Brief Summary

Traditional Leadership — Identification of King — Dispute over the identification of the King-Elect of the Zulu Nation — The Zulu Royal House identified Prince Misuzulu ka Zwelithini Zulu as King, which was subsequently recognized by the President — Challenges to both decisions based on compliance with Zulu customary law and the Traditional and Khoi-San Leadership Act 3 of 2019 — High Court held the identification decision was res judicata and set aside the recognition decision, remitting it for further investigation — Appeal upheld, High Court's remittal order found incompetent, and both applications dismissed with costs.

Comprehensive Summary

Summary of Judgment

1. Introduction

These were consolidated appeals and cross-appeals in the Supreme Court of Appeal arising from two review applications brought in the Gauteng Division of the High Court, Pretoria. The review proceedings challenged, first, the Zulu Royal Family’s identification of Prince Misuzulu ka Zwelithini Zulu as King of the Zulu Nation, and second, the President of the Republic of South Africa’s decision to recognise him as such under the Traditional and Khoi-San Leadership Act 3 of 2019.

The appellants were the President of the Republic of South Africa, Prince Misuzulu ka Zwelithini Zulu, and the Minister of Cooperative Governance and Traditional Affairs. The principal respondents were Prince Mbonisi Bhekithemba ka Bhekuzulu (and others) and Prince Simakade ka-Zwelithini Zulu, together with other cited parties including Prince Mangosuthu Buthelezi, the Premier of KwaZulu-Natal, and relevant traditional leadership structures and royal family members.

The procedural history was central to the dispute. Prior litigation in the KwaZulu-Natal Division of the High Court, Pietermaritzburg (before Madondo AJP) had addressed interdictory and related relief concerning succession and coronation steps. In the Pretoria High Court, Davis J held that the “identification” question had become res judicata by virtue of Madondo AJP’s earlier judgment, but nonetheless reviewed and set aside the President’s recognition decision for failure to follow the investigative mechanism in section 8(4)–(5) of the Leadership Act, remitting the matter to the President to appoint an investigative committee. The President and Prince Misuzulu appealed that setting-aside and remittal, and Prince Mbonisi and Prince Simakade cross-appealed aspects of the order, including the res judicata finding and the nature of the remittal.

The general subject-matter of the dispute concerned the lawfulness of the customary-law identification of the King-Elect by the Zulu Royal House, and whether the President’s statutory recognition complied with section 8 of the Leadership Act, including whether the President was obliged to appoint an investigative committee in the face of purported “allegations” that the identification did not comply with customary law and custom.

2. Material Facts

King Zwelithini ka Bhekuzulu had reigned since 1968 and died on 12 March 2021. In his last will and testament he nominated the late Queen Mantfombi Dlamini-Zulu as his successor. The Zulu Royal Family met on 24 March 2021, appointed the Queen as regent, and this was publicly announced by Prince Mangosuthu Buthelezi (traditional Prime Minister). The Queen died on 29 April 2021, before being officially recognised as regent.

Before her death, at a Royal Family meeting on 30 March 2021, the Queen proposed and nominated Prince Misuzulu, her first-born biological son, as successor according to Zulu customary law and custom. The record also reflected that she had similarly nominated him in her will.

Litigation followed. On 28 April 2021, Queen Sibongile Winnifred Zulu, one of King Zwelithini’s wives, brought an application in the Pietermaritzburg High Court seeking declaratory and interdictory relief relevant to regency and succession steps pending determination of her matrimonial claim. At the same time, two Princesses brought an application to interdict implementation of King Zwelithini’s will pending a challenge to its validity. Those applications were consolidated.

Within the Royal Family, competing meetings occurred. On 5 May 2021, at a meeting summoned by Princess Thembi Ndlovu, a faction identified Prince Simakade as King. Following this, and after Prince Buthelezi’s public statement at the late Queen’s memorial service on 7 May 2021, Prince Simakade authored an open statement dated 11 May 2021, which was later read at a Royal Family meeting. In that statement, Prince Simakade disavowed personal ambition for the throne, confirmed he had not claimed it, and stated he would accept and support whomever elders identified.

A key meeting took place on 14 May 2021 at Kwakhangelamankengane Royal Palace. It was convened and chaired by Prince Buthelezi, attended (on the attendance register) by about 140 members from various Houses of the Zulu Royal Family. The minutes reflected that Prince Buthelezi introