (Pty) Ltd, a private company
incorporated and registered in terms of the company laws of South
Africa. It is cited
herein as it is designated and appointed in terms
of the will of the late
Isilo
as the executor of the joint estate.
Factual background to
the applicant queen’s application
[8]     On
27 December 1969, the applicant queen and the late
Isilo
entered into a marriage in community of property and of profit and
loss, regulated by the Marriage Act 25 of 1961. The applicant
queen
contends that as a consequence of that marriage, the late
Isilo
could not enter into any other marriage, whether civil or customary.
At the time, the late
Isilo
was not yet anointed as king but was a prince elect. The Zulu family
paid ilobolo to the applicant queen’s family as per
Zulu
customs and traditions. However, her family chose that she and the
late
Isilo
should marry in accordance with Christian rites.
[9]
During the subsistence of their marriage, the late
Isilo
engaged in other love relationships. These relationships culminated
in customary celebrations of such unions between the late
Isilo
and the first to fifth respondents. This happened despite the fact
that civil law did not recognise polygamy. During 1981, the
now
defunct KwaZulu Government passed a Bill which was intended to amend
the Natal Code of Zulu Law and sections 22 and 23 of the
Black
Administration Act 38 of 1927. This dealt with the consequences of
marriages by Christian rites and succession. The old Natal
Code
prohibited a man from taking a wife or wives by customary union in
addition to a wife by Christian rites. However, the Bill,
which would
make it possible for a man to take customary wives even after a
marriage by Christian rites thereby restoring the Zulu
custom to men
married by Christian rites, was not enacted into law.
[10]
On 29 November 2016, the late
Isilo
made his last will and testament. However, the applicant queen does
not wish to embroil herself in the challenge by the princesses

regarding the validity of such will. Her interest is only to assert
her rights as the wife of the late
Isilo
in terms of her civil marriage. She has confined her claim to the
assets of the joint estate.
[11]
In his will, the late
Isilo
states that in the event of the applicant queen seeking to assert her
rights, she will be disinherited of all rights in the Royal
Household
Trust, and that her name would be removed, and all benefits derived
therefrom would be terminated with immediate effect.
Such a clause,
according to the applicant queen, is against the rule of law and is
contra
bonos mores
or in conflict with the laws of our country.
[12]
The applicant queen categorically states that she has absolutely no
intention to evict the first
to fifth respondents from the palaces
that they presently occupy by virtue of their status as the wives of
the late
Isilo,
or their children, or any person lawfully occupying the palaces
through them, nor does she have an intention to cause friction
or
ructions in the Royal Family. Instead, she wants all the descendants
of the late
Isilo
to be treated equally, irrespective of whether they are born of civil
or customary marriages. They should not be deprived of any
title,
right or privilege they have obtained through their birth as children
of the late
Isilo
.
[13]
She, further, states that at the time of the death of the late
Isilo,
his marriage to the applicant queen still subsisted, notwithstanding
the fact that the
Isilo
had entered into subsequent customary marriages with the first to
fifth respondents. These unions are only recognised to the extent

provided for in the Recognition of Customary Marriages Act 120 of
1998 (‘Recognition Act’). However, the unavoidable

consequence of the marriage between the applicant queen and the late
Isilo
is that their entire estate is owned jointly and in equal shares by
them, each owning 50% of the joint estate. In her contention
the
disposition of the entire estate by the late
Isilo
as if he was the sole owner of the estate is legally incompetent and
impermissible. According to the applicant queen, half of the
estate
must be determined and set aside as a portion that may be distributed
in terms of the will. However, the clauses of the
will permitting the
disinheritance are unenforceable. Should the second respondent be
appointed as
ibambabukhosi
,
she would be entitled to dispose of and alienate the property of the
late
Isilo
and it is necessary to obtain an order that 50% of the joint estate
belongs to the applicant queen.
[14]
The applicant queen has averred that in terms of customs and
practices, the second respondent
is not eligible to ascend to the
throne, the reason being that she is not born of the Zulu Royal
Family. It is also averred that
her customary marriage does not
entitle her to ascend the throne. It was also contented that her
appointment, either as
ibambabukhosi
or the Monarch must comply with the
Traditional Leadership and
Governance Framework Act 41 of 2003
.
[1]
[15]
The documents reporting the estate of the late
Isilo,
including his last will, were only lodged with the Master of the High
Court, the twentieth respondent, on 6 May 2021 in terms of
section
8(1) of the Administration of Estates Act 66 of 1965 (‘the
Estates Act’). The will was registered and accepted
on the same
day under file no 9108/2021DBN in terms of section 8(3) of the
Estates Act. The will is prima facie in compliance with
the
requirements of the
Wills Act 7 of 1953
, save for the deletion and
amendment found in paragraph 15 at page 5 of the will. Such deletion
and amendment related to the deletion
of an identity number of a
beneficiary mentioned in the will and was replaced with another
number. This, according to the Master
of the High Court, is not to be
considered in interpreting the will as the deletion and amendment
does not comply with
section 2(1)
(b)
(iii)
of the
Wills Act, in
that the amendment is not identified by the
signature of the two witnesses unless it is accepted by the court.
The inclusion of
an identity number of a person mentioned in a will
is according to the Master of the High Court not a requirement of the
Wills Act.
Preliminary
issues
Ruling
[16]     Before
the commencement of this matter, Mr Redman for the applicant queen,
indicated that he would
seek an order declaring the subsequent
marriages of the late
Isilo
with the other queens to be invalid. He was undecided as to whether
or not he intended to bring an application for my recusal since
there
was a rumour that I had attended or presided over one of the
subsequent marriages of the late
Isilo
.
This court had to first determine whether on the papers, the
applicant queen asked this court to determine and make a finding
on
the validity of the subsequent marriages of the late
Isilo
with other queens. It appears clearly from the papers that no such
relief is sought. Mr Redman then sought reliance on the words
that
the late
Isilo
was ‘precluded from entering into a customary union with any
other person while the marriage between him and the applicant
still
subsisted’. He argued that this court should read the words
that the subsequent marriages of the late
Isilo
with other queens were invalid into the words ‘the king was
precluded’.
[17]     The
proposed inclusion of these words, in my view, would render the
relief sought to be at variance
with the averments of the applicant
queen in her founding and replying affidavits, and against her wishes
as the declaratory order
that the subsequent marriages of the late
Isilo were invalid would impact on the legitimacy of the children of
the late
Isilo
born
of such marriages
[18]     The
court ruled that it had not pertinently and pointedly been asked to
determine the validity
of the subsequent marriages of the late
Isilo
and his other wives, and it would therefore not be just and equitable
to read that ‘the subsequent marriages of the late
Isilo
with the other queens were invalid’ into the word ‘precluded’.
Application to
amend
[19]
Mr Redman then sought to amend, from the bar, the notice of motion to
include the prayer that
‘all subsequent marriages between the
late
Isilo
and first to fifth respondents are declared invalid’. Mr
Madonsela, for the second, sixth and twelfth respondents, objected
to
such amendment on the grounds that the respondents had at all
relevant times been made to believe that the validity of the
subsequent marriages had not been in issue, and consequently this was
not the case they had been expecting to meet. He further submitted

that should the amendment be granted, the relief sought would be at
variance with the applicant queen’s papers. Mr Madonsela
and Mr
Topping for the third, fourth and seventh respondents, argued that
the intended amendment would cause an injustice to the
respondents
which could not be compensated for by an order of costs. The
respondents could not be put in the same position in which
they were
when the pleading which was sought to amended was filed. The addition
of the new prayer, according to Mr Madonsela, entailed
the
introduction of new cause of action. The amendment sought would not
only prejudice the first to fifth respondents, as the late
Isilo
’s
queens, but it would have far-reaching consequences even to their
children, since their legitimacy would be at issue. Mr
Madonsela
argued that the application to amend should timeously have been
brought under Uniform
rule 28.
Mr Redman contended that the
invalidity of the subsequent marriages would only impact on the
division of the joint estate.
[20]
Rule 28(1)
sets out the procedure to be followed with regard to an
amendment and states that
‘
[a]ny
party desiring to amend a pleading or document other than a sworn
statement, filed in connection with any proceedings, shall
notify all
other parties of his intention to amend and shall furnish particulars
of the amendment’.
Rule
28(10)
further provides that
‘
[t]he
court may . . . at any stage before judgment grant leave to amend any
pleading or document on such other terms as to costs
or other matters
as it deems fit’.
[21]
The application to amend was dismissed on the grounds that the
applicant queen had not followed
the procedure set out in the Uniform
rules. The applicant queen had applied for an amendment at a very
late stage of the proceedings
and had not advanced any reasons as to
why it had not timeously been raised so as to enable proper
investigation and responses
thereto by the first to the fifth
respondents, which was to the prejudice of not only those respondents
but to all of those who
may adversely be affected by the granting of
the relief sought. This was the case, notwithstanding Prince
Mangosuthu Buthelezi’s
comments in the second, sixth and
twelfth respondents’ answering affidavit, filed in July 2021,
that the applicant queen’s
averments as to the validity of the
subsequent marriages were not clear and that he would assume that
their validity was not in
issue. The applicant queen failed to
advance any reasonably satisfactory account for a delay in bringing
the application to amend.
Application for my
recusal
[22]
The applicant queen thereafter abandoned her application for my
recusal and argued the matter.
However, on 17 January 2022, the
registrar brought it to my attention that the applicant had filed a
notice of an application for
my recusal, which was to be enrolled for
25 January 2022. At the time it was not complete in that the person
who had deposed to
the founding affidavit was not even the applicant
queen but was her daughter, Ms Ntandoyenkosi Zulu. There was an
undertaking that
a confirmatory affidavit by the applicant queen
would be filed before 25 January 2022. The notice had also not yet
been served
on the respondents and all interested parties. On 25
January 2022, there was no appearance and nothing was heard of the
applicant
or her legal representative. The respondents were also not
in attendance and there was no indication that any notice of set down

had been served on them. On enquiring from the registrar, I
discovered that it had not been enrolled at all. I must add that at

the time that the application was brought to my attention on 17
January 2022, the matter had already been finalised on 12 January

