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2024
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[2024] ZAKZPHC 47
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Prince Mbonisi Bekithemba Ka Bhekuzulu and Others v President of the Republic of South Africa and Others (17018/2023P) [2024] ZAKZPHC 47 (13 June 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL
DIVISION: PIETERMARITZBURG
CASE NO: 17018/2023P
In the matter between:
PRINCE
MBONISI BEKITHEMBA KA BHEKUZULU
1
ST
APPLICANT
PRINCE
VULINDLELA KA BHEKUZULU
2
ND
APPLICANT
PRINCE
MATHUBA KA BHEKUZULU
3
RD
APPLICANT
PRINCE
GAYLORD MXOLISI KA BHEKUZULU
4
TH
APPLICANT
PRINCESS
LINDIWE KA BHEKUZULU
5
TH
APPLICANT
AND
PRESIDENT
OF THE REPUBLIC OF SOUTH AFRICA
1
ST
RESPONDENT
MIN
OF CO-OPERATIVE GOVERNMENT & TRADITIONAL
AFFAIRS
N.O.
2
ND
RESPONDENT
MIN
OF AGRICULTURE, LAND REFORM & RURAL
DEVELOPMENT
N.O.
3
RD
RESPONDENT
PREMIER
OF KWAZULU-NATAL PROVINCE
4
TH
RESPONDENT
DIR-GENERAL:
KZN OFFICE OF THE PREMIER
5
TH
RESPONDENT
INKOSI
RUBERT SIFISO SHINGA
6
TH
RESPONDENT
KING
MISUZULU KA ZWELITHINI ZULU N.O.
7
TH
RESPONDENT
INGONYAMA
TRUST
8
TH
RESPONDENT
INGONYAMA
TRUST BOARD
9
TH
RESPONDENT
NKOSI
THANDA MZIMELA
10
TH
RESPONDENT
ADVOCATE
LINDA
ZAMA
11
TH
RESPONDENT
INKOSI
MABHUDU ISRAEL TEMBE
12
TH
RESPONDENT
THANDI
DLAMINI
13
TH
RESPONDENT
NOMUSA
ZULU
14
TH
RESPONDENT
NTAMBUDZENI
DANDY MATAMELA
15
TH
RESPONDENT
INKOSI
PHALLANG BOKANG MOLEFE
16
TH
RESPONDENT
INKOSI
SIBONELO
MKHIZE
17
TH
RESPONDENT
LISA
DEL GRANDE
18
TH
RESPONDENT
VELA
MGWENGWE
19
TH
RESPONDENT
SIYAMDUMISA
VILAKAZI
20
TH
RESPONDENT
AMAKHOSI
OF THE PROVINCE OF KZN
21
ST
RESPONDENT
JUDGMENT
OLSEN J
[1]
The death of the late King Goodwill Zwelithini Ka Bhekuzulu on 12
March 2021 has generated
a rash of litigation over, or otherwise
connected with, the issue as to who should succeed the late King.
This is one such
case.
[2]
In terms of
s 8
of the
Traditional and Khoi-San Leadership Act, 3 of
2019
, when the position of a King must be filled the Royal Family,
acting with due regard to applicable customary law and customs, must
identify a person to assume the vacant position and apply to the
President for the recognition of that person as the King or Queen.
Although challenged as to their validity, those two processes were
followed in the present instance. The seventh respondent, King
Misuzulu Ka-Zwelithini Zulu was identified as successor by a meeting
of the members of the Royal Family held on 14 May 2021. On
16 March
2022 the President of the Republic of South Africa, the first
respondent, made the decision to recognise the seventh respondent
as
the monarch. The seventh respondent was accordingly installed
as King of the Zulu nation.
[3]
The present application was launched by four applicants. (In his
founding affidavit
the first applicant identified five applicants,
but one of them, cited as the fourth applicant, did not deliver the
promised affidavit
identifying himself as an applicant, and adopting
the contents of the first applicant’s founding affidavit as the
basis of
his case.) The four applicants are siblings, three of
them being brothers, and one a sister, of the late monarch. (I used
those terms with due regard to Zulu custom, to which the concept of a
“half-brother” is not known.) The present
proceedings were launched by them in November 2023, shortly before
judgment was handed down by the Gauteng Division of the High
Court,
Pretoria in an application which the applicants had launched,
together with others, for orders reviewing and setting aside
the
Royal Family’s identification of the seventh respondent as
successor, and the President’s recognition of the seventh
respondent. Judgment in that case was delivered in December
2023. The Gauteng Division refused to set aside the
identification
of the seventh respondent, but did set aside his
recognition by the President. Leave to appeal to the Supreme
Court of Appeal
against both those decisions was granted. In terms of
s 18
of the
Superior Courts Act, 2013
the operation of the orders of
the Gauteng Division is therefore suspended.
[4]
The present proceedings were instituted by a notice of motion in
which two distinct
sets of relief were sought. The principal
relief (perhaps one ought to say, the notionally principal relief) is
set out in
Part B of the notice of motion. The notice of motion
incorporates the requirements of
Rule 53
for the purposes of the
adjudication of Part B. Interdicts are sought in Part A of the
notice of motion and the grant of
them is claimed to be urgent.
This judgment concerns Part A of the notice of motion.
[5]
Twenty-one respondents are cited. Those that delivered affidavits
confined their attention
to the relief sought in Part A of the notice
of motion. Their rights to respond to Part B were reserved
pending the delivery
of any supplementary founding papers such as are
permitted by the provisions of
Rule 53.
In identifying the
respondents I will mention only those who have responded to the claim
for relief in Part A of the notice
of motion. I have already
identified the first and seventh respondents.
[6]
The second and third respondents are part of the National Executive.
The former
is the Minister of Co-Operative Government and Traditional
Affairs and the latter the Minister of Agriculture, Land Reform and
Rural Development. The Principal State Law Advisor in the
Presidency attested to an affidavit on behalf of the first respondent
in which he recorded that the first respondent abides the decision of
the court, and added one or two observations not presently
material.
The Director General of the Department of Traditional Affairs
attested to an affidavit on behalf of the second
respondent in which
he recorded that the second respondent’s opposition to the
application is confined to denials she makes
of limited allegations
made in the founding papers. The minister in effect abides the
decision of the court. The third
respondent herself attested to
an affidavit in which, with respect the relief sought in Part A, she
recorded her decision to abide
the decision of the court.
However, certain allegations in the founding papers were denied and
the third respondent furthermore
corrected one or two misconceptions
evident in the founding papers and the relief sought in Part A of the
notice of motion.
[7]
The fourth respondent is the Premier of this province. The
fifth respondent
is the Director General in the Premier’s
office. Where the context permits it my references to the Premier or
the fourth
respondent in this judgment include the fifth respondent.
The Chief Director: State Law Advisory Services, KwaZulu-Natal
attested
to an affidavit delivered on behalf of the fourth
respondent. It is called an “explanatory affidavit”
which records
that the fourth respondent abides the decision of this
court. The affidavit sets out a helpful account of the legislative
framework
which governs the financial affairs of the seventh
respondent and the Royal House, insofar as they are funded by the
State.
[8]
The eighth and ninth respondents are respectively the Ingonyama Trust
(the “Trust”)
and the Ingonyama Trust Board (the
“Board”). (It was strictly speaking unnecessary to
cite the ninth respondent.)
The chairperson of the Board and
all members of the Board were personally cited as the tenth to
eighteenth respondents. The Chief
Executive Officer of the Trust is
cited as the nineteenth respondent. He attested to an affidavit
on behalf of all the respondents
mentioned in this paragraph,
recording their opposition to the relief set out in Part A of the
notice of motion.
[9]
With that somewhat lengthy introduction I turn to the issues to be
decided at this
stage, namely those springing from Part A of the
notice of motion. I should mention first that much of the
relief sought
in Part B of the notice of motion rests upon the
proposition that the seventh respondent is not a lawfully appointed
monarch.
The question as to the validity of the seventh
respondent’s appointment was placed in the hands of the Gauteng
Division by
the applicants. As already mentioned this
application was launched before the judgment in the Gauteng Division
was handed
down, and I have little doubt that the applicants were
aware of the fact that whatever the outcome in that division, it was
overwhelmingly
probable that the matter would proceed further, at
least to the Supreme Court of Appeal. That has happened.
It is difficult
to resist the conclusion that the main application,
that is to say the application for relief under Part B, was conceived
as a
device upon which to hang the proposition that the relief sought
in Part A is interim in nature, and accordingly less onerous to
establish than would be the case if final interdicts were sought.
Urgency.
[10]
Prayer 1 of Part A of the notice of motion asks this court to grant
the application urgent status.
The notice of motion reveals
that the applicants intended to set the matter down in February 2024,
but as it turns out they omitted
to deliver the requisite notice, as
a result of which there was apparently no judge or court available to
hear the matter.
In addition, the respondents to whom I have
referred above wanted to be heard, and not all affidavits were in.
The Judge
President accordingly gave directions as to the delivery of
further affidavits, and so on, and allocated a date in April for the
hearing of the matter, when it first served before me. There
was a challenge to the claim that the matter should be disposed
of
urgently, and the rights of the opposing parties to argue that issue
were reserved, although that does not appear in the Judge
President’s
order. The seventh respondent made an application to strike out
substantial portions of the founding affidavit
upon the basis that
the allegations in question were scandalous, vexatious and/or
irrelevant. The application took up almost
all of that single
day allocated to the case, and was heard upon the footing that the
question of urgency still stood over.
Save in a few minor
respects the application to strike out was successful.
[11]
Two further days, now in May 2024, were allocated to the case. The
issue of urgency was argued
separately and first. I took the
view that by then the only benefit accruing to the applicants if the
matter was afforded
urgent status would be the advantageous early
date of hearing which would not have been available if this matter
had been placed
on this court’s ordinary roll. Having
heard the arguments I granted the case urgent status. The
arguments for
and against doing so were finally balanced. The
factor which motivated the decision in favour of the applicants was
my perception
that there is a public interest in an early decision on
the disputes concerning the relationship between the seventh
respondent
and the Trust, and on issues raised on the papers which
turn wholly or in part on the purpose and powers of the Trust.
Paragraph 2.1 of
Part A.
[12]
In paragraph 2.1 of the prayer in Part A of the notice of motion the
applicants sought an order
that, pending the final decision of the
case heard in the Gauteng Division, the seventh respondent should not
be entitled to occupy
the position of trustee of the Ingonyama
Trust. The response to this on the part of the seventh
respondent went along the
following lines.
(a)
All the decisions
required to be made in law for the installation of the seventh
respondent as monarch had been made and he was
in law therefore a
duly installed king. That remains the case until any final
order may be made setting aside the seventh
respondent’s
elevation to that office.
(b)
In terms of the
Ingonyama Trust Act, 1994 the seventh respondent’s position as
the “trustee” of the Trust is an
automatic consequence of
his installation as monarch.
(c)
Granting the relief
sought, that pending the final determination of the Gauteng
litigation the statutorily ordained position of
the seventh
respondent as trustee of the Trust should be countermanded and not
implemented, can only be done if the decision of
the Gauteng Division
that the recognition of the seventh respondent as monarch be set
aside is put into operation, at least in
part.
(d)
That requires an
application under
s 18
of the
Superior Courts Act, given
that leave
to appeal against that order has been granted. The applicants
did not mention
s 18
in their founding papers; and made no attempt to
meet the requirements of the section. In any event only the Gauteng
Division has
jurisdiction to grant such relief.
In my view these
arguments are well founded. I would add that even if they are
not, and the lower-level test applicable to
interim relief can be
applied, having put the matter of the unlawfulness of the seventh
respondent’s installation as monarch
in the hands of the
Gauteng Division, the applicants should have approached that Court
for that interim relief.
[13]
As it turns out the prayer for relief under paragraph 2.1 of Part A
of the notice of motion was
abandoned at the close of the applicants’
argument. Putting the matter as simply as I can, the claim that
interim protection
was required rested on the proposition that the
seventh respondent would use his position as trustee unlawfully to
enrich himself.
