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[2022] ZAKZPHC 74
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Mtungwa and Another v Premier of Kwazulu-Natal and Others (3618/22P) [2022] ZAKZPHC 74 (18 November 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
No: 3618/22P
In
the matter between:
MFANISENI
MBONISENI MTUNGWA
FIRST
APPLICANT
MEMBERS
OF UMNDENI WENKOSI LISTED IN
SECOND
APPLICANT
ANNEXURE
‘A’ WHICH IS ATTACHED TO THE
NOTICE
OF MOTION
and
PREMIER
OF KWAZULU-NATAL FIRST
RESPONDENT
DEPARTMENT
OF CO-OPERATIVE GOVERNANCE
SECOND
AND
TRADITIONAL AFFAIRS, KWAZULU-NATAL
RESPONDENT
THOKOZANI
MTUNGWA
THIRD
RESPONDENT
ORDER
The
following order is made:
1.
The review application is
dismissed with costs,
such
costs to include the costs associated with the employment of senior
counsel.
JUDGMENT
MOSSOP
J
:
[1]
This is a
review application, which is identified as being Part B of the notice
of motion. By agreement between the parties, I am
not required to
deal with Part A. In the review application, the applicants seek the
following relief:
(a)
that the
decision taken by the first respondent on an unknown date, but which
was made known by the second respondent on 24 February
2022,
recognising the third respondent as the iNkosi of the Mabaso clan
(the traditional community), be reviewed, declared invalid
and set
aside;
(b)
that insofar
as any notice has been published of this decision and any certificate
of recognition has been issued to the third respondent
in terms of
the provisions of section 19(2) of the KwaZulu-Natal Traditional
Leadership and Governance Act 5 of 2005 (the Act),
they be withdrawn;
(c)
that the issue
of the identification of the iNkosi of the traditional community be
referred back to the umndeni wenkosi as provided
for in section 19(4)
of the Act; and
(d)
that the
respondents pay the costs of the application.
[2]
The first
applicant is a natural person, and the second applicant is allegedly
the umndeni wenkosi of the traditional community
of which the first
applicant is a member. Their application has been opposed by the
first and second respondents. The first respondent
is the Premier of
KwaZulu-Natal and the second respondent is the Department of
Co-operative Governance and Traditional Affairs
of the same province.
The third respondent has played no part in this application.
[3]
When the
matter was argued, the applicants were represented by Mr. Xulu and
the first and second respondents were represented by
Mr. Dickson SC.
Both counsel are thanked for their most helpful submissions.
[4]
In a nutshell,
the applicants contend that the first applicant ought to be the
person recognised as the iNkosi of the traditional
community.
Instead, the third respondent is the person so identified and
recognised. This review seeks to undo this identification
and
recognition.
[5]
The history of
the leadership of the traditional community may be stated to be the
following, shorn of any embellishments:
(a)
Ndabankulu
Mtungwa, the first iNkosi of the traditional community, was not
succeeded by his eldest son upon his death but was succeeded
by his
last-born son, Thulwane,
[1]
because his oldest son was aged and could not fulfil the functions of
an iNkosi. The inference from this is that if he had been
capable,
the eldest son would have been recognised as his successor;
(b)
Thulwane was
succeeded by his eldest son, Gqikazi;
(c)
Gqikazi was
succeeded by his eldest son, Madlala;
(d)
Madlala
had no children and passed the position of iNkosi to Bhekabantu, the
eldest son of his brother, Dingindawo Mntungwa (Dingindawo),
the
first applicant’s father;
[2]
(e)
Bhekabantu
passed away in December 1980;
(f)
There
is a dispute as to who succeeded next. The applicants state that
Bhekabantu was succeeded by his son, Mlindeleni (Mlindeleni)
and that
because of Mlindeleni’s tender age at the time of his father’s
death, it was necessary for an iBambabukhosi
[3]
to be appointed to assist him. The person so appointed was the middle
son of Dingindawo, Thembitshe, the first applicant’s
brother.
The first and second respondents do not agree with this. They assert
that Mlindeleni predeceased his father and that Thembitshe
was not
appointed as iBambabukhosi, but as iNkosi in his own right;
(g)
Irrespective
of which of these versions is correct, Mlindeleni left no children;
(h)
It appears
that for the next 38 years, Thembitshe was recognised as the iNkosi
of the traditional community, with the first and
second respondent
stating that such recognition formally occurred on 9 November 1983;
(i)
Thembitshe had
three wives and was blessed with 18 children, ten of whom were sons.