2022, and judgment had been reserved on that day.
The Issue
[23]
The remaining issue is whether the applicant queen is entitled to a
declaratory order
Analysis
[24]
In
Rail
Commuters Action Group v Transnet Ltd t/a Metrorail
,
[2]
the Constitutional Court stated that a declaratory order was:
‘
a
flexible remedy which can assist in clarifying legal and
constitutional obligations
in
a manner which promotes the protection
and
enforcement of our Constitution and its values.’
It
was argued on behalf of the applicant queen that the status of her
civil marriage and the subsequent customary unions requires
clarity
and judicial determination. According to Mr Redman, the determination
of these issues will directly have an impact on the
patrimonial
consequences of the applicant queen’s marriage and will affect
the manner in which the estate of the late
Isilo
is to be wound up.
[25]
Before granting declaratory relief, this court should have regard to
various factors, namely
whether the law is clear on the subject
matter, the existence or absence of a live dispute, the utility of
the declaratory relief
and whether, if granted, it would settle the
question in issue between the parties.
[3]
The courts will not grant relief in respect of an issue which is
moot, abstract, hypothetical or academic.
[4]
Mr Madonsela for the second, sixth and twelfth respondents argued
that the applicant queen’s marriage issue is now moot.
In this
regard he sought support in
J
T Publishing (Pty) Ltd and another v Minister of Safety and
Security
,
[5]
where Didcott J said the following:
‘
there
can hardly be a clearer instance of issues that are wholly academic,
of issues exciting no interest but an historical one,
than those on
which our ruling is wanted have now become.’
[26]
It is admitted that the applicant queen and the late
Isilo
had entered into a civil marriage in community of property and of
profit and loss. The proprietary consequences of such marriage
in
community are also not in issue. It appears that this matter was
brought to court before any dispute could arise. Although a
dispute
had arisen with regard to whether the applicant queen and the late
Isilo
had
first entered into a customary marriage and subsequently thereafter
into a civil marriage in community of property, this dispute
fell
away immediately prior to the hearing.
[27]
Courts will not decide mere academic disputes but only disputes
‘where rights have actually
been infringed’.
[6]
There must be a concrete dispute between the parties.
[7]
The court may be asked.
‘
to
enquire into and determine any existing, future or contingent right
or obligation, notwithstanding that such person cannot claim
any
relief consequential upon the determination’.
[8]
However,
a proper case for a declaratory order is not made out if no
consequential relief is claimed or could be claimed, and if
the
result would be a decision on a matter that is really of academic
interest to the applicant.
[9]
An
applicant must show that he has a vested right and not merely a
hypothetical one, as it is not the function of a court to give
legal
advice.
[10]
An applicant must
‘allege all those facts which the Court must find in his favour
for the purpose of issuing the declaration
of rights’.
[11]
The applicant queen has failed to show that she has a right which is
being infringed and needs protection.
[28]
If there is a dispute between the parties, it must be alleged as one
of the factors which the
court will take into account in considering
whether it will exercise its discretion. In the present matter, there
is no dispute
as to the nature, status and proprietary consequences
of the marriage between the applicant queen and the late
Isilo.
Evidence
of such marriage is borne out by the marriage certificate as well as
the declaration register. The late
Isilo
also conceded in his affidavit before making his last will that he
and the applicant queen entered into a marriage in community
of
property. Even if the marriage was at the time out of community of
property, the Constitutional Court has recently in
Sithole
[12]
amended the law in respect of such marriages. All marriages of black
persons that are out of community of property and were concluded

under section 22(6) of the Black Administration Act, before the
commencement of the
Marriage
and Matrimonial Property Law Amendment Act
3
of 1988, have, save for those couples who opt for a marriage out of
community of property, been declared to be marriages in community
of
property.
[29]
The parties in this matter have disposed of all that which could be
issues between them.
‘
Once
the parties have disposed of all disputed issues by agreement inter
se, it must logically follow that nothing remains for a
court to
adjudicate upon and determine’
.
[13]
No
practical effect would be achieved by a determination of the
questions posed in the present matter.
[14]
It is trite that courts will not make determinations that will have
no practical effect.
[15]
[30]
The legal consequences of the applicant queen’s civil marriage
to the late
Isilo
are prescribed by the relevant legislation applicable to civil
marriages in community of property, and common law. The law governing

the marital regime of a marriage in community of property, both in
the form of legislation and the common law, is clear on the
subject
and need not be restated. A wife and husband have joint and equal
ownership and other rights to marital property, and joint
and equal
rights of management of and control over marital property, which
rights must be exercised in the manner provided for
in legislation.
The proprietary consequences of a marriage in community of property
are also explicit. Whether or not the late
Isilo
was precluded from marrying any other person during the subsistence
of his marriage with the applicant queen is also a consequence
of the
civil marriage in community of property. The law on the subject
matter is clear and, accordingly, I do not deem it necessary
and
equitable to grant a declarator in this regard.
[31]
To hold that the late
Isilo
was precluded from marrying any other person during the subsistence
of his marriage with the applicant queen will have no practical

effect in the absence of any relief as an outcome of such preclusion.
Absent the consequential relief sought, this court cannot
as a result
of such a finding automatically conclude that the late
Isilo
’s
marriages with his other wives were invalid. The preclusion of each
party to the civil marriage from marrying any other
person party
during the subsistence of the marriage is a consequence of the
marital regime which the applicant queen and the late
Isilo
entered into.
[32]
The applicant queen has not, in fact, sought an order declaring the
Isilo’s
customary marriages invalid. This court therefore does not want to,
and cannot, overstep the bounds of what it has been called
upon to
decide as per the amended notice of motion.
[16]
In
Normandien
Farms (Pty) Ltd v
South African Agency for Promotion of Petroleum Exportation and
Exploitation (SOC) Limited and others,
[17]
the
Constitutional Court warned against determining matters that no
longer have a practical effect. The order this court would make
if it
were to deal with the question of the validity of the subsequent
marriages in the absence of the relief that they should
be declared
invalid, would not resolve any live dispute between the parties and,
accordingly, it would have no practical or useful
consequence.
[18]
There are no live issues, the determination of which depends on the
marriage issue. The declaratory orders are not accompanied
by any
other form of relief except that the executor should disregard any
provision of the will which is in conflict with the marriage
in
community of property. This is in my view too broad, vague and
impracticable to implement
.
[33]
The applicant queen seeks a declarator that she is entitled to a
fifty percent share of the joint
estate. However, it is not clear
from her application as to which type of estate the applicant queen
lays her fifty percent claim
to, regard being had to the fact that
the estate of the Royal Household is divided into five categories.
That she is entitled to
fifty percent of the estate is the
proprietary consequence of her marriage in community of property and
the law is, as previously
stated, clear on the subject. However, as
against what estate she makes that fifty percent claim is, in my
view, a matter for the
executor, and ultimately the Master of the
High Court, to determine at an appropriate time, when the liquidation
and distribution
account lies for inspection and the claims by
various queens are determined.
[34]
In
J
T Publishing (Pty) Ltd,
[19]
the Constitutional Court had the following to say about a declaratory
order:
‘
. . .
a
declaratory order is a discretionary remedy, in the sense that
the claim lodged by an interested party for such an order
does not in
itself oblige the Court handling the matter to respond to the
question which it poses, even when that looks like being
capable of a
ready answer. A corollary is the judicial policy governing the
discretion thus vested in the Courts, a well-established