During the course of the argument the
applicants’ counsel came to accept the proposition that the
seventh respondent did
not have the power to achieve that end in his
capacity as trustee of the Ingonyama Trust. There was therefore no
need for the interdict
sought in paragraph 2.1 of Part A of the
notice of motion. Counsel’s concession was correctly
made, and I will deal
with it further in considering the Trust’s
response to the relief sought against it.
Paragraph 2.2 of
Part A.
[14]
The relief sought in paragraph 2.2 of Part A of the notice of motion
was abandoned before argument
commenced as the events or actions
there sought to be interdicted had already taken place.
Excursus : State
financial assistance.
[15]
Before dealing with the next prayer for relief contained in Part A of
the notice of motion it
is convenient to give a brief account of the
financial arrangements affecting the monarch, the Royal family and
for that matter
the Inkosi in this province. The subject is
neatly dealt with in the affidavit delivered on behalf of the fourth
respondent.
[16]
Section 211(1) of the Constitution recognises the institution, status
and role of traditional
leadership according to customary law,
subject to the Constitution. Section 219 of the Constitution
then provides that an
Act of Parliament must establish a framework
for determining,
inter alia,
the salaries, allowances and
benefits of traditional leaders. It also provides for the
establishment of an independent commission
to make recommendations
concerning such salaries, allowances and benefits.
[17]
The
Remuneration of Public Office Bearers Act, 1998
deals,
inter
alia
, with the salaries, allowances and benefits of traditional
leaders. They are entitled to such salaries and allowances as
are determined from time to time by the President after consultation
with the relevant Premier, and after taking into consideration,
inter
alia
, the duties and functions of different categories of
traditional leaders, and the recommendations of the Independent
Commission
for the Remuneration of Public Office-bearers established
in terms of the Independent Commission for the Remuneration of Public
Office-Bearers Act, 1997. The implementation of these
provisions brings about that at present the seventh respondent
receives
an annual salary of a little over R1.2 million, and the
Inkosi in this province somewhat less than that. The affidavit
of
the fourth respondent reveals that the payments of such
remuneration to the seventh respondent are met by National Treasury,
the
Provincial Government being responsible for the salaries of other
traditional leaders. It is also said in that affidavit that
the
seventh respondent’s salary “strictly speaking, is
remuneration for one’s personal benefit in lieu of holding
office”. I am not sure that that statement is entirely
correct. The remuneration attaches to the office, but
in terms
of the legislation just referred to it is intended to be compensation
for the performance of the role and functions of
the office. It
should be observed immediately that the seventh respondent’s
remuneration is undoubtedly not sufficient
to cover the costs that he
incurs personally in the litigation in which his personal right to
occupy the position of monarch has
been challenged.
[18]
In terms of Schedule 4 to the Constitution traditional leadership is
a functional area of concurrent
national and provincial legislative
competence. Exercising its competence, the provincial
government has taken on the responsibility
of financing the Zulu
Royal house under the KwaZulu-Natal Zulu Royal House Trust Act, 2018
(the “Royal House Trust Act”,
establishing the “Royal
House Trust”).
[19]
Section 1 of the Royal House Trust Act defines the term “Zulu
Royal House” as “the
traditional institution of the Zulu
Royal Family of the Monarch according to Zulu customary law and
customs.” Section
4 provides that the Zulu Royal House
consists of the royal queens and “those blood relatives of the
Monarch whose names appear
in a list as provided from time to time by
the Monarch to the Premier”.
[20]
The Royal House Trust Act establishes a “juristic person to be
known as the Zulu Royal
House Trust”. In terms of s 2 the
Royal House Trust is a provincial public entity and, in respect of
monies appropriated
by the provincial legislature to the Royal House
Trust, is subject to the provisions of the
Public Finance Management
Act, 1999
. The accounting authority of the Trust is its board
of trustees,
s 6(1)
making provision for the appointment of persons
to that board.
[21]
The objects of the Royal House Trust are set out in s 3(1) of the Act
which reads as follows.
‘
The
Trust must, in a manner consistent with the provisions of this Act
and within the available budget and resources –
(a)
be administered for the
benefit of the monarch and the other members of the Zulu Royal house,
including their
(i)
material welfare;
(ii)
educational needs;
(iii)
aspirations;
(iv)
social well-being,
befitting their status;
and
(b)
provide for the
administration, maintenance and management of the assets of the
Trust, including the Royal palaces and the Royal
farms.’
[22]
The affidavit delivered on behalf of the fourth respondent goes on to
describe the process through
which monies are appropriated to the
Royal House Trust by the province in accordance with law. In
terms of the
Public Finance Management Act and
Treasury Regulations
the province goes through a budgetary process each year, which
includes the provision of budget projections
for the next financial
year. In the case of the Royal House Trust, the budget
for what is to go to it becomes part
of the budget of the office of
the Premier. The budget is then presented to the provincial
legislature and once passed, becomes
law. The law current at
the time of the delivery of the fourth respondent’s affidavit
was the KwaZulu-Natal Appropriation
Act, 2 of 2023. It includes
the budgeted allocation to the Royal House Trust as part of the
Premier’s Vote.
[23]
When circumstances necessitate adjustments to the budget it is done
through an adjustment vote.
One such adjustment vote took place for
2023/2024 and a copy of it is annexed to the affidavit in question.
It is relevant
to the relief sought against the Premier.
[24]
It seems clear that the national and provincial legislative framework
just described is designed
to meet the reasonable financial
requirements of the seventh respondent. He receives a salary
and the advantage of the allocations
made by the Zulu Royal House
Trust for the benefit of the monarch as contemplated by s 3(1)(a) of
the Royal House Trust Act.
(There appears to be no legal
obstacle to the seventh respondent supplementing that income by
personal endeavours in other fields,
should he wish to do so.) The
deponent to the affidavit delivered on behalf of the fourth
respondent summarises the position,
stating that the fourth
respondent and his Director General
‘
have
no constitutional mandate or authority to authorise or allocate
public funds to or budget for the seventh respondent’s
personal
interests. Instead a budget is directed towards the Zulu Royal
House or Royal Household which is administered in
terms of [the Royal
House Trust Act], and in accordance with the provisions of the PFMA’.
The Royal House Trust was
not joined as a respondent in these proceedings.
Paragraphs 3 and 4
of Part A: Relief against the Ingonyama Trust.
[25]
I turn now to paragraphs 3 and 4 the prayer for relief contained in
Part A of the notice of motion.
Counsel for the applicants
pointed out during argument that the two paragraphs are similar, and
turn on the same issues of principle.
In the amended form they
took at the end of argument the prayers read as follows.
‘
Pending
the determination of Part B of this application:
3.
the seventh to twentieth respondents, in their respective capacities,
are interdicted
and restrained from using, disbursing or in any
manner allocating or paying out to whomsoever, any funds from the
Ingonyama Trust
for the personal benefit of the seventh respondent;
4.
the seventh to twentieth respondents are interdicted and restrained
from dispensing
funds of the Ingonyama Trust for the purpose of
funding any litigation involving the lawfulness of the first
respondent’s
decision to recognise the seventh respondent as
the King of the Amazulu Kingdom.’
[26]
In the course of the argument I raised with counsel for the
applicants the proposition that an
interdict must be worded with
precision, so that its ambit is clear and readily understood,
especially because the remedy for breach
of any such order is
contempt proceedings. I expressed discomfort with the use of
the term “personal benefit of the
seventh respondent” in
prayer 3, as, especially in the case of a person holding an office
such as the seventh respondent
does, the dividing line between
expenditure for the benefit of the Ingonyama Trust, and expenditure
for the personal benefit of
the seventh respondent, may be blurred at
the margins. Counsel made no concession in that regard but
professed to understand
the problem. He was unable to make
submissions to alleviate my concern or to show that it was
unfounded. I will not
deal with this any further in the light
of the decisions I have reached as to the outcome of this case.
But I say immediately
that I had no similar misgivings about the
provisions of prayer 4 which are clear enough, and indeed appear to
me to be the central
concern of the applicants in launching this
application.
[27]
The seventh respondent challenged the
locus standi
of the
applicants to seek the relief set out in paragraphs 3 and 4 of Part A
(and indeed paragraph 5, to which I have yet to come).
The
objection turns very much on challenges to the claims of the
applicants to litigate on behalf of the Zulu Royal family, or
on
behalf of the Zulu nation, and so on. Those challenges have
merit, but I do not regard them as dispositive of the issue.
The case the Ingonyama Trust must meet is that it is reasonably
anticipated that the Trust will disburse Trust funds for the personal
benefit of the seventh respondent as monarch. The applicants’
complaint is that such expenditures, including expenditure
on legal
costs incurred by the seventh respondent in defending his personal
position in disputes over his accession to the Zulu
throne, would
constitute the unlawful misappropriation of public funds. In my
view the applicants have own-interest standing
to place that issue
before the court. They are senior members of the Royal
family. (I use the word “senior”
in a broad sense.)
Misuse of the Trust’s funds is likely to bring the royal
family into disrepute, a matter which is
of legitimate concern to the
applicants.
[28]
At least one factor in the complex matrix of facts (many of which are
not fully elucidated in
the papers) suggests that the applicants are
the wrong people to seek the interdict relating to expenditure on
legal costs.
They undeniably intend to bring about that,
through the intervention of this court, the seventh respondent is
deprived of the legal
representation he requires to defend his
position as monarch. They may fairly be described as the
principal litigants seeking
his removal from office, and therefore
have a special personal interest in the relief relating to costs,
which transcends their
professed concern for the public interest and
the reputation of the royal family. That arguably renders them
unsuitable litigants.
(I will revert to this again when dealing with
paragraph 5 of Part A.)
[29]
However the principles set out in paragraph 34 of the judgment of
Cameron J in
Giant Concerts CC v Rinaldo Investments (Pty) Ltd and
Others
2013 (3) BCLR 251
(CC) seem to me to be decisive.
‘
[34]
…[An] own-interest litigant may be denied standing even though
the result could be that an unlawful
decision stands. This is
not illogical. As the Supreme Court of Appeal pointed out,
standing determines solely whether
this
particular litigant is entitled to mount the challenge: a successful
challenge to a public decision can be brought only if “the
right remedy is sought by the right person in the right
proceedings”. To this observation one must add that the
interests
of justice under the Constitution may require courts to be
hesitant to dispose of cases on standing alone where broader
considerations
of accountability and responsiveness may require
investigation and determination of the merits. By corollary,
there may be
cases where the interests of justice or the public
interest might compel a court to scrutinise action even if the
applicant’s
standing is questionable. When the public
interest cries out for relief, an applicant should not fail merely
for acting in
his or her own interest.’
In paragraphs preceding
the one just quoted the Constitutional Court stressed that an
assessment of standing must be insulated from
any consideration of
the merits. That is the approach I adopt. The applicants’
standing is questionable, but it is
in the public interest that the
applicants’ claim for relief against the Trust be heard.
[30]
The KwaZulu-Natal Ingonyama Trust Act 3 KZ of 1994 was assented to on
25 April 1994 by the last
State President in office prior to our new
constitutional dispensation, two days before the first democratic
elections in this
country. The effect of the Act, and
undoubtedly its purpose, was to prevent the land now administered by
the Trust (essentially
the land previously owned or controlled by the
then KwaZulu Government) from vesting in and falling under the direct
administration
of the new national government in terms of the Interim
Constitution. The Act provided for the transfer of the land to
the
Ingonyama to be held in trust by him as trustee of the Ingonyama
Trust. In terms of the original Act the word “Ingonyama”
was defined to be synonymous with the term “the King of the
Zulus”. He was to hold the land “for and on
behalf
of the tribes and communities” referred to in a schedule to the
Act, as well as for and on behalf of his subjects.
He would be
the only trustee and would have the power to administer the affairs
of the Trust. The judgment in
Council for the Advancement of the
South African Constitution and Others v Ingonyama Trust and Others
[2021] 3 ALL SA 437
(KZP) (“
CASAC
”) records at
paragraph 31 that the effect of the Act was to transfer approximately
2,8 million hectares of land, constituting
about one-third of the
total area of KwaZulu-Natal, into the control of the Ingonyama.
[31]
The original Ingonyama Trust Act was extensively amended by national
legislation in 1997.
It attained the status of national
legislation. One of the things which was not changed is the
status of the Ingonyama Trust.
It was originally established in
terms of s 2 of the Act as a corporate body with perpetual succession
and power to sue and be
sued and to do all such acts and things as
bodies corporate may lawfully do. That remains the position.
The section
then and now provides that the corporate body is called
the “Ingonyama Trust”. As counsel for the
Trust
correctly stressed in his address, the Ingonyama Trust is not a
trust at all. Trusts are not corporate bodies. Calling
the Ingonyama the “trustee” of the Trust does not alter
that proposition. One can only assume that the drafters
of the
Act considered the use of the terms “trust” and “trustee”
to be appropriate because they reflected
the intention that the
Ingonyama would not acquire any personal right or title to the land
in question. He would hold the
land in trust as trustee of the
Ingonyama Trust “for and on behalf of the tribes and
communities”.
[32]
The 1997 amendment to the Act introduced a new s 2A which established
a board to be known as
the KwaZulu-Natal Ingonyama Trust Board.
The Board would henceforth administer the affairs of the Trust and
the Trust land.
It would comprise the Ingonyama, or his or her
nominee, who would be the chairperson of the board, and eight other
members appointed
by the national Minister of Rural Development and
Land Reform. The minister would designate one of the eight
persons to be
installed as vice-chairperson of the board. The
minister was empowered to make regulations concerning a number of
issues,
but more broadly as to “other matters as are necessary
or useful to be prescribed for the attainment of the objects of [the]
Act”.
[33]
The 1997 Amendment Act introduced a new definition of the term
“Ingonyama”.
The word is used throughout the Act.
The definition is to the effect that, save where the word is used in
six identified
sub-sections of the Act where it must mean the King or
the trustee, it means “the Board established by s 2A” of
the
amended Act. I do not propose to go through these sections,
to illustrate the effect of this amendment on the structure of
the
Act. It is enough to record that an analysis of them reveals
that all powers of administration of the land and the Trust
have
vested since 1997 in the Ingonyama Trust Board. No power
resides in the King (now the seventh respondent) by reason
of him
being the trustee of the Ingonyama Trust. Thus the abandonment
by the applicants of the relief originally sought in
paragraph 2.1 of
Part A of the notice of motion.
[34]
In the original Act it was provided that the Ingonyama would hold the
land in Trust on behalf
of the scheduled tribes and communities, and
that his administration of the land would be for the benefit of the
tribes and communities
in question. The 1997 amendment altered
the terminology to provide that the benefit of the administration of
the land should
accrue to “members of” the tribes and
communities and to “residents” of the land. I
cannot think
of any reason for the addition of the words “members
of” to the phrase “tribes and communities” other
than
to avoid what the legislature regarded as the potential for a
misinterpretation of the reference to “tribes and communities”
generating a belief that benefit to the traditional leadership of
such tribes and communities (principally the Inkosi) would satisfy
the requirement that the administration of the land should benefit
such tribes and communities.
[35]
Unfortunately the papers in this application, which presently run
into over 1000 pages, yield
incomplete information concerning the
undertakings of the Trust which generate income. The
Board has a disbursement
policy, a subject which I must canvass
later. It records that the Trust’s land includes areas
with minerals, natural
resources and natural features that facilitate
economic development. The Trust’s principal income
appears to be derived
from leases. Besides residential leases
(which were declared unlawful in
CASAC
, supra) the policy
document lists commercial leases, leases of surface rights,
agricultural, telecommunication, sign board and
State domestic
facilities leases. There appears to be no dispute about the
fact that the Trust enjoys substantial incomes.
[36]
The only legal costs to be regarded as personal to the seventh
respondent which are identified
in the founding papers are those
incurred by the seventh respondent in engaging Strauss Daly Attorneys
to represent him in litigation
in which his personal position as
monarch was challenged.
[37]
The founding affidavit contained only generalised statements that
funds of the Trust were being
or had been employed to meet personal
debts of the seventh respondent. No direct evidence, or
evidence within the knowledge
of the applicants, was tendered on this
subject.
[38]
In the result, if all other issues raised in opposition to the
application (which I find unnecessary
to traverse) were decided in
favour of the applicants, the outcome of the claim for relief in
terms of paragraphs 3 and 4 of Part
A of the notice of motion would
turn on the response of the Trust to the allegations made by the
applicants.
[39]
The members of the Board cited in these proceedings were appointed in
May 2023. Before
then the chairperson of the Board was a Mr
Ngwenya. He had been in office for many years. When the
application was
launched the tenth respondent was the chairperson of
the Board who would have been appointed to that office by the seventh
respondent.
I was advised from the Bar that there has been some
vacillation on the part of the seventh respondent as to whether he
should personally
chair the Board, and the position is now apparently
that he does. When this litigation commenced in December 2023
the Board
members were somewhat new to their offices.
[40]
The resolution adopted by the Board, and the affidavit delivered on
behalf of the Trust and the
Board, reveal that the Board’s
position is as follows.
(a)
It does not dispute the
validity of the principles relied upon by the applicants in seeking
relief against the Board.
(b)
However, it opposes any
order which would prevent it disbursing funds in accordance with its
disbursement policy.
[41]
As to the questions of principle, it is clear that the Board agrees
with the propositions that
(a)
the Trust may not lawfully expend its funds on legal costs incurred
by the seventh respondent
personally in defending his right of
accession to the Zulu throne; and
(b)
the Trust may not lawfully pay any of the personal expenses or debts
of the seventh respondent.
The seventh respondent
disagrees, saying in his affidavit that there is “nothing
illegal or untoward” should the Board
pay his personal legal
expenses. But nothing said in his affidavit, or for that matter said
in argument on his behalf, explains
the basis for that assertion.
[42]
In my view the position adopted by the applicants and the Board on
these two principles is correct.
I see nothing in the Ingonyama Trust
Act which can justify the conclusion that monies generated by the
Board’s administration
of Trust land can be used for the
personal benefit of the seventh respondent, whether as trustee or as
King; or for that matter
for the personal benefit of other
traditional leaders.
[43]
The affidavit of the Trust and Board records how the newly appointed
members of the Board were
called to induction meetings to be held
from 19 to 23 June 2023. The purposes of the meetings were for
the Board members
to meet each other and the Trust executives, and to
be familiarised with the operations of the Trust. The induction
meetings had
to be converted in part to an urgent Board meeting to
deal with the problem of the fees owing to Strauss Daly Attorneys by
the
seventh respondent who had been represented by that firm in
disputes over his accession to the throne. It was brought to the
attention
of the members of the Board that the previous chair of the
board had made undertakings on behalf of the Trust to see to it that
the fees were paid. According to the affidavit the members of
the Board could not see the justification for such expenditure
which
was not catered for in the Trust’s disbursement policy.
They regarded themselves as in a precarious position.
However, the
Board decided that it could not repudiate the undertakings that had
been made, and concluded an agreement with the
attorneys in terms of
which a down-payment of R1 million would be made, with the balance to
be paid in 26 monthly instalments of
a little over R200 000
each. (I was informed from the Bar that at the time the case
was being argued about 13 such instalments
remained to be paid.)
Against this undertaking on behalf of the Trust, Strauss Daly
Attorneys released the seventh respondent’s
files to his newly
appointed attorneys. The seventh respondent was informed, in
effect, that the payments to Strauss Daly
Attorneys would be settled
against “the 5% of Trust income which is allocated for projects
and causes of the Ingonyama”.
I will revert to the
question of this 5% allocation. It features in the Trust’s
disbursement policy.
[44]
As to other payments made by the Ingonyama Trust for the personal
benefit of the trustee, I think
that this is one of those rare
occasions where a direct quotation from the relevant paragraphs of
the affidavit is appropriate.
’
63.
Following the appointment of the current ITB, the members have come
to learn of the concerning
manner in which the Trust had previously
been managed, particularly on the issue of payments and
disbursements.
64.
The Board has found many instances where payments were made for
services which were not
connected to the direct mandate of the Trust
or permitted as expenses covered in the Disbursement Policy, such as
meetings held
in the Royal Family or the transportation of amabutho
and the like. Further, there are records of two significant
purchases
of luxury vehicles which were bought by the Trust for the
sole use of the Ingonyama as trustee of the Trust.
65.
Further and of greater concern, there were a number of payments made
which appear to be
of a personal nature such as payments for
accommodation at hotels for members of Royal Family, including the
Ingonyama.
66.
Furthermore, other members of the Royal Family have benefitted from
the funds of the Trust
including one of the Applicants herein.
For example, there is a record of a payment made to the Southern Sun
Hotel in Durban
for an overnight stay by the First Applicant
following an alleged trip to Pretoria to hand deliver a letter to the
President.
This trip was not a Trust related activity nor was
it a permissible expense.
67.
For the sake of completeness, annexed hereto marked “ITB 13”
and “ITB
14” are two separate bundles illustrating the
type of payments previously permitted through Trust funds for the
benefit of
the Ingonyama and other persons. Such payments do
not meet the requirements set out in the Disbursement Policy.
68.
The conduct which the Applicants seem to complain of against the
Trust and its Board is
conduct historically perpetuated through and
by the current Board’s predecessors. The present Board
has taken serious
steps to ensure that it brings the Trust back to a
place of compliance with legislation and its policies.
69.
Therefore, it would be improper for the Applicants to persist with
the relief it seeks against
the Eighth and Ninth Respondents.’
[45]
The bundles referred to in paragraph 67 of the affidavit are a little
confusing at times, but
they nevertheless reflect the expenditure of
many millions of rands. Much of it occurred during the reign of
the late King.
One sees items such as R1.5 million to pay the
King’s taxes, R1.4 million to finance his son’s wedding
and R2.9 million
for a new BMW motor vehicle.
[46]
It is unsurprising in the light of the disclosures made in the
affidavit delivered on behalf
of the Trust, that counsel for the
applicants abandoned the original qualification to the interdict
sought in paragraph 3 of Part
A of the notice of motion, that the
interdict against paying personal expenses of the seventh respondent
would not apply to “those
funds authorised by duly constituted
authority” prior to the appointment of the current Board.
[47]
My conclusions regarding the interdicts sought against the Ingonyama
Trust and its Board, based
on the material which I have already
discussed at some length in this judgment, are the following.
(a)
Subject only to what I
have to say about payment of the costs incurred by the seventh
respondent whilst represented by Strauss Daly
Attorneys, the Trust
has made it clear that it regards the payment of such costs as beyond
the power and capacity of the Ingonyama
Trust, and that the Board
will not be paying any such costs.
(b)
It is clear that the
Board’s view that the payment of any such costs is unlawful
extends equally to the amounts it has paid
and continues to pay to
Strauss Daly Attorneys. Nevertheless, it concluded the contract
with that firm of attorneys.
The sole viable target of the
relief sought in paragraph 4 of Part A of the notice of motion would
be the payments being made to
Strauss Daly Attorneys. No other costs
have been identified in the papers. Any interdict granted at this
stage against the payment
of such legal costs would have to flow from
a decision that the contract the Board concluded with the attorneys
is unlawful and
invalid; or unenforceable because it is contrary to
public policy. In my view such an order cannot be granted if Strauss
Daly Attorneys
are not afforded an opportunity to be heard.
That firm has not been joined in these proceedings. When this
difficulty
was put to counsel for the applicants during the course of
argument his response was that perhaps Strauss Daly Attorneys could
be joined when Part B of the notice of motion is placed before the
court. Unfortunately that does not address the present
predicament.
(c)
One of the requirements
for the grant of an interdict against future conduct is that the
occurrence of the future harmful conduct
should be “reasonably
apprehended” (to adopt the terminology used in
Setlogelo
v Setlogelo
1914 AD
221
at 227). A well-grounded apprehension of harm is required.