His eldest son predeceased him. The next eldest
son is the third
respondent; and
(j)
Thembitshe
passed away on 17 January 2021, and his death has sparked the
contestation
dealt with in this review.
[6]
The true
dispute between the parties arose after the death of Thembitshe. I
deal firstly with the version of the applicants. They
claim that the
second applicant, which it asserts is the true umndeni wenkosi of the
traditional community, identified the first
applicant as the person
to replace not the late Thembitshe but Bhekabantu, who died in 1980.
This identification allegedly occurred
at a series of meetings of the
second applicant spanning from 31 January 2021 to 6 May 2021. On the
last-mentioned date, a document
was prepared confirming the
identification of the first applicant (the identification document).
A copy of the identification document
has not been put up. The
identification document was allegedly taken to the offices of the
second respondent in Dundee, KwaZulu-Natal
on 6 May 2021 where an
attempt was made to deliver it to the functionaries of the second
respondent. This was not, however, successful
as the functionaries
allegedly advised its bearers that they would not accept it because
the traditional community was still in
a state of mourning. The
identification document was thus not delivered. No other attempt to
deliver it appears to have been made.
Towards the end of May 2021, a
letter of complaint (the letter of complaint) was submitted to the
second respondent by the applicants
concerning the conduct of the
functionaries of the second respondent at a gathering held on 20 May
2021, dealt with more fully
below, but no response was ever received
from the second respondent to this letter.
[7]
That
version is denied by the first and second respondents. Their version
is that on 12 May 2021, the second respondent received
the minutes of
a gathering of the umndeni wenkosi of the traditional community (the
first gathering), held on 8 May 2021, indicating
that the third
respondent had been identified as the successor to the late
Thembitshe. The functionaries of the second respondent
thereafter
resolved to convene a further gathering of the umndeni wenkosi and to
this end prepared an agenda for that further gathering.
A copy of the
agenda has been put up. On 20 May 2021, the functionaries of the
second respondent held that gathering with the umndeni
wenkosi (the
second gathering), all of whom were allegedly present, and confirmed
from them that the third respondent had, indeed,
been identified as
the successor to Thembitshe at the first gathering on 8 May 2021. The
second respondent’s functionaries
thereafter compiled a
seven-page memorandum ‘to the executive council’ (the
memorandum), dated 20 January 2022. The
memorandum recommended that
the third respondent be recognised as iNkosi. That led to the third
respondent being formally recognised
as the iNkosi of the traditional
community by the first respondent and the notification thereof took
place in Provincial Notice
189 of 2022, published on 16 March
2022.
[4]
[8]
The grounds
upon which this review is based are succinctly set out in Mr. Xulu’s
heads
of argument. There are three grounds mentioned:
(a)
the umndeni
wenkosi did not identify the third respondent as the next leader of
the traditional community;
(b)
the first
respondent did not consider the letter of complaint that was sent to
him arising out of the second gathering of 20 May
2021; and
(c)
the first
applicant, being the last-born son, is in terms of customary law the
rightful successor to the late Bhekabantu.
I
shall deal with each of these grounds sequentially.
[9]
The first
ground of review is that the umndeni wenkosi did not identify the
third respondent as the person who was to become the
leader of the
traditional community. The complaint, in truth, extends beyond the
simple allegation that no such identification
occurred: the
applicants contend that, factually, the first gathering, at which the
first and second respondents contend the identification
of the third
respondent was made, never occurred, whether on 8 May 2021 or on any
other date. That is why such identification could
not have occurred.
The first and second respondents assert that there was such a
gathering and that what occurred at that gathering
was minuted and
those minutes are in its possession. There is thus an obvious dispute
of fact.
[10]
The applicants
make the case that the umndeni wenkosi actually met on 6 May 2021,
two days before the first gathering. The calendar
records that date
as being a Thursday, perhaps an unusual day for such a gathering
considering that it was a working day. The applicants
have produced
minutes of that meeting. The minutes record that the following was
said by a Mr. Ndukuyakhe Mntungwa:
‘
He
requested that his brother be supported so that he can take over the
Chieftaincy position, he said he would rebuild the Chieftaincy
of
Madlala the house of MaNgubane. The entire Royal House was in
agreement with Mfaniseni’s name as the person to take over
the
Chieftaincy, he said even though there are people who are not in
agreement with it but the tribe should not forget this. A
Chief is
not elected and the Chieftaincy is not an inheritance what is a
position that belongs to the family, and he emphasised
a Chief is not
merely elected but is a chief is born a Chief [sic].’