and uniformly observed policy which directs them not to exercise
it in favour of deciding points that are merely abstract,
academic or
hypothetical ones
.’
(Footnotes omitted.)
[35]
In
National
Coalition for Gay and Lesbian Equality and others v Minister of Home
affairs and others
,
[20]
the Constitutional Court defined the mootness of a case as being as
follows:
‘
A
case is moot and therefore not justiciable, if it no longer presents
an existing or live controversy which should exist if the
Court is to
avoid giving advisory opinions on abstract propositions of law
.’
[36]
In
Geldenhuys
and Neetling v Becuthini
,
[21]
Innes CJ said:
‘
After
all, Courts of Law exist for the settlement of concrete controversies
and actual infringements of rights, not to pronounce
upon abstract
questions, or to advise upon differing contentions, however
important
.’
However,
the Constitutional Court has held that, where it is in the interests
of justice to do so, it has a discretion to consider
and determine
matters even if they have become moot.
[22]
[37]
There is no live dispute about the proprietary consequences of the
late
Isilo
’s
wives and the executor which is worthy of the court’s
declaration and the law does not sustain the relief sought.
The
applicant queen seeks a final declaration of rights. The application
was apparently brought in anticipation of the impending
installation
of the late Queen as the regent or successor to the throne. This has
been rendered moot because in the intervening
period (between the
launching of the application and the hearing of the matter), the late
Queen passed away. The matter in this
regard is accordingly moot and
hypothetical and will have no future practical effect. It is against
this background that the applicant
queen no longer pursues the relief
sought in 2(d) and 2(e) of the notice of motion.
[38]
The validity of the subsequent marriages between the late
Isilo
and his other wives (first to fifth respondents) has not pertinently
and pointedly been challenged on the papers as they presently
are
constituted. Furthermore, no consequential relief declaring such
customary marriages invalid has been sought. Instead, the
applicant
queen seems to concede that such marriages have been given statutory
recognition by the Recognition Act. It appears from
the version of
the applicant queen that an omission to seek consequential relief was
somehow deliberate on her part. There is no
live dispute between the
applicant queen and the first to fifth respondents and/or with the
executor. This court is in fact asked
to give an advisory opinion on
an abstract proposition of law.
[23]
[39]
The applicant queen also challenges the will of the late
Isilo
insofar as it purports to deal with assets to which the applicant
queen has a legitimate claim arising from her marriage to the
late
Isilo
.
It has been argued on behalf of the first to fifth respondents that
the executor is yet to wind-up the late
Isilo
’s
estate. This matter was brought to court long before the estate of
the late
Isilo
was reported to the Master of the High Court. This court is asked to
pre-empt a dispute which may arise between the applicant queen
and
the executor or other queens. The applicant queen is entitled to
lodge her claim with the executor in terms of the Estates
Act. The
applicant queen has not made out a case in respect of any of the
relief sought in the amended notice of motion. Her application,

accordingly, falls to be dismissed with costs.
Order
[40]
The application is dismissed with costs, such costs to include costs
consequent upon the employment
of senior counsel.
Princess
Ntandoyenkosi Zulu and another v Queen Buhle Mathe and others, Case
No: 2752/2021P
Introduction
[41]
The applicants in this application challenge the authenticity and
validity of the will of the
late
Isilo
on the grounds that the signatures appended thereto in various places
are not those of the late
Isilo
.
The applicants contend that the validity of the impugned will has a
fundamental impact not only on the devolution of the estate
of the
late
Isilo
,
but also on the determination of the successor to the Zulu Royal
throne.
[42]
In the amended notice of motion, among other things, the applicants
seek an order:
(a)
interdicting the execution of the impugned will pending the final
determination of an action
to be instituted by the applicants
relating to the validity thereof;
(b)
interdicting and restraining the seventh respondent from performing
any function or duties
assigned to him in terms of the provisions of
the last will and testament of his late Majesty King Goodwill
Zwelithini Zulu;
(c)
interdicting the ninth respondent from recognising or undertaking any
step which may
reasonably be construed as recognising the twelfth
respondent as
Isilo
samaZulu;
(d)
interdicting the ninth respondent from announcing the date of the
coronation;
(e)
in the event that the ninth respondent has completed all processes
envisaged in section
17 of the KZN Act, interdicting and restraining
the eleventh respondent from issuing the certificate of recognition
to the twelfth
respondent; and
(f)
directing the eleventh respondent in terms of
section 9(3)
of the
Traditional Leadership and Governance Framework Act 41 of 2003
to
refer the matter concerning the identification of the successor to
the throne as
Isilo
samaZulu
back to the Zulu Royal Family for reconsideration and resolution.
[43]
The original notice of motion only contained prayers (a) and (b) and
the prayer that the ninth
respondent be directed to furnish and
deliver to the applicants’ attorneys, within five days of the
order, the last list
(if any) of the names of the Zulu Royal Family
which was submitted by the late
Isilo
to the Office of the Premier off KwaZulu-Natal as contemplated in
terms of the provisions of section 4(1) of the KwaZulu-Natal
Royal
House Trust Act 3 of 2018. The applicants, in amending the notice of
motion on 17 May 2021, also added Annexure ‘B’
to the
amended notice of motion which was however abandoned immediately
prior to the hearing, and it is therefore no longer necessary
to set
out the relief sought in annexure ‘B’.
Parties
[44]
The applicants (‘applicant princesses’) are the daughters
of the late
Isilo
,
who passed away on 12 March 2021. The first to fifth respondents are
the wives (now widows) of the late
Isilo
of various palaces. The sixth respondent constitutes the members of
the Zulu Royal Family. The seventh respondent is Mr Sipho Jerome

Ngwenya, the chairperson of the Ingonyama Trust Board, cited herein
as the person who is assigned certain duties in terms of the

provisions of the will of the late
Isilo
,
and as an interested party in this application.
[45]
The eighth respondent is Sanlam Trust (Pty) Ltd, a private company
incorporated and registered
in terms of the company laws of South
Africa. It is cited as it is designated and appointed in terms of the
will as the executor
of the joint estate of the late
Isilo
.
[46]
The ninth respondent is the Premier of KwaZulu-Natal Province. The
tenth respondent is the Master
of the High Court. The eleventh
respondent is the President of the Republic of South Africa. The
twelfth respondent is Prince Misuzulu,
who is the designated heir and
prince-elect of the Zulu kingdom in terms of Zulu customary law and
customs. He has been identified
and nominated by the Zulu Royal
Family as the successor to the late
Isilo
.
The thirteenth respondent is the Member of the Executive Council
(‘MEC’) in KwaZulu-Natal responsible for Cooperative

Governance and Traditional Affairs, cited herein by virtue of section
17 of the KZN Act, which provides that the MEC must give
the name and
the reasons for the identification of a person as the
Isilo
.
Background
[47]
In 2016, the late
Isilo
made a will in which he appointed the late Queen as his successor and
bequeathed various assets to his six wives and their children.

However, the late Queen passed away on 29 April 2021. Her will and
last testament was read on 7 May 2021 after the funeral. At
the
reading of her will, it was announced that she had nominated Prince
Misuzulu as the successor to the throne. On 8 May 2021
Prince
Mangosuthu Buthelezi, addressing the media, allegedly stated that the
issue of succession was closed, and that the Zulu
Nation was
preparing to crown Prince Misuzulu as
Isilo
.
[48]
In the history of the Zulu Nation, according to Prince Mangosuthu
Buthelezi, there is a long-standing
tradition of reigning kings
identifying their successors by means of a written document. King
Dinuzulu appointed his son, King
Solomon Maphumzana ka Dinuzulu,
through a written instrument to succeed him. King Cyprian Bhekuzulu
Zulu ascended to the throne
in accordance with the wishes of his
father, King Solomon. That tradition stands for over a hundred years.
[49]
The
Isilo
’s
written nomination of his successor would seldom be questioned by the
Royal Family and it would play a fundamental role
in the
identification of the incumbent
Isilo
.
Invariably, the Royal Family would not act against the wishes of the
late king. Other eligible candidates would defer to the wishes
of the
late
Isilo
.
However, the wishes of the deceased king are not binding on the Royal
Family. However, the Royal Family would follow such wishes
unless
they were at odds with Zulu customary law and traditions.
[50]
The applicant princesses brought an application on 28 April 2021 for
interdictory relief pending
the institution of an action before this
court to determine whether the last will of the late
Isilo
is valid and enforceable, and whether the signatures appearing in the
will are free of forgery and fraud.
[51]
The Zulu Royal Family met on 14 May 2021 and identified and nominated
Prince Misuzulu as the
successor to the Zulu throne. No dispute was
raised in this regard. The applicant princesses’ application
has all along been
based upon the alleged ‘forged will’.
No dispute has ever been raised regarding the Zulu Royal Family’s
decision
of 14 May 2021 or the composition thereof. After the death
of the late Queen, the application which was enrolled to be heard on

7 May 2021, was removed from the roll on 6 May 2021 to enable the
internment of the late Queen’s mortal remains to take place.
On
17 May 2021, the applicant princesses re-enrolled the urgent
application with the added relief against Prince Misuzulu, without