Save with regard to the costs discussed immediately above, such
a
reasonable apprehension has not been established.
(d)
The same requirement,
that of a well-grounded apprehension of harm, is also not satisfied
in the case of the interdict sought against
the payment of the
personal expenses of the seventh respondent. The Board makes it
clear that it agrees with the principle
relied upon by the
applicants, and that it will not be paying any such expenses.
(e)
In view of that fact,
and the fact that, in the light of the disbursement policy, the Board
regards the so-called allocation of
5% of Trust income to the seventh
respondent as being for use in projects or causes (presumably
community projects and causes)
selected by the seventh respondent,
one would expect the Board in the future (when it no longer has to
pay instalments to Strauss
Daly Attorneys) to monitor the use of
those funds to ensure that they are not spent for the personal
benefit of the seventh respondent.
(f)
In the result the
interdicts against the eighth and ninth respondents cannot be
granted.
[48]
I must deal briefly with the disbursement policy which features in
this case. It will be
recalled that the Trust’s
opposition to the application is directed at avoiding any order which
would obstruct the Board
following the dictates of the disbursement
policy, the current version of which is dated 6 November, 2015.
[49]
I am concerned at the tone of the Board’s approach to the
disbursement policy. The
members appear to regard it as law.
The extent of the rights and obligations of the Trust and its Board
is determined by the provisions
of the Ingonyama Trust Act and the
regulations promulgated under that Act. A policy cannot
sanction any deviation from the
Act and Regulations.
[50]
The question as to the lawfulness of the disbursement policy is not
before me in this case.
The applicants seek no relief with
regard to the policy. Nevertheless, I must express some prima
facie views concerning the
policy to explain a qualification I am
bound to add to this judgment.
[51]
The history of the Ingonyama Trust expenditures on the personal
expenses of the monarch, as it
is laid out in the papers before me,
suggests strongly that the allocation of 5% of Trust income to the
monarch has been misused.
Correspondence under the hand of the
former chairman conveys that the previous Board was of the view that
it was legitimate for
the 5% allocation to be appropriated to the
personal expenses of the monarch. For instance, one sees the
following in a letter
addressed to the Board by its pervious chairman
in October 2022.
‘
You
would recall a few months ago (August 2022 to be exact) his majesty
directed me to assist him in settling his outstanding debts
from his
allowances as a trustee. For the record there are funds due to
him in terms of the disbursement policy. In
terms thereof 5% of
the Trust income is allocated to him. Secondly rental from
Thanda Properties is set aside for him.
I know we have made
some payments towards settling some of his debts. In this
regard I need a reconciled statement.’
[52]
The provision of the disbursement policy which the Board relies upon
for its understanding of
the nature of the 5% allocation to the
seventh respondent is clause 3.3.3 which reads as follows. (Clause 3
is a guide to the distribution
of income generated in a particular
area.)
‘
Five
(5) % commercial only would be made available to the Trustee in terms
of the Ingonyama Trust Act. This would be utilised
for the
affairs of the Trust as per the provisions [and ?] in terms of the
Ingonyama Trust Act and would be made available for
the distribution
for the benefit etc (
sic
)
of members of tribes or communities in areas less well endowed.’
Then in clause 11.1,
under the heading “Non-Allowable Expenditure”, this is
listed.
‘
Expenses
that do not meet the test of legal, ethical or that are considered as
individual enrichment. Individual benefit excludes
the
provisions already made for the benefit of Inkosi and Trustee in
terms of Ingonyama Trust Act in this document.’
To my mind such
ambiguities in the policy document are likely to produce arbitrary
conduct. I find myself compelled to add
that saying that
something not sanctioned by the Ingonyama Trust Act is “in
terms of the Ingonyama Trust Act” is at
best misleading.
[53]
As already mentioned, clause 3.3 of the policy sets out the Board’s
guide to distribution
of income derived from sources in a particular
traditional council or community area. Benefits from such
income are confined
to that particular area. The policy discriminates
against those who reside in areas which are not suited to commercial
and other
income-producing developments. Clause 3.3.2 provides
that 10% of the income derived from such a source is to be
distributed
to the “Inkosi of that particular area or tribe.”
[54]
I find myself unable to reconcile these provisions of the
disbursement policy, and others, with
the Ingonyama Trust Act and the
regulations promulgated thereunder. But of course, I have not
had the benefit of any argument
on these issues.
[55]
The fact that I intend to grant no relief in favour of the applicants
against the eighth and
ninth respondents means that there is no order
which directly obstructs the future implementation of the
disbursement policy by
the Board. For that reason, and because
the Board opposed the application inter alia to avoid any order
obstructing the implementation
of the policy, I find it necessary to
record that this judgment should not be interpreted to convey any
endorsement of the policy.
The success of the eighth and ninth
respondents in avoiding an order which directly obstructs the
implementation of the policy
is merely incidental.
Paragraph 5 of Part
A: Relief against the Premier.
[56]
I turn now to the remaining interdict sought by the applicants,
namely one affecting the positions
of the fourth and fifth
respondents (the Premier and the Director-General of the Office of
the Premier, KwaZulu-Natal). It
was originally broader than the
amended form sought in argument. It was designed to cover the
expenditure of public funds
and resources in “promoting and
supporting the personal interests” of the seventh respondent.
What is sought
now, pending the determination of Part B, reads as
follows.
‘
Interdicting
and restraining the fourth and fifth respondents from utilising or
authorising in any manner or form the utilisation
of any public funds
and resources in relation to litigation relating to the protection of
the status of the seventh respondent.’
[57]
In my view the argument that the applicants lack
locus standi
to seek this relief is well founded. The requirement that the
applicants should be the right persons to bring such proceedings
is
not met. I do not accept that they are motivated by a concern
over the misuse of public funds by the Premier in defence
of the
seventh respondent. They seek a personal advantage which
no court can regard as legitimate; that is to say the
benefit of
litigating against someone who, for want of funds, cannot mount a
proper defence.