[11]
Unfortunately,
there is no attendance register to indicate who attended this
meeting. The minutes of the meeting, however, refer
to certain of the
attendees by name: Mr. Ponono Mntungwa, who opened the meeting
with a prayer, Mr. Mlushwa Mntungwa,
[5]
who was the programme director, and Mr. Doda P. Mntungwa.
[12]
However, I
have no idea whether any of the persons named are members of the
umndeni wenkosi or whether they were entitled to attend
the meeting.
While it is so that three confirmatory affidavits accompany the
founding affidavit, only two of those affidavits are
put up by
persons who identify themselves as being members of the umndeni
wenkosi. Neither of those deponents are the persons mentioned
in the
minutes.
[13]
The minutes of
the first gathering of 8 May 2021 put up by the first and second
respondents are detailed and also refer to some
of the persons in
attendance by name. Thus, for example, reference is made to a ‘Mr.
Bonginkosi’, who was the chairperson
of the first gathering,
and who records the presence thereat of:
‘…
the
Indlunkulu (First Wife), Ndlovukazi (Mother of the late Inkosi) and
the children of the late inkosi.’
Other
individuals in attendance are also mentioned by name.
[14]
Of further
significance is the fact that in the minutes, a Mr. Schibi:
‘…
announced
the name Thokozani Mntungwa and said the reason for Thokozani being
appointed is that he is the eldest child of the late
Inkosi.’
[15]
After the late
iNkosi Thembitshe’s mother had spoken at the first gathering,
the minutes record that:
‘
The
chairperson of the meeting Mr. Bonginkosi confirmed the name of
Thokozani Mntungwa to be the name of the successor to the throne.
He
thanked everyone for the successful meeting and thanked the presence
of Umndeni.
He
closed the meeting in prayer.’
[16]
As correctly
submitted by Mr Xulu, in this instance, just as with the meeting of 6
May 2021, there is also no attendance list establishing
which
individuals attended the first gathering. The absence of an
attendance list at the first gathering, at first blush, conceivably
raises a difficulty: how can it be said that the correct umndeni
wenkosi were present at the first gathering if it is not known
precisely who was there?
[17]
There are two
ways of addressing that issue. Firstly, the first gathering appears
to
have included those who would be expected to attend a gathering of
the umndeni wenkosi. Reference in the minutes to the presence
of the
immediate family members of the late Thembitshe is recorded.
[6]
In addition, it is also recorded that the umndeni wenkosi were in
attendance.
[18]
The Act
defines the umndeni wenkosi as being:
‘
the
immediate relatives of an iNkosi, who have been identified in terms
of custom or tradition, and includes, where applicable,
other persons
identified as such on the basis of traditional roles.’
[7]
The
first wife, mother and children of the late Thembitshe are the
immediate relatives that would fall within this definition. The
minutes of the meeting of 6 May 2021 are not sufficiently detailed
for a similar comment to be made about those in attendance at
that
meeting. There is no reference to the
Indlunkulu,
Ndlovukazi or children of the late Thembitshe being present in those
minutes. Indeed, at none of the meetings convened
by the applicants
is mention made of their attendance or the attendance of the third
respondent.
[19]
Secondly,
twelve days after the first gathering occurred, the second gathering
was convened at the behest of the second respondent’s
functionaries. Unlike the first gathering, the second gathering
occurred under the supervision of the second respondent. Attendance
at the second gathering was accordingly recorded. It is thus known
exactly who attended. While there are no minutes of the second
gathering, what occurred at that gathering is contained in the
memorandum. The attendance register records that the two deponents
who put up confirmatory affidavits in which they confirmed that they
were members of the umndeni wenkosi were present at the second
gathering.
[20]
The memorandum
records that at the second gathering, the decision of the first
gathering
was confirmed, namely that the third respondent had been identified
as the new iNkosi. The memorandum thus states as follows:
‘
On
20 May 2021, the Department met with
uMndeni
wobuKhosi
, to confirm the resolution
taken by the
uMndeni
at its meeting held on 08 May 2021. All
izindlu
zobuKhosi
were present and they
confirmed the resolution of
uMndeni
as reflected in the minutes of
uMndeni
meeting.’
The
first applicant was present at the second gathering according to the
attendance register. Reference is also made to his presence
in the
memorandum. More about that later.