the leave of this court. The applicant princesses vaguely stated that
some of the 140 members of the Royal Family who were listed
on the
attendance list, were not members of the Zulu Royal Family, however
they could not identify who those people actually were.
This
statement was later changed to aver that no decision was taken on 14
May 2021 and that the meeting was not convened for the
purpose of
identifying the successor to the throne but for cleansing purposes.
However, no proof of such averments was tendered.
[52]
Mr Redman, for the applicant princesses, argued that the validity of
the will of the   late
Isilo
will have a fundamental impact not only on the devolution of the
estate of the late
Isilo
but also on the determination of the successor to the Zulu Royal
throne. The identification of a successor to the throne is an
issue
which requires proper ventilation and debate by the Royal Family.
According to the applicant princesses, at the commencement
of the
meeting on 14 May 2021, Prince Mangosuthu Buthelezi introduced Prince
Misuzulu as the king of the Zulu Nation. The applicant
princesses
contended that the meeting of 14 May 2021 did not constitute a valid
identification decision as contemplated by section
8 of the
Traditional and Khoi-San Leadership Act 3 of 2019 (‘Leadership
Act’) read with section 17 of the KZN Act.
The declining of the
nomination by Prince Simakade as the king of the Zulu Nation was read
out at the meeting of 14 May 2021 by
Prince Thulani at the behest of
Prince Mangosuthu Buthelezi.
[53]
The applicant princesses contend that members of the Royal Household
will be directly impacted
by the appointment of Prince Misuzulu as
Isilo
pursuant to the nomination contained in the impugned will read with
the will of the late Queen. In the absence of the nomination
of the
late Queen in the impugned will, she would not have the authority to
nominate the successor and her wishes would have no
role to play in
the ultimate determination of the
Isilo
.
[54]
Mr Redman argued that the balance of convenience favours the
applicant princesses in that if
it is found that the signatures
appended to the impugned will are a forgery, this will render the
will invalid and impact on the
legitimacy of the nomination of Prince
Misuzulu as
Isilo
.
It is against this background that the applicant princesses seek an
order that the process of executing the will and the determination
of
the successor to the throne should be stayed pending the finalisation
of the action to be instituted. However, it is common
cause between
the parties that having regard to the importance and public interest
in the outcome of the action, the proceedings
should be expedited.
[55]
The applicant princesses admittedly say that they are not contenders
for the Zulu throne nor
do they know of anyone in the Zulu Royal
Family who has a better right or entitlement to the throne than
Prince Misuzulu. The applicant
princesses also do not seek to review
the Royal Family’s decision of 14 May 2021.
Issue
[56]    The
issues for determination in this application are:
(a)
The
authenticity and validity of the will of the late
Isilo
;
(b)
Whether
the applicant princesses are entitled to stay the process leading to
the identification, nomination, recognition and coronation
of Prince
Misuzulu as the successor to the throne.
Analysis
[57]
The applicant princesses have failed to establish a discernible
correlation between the proceedings
relating to the impeachment of
the late
Isilo
’s
will, and the dispute relating to the alleged identification and
nomination of Prince Misuzulu as the successor to the
Zulu throne by
the Royal Family. The applicant princesses have also not shown a
direct and substantial interest which can be adversely
affected if
Prince Misuzulu is appointed king of the Zulu Nation.
[58]
On their own version, the applicant queen and the applicant
princesses admit that both the marital
status of the applicant queen
and the authenticity and validity of the late
Isilo
’s
will have nothing to do with the issue of succession to the Zulu
throne. The evidence establishes that the identification,
nomination
and appointment of Prince Misuzulu as the king of the Zulu Nation is
not solely dependent upon the validity of the late
Isilo
’s
will. On 14 May 2021, the Zulu Royal Family assembled and identified
Prince Misuzulu as the successor to the Zulu throne
according to the
Zulu customary law and customs.
[59]
In the premises, the marital status of the applicant queen and the
validity of the late
Isilo
’s
will do not in any way stand in the way of the court determining the
issue of succession to the Zulu throne. The interdictory
relief
sought in this regard will therefore be unnecessary. However, the
question of succession to the Zulu throne is to be determined
with
reference to the Zulu customary law and the traditions which are
self-standing rules, separate and distinct from common law
and the
Marriage Act, which govern the validity of the late
Isilo’s
will and the applicant queen’s civil marriage.  It is the
customary law, not common law, which should be strictly applied
in
resolving a traditional leadership dispute.
[24]
The king is not appointed, but is determined by birth. Only a mother
of a would-be king is appointed to bear an heir. The status
of the
mother of the person who intends to ascend to the throne or is to be
appointed king is a decisive factor. However, it is
common cause that
this application is not about who the successor to the throne is but
about an interdict against the implementation
of the will of the late
Isilo
and the process leading to the coronation of Prince Misuzulu
.
The applicant princesses reiterate in their replying affidavit that
the application is for interdictory relief and is not in respect
of
succession to the throne.
[60]
The impeachment of the late
Isilo
’s
will has no bearing whatsoever on the succession dispute since the
name of Prince Misuzulu does not feature anywhere therein.
The
applicant princesses further do not claim that Prince Misuzulu was
not identified or appointed in accordance with Zulu customary
law and
traditions or that they or someone else has a better entitlement or
right than that of Prince Misuzulu to succeed to the
throne. There is
therefore no dispute for the Premier or the President to investigate
and to refer back to the Zulu Royal Family
for reconsideration and
resolution in terms of section 8(4) of the Leadership Act.
[61]
The authenticity and validity of the will of the late
Isilo
is in issue. Messrs Yossi Vissoker and Cecil Greenfield were
instructed to compare the signatures in the will of 29 November 2016

purporting to be those of the late
Isilo,
with the late
Isilo
’s
acknowledged signatures and to express an opinion on their
authenticity. There are divergent findings and conclusions by
these
experts. One expert states that the signatures are a forgery and the
other expert states that the signatures in question
were those of the
late
Isilo
.
The handwriting report prepared by the expert Mr Yossi Vissoker
reveals various serious discrepancies in the signatures appended
to
the impugned will and accordingly he concludes that the signatures
contained in the impugned will differ from the known signatures
of
the late
Isilo
to the extent that they are not signed by the same hand. Mr Cecil
Greenfield, whose expert report is attached to the respondents’

supplementary answering affidavit, states that notwithstanding the
similarities there are obvious dissimilarities. According to
him,
this is not unusual as variations are bound to occur in everybody’s
signature. Natural variations randomly occur during
writing. Mr
Greenfield defines natural variation as the variance in the strokes,
forms, and features of the writing of the same
person which results
from the inherent inability of the human hand to write with
mechanical precision. According to Mr Greenfield,
the signatures on
the late
Isilo
’s
will dated 29 November 2016 were probably written by the late
Isilo
despite ‘dissimilarities’ and are as such, in his view,
authentic.
[62]
What is common cause is that the signatures somehow differ and the
cause of such difference as
advanced by Mr Vissoker is forgery and
according to Mr Greenfield, it is attributable to natural variation.
This raises a sharp
dispute of fact which should be resolved by trial
or referral of the issue for the hearing of oral evidence. However,
the applicant
princesses do not ask this court to make a
determination of the authenticity and validity of the will but,
requires the court to
grant interdictory relief in respect thereof.
The applicant princesses are in the near future expected to institute
an action with
regard to the authenticity and validity of the will.
The question whether clause 15 of the impugned will is ultra vires
the provisions
of section 17 and 30 of the KZN Act has to be decided
by the trial court. It would not be advisable nor appropriate to
decide the
issues of the authenticity and validity of the impugned
will and whether the late
Isilo
violated the provisions of KZN Act when signing the impugned will
separately and independent of each other. Logic dictates that
these
issues should be decided together.
[63]
However, much of the relief sought in the present case has been
overtaken by events and rendered
moot. The death of the late Queen on
29 April 2021, who had been named in the impugned will as the
successor to the throne, dealt
a serious blow to the impeachment of
the late
Isilo
’s
will. As a result of the death of the late Queen, the late
Isilo
’s
nomination and appointment of the late Queen as the successor to the
throne fell away. It was also overtaken by the intervening
Royal
Family’s decision to appoint the late Queen as the regent at
the meeting of the Royal Family on 24 March 2021. At the
time of her
death, however, she had not yet officially been recognised as the
regent. Apart from the will of the late Queen, the
Zulu Royal Family
had assembled and identified Prince Misuzulu as the successor to the
Zulu throne. The Zulu Royal Family is the
structure which is central
to the decision-making process, with regard to the identification of
a successor to the throne.
[64]
With regard to the question of whether the applicant princesses will
suffer any prejudice and
irreparable harm in the event of the
interdictory relief not being granted, it has been argued on their
behalf that if the will
is ultimately found to be invalid they will
suffer great prejudice as the will would have been executed. The
applicant princesses
contend that the impugned will has been given
effect to by the recognition of the late Queen as a regent of the
Zulu Nation. Such
recognition, according to them, was ultra vires
sections 17 and 30 of the KZN Act. The applicant princesses in my
view have satisfied
this court that if they are not afforded any
protection, they would suffer prejudice and the balance of
convenience favours them
in that the will can be implemented at any
time.  However, the applicant princesses have not made out any
case for the stay
of the process leading to the coronation of Prince
Misuzulu.
Costs
[65]
Though it may be correct that the applicant princesses have succeeded
in obtaining the interdictory
relief sought with regard to the
suspension of the execution of the impugned will, it will not be just
and equitable to award them
costs before the question of its
authenticity and validity has been finally decided. In my view, costs
relating to the impugned
will should be reserved for the court
determining its authenticity and validity. The applicant princesses
have not made out any
case for the interdictory relief sought on the
question of succession to the throne. Therefore, the costs should
follow the result
in respect of that relief sought.
Order
[66]
In the result, I make the following order:
1.
The execution of the last will and testament of the late His Majesty
King Goodwill
Zwelithini Zulu be and is hereby suspended pending the
final determination of the action referred to in paragraph (3) of
this order;
2.
The seventh respondent be and is hereby interdicted and restrained
from performing
any functions or duties assigned to him in terms of
the provisions of the last will and testament of the late his Majesty
Goodwill
Zwelithini Zulu;
3.
The applicants are directed to institute an action challenging the
authenticity
and validity of the will referred to in paragraph (1)
above, within fifteen 15 days of the date of this order, failing
which the
relief granted in paragraph 1 of this order shall lapse;
4.
The costs are reserved for the trial court; and
5.
The application for the relief sought in prayers (c), (d, (e) and (f)
is dismissed
with costs, such costs to include costs consequent upon
the employment of two counsel.
Prince Mbonisi
Bhekithemba Zulu and Prince Misuzulu and Others Case No: 10879/21P
Introduction
[67]
Prince Mbonisi seeks to interdict the coronation of Prince Misuzulu
as the
Isilo
of the Zulu Nation which was allegedly scheduled to take place on 3
December 2021. This court on 2 December 2021 declined to grant
the
urgent relief sought and adjourned the matter and directed that it be
heard together with the applicant queen’s and applicant

princesses’ applications. The primary issue in this application
is the question of succession to the Zulu throne.
[68]
In this matter the applicant seeks an order in the following terms:
(a)
Interdicting
and restraining the first and second respondents from preparing and
organising the coronation of the first respondent
as
Isilo
samaZulu scheduled for 3 December 2021 pending the final
determination of the applications under case numbers 2751/2021P and
2752/2021P;
(b)
Interdicting
and restraining the fourth respondent from recognising or undertaking
any steps which may reasonably be construed as
recognising the first
respondent as
Isilo
samaZulu pending the final determination of the applications under
case number 2751/2021P and 2752/2021P; and
(c)
In
the event that the fourth respondent has completed all processes
envisaged in section 17 of the KZN Act, that the third respondent
be
interdicted and restrained from issuing a certificate of recognition
to the first respondent as
Isilo
samaZulu.
Parties
[69]
The applicant is Prince Mbonisi Bhekithemba Zulu (‘the
applicant prince’), who is
the half-brother of the late
Isilo
,
residing at Ikhwezi Homestead, Nongoma. The first respondent is
Prince Misuzulu Zulu, who is the first-born son of the late Queen
and
the late
Isilo
,
the designated successor to the throne, of KwaKhangelamankengane,
Nongoma. The second respondent is Prince Mangosuthu Buthelezi,
the
traditional Prime Minster of the Zulu kingdom and a member of the
Zulu Royal Family of kwaPhindangene Homestead.
[70]
The third respondent is the President of the Republic of South Africa
and the fourth respondent
is the Premier of KwaZulu-Natal Province.
The fifth respondent is the House of Traditional and Khoi-San Leaders
of KwaZulu-Natal
Province. The sixth respondent is the National House
of Traditional and Khoi-San Leaders. The seventh respondents are
unknown persons
who may be the members of
uMndeni
weNkosi
as contemplated in section 1 of the KZN Act, and the eighth
respondents are the members of the Zulu Royal Family.
Factual
background
[71]
Prince Mbonisi, the brother to the late
Isilo
,
brought an application for interdictory relief acting on the basis of
a rumour spread at the funeral of Mr Mgiliji Nhleko, the
leader of
the Zulu warriors. According to this rumour, the coronation of the
first respondent was allegedly scheduled to take place
on 3 December
2021. After enquiring from the first and second respondents as to the
veracity of the rumour and receiving no answer,
the applicant
approached this court for the relief set out above.
[72]
According to the applicant prince, after the passing of the
Isilo
,
the Royal Household was engulfed by serious divisions. The late
Isilo’s
will nominated and appointed the late Queen, as his successor to the
throne. The late
Isilo’s
will was read on 19 March 2021. On 24 March 2021 the Zulu Royal
Family met and appointed the late Queen as regent, to hold the
throne
during the mourning period. The minutes of such meeting were
subsequently forwarded to the Premier for him to undertake
the
necessary official processes for the finalisation of the appointment.
However, before her appointment was gazetted, as required
by law, the
late Queen passed away on 29 April 2021. The applicant queen and
applicant princesses had instituted motion proceedings
on 28 April
2021, a day before her death.
[73]
Prior to her death, the late Queen, at the meeting of the Royal
Family of 30 March 2021, proposed
and nominated Prince Misuzulu as
the successor to the throne in terms of Zulu customary law and
customs.
[74]
The late Queen’s mortal remains were interned on 7 May 2021 and
her will was read out in
the evening of the same day. In her will she
nominated and appointed Prince Misuzulu as the successor to the
throne.
[75]
The Zulu Royal Family assembled on 14 May 2021 and identified Prince
Misuzulu as the successor
to the Zulu throne in accordance with Zulu
customary law and customs. Prince Mbonisi and Princess Thembi Ndlovu
did not attend
the meeting and tendered their apologies. However, the
applicant princesses did not attend the meeting although they had
been invited
and did not tender any apology. At such meeting, Prince
Mangosuthu Buthelezi proposed and nominated Prince Misuzulu as the
successor
to the throne. The proposal and nomination of Prince
Misuzulu as the successor to the throne was unanimously supported and
Prince
Misuzulu accepted the nomination. No dissension was recorded,
no query was raised, and no grievance was lodged at such meeting.
[76]
A meeting was allegedly later held by a dissenting faction of the
members of the Royal Family
whereat Prince Simakade was purportedly
nominated as a contender to the throne. However, he did not accept
the nomination. Subsequent
to the meeting, on 3 June 2021, Princess
Thembi Ndlovu purportedly lodged a dispute with the President of the
Republic of South
Africa in terms of section 8 and 12 of the
Leadership Act. She stated that there was no agreement within the
Zulu Royal Family
as to who should be the successor to the throne.
One section had appointed Prince Misuzulu Sinqobile kaZwelithini as a
successor
and the other Prince Simakade Jackson kaZwelithini. There
was thus an alleged disagreement regarding the succession to the
throne.
[77]
Prince Mbonisi instituted motion proceedings in this court on 19
November 2021 and he enrolled
the application for 2 December 2021.
Prince Mbonisi alleged that the intended coronation was being
organised purely to circumvent
the court process and to pre-empt its
outcome to the detriment of the core members of the Royal Family in
particular, and the Zulu
Nation in general.
Issues
[78]
The issues raised by the affidavits and in argument are whether:
(a)
there
is any coronation implicating public funds underway;
(b)
the
applicant prince, applicant queen and applicant princesses, have
locus
standi
and valid reasons to stay the process leading to the identification,
recognition and coronation of Prince Misuzulu;
(c)
Prince
Misuzulu was legitimately and appropriately identified and nominated
as the successor to the late
Isilo;
and
(d)
there
is any dispute as to the Zulu Kingship.
Analysis
Coronation
[79]
Prince Mbonisi brought the application to stay the coronation of
Prince Misuzulu merely on the
basis of an unfounded rumour. His
application was grounded on the fact that should the coronation take
place pending the finalisation
of the applications of the applicant
queen and applicant princesses that would cause the members of the
Zulu Royal Family to divide
even further. He further contended that
such coronation would result in the wasteful and worthless
expenditure of public funds.
[80]
The date of 3 December 2021 has come and gone without the alleged
coronation taking place, notwithstanding
the fact that this court
declined to grant the urgent relief sought on 2 December 2021. As a
consequence, it is now common cause
that there is no coronation
implicating public funds underway. This application has in fact
become moot and irrelevant. However,
in my view, it is in the
interests of justice and of the Zulu Nation to deal with the question
of the succession to the throne
as it has been raised, both in the
affidavits and argument, as the source of dissension and tension in
the Royal Family. Prince
Mangosuthu Buthelezi has warned in the
second, sixth and twelfth respondents’ answering affidavit that
if this situation
cannot be curbed, it would result in bloodshed.
[81]
Prince Mangosuthu Buthelezi states that the conduct of the applicant
princesses and applicant
prince (the applicants) is tantamount to
holding the entire nation, as well as the Zulu Royal Family, to
ransom through frivolous
litigation for the sole purpose of delaying
the inevitable. He further submits that the conduct of the applicants
has the effect
of sowing division within the Royal Family as well as
within the Zulu Nation. It is, however, common cause between the
parties
that the finalisation of these matters should be expedited.
Stay of the process
leading to the identification, recognition and coronation of Prince
Misuzulu
[82]
The process leading up to the appointment and coronation of the
successor to the Zulu throne
is a five-tiered process:
(a)
the identification process;
(b)
the recognition process;
(c)
the investigative process;
(d)
the post-investigation step; and
(e)
the coronation process.
No
case has been made by any of the applicants for the staying of the
process leading to the identification, recognition and coronation
of
Prince Misuzulu as the king of the Zulu Nation. In her application,
the applicant queen repeatedly stated that her application
had
nothing to do with succession. This is also evident from her
abandonment of the interdictory relief she sought in her application