[58]
The adjustment vote to which I referred earlier when giving an
account of the financial arrangements
for the monarch and Royal
Household reveals that R30 million was allocated towards legal fees
incurred by the Royal Household.
It particularises a more or
less even split between costs incurred by the seventh respondent and
costs incurred by the Royal family.
The vote is for allocation
to the Royal House Trust to be disbursed by it in meeting such
expenses. The document was produced
by the Premier’s
office and placed before the legislature for approval on the
assurance that it is in accordance with the
Public Finance Management
Act and
Treasury Regulations. No case is made out that the
budget thus legislated is unlawful. Indeed, the founding papers
do not deal with the KwaZulu-Natal Zulu Royal House Trust Act at
all. Almost nothing is said in the founding papers to support
the claim for an interdict against the fourth respondent, beyond the
statement that it would be irrational for,
inter alia
, the
fourth respondent “to offer financial and administrative
support to the seventh respondent in circumstances where his
appointment will in all likelihood be found to be unlawful.”
[59]
I conclude that the claim for an interim interdict against the fourth
and fifth respondents is
without merit.
Costs
[60]
The prayer for costs in Part A of the notice of motion was that such
should be paid by the respondents
who oppose the application,
including the costs of two counsel. The first to fifth
respondents delivered affidavits which
were explanatory in nature and
designed to assist the court. They should be and are commended
for that. However, they
chose not to oppose the application.
In those circumstances I do not believe it would be just to order the
applicants to
pay their costs.
[61]
Otherwise the costs of this application should follow the result.
As for the scale of costs
on taxation, the parties agreed on what I
have set out in the order.
I MAKE THE FOLLOWING
ORDER.
(a)
The application
for relief under Part A of the notice of motion is dismissed.
(b)
The applicants
shall pay the costs of the seventh respondent and the eighth to
twentieth respondents. The liability of the
applicants for the
payment of such costs is joint and several.
(c)
The costs of two
counsel shall be allowed. On taxation Scale C shall apply to
senior counsel and Scale B to junior counsel.
OLSEN J
Date of Hearing:
Friday, 26 April
2024
Thursday, 16 May
2024
Friday, 17 May 2024
Date
of Judgment:
13
June 2024
For
the Applicants:
Mr T
Masuku SC with Mr M Simelane and Ms NM Nyathi
Instructed
by:
JG
AND XULU INCORPORATED
Applicants’
Attorneys
Suite
14, One Sturdee Road
Rosebank
Johannesburg
(TEL:
071 451 6370)
(Email:
barbabas@jgx.co.za
xolani@jgx,co.za
c/o
ZSM ATTORNEYS
20
Otto Street
Pietermaritzburg…KZN
(Tel:
Email:
richard@zsmattorneys.co.za
For the 1
st
&
2
nd
Respondents:
Mr M
Moerane SC with Mr N Muvangua and Ms N Chesi-Buthelezi
Instructed
by:
STATE
ATTORNEY
1
ST
& 2
ND
Respondents Attorneys
Ground
Floor, Salu Building
316
Thabo Sehume Street
Pretoria
(REF:
3811/23/Z51)
(TEL:
012 309 1554)
Email:
Inkuna@justice.gov.za
luckynkuna@gmail.com
c/o
NGCAMU ATTORNEYS INCORPORATED
Ground
Floor
229
Hoosen Haffejee Street (rear entrance of 225)
Pietermaritzburg
(Ref:
SKN/mn/01S0051/23)
(Tel:
087 094 9284) [471]
(Mobile:
083 439 8380)
Email:
info@ngcamulaw.co.za
For
3
rd
Respondent:
Mr M
Moerane SC with Ms N Chesi-Buthelezi
Instructed by:
STATE
ATTORNEY
3rd
Respondent’s Attorneys
Ground
Floor, Salu Building
316
Thabo Sehume Street
Pretoria
(REF:
1385/2022/Z8)
(TEL:
012 309 1554)
Email:
simathebula@justice.gov.za
c/o
NGCAMU ATTORNEYS INCORPORATED
Ground
Floor, 229 Hoosen Haffejee Street
(rear
entrance of 225)
Pietermaritzburg….KZN
(REF:
SKN/01S0054/24)
(TEL:
087 094 9284)
(MOBILE:
083 439 8380)
Email:
info@ngcamulaw.co.za
For
4
th
& 5
th
Respondents:
Mr Z
Suleman
Instructed
by:
STATE
ATTORNEY
4
th
& 5
th
Respondents Attorneys
6
th
Floor, Metropolitan Life Building
391
Anton Lembede Street
Durban
(REF:
BHAGWAN)
(TEL:
031 365 2591)
Email:
c/o
STATE ATTORNEY (KWAZULU-NATAL)
(SATELLITE
OFFICE)
2
nd
Floor, Magistrates Court Building
302
Church Street
Pietermaritzburg…..KZN
For
7
th
Respondent:
Mr
MA Badenhorst SC with Mr JA Klopper and Mr BN Buthelezi
Instructed
by:
CAVANAGH
& RICHARDS ATTORNEYS
7
th
Respondent’s Attorneys
Lytteltown
Office Park
Building
H
Shelanti
Avenue, Die Hoewes
Centurion
Pretoria
(REF:
RR/SG/Z00069B)
(TEL:
012 940 1947
Email:
ross@crlawchambers.co.za
Stella@crlawchambers.co.za
c/o
HAY & SCOTT ATTORNEYS
Top
Floor, 3 Highgate Drive, Redlands Estate
1
George Macfarlane Lane
Pietermaritzburg…..KZN
(TEL:
033 342 4800)
Email:
michaela@hayandscott.co.za
For
8
th
& 9
th
Respondents:
Mr
AJ Dickson SC with Ms M Mazibuko-Mudau
Instructed
by:
MDLEDLE
INCORPORATED
8
TH
& 9
TH
Respondents Attorneys
2
nd
Floor, Suite 201
161
Pietermaritz Street
Pietermaritzburg…..KZN
(REF:
E ROOI/LITE142/2023PMB)
(TEL:
033 345 4022)
Email:
emmerson@telkomsa.net