[21]
That
there is a dispute of fact over whether the first meeting occurred
brooks of no doubt. In
Mamadi
and another v Premier of Limpopo Province and others,
[8]
the Constitutional Court dealt with disputes of fact in review
proceedings and held as follows:
‘
[44]
This does not mean that an applicant in a rule 53 application is
entitled, as of right, to have a matter
referred to oral evidence or
trial. General principles governing the referral of a matter to oral
evidence or trial remain applicable.
Litigants should, as a general
rule, apply for a referral to oral evidence or trial, where
warranted, as soon as the affidavits
have been exchanged. Where
timeous application is not made, courts are, in general, entitled to
proceed on the basis that
the applicant has accepted that factual
disputes will be resolved by application of
Plascon Evans
.
Likewise, where an applicant relies on
Plascon Evans
,
but fails to convince a court that its application can prevail by
application of the rule, a court might justifiably refuse a
belated
application for referral to oral evidence. A court should however
proceed in a rule 53 application with caution. An
applicant
might institute proceedings in good faith in terms of rule 53,
in order to secure the advantages of the rule and
on the basis that
the application can properly be decided by application
of
Plascon Evans
, only for the respondent to later
show that this is not so. In these circumstances, provided the
dispute of fact which emerges
is genuine and far reaching and
the probabilities are sufficiently evenly balanced, referral to oral
evidence or trial, as
the case may be, will generally be appropriate.
[45] It
bears emphasis, however, that litigants cannot permissibly apply for
referral to
oral evidence or trial “where the affidavits
themselves, even if accepted, do not make out a clear case, but leave
the case
ambiguous, uncertain or fail to make out a cause of
action.” In that event, the application should of course
fail without
recourse to
Plascon Evans
or oral
evidence.’ (Footnotes omitted.)
[22]
There
was no request made by the applicants to have this issue, or any
other disputes of fact that might exist, referred to oral
evidence or
trial when the matter was argued. There was no mention at all of this
occurring. Accordingly, the approach adopted
in
Plascon-Evans
Paints Ltd v Van Riebeeck Paints
(Pty)
Ltd
[9]
must
apply. In this regard, the applicants seem to agree that this is what
must occur, as they indicate that:
‘
The
claims of the opposing respondents that there was a meeting, when
evaluated according to the test as set out on [sic] Plascon-Evan
[sic], are far-fetched and demonstrable improbable [sic].’
[23]
I cannot
accept that the allegations that the first gathering occurred are
palpably false and capable of being dismissed out of
hand. On the
contrary, there is definite evidence that the first gathering did
occur. I must accordingly accept the version of
the first and second
respondents.
[24]
By virtue of
the fact that the applicants dispute that the first gathering
factually happened, it follows that they do not accept
what occurred
at that meeting nor can they accept the content of the minutes that
purportedly recorded what happened at the first
gathering. The first
and second respondents hold the view that the minutes are a valid
recording of what transpired at the first
gathering. Again, a dispute
of fact arises. Applying the
Plascon-Evans
test, I must again accept the first and second respondent’s
version and find that the minutes are a true recordal of what
occurred at the first gathering.
[25]
It follows
that I must resolve the first ground of review against the applicants
by
finding
that a validly constituted gathering of the umndeni wenkosi was held
at which the third respondent was identified as the
successor to the
late Thembitshe on the grounds that he was the eldest surviving son
of the late Thembitshe.
[26]
The second
ground of review is that the first respondent did not consider the
letter of complaint that was sent to him by the applicants
arising
out of the second gathering held on 20 May 2021. There is nothing on
the papers to indicate that the first respondent received,
read, or
responded to the letter of complaint. The letter of complaint stated
that the royal house of eMantungweni was unhappy
with what occurred
at the second gathering on 20 May 2021. The nub of the complaint is
that the COGTA officials:
‘…
on
arrival they elected a Chief whereas there were two names nominated.
We explained that we were supposed to sit down and have
a discussion,
we had not gathered yet but they did not accept that, they left us
hanging.
They
took the details (the name) that was nominated when not every member
of the Royal House was present. They departed with only
one name and
left us as the Royal house in disarray.’
[27]
Had he taken
cognisance of the letter of complaint, so the applicants’
argument goes, the first respondent would have been
obliged to refer
the issue of the identity of the person to be recognised as iNkosi
back to the umndeni wenkosi for reconsideration
and resolution.
[28]
There are
several unsatisfactory aspects to the letter of complaint. It
initially states that two names were nominated but concludes
that the
COGTA officials took the details of the name (singular) that was
nominated. The further allegation that there had not
been a gathering
would, at the very least, appear to contradict the assertion that the
umndeni wenkosi had met on 6 May 2021. Finally,
the allegation that
not every member of the royal house was in attendance appears to be
open to doubt in the light of the fact
that the attendance register
shows that at least 39 people were in attendance.