relating to the succession issue.
[83]
For the applicant princesses to succeed in staying the process
leading to the identification,
appointment and coronation of Prince
Misuzulu, they must be directly affected by the appointment and
coronation of Prince Misuzulu.
They must have a direct and
substantial interest in the appointment and coronation of Prince
Misuzulu to such an extent that they
will be adversely affected if
the relief sought is not granted. That the applicant princesses do
not have the required interest
in the identification, appointment and
coronation of Prince Misuzulu is quite evident from the applicant
princesses’ admission
that their application has nothing to do
with the succession. They are merely challenging the identification
as set out in the
late
Isilo
’s
will but not the identification of Prince Misuzulu per se. The
allegation that the late
Isilo
’s
will is fraudulent has no direct correlation with Prince Misuzulu’s
appointment as a king. His name does not feature
anywhere in such
will. It only features in the late Queen’s will which is not
the subject of the applicant princesses’
application. The issue
relating to succession should therefore be dealt with separately from
the issues relating to the marital
status of the applicant queen and
the authenticity and validity of the late
Isilo
’s
will.
[84]
According to the second, sixth and twelfth respondents, the applicant
prince also does not have
locus
standi
to bring an application to stay the identification, recognition and
coronation of Prince Misuzulu. Prince Mangosuthu Buthelezi
states
that, as the Prime Minister of the Zulu Nation, he is the only one
who is authorised to convene meetings of the Royal Family
to discuss
matters pertaining to the Royal House. Prince Buthelezi goes on to
state that no one has ever convened such meetings
except him. This
issue should be decided on the
Plascon-Evans
rule,
[25]
and as a
consequence, the version of Prince Buthelezi is accepted in this
regard. Further, his application (the applicant prince’s)
is
characterised by the non-joinder of the members of the late
Isilo
’s
family, that is, his queens and their respective children. Not even
the applicant queen and applicant princesses, whose
applications the
applicant prince claims to be supporting, are joined. In the
applicant queen’s application, where he has
been cited as the
seventh respondent, the applicant prince did not take any interest in
the matter and thereby effectively elected
to abide the decision of
the court. The applicant prince furthermore does not state whom he
represents. The applicant prince has
approached this court on
misinformation and incorrect facts. He eventually admitted that there
is no official coronation of Prince
Misuzulu utilising public funds
underway. Consequently, the applicant has not made out a case for the
relief sought in the notice
of motion.
Identification and
nomination of Prince Misuzulu as the successor to the Zulu throne
[85]
In terms of section 8(1) of the Leadership Act, read with section
17(3) of the KZN Act, the
Isilo
is identified and nominated in
terms of customary law and customs. Section 8(1) and (3) provides:
‘
(1) Whenever
the position of a king or queen is to be filled or the successor to a
principal traditional leader is to be identified,
the following
process applies—
(
a
)
The royal family concerned must, within 90 days after the need arises
for the position of a king or queen, or principal traditional
leader
to be filled, and with due regard to applicable customary law and
customs—
(i)
identify a person who
qualifies in terms of customary law and customs to assume the

position of a king or queen, or principal traditional leader, as the
case may be, taking into account whether any of the grounds
referred
to in section
9 (1) or 16 (11) (
h
) or 16 (14) (
a
), (
c
), (
d
), (
e
) or (
k
) apply
to that person; and
(ii)
apply to the President or
relevant Premier, as the case may be, for the recognition of
the
person so identified as a king or queen, subject to section
3 (2), or principal traditional leader which application
must be
accompanied by—
(
aa
)
the particulars of the person so identified
to fill the position of a king or queen, or principal traditional

leader; and
(
bb
)
the reasons for the identification of that
person as king or queen, or principal traditional leader.
(
b
)
The President may, after consultation with the Minister and the
Premier concerned, and subject to subsections (3) and (4),

recognise as a king or queen a person so identified in terms of
paragraph (
a
) (i), taking into account whether a kingship
or queenship has been recognised in terms of section 3.
(
c
)
The Premier may recognise as the successor to a principal traditional
leader a person so identified in terms of paragraph
(
a
) (i),
taking into account whether a principal traditional community still
exists.
.
. .
(3)  Whenever
the President recognises a king or queen, or a Premier recognises the
successor to a principal traditional
leader or recognises a senior
traditional leader, headman or headwoman, the President or the
Premier, as the case may be, must—
(
a
)
publish a notice in the
Gazette
recognising such
person as a king or queen, or publish a notice in the relevant
Provincial
Gazette
recognising such person as a
principal traditional leader, senior traditional leader, headman or
headwoman;
(
b
)
issue a certificate of recognition to such person; and
(
c
)
inform the National House of the recognition of a king or queen and
inform the relevant provincial house of the recognition of
a
principal traditional leader, senior traditional leader, headman or
headwoman.
’
[86]
In terms of section 17(3) of KZN Act the following procedure should
be followed whenever the
position of
Isilo
is to be filled:
‘
(3)
Whenever the position of
Isilo
is
to be filled, the following process must be followed-
(a)
the
royal family must, within a reasonable time after the need arises for
the position of
Isilo
to
be filled, and with due regard to applicable customary law-
(i)        identify
a person who qualifies in terms of customary law to assume the
position
of
Isilo
after taking into account whether
any of the grounds referred to in section 10
(a)
,
(b)
or
(d)
of
the
Traditional Leadership and Governance Framework Act, 2003
, apply
to that person;
(ii)       provide
the Premier and the responsible Member of the Executive Council with
the name
and the reasons for the identification of that person
as
Isilo
; and
(iii)      the
Premier must advise the President accordingly;
(b)
the
person identified as contemplated in paragraph
(a)
(i),
must be recognised as
Isilo,
as
provided for in sections 9(1)
(b)
and
9(2) of the Traditional Leadership and Governance Framework Act,
2003.
(4) The Premier must inform the
National and Provincial Houses of Traditional Leaders of the
recognition or appointment of
Isilo.
(5)
The Premier may arrange a special ceremony to enable
Isilo
to
affirm his allegiance and faithfulness to the Republic of South
Africa and the Province and to obey, respect, and uphold
the
Constitution and the law.’
[87]
Section 1 of the Leadership Act defines ‘the royal family’
as the:
‘
core
customary institution or structure consisting of immediate relatives
of the ruling family within a traditional or Khoi-San
community, who
have been identified in terms of customary law or customs, and
includes, where applicable, other family members
who are close
relatives of the ruling family
.’
[88]
As previously pointed out, there is a long-standing tradition in the
Zulu Nation of reigning
kings identifying their successors by means
of a written document. It was apparently against that background,
that the late
Isilo
nominated and appointed the late Queen as his successor to the
throne. The latter, in turn, nominated and appointed Prince Misuzulu,

her first born son of her marriage with the late
Isilo,
to be the successor to the throne instead, in terms of the Zulu
customary law and customs.
[89]
However, the Leadership Act and KZN Act do not make provision for the
identification and nomination
of a successor to the throne through a
will. But, in terms of the Leadership Act and KZN Act, the Royal
Family has the prerogative
to identify and nominate the successor in
accordance with customary law and traditions.
[90]
The Royal Family is the fabric of traditional leadership. It is
responsible for the identification
of the traditional leaders.
[26]
The Royal Family must identify the king or queen. It must do so in
terms of customary law, customs and traditions, and it must
identify
a suitable person for the position.
[27]
This identification must occur before the relevant government
functionary can appoint him or her. The traditional council has no

legal right to appoint a traditional leader. It is the Royal Family,
the Premier or the President and the Department who are involved
in
the appointment of a king or principal traditional leader.
[91]
The Royal Family is not an organ of state, but an institution of
customary law, exercising its
powers in terms of customary law,
custom and processes. The genesis of the processes leading to the
recognition of a traditional
leader lies with the Royal Family. In
performing that function, the Royal Family initiates a process of
identification of a person,
which process leads to the exercise of
public power and the performance of a public function recognising
that person by the President
or the Premier in terms of the
Leadership Act. The identification of a traditional leader, or a
successor to a traditional leader,
is only the initial part of an
administrative action, which would only become ripe for review after
the organ of state has taken
the necessary decision. It is after that
stage that an aggrieved party whose rights have been adversely
affected may exit the process
and approach a court for appropriate
relief. In this application, the applicant prince does not seek to
review the identification
of Prince Misuzulu but rather seeks
interdictory relief. The question whether or not the matter is ripe
for review does not, therefore,
arise. Pending the decision to
recognise, the President or the Premier is obligated by the
Leadership Act to ensure that the identification
process complied
with customary laws, custom and processes. These are internal
processes to the Leadership Act which must be followed
before a
review of the decision is referred to court.
[92]
The Zulu Royal Family meeting was held on 14 May 2021. The attendance
list of such meeting reveals
the names of the persons who attended,
the houses from which they emanate and their Zulu Royal lineage. The
members of the Royal
Family who were present identified Prince
Misuzulu as the successor to the throne. The meeting was attended by
140 members from
various houses of the Zulu Royal Family. The
applicant princesses and the applicant prince were invited but they
elected not to
attend. They do not dispute the entitlement of Prince
Misuzulu to succeed to the Zulu throne and no such dispute was raised
at
the meeting or subsequently thereafter.
[93]
Prince Mangosuthu Buthelezi, in his capacity as a member of the Zulu
Royal Family through Princess
Magogo ka Dinuzulu, proposed and
nominated Prince Misuzulu as the successor to the late
Isilo
and the members present at the meeting accepted and agreed with the
appointment of Prince Misuzulu to the throne. In fact, he was

unanimously identified and nominated as a successor to the late
Isilo
.
Nobody raised a dispute as to the identification of Prince Misuzulu
as the successor to the late
Isilo
.
There is not a scintilla of an assertion that any person other than
Prince Misuzulu is eligible to succeed to the late
Isilo
.
Prince Simakade disavowed that he had expressed any wish to contend
for the throne. If anyone disputed Prince Misuzulu’s