[29]
The first and
second respondents, however, draw attention to the memorandum in this
regard. The memorandum records the following
regarding the events at
the second gathering:
‘
During
the meeting, a group of
uMndeni
led by Mfaniseni Mntungwa, the younger brother of the late
iNkosi
Thembitshe opposed the resolution of
uMndeni
,
stating that the late
iNkosi
was
iBambabukhosi
.
The Department explained to
uMndeni
that according to the Departmental records
iNkosi
Thembitshe was indeed
iNkosi
not
iBambabukhosi
(
See Annexure “E”
).
They also accused the officials that they were misleading
uMndeni
.
It is worth mentioning that the late
iNkosi
held the Baso throne for more than thirty-seven years, as
iNkosi
,
without any dispute ever reported. After that, Mfaniseni took the
matter to court, with the MEC: Cooperative Governance and Traditional
Affairs was cited as the first respondent, and the Premier of the
KwaZulu-Natal Province the second respondent. As a result, all
the
processes of the recognition of
iNkosi
had to be suspended pending the court decision on the matter.’
[30]
The objection
raised by the first applicant was that the late Thembitshe was not an
iNkosi in his own right but was merely an iBambabukhosi
or a regent.
In my view, that would appear to be improbable. The late Thembitshe
had occupied the position of iNkosi for some 37
years without ever
being challenged on his entitlement to do so. If the first
applicant’s version is correct that Mlindeleni
died in 1991,
when the basis for the regency existing would have terminated, it is
unlikely that Thembitshe would have continued
to act as iNkosi for
the next 30 years without any challenge to his entitlement to do so.
Section 21(1)
(c)
of the Act would have
allowed the umndeni wenkosi to move for his removal from office. It
did not do so. Significantly, while the
umndeni wenkosi did not
challenge Thembitshe, neither did the first applicant. He had two
prime opportunities to do so: firstly,
upon the death of Bhekabantu
he could, and should, have asserted that as the youngest son of
Dingindawo he was entitled to succeed
Bhekabantu and secondly, upon
the death of Mlindeleni he could, and should, have made the same
claim. He did not do so on either
occasion. It is accordingly far
more probable that Thembitshe was not challenged because he had been
recognised as the iNkosi.
The second respondent is the department
that is required to keep formal records of the affairs of entities
such as the traditional
community, including their leadership
structures. The second respondent’s records specifically state
that Thembitshe was
recognised on 9 November 1983.
[31]
In addition,
section 30(2) of the Act records that:
‘
[t]he
recognition of iBambabukhosi must be reviewed by the Premier, after
consultation with the responsible Member of the Executive
Council, at
least once every three years.’
As
it was required to do, the first and second respondents delivered its
record of documents for review purposes. There are no documents
in
the record to demonstrate that such review contemplated by the Act
occurred or was resorted to. This reinforces the likelihood
that
Thembitshe was, indeed, iNkosi and not iBambabukhosi. The objection
raised by the first applicant at the second gathering
was accordingly
without merit.
[32]
It is
interesting that the memorandum records that the first applicant’s
only objection at the second gathering concerned
the status of
Thembitshe. The first applicant did not also claim to have been
identified as the successor to his brother Bhekabantu
at the meeting
on 6 May 2021, nor did he raise any complaint or objection to the
fact that the functionaries of the second respondent
had allegedly
refused to accept the identification letter. He also made no attempt
to again deliver the identification letter.
In other words, the first
applicant did not press his alleged identification as the next
iNkosi. This was the opportune moment
for him to do so. It was also
the moment when he could have handed over the identification letter
to ensure that it came to the
attention of the first respondent. Yet
he apparently allowed the moment to pass without doing either of
these things.
[33]
The memorandum
prepared by the second respondent’s functionaries was detailed
and fairly dealt with the substance of the first
applicant’s
complaint raised at the second gathering. The applicants have not
challenged the content of the memorandum. I
must therefore accept
that the first respondent was fully apprised of the first applicant’s
views on the matter and the challenge
that he raised. The first
respondent, nonetheless, chose to recognise the third respondent.
[34]
The applicants
appear to make the case that the mere existence of a challenge,
irrespective of its merits, requires the first respondent
to remit
the matter to the umndeni wenkosi. I am not sure that is the case.
Section 19(4) of the Act reads as follows:
‘
(4)
Where there is evidence or an allegation that the identification of a
person to be appointed as an
Inkosi
was not done in accordance with customary law, customs or processes,
or was done in contravention of section 3 of this Act, the
Premier-
(a)
may refer
the matter to the Provincial House of Traditional Leaders for
comment; or
(b)
may
refuse to issue a certificate of recognition; and
(c)
must
refer the matter back to
umndeni
wenkosi
for reconsideration and resolution where the certificate of
recognition has been refused.’
[35]
The
use of the word ‘may’ in a statute usually indicates the
existence of a discretion.
[10]
The relief that the applicants claim is not that identified in
sub-paragraph
(a)
of section 19(4), but that referred to in sub-paragraphs
(b)
and
(c)
.
They want the issue of the identity of the new iNkosi to again be
placed before the umndeni wenkosi for reconsideration, and if
publication of the identity of the new iNkosi has already occurred
and a certificate of recognition issued to the third respondent,
that
those be called back, pending resubmission of the matter to the
umndeni wenkosi.
[36]
From the
wording of section 19(4) of the Act, the first respondent has a
discretion as to whether to issue a certificate of recognition.
He
is, however, only obliged to refer the matter back to the umndeni
wenkosi where he has exercised his discretion and decided
not to
issue a certificate of recognition. The wording of the subsection
makes that plain. In this instance, the first respondent
did not
decline to issue a certificate of recognition. He recognised the
third respondent. In those circumstances, there is no
basis to compel
him to refer the matter back to the umndeni wenkosi in terms of the
Act.
[37]
I must thus
find that the first respondent did not respond directly to the letter
of complaint but that such failure was of no legal
significance. The
second ground of review must accordingly be answered against the
applicants.
[38]
The third
ground of review is that the first applicant, being the last-born
son, is in terms of customary law the rightful successor
to the late
Bhekabantu. The complaint in this regard is articulated by the first
applicant in his founding affidavit:
‘
Umndeni
wenkosi must follow customs and culture in making a decision. The
culture in Zulu is that the first son in the family is
indlalifa and
takes over the throne from the father. In the event the first son
dies before the father dies, the reigns go to the
last-born son.’
This
view is shared by Mr. Vukuza Joseph Mtungwa, who has delivered a
confirmatory affidavit in which he echoes this understanding.
[39]
In presenting
his argument for the applicants, Mr Xulu specifically adopted the
approach
of avoiding the merits of the first applicant’s entitlement to
be appointed as iNkosi and focused only on whether
the correct
procedural steps had been followed in identifying and recognising the
third respondent as the new iNkosi of the traditional
community.
Considering the substance of the third ground of review, I am not
sure that the legal entitlement to be appointed as
iNkosi can be
glossed over. It needs to be considered and resolved.
[40]
The
legislative framework within which succession to the traditional
leadership positions of iNkosi occurs is regulated by section
19 of
the Act. The relevant sections of that Act read as follows:
‘
(1)
Whenever the position of an
Inkosi
is
to be filled, the following process must be followed-
(a)
Umndeni
wenkosi
must,
within a reasonable time after the need arises for the position of
an
Inkosi
to
be filled, and with due regard to applicable customary law and
section 3-
(i) identify
a person who qualifies in terms of customary law to assume the
position of an
Inkosi
after
taking into account whether any of the grounds referred to in section
21(1)
(a)
,
(b)
or
(d)
apply
to that person;
(ii) provide
the Premier with the reasons for the identification of that person as
an
Inkosi;
and
(iii) the
Premier must, subject to subsection (3) of this section and section
3, recognise a person so identified
in terms of subsection (1)
(a)
(i)
as
Inkosi
:
Provided that if the reason for the vacancy is the death of the
recognised
Inkosi
,
Umndeni
wenkosi
must, before identifying
the person to be recognised as
Inkosi
,
consider the content of the testamentary succession document referred
to in section 19A.
(2)
The recognition of a person as
an
Inkosi
in terms of subsection (1)
(a)
(iii)
must be done by way of-
(a)
a notice in
the
Gazette
recognising
the person identified as an
Inkosi;
and
(b)
the issuing of a
certificate of recognition to the identified person.
(3)
The Premier must inform the Provincial
House of Traditional Leaders of the recognition or appointment
of
an
Inkosi.