identification and nomination, he or she should have done so at the
Royal Family meeting where the matter was discussed.
[94]
No allegation has been made that the purported identification of
Prince Simakade Zulu accords
with Zulu customary law and customs
pertaining to succession. Prince Mbonisi lacks locus standi. He has
failed to identify the
persons whom he allegedly represents. He has
also failed to identify the lineage of such persons, if there are
any, and the core
structure under which they seek relief. His
application was in any event without merit.
[95]
The Royal Family is constituted of members who form part of the Royal
Family of the five precedent
kings: Cetshwayo, Dinuzulu, Solomon,
Bhekuzulu and Zwelithini. There has been no genuine dispute as to the
core structure of the
Royal Family, which is central to the
decision-making process of the successor to the king. A feeble
assertion has been made that
the Royal Family meeting was attended by
persons who were not members of the Zulu Royal Family and reliance
has been placed on
the matter of
Mphephu
v Mphephu-Ramabulana and others
.
[28]
In
Mphephu
,
the decision to identify the King of VhaVenda was not only taken by
the Royal Family, as required by customary law, customs and
the
Traditional Leadership and Governance Framework Act 41 of 2003
: it
was taken by a joint sitting of the Royal Family and the Royal
Council. The decision of the meeting was thus not in accordance
with
the law and stood to be reviewed and set aside in terms of
section
6(2)
(a)
(ii)
of the
Promotion of Administrative Justice Act 2 of 2000
. However, in
the present case the persons referred to are faceless and have no
names so as to make the assertion a reality. Under
Zulu customs, a
child born of a princess is a prince or princess and a member of the
Royal Family, even if he or she bears a different
surname to ‘Zulu’.
It could have been possible that some members who attended the Zulu
Royal meeting did not bear a
Zulu surname, like Prince Mangosuthu
Buthelezi, but if they were born of Zulu princesses they are members
of the Zulu Royal Family.
The applicant princesses and applicant
prince did not make out any case that some of the people who took a
decision to identify
and nominate Prince Misuzulu as the successor
were not members of the Zulu Royal Family. The applicant princesses
and the applicant
prince confessed that they were not in attendance
at such meeting and the allegation that persons were present who were
not members
of the Zulu Royal Family is accordingly hearsay in nature
and requires confirmation by persons who were in attendance. No such
confirmation has been forthcoming.
[96]
The identification and nomination of Prince Misuzulu accords with the
Zulu law and custom in
that the subjects of the Zulu Kingdom
contributed towards the payment of his mother’s ilobolo.
However, according to Prince
Mbonisi, the identification process of
Prince Misuzulu on 14 May 2021 was flawed because it failed to
develop criteria for the
identification of a suitable person to be a
successor in terms of section 2 of the Leadership Act. For his
contention he relies
on section 2(1) of the Leadership Act which
provides:
‘
2.
(1)  A
kingship or queenship, principal traditional community, traditional
community, headman ship, headwoman ship and
Khoi-San community must
transform and adapt customary law and customs relevant to the
application of this Act so as to comply with
the relevant principles
contained in the Bill of Rights in the Constitution, in
particular by—
(
a
) preventing unfair
discrimination;
(
b
) promoting equality; and
(
c
) seeking to progressively
advance gender representation in the succession to traditional and
Khoi-San leadership positions.’
The
section does not deal with the identification and recognition of
traditional leadership but deals with the development of customary

law by a particular community so as to be in line with the Bill of
Rights. That decision should be taken by a particular traditional

institution in its operations but it does not advocate that the
existing customary law and customs should be changed willy-nilly.
The
relevant section which deals with the identification and recognition
of a traditional leader is section 8 of the Leadership
Act. However,
due to Prince Mbonisi’s non-attendance at the Royal Family
meeting, whatever he states in this regard is hearsay.
[97]
Prince Mangosuthu Buthelezi, who was in attendance at the meeting,
states that before proposing
and nominating the name of Prince
Misuzulu as the successor to the late
Isilo
,
he explained the criteria which are to be taken into account when
identifying a person as a successor to the throne. Such criteria
are
laid down by the Zulu customary law and customs. The following
criteria are taken into account: whether the ilobolo of that
person’s
mother was contributed wholly or in part by the relevant tribe or
nation and the status of the maternal grandfather
of such person. In
the present case, it is common cause that the late Queen’s
ilobolo was paid by the Zulu Nation and that
she was born of eSwatini
Royalty, being a daughter of King Sobhuza II. On the ground of the
contribution of her ilobolo by the
Zulu Nation alone, she precedes
other wives in polygamous marriages and becomes a great wife, who is
expected to bear a successor
to the throne. The status of her father
may now legitimately be interpreted as constituting discrimination on
a listed ground,
i.e. ‘birth’ and could be in conflict
with the equality clause.
[29]
If it discriminates unfairly against other wives born of commoners,
it may fall foul of the provisions of equality clause. But,
the fact
that her ilobolo was provided by the Zulu nation cannot be assailed,
as it is not a listed ground but a fact, which only
serves as a
distinguishing feature.
Dispute to the Zulu
kingship
[98]
It is common cause that there is no contender to the Zulu royal
throne. Prince Simakade, who
has been mooted as a possible contender,
addressed a letter to Prince Mangosuthu Buthelezi, dated 11 May 2021,
with the request
that the letter should be read out at the Zulu Royal
Family meeting of 14 May 2021. In that letter, he disavowed any claim
to the
throne, or any intention to claim it. He indicated that he was
willing to abide by the decision of the Royal Family. As a
consequence,
Prince Misuzulu remains the undisputed successor to the
Zulu throne. The two princesses confessedly stated that their
application
has nothing to do with succession to the throne. It has
been argued that Prince Misuzulu has been appointed as successor to
the
late
Isilo
by the late Queen who had been nominated and appointed as the
successor in the late
Isilo
’s
will. However, the will of the late Queen is not impeached. The
inevitable conclusion is that even if the late
Isilo
’s
will is found to be invalid, it would not have any bearing on the
succession to the Zulu throne. In addition, the Royal
Family, which
in terms of the Leadership Act and customary law has the prerogative
to appoint traditional leadership, assembled
on 14 May 2021 and
identified Prince Misuzulu as the successor to the late
Isilo
.
[99]
None of the queens, who are the wives of the late
Isilo
,
is the mother of Prince Simakade. He is born of a spinster, as his
mother had never married the late
Isilo
,
and he cannot, therefore, under customary law and traditions oust the
children of the great wife and of any of the other queens.
He has
therefore no basis for contending for the throne at all in terms of
the Zulu customary law and custom. The king is appointed
on the basis
of the status of his mother.
[30]
As the appointment of a king or queen is done under Zulu customary
law and traditions, the exclusion of Prince Simakade from succeeding

to the throne in this case cannot fall foul of the equality clause.
He can only succeed to the throne in the absence of any male
issue by
the late
Isilo
in any of his houses. He must first be linked or assigned to a great
house with the consent of the great wife or whichever wife
in terms
of the Zulu custom and traditions should be the bearer of the
successor to the throne. The late Queen had sons and such
sons could
not be ousted from succeeding to the throne by any of the late
Isilo’s
sons from other houses, even if their mothers had been married to the
late
Isilo
during
his life time.
[100]
Prince Mbonisi, acting on his own frolic, brought this application
before this court on the pretext that he was
acting in the interests
of the Royal Family and in the interests of peace. Surprisingly,
Prince Mbonisi had been cited as the seventh
respondent in the
applicant queen’s application, in which application he elected
to abide by the decision of the court. He
took no part in the
applicant queen’s and applicant princesses’ applications.
[101]
There is no genuine dispute as to the succession of Prince Misuzulu,
as he is in terms of the customary law and
customs the rightful heir
to the throne. No one has disputed the correctness of the customary
law and customs by which the name
of Prince Misuzulu was raised and
endorsed by the Royal Family. The applicant princesses and the
applicant prince, neither in their
founding affidavit nor in their
supplementary and replying affidavits have made any assertion that
the appointment of Prince Misuzulu
was not in accordance with Zulu
customary law and traditions. The letter that Princess Thembi Ndlovu
addressed to the President
stating that there was a disagreement in
the Zulu Royal Family as to who should succeed to the throne between
Prince Misuzulu and
Prince Simakade did not comply with the
provisions of section 8(4) of the Leadership Act. The President
should act when there is
evidence or an allegation that the
identification of a person as a king or queen was not done in
accordance with customary law
and customs. No such evidence or
allegation has been brought to the notice of the President in this
regard. The letter of Princess
Thembi Ndlovu lacked the necessary
allegation that Prince Misuzulu, who was identified by the Royal
Family, had not been identified
in accordance with Zulu customary law
and traditions, and that Prince Simakade has a better right or
entitlement to succeed to
the throne. More so, it is common cause
that Prince Simakade declined the nomination. As a result, he is not
a contender. Even
if he purported to accept the nomination, he could
not have legitimately been identified, as he does not qualify in
terms of Zulu
customary law and customs. Prince Simakade’s
purported identification was accordingly doomed. The applicant has
therefore
failed to make out a case that there is a dispute about the
successor to the throne on the basis of which the President or the
Premier may investigate or refer the matter back to the Zulu Royal
Family for consideration and resolution.
[102]
There is accordingly no basis for interdicting the process leading to
the recognition and coronation of Prince
Misuzulu. The Premier or the
President as the organ of state has not yet acted which could justify
an approach to the court for
a review, if it were to be sought. Had
the applicants sought a review of the identification, their
application would have been
solely dismissed on the ground that it is
premature. The nomination and appointment of Prince Misuzulu as the
successor to the
throne and king of the Zulu Nation in terms of the
wishes of the late Queen in her will has been subsumed by the
decision of the
Zulu Royal Family, identifying and nominating him as
the king of the Zulu Nation. The Royal Family has the prerogative to
identify
and nominate traditional leadership. The wishes of the late
king or queen with regard to succession are important but they are
not decisive. The late Queen nominated and appointed her first born
son, Prince Misuzulu, as the king of the Zulu Nation. Failing
him,
she nominated and appointed any of her sons to be the successor to
the throne. This demonstrates clearly that the late Queen
was fully
alive to the fact that her last wishes as to the nomination and
appointment of Prince Misuzulu may not be decisive. More
so, there is
nothing in this matter showing that the Royal Family merely deferred
to the wishes of the late Queen, and that such
wishes were not in
accordance with Zulu customary law and traditions.
[103]
The evidence establishes that there is no contender to the throne who
professes or is professed to have a better
right, entitlement or
title to succeed to the throne than Prince Misuzulu. The applicant
has not made out any case that the identification
of Prince Misuzulu
as the successor to the throne was not in accordance with Zulu
customary law and customs and the provisions
of section 8(1) of the
Leadership Act read with section 17 of the KZN Act. The applicant
has, accordingly, failed to establish
any right which is protectable
by an interdict.
Order
[104]
In the result, the application is dismissed with costs, such costs to
include the costs of two counsel.
______________________
MADONDO AJP
Date
reserved:

12 January 2022
Date
delivered:

2 March 2022
Case no: 2751/2021P -
/2752/25021P
For 1
st
and
2
nd
Applicants:    Adv N Redman SC
Adv
Xulu
Instructed
by:

BM THUSINI INC
REF:
T021/ Pavi Indrajith
Email:
reception@pi-attorneys.co.za
mail@pi-attorneys.co.za
For 2
nd
, 6
th
,
and 12
th
Respondents
:
Adv Madonsela SC
Adv
Palmer
Adv
Mshololo
Instructed
by:

STRAUSS DALY INC
REF:
KWA123.1/A Khoza/ M Ntsibande
Email:
akhoza@straussdaly.co.za
For 8
th
Respondent:
Adv
Instructed
by:

WERKSMANS ATTORNEYS
REF: G
Cloete/me/SANL 10190.0
Email:
gcloete@werksmans.com
mengelbrecht@werksmans.com
For 3
rd
,  4
th
,
5
th
and 7
th
Respondents:
Adv Topping SC
Adv
Mlondo
Instructed
by:

NGCAMU ATTORNEYS
REF:
SKN01/0020/21
Email:
info@ngcamulaw.co.za
For 9
th
, 11
th
and 13
th
Respondents: Adv Khuzwao SC
Adv
Shazi
Instructed by:

STATE ATTORNEYS
REF:
43/008380/21P23
Case no: 10879/2021
For
Applicant:

Adv Ndlovu
Instructed by:

PETER ZWANE
ATTORNEYS
REF:
PZA/CVL/ZRF1050
Email:
peter@pzainc.co.za
secretary@pzainc.co.za
ca@pzainc.co.za
[1]
This Act has been
repealed by the
Traditional and Khoi-San Leadership Act 3 of 2019
,
which commenced on 1 April 2021.
[2]
Rail Commuters
Action Group and others v Transnet Ltd t/a Metrorail and others
[2004] ZACC 20
;
2005 (2) SA 359
(CC);
2005 (4) BCLR 301
(CC) para 107. See also
J
T Publishing (Pty) Ltd and another v Minister of Safety and Security
and others
1997 (3) SA 514
(CC); 1996 (12) BCLR 1599 (CC).
[3]
AC Cilliers, C
Loots and HC Nel
Herbstein
and Van Winsen: Civil Procedure of the High Courts and the Supreme
Court of Appeal of South Africa
5
ed (2009) at
ch43-p1438.
[4]
J T Publishing (Pty) Ltd and
another v Minister of Safety and Security and others
[1996] ZACC 23
;
1997
(3) SA 514
(CC);
1996 (12) BCLR 1599
(CC)
para
15.
[5]
Ibid
para
17.
[6]
Williams v
Rhodes Fruit Farms Ltd
1917 CPD 6
at 9. See also
Geldenhuys
and Neetling v Becuthini
1918 AD 426.
[7]
Maitland Cattle
Dealers (Pty) Ltd v Lyons
1943
WLD 1
;
Apartments
(Pty) Ltd v City Council of Johannesburg
1937 WLD 54
;
Ex
Parte Morris
1954
(3) SA 153
(W). Cf
Ex
Parte Von Broembsen
,
NO 1948 (3) SA 1040 (O).
[8]
Section 21(1)
(c)
of the
Superior Courts Act 10 of 2013
.
[9]
Adbro
Investment Co Ltd v Minister of the Interior and others
1961 (3) SA 283
(T) at 295B.
[10]
Cf
Bekker
v Commissioner for Inland Revenue
1945 WLD 193
;
Durban
City Council v Association of Building Societies
1942 AD 27.
[11]
Souter, NO v
Said, NO
1957
(3) SA 457
(W) at 460C-D.
[12]
Sithole and
another v Sithole and another
[2021]
ZACC 7
;
2021
(5) SA 34
(CC);
2021 (6) BCLR 597
(CC)
.
[13]
Legal-Aid South Africa v
Magidiwana and others
[2014]
ZASCA 141
;
2015
(2) SA 568
(SCA);
[2014] 4 All SA 570
(SCA)
para
22.
[14]
Premier, Provinsie Mpumalanga, en
‘n ander v Groblersdalse Stadsraad
1998
(2) SA 1136 (SCA).
[15]
Rand Water board v Rotek
Industries (Pty) Ltd
2003
(4) SA 58
(SCA) para 26.
[16]
Director-General
Department of Home Affairs and another v Mukhamadiva
[2013] ZACC 47
;
2014
(3) BCLR 306
(CC) para 38. See also
Four
Wheel Drive Accessory Distributors CC v Rattan NO
[2018] ZASCA 124
;
2019 (3) SA 451
(SCA)
para
21 where the court held that ‘
On
first principles, a judgment must be confined to the issues before
the court. In
Slabbert
[
Minister
of Safety & Security v Slabbert
[2010]
2 All SA 474
(SCA) ([2009] ZASCA 163 para 11]
this
court said: “A party has a duty to allege in the pleadings the
material facts upon which it relies. It is impermissible
for a
plaintiff to plead a particular case and seek to establish a
different case at the trial. It is equally not permissible
for the
trial court to have recourse to issues falling outside the pleadings
when deciding a case
.”’
[17]
Normandien
Farms
(Pty) Limited v South African Agency for Promotion of Petroleum
Exportation and Exploitation (SOC) Limited and others
[2020] ZACC 5
;
2020 (4) SA 409
(CC);
2020 (6)
BCLR 748
(CC)
Para 47.
[18]
Director-General
Department of Home Affairs and another v Mukhamadiva
2013] ZACC 47
;
2014
(3) BCLR 306
(CC) para 39.
[19]
J T Publishing (Pty) Ltd and
another v Minister of Safety and Security and others
[1996] ZACC 23
;
1997
(3) SA 514
(CC) para 15;
1996
(12) BCLR 1599
(CC)
.
[20]
National
Coalition for Gay and Lesbian Equality and others v Minister of Home
affairs and others
[1999]
ZACC 17
;
2000 (2) SA 1
(CC);
2000 (1) BCLR 39
fn 18. See also
Geldenhuys
and Neethling v Becuthini
1918
AD 426
at 441.
[21]
Geldenhuys and
Neethling v Becuthini
1918
AD 426
at 441.
[22]
Independent Electoral Commission v
Langeberg Municipality
[2001]
ZACC 23
;
2001 (3) SA 925
(CC);
2001 (9) BCLR 883
(CC) para 11.
[23]
Legal-Aid South Africa v
Magidiwana and others
[2014]
ZASCA 141
;
2015
(2) SA 568
(SCA);
[2014] 4 All SA 570
(SCA)
;
Qoboshiyane No and others v
Avusa Publishing Eastern Cape (Pty) Ltd and others
[2012] ZASCA 166; 2013 (3) SA 315 (SCA).
[24]
Mkhize NO v Premier of the
Province of, KwaZulu-Natal and others
[2018]
ZACC 50
;
2019 (3) BCLR 360
(CC) paras 66-67.
[25]
[zRPz]Plascon-Evans Paints Ltd v
Van Riebeeck Paints (Pty) Ltd
1984
(3) SA 623 (A).
[26]
Mphephu v Mphephu–Ramabulana
and others
[2019] ZASCA
58
;
2019 (7) BCLR 862
(SCA); confirmed in
Mphephu–Ramabulana
and another v Mphephu and others
[2021] ZACC 43
;
2022
(1) BCLR 20
(CC)
.
[27]
Maxwell Royal Family and another v
Premier of the Eastern Cape Province and others
[2021]
ZAECMHC 10 para 30.
[28]
Mphephu v Mphephu-Ramabulana and
others
[2019] ZASCA 58
;
2019 (7) BCLR 862
(SCA); confirmed in
Mphephu-Ramabulana
and another v Mphephu and others
[2021] ZACC 43.
[29]
Section 9 of the
Constitution.
[30]
Madondo MI
The Role of
Traditional Courts in the Justice System
(2017)
para 49 at 26.