’
[41]
In the minutes
of the meetings of 3 April 2021 and 6 May 2021, relied upon by the
applicants, reference is made to the fact that
kings are not elected,
kings are born. An iNkosi is thus not elected because he enjoys
popular support or because he makes attractive
promises to his clan
members. A person is elevated to the position of iNkosi because of
the observance of the time-honoured practices
of custom, tradition,
and the prescripts of customary law. This is emphasised in section
19(1)
(a)
and 19(1)
(a)
(i)
of the Act. The methods prescribed by the ages are accordingly to be
respected and applied.
[42]
Implicit
in this ground of review is that the applicants contend that the
prescripts of custom and customary law have not been followed
in
identifying the third respondent as the successor to the position of
iNkosi.
In
succession under Zulu law, the general rule is that the heir to the
throne is the first-born son in the house of the chief wife,
or
Indlunkulu.
[11]
There
are exceptions to this rule recognised in customary law.
[12]
Ignoring those exceptions, which are not relevant here, t
he
oldest son of the deceased traditional leader is thus first in line
to succeed to the position of the deceased traditional leader.
If the
eldest son predeceases the iNkosi, the second eldest son assumes the
position and so on until there are no longer any sons.
[43]
In
a soon to be published work entitled
The
Importance and Relevance of Customary Law in the Constitutional
Democratic South Africa
,
[13]
the acting judge president of this division, Mr. Justice M I Madondo,
states the following:
‘
The
customary law of succession is fundamentally a system of
primogeniture. Male primogeniture implies succession by males through
males only in respect of the acquisition of positions of status. In
the case of a deceased who was married to more than one wife,
the
oldest son in each house succeeds to the specific house. In his
absence, the eldest son or his son succeeds until all the sons
of the
deceased and their sons have been exhausted before resort is had to
the second son of the deceased and all his sons and
their sons, and
other sons of the deceased. The same rules are applicable to the
succession to a monogamous family head.’
[44]
The applicants
acknowledge that the first-born son succeeds to his father. Mr.
Vukuza Joseph Mtungwa states as much in his confirmatory
affidavit
when he states
that:
‘
According
to our customs and culture the first-born son is the natural heir to
the throne as Inkosi yesizwe when Inkosi passes on.’
However,
he goes on to state that:
‘
In
the event the first-born son dies, the last-born son fill [sic] in
the shoes of the first-born son as a natural successor to
the title
as heir to the throne.’
[45]
It is the
latter proposition that is contested, namely that where the
first-born son dies, he is succeeded by the last-born son.
I was not
referred to any authority in this regard by Mr Xulu, nor could I find
any myself. No expert evidence has been adduced
to establish this
proposition either.
[46]
I have certain
difficulties with the proposition:
(a)
Firstly, it is
not relevant to the applicants’ case. The applicants do not
rely on the first applicant’s affinity to
the late Thembitshe,
nor can they rely on the first applicant’s affinity to his
father. Their case is not that the first
applicant should succeed to
Thembitshe but that the first applicant should have succeeded to
Bhekabantu, his eldest brother. In
other words, they wish to rewind
the clock 38 years to the date of Bhekabantu’s death. However,
Bhekabantu did not come by
the position of iNkosi through his father,
but through his uncle, Madlala. The first applicant’s father
was never an iNkosi
and the first applicant cannot therefore on the
principles of Zulu customary succession acquire something from his
father that
his father never had;
(b)
Secondly,
section 19(1)
(a)
of the Act contemplates that within a reasonable time after the need
arises, the umndeni wenkosi must meet to identify a successor
to an
iNkosi. If there is any merit in what the applicants claim, then the
umndeni wenkosi ought to have met 30 years ago upon
the death of
Mlindeleni, who allegedly died in 1991. It cannot be reasonable, in
the absence of any explanation whatsoever for
the delay, for it to
meet in 2021 to determine the successor of Bhekabantu; and
(c)
Thirdly, the
history of succession in the traditional community demonstrates that
the principle of the eldest son succeeding to
his late father has
been consistently applied. If that is the case, then in the light of
the court having found earlier that Thembitshe
was iNkosi and not
iBambabukhosi, the eldest son of Thembitshe should succeed him. That
is the third respondent. But if the first
applicant’s
proposition is accepted as being correct, it still would not allow
him to claim the title of iNkosi. It is so
that Thembitshe’s
eldest son predeceased him. If the first applicant’s
proposition is accepted, then Thembitshe’s
youngest son should
succeed him, not the first applicant.
[47]
Section
19(1)
(a)
(i)
of the Act states that the person identified by the umndeni wenkosi
must be a person who:
‘
qualifies
in terms of customary law to assume the position of an
Inkosi
…’
Simply
put, the first applicant does not qualify for such appointment,
whereas the third respondent does. This is because the line
of
succession now runs through the sons of the late Thembitshe. If it is
so that an iNkosi is not elected but is born, then as
a direct blood
relative of the previous iNkosi, the third respondent was born to
succeed his father.
[48]
The second
respondent accepted the minutes of the first gathering held on 8 May
2021. Recorded therein is the allegation that at
the burial of
Thembitshe, the third respondent performed the ritual of stabbing the
soil with a spear, such action being indicative
of the fact that he
is the heir of the deceased and his successor. That was significant
and that symbolic act, which occurred independently
of the disputed
first gathering, has not been denied by the applicants.
[49]
The
third respondent was identified by the umndeni wenkosi at the first
gathering as being the successor to the late iNkosi, his
father. At
the second gathering, the umndeni wenkosi confirmed this. The
immediate history of the matter and the events at the
first and
second gatherings were documented in the memorandum, including the
objection raised by the first applicant. The memorandum
recommended
that the first respondent recognise the third respondent. This he
duly did. The decision was logical and reasonable
in the
circumstances and one that a reasonable administrator could have
made.
[14]
As Mr Dickson
submitted, it was, in fact, the only decision that the first
respondent could make.
[50]
I must
therefore find that the recognition of the third respondent is in
accordance with custom, tradition, and customary law. The
third
ground of review must accordingly fail.
[51]
I accordingly
make the following order:
1.
The review
application is dismissed with costs, such costs to include the costs
associated with the employment of senior counsel.
MOSSOP
J
APPEARANCES
Counsel
for the applicants
:
Mr
M. N. Xulu
Instructed
by: :
S N Nxumalo
Attorneys Incorporated
20
Otto Street
Pietermaritzburg
Counsel
for the first and second :
Mr
A. J.
Dickson SC
respondents
Instructed
by :
PKX Attorneys
Suite
36
3
on Cascades Crescent
Montrose
Pietermaritzburg
Date
of Hearing
: 3
November 2022
Date
of Judgment
:
18 November 2022
[1]
For
the sake of convenience, and as the dispute involves parties who all
share the same surname, the first names of the parties
will be used.
No disrespect is intended thereby.
[2]
Dingindawo
Mntungwa had three sons with his second wife, his first wife having
borne him no children. His eldest son was Bhekabantu
(Bhekabantu).
The next eldest son was Thembitshe and the youngest is the first
applicant.
[3]
Interim
iNkosi or regent.
[4]
PN
189 of 2022,
PG
2378,
16 March 2022.
[5]
A
person named Mhlushwa Malungelo Amon Mabaso has deposed to a
confirmatory affidavit in which he states, inter alia, that he
is a
member of the umndeni yesizwe Sakwa Mabaso. I am unable to find that
he is the same person identified in the minutes as
Mr Mlushwa
Mntungwa.
[6]
Indlunkulu,
Ndlovukazi, and the children of the late iNkosi.
[7]
Section
1.
[8]
Mamadi
and another v Premier of Limpopo Province and others
[2022] ZACC 26
paras 44-45.
[9]
Plascon-Evans
Paints Ltd v Van Riebeeck
Paints (Pty) Ltd
1984
(3) SA 623 (A).
[10]
Nakedi
v S
[2020] ZANWHC 83 para 13;
Metropol
Consulting (Pty) Ltd v City of Johannesburg Metropolitan
Municipality and another
[2020] ZAGPJHC 392 para 36.
[11]
In
a Zulu polygamous marriage, each wife constitutes a separate
house. The house of the first wife is known as ‘indlunkulu’
(chief wife), the house of the second, ‘ikhohlo’,
(left hand or second wife)
and
the
house
of the third, ‘iqadi’ (third wife or bride of the first
wife).
[12]
Mkhize
NO v Premier of the Province of KwaZulu-Natal and others
[2018]
ZACC 50; 2019 (3) BCLR 360 (CC) p
ara
5.
[13]
Judge M I Madondo
The
Importance and Relevance of Customary Law in the Constitutional
Democratic South Africa,
chapter
11, to be published by LexisNexis in 2023;
TW Bennett
Customary
Law in South Africa
(2004)
at 337-338 and C Himonga et al
African
Customary Law in South Africa Post-Apartheid and Living Law
Perspectives
(2014)
at 162.
[14]
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Tourism and others
[2004]
ZACC 15
;
2004 (4) SA 490
(CC) paras 44-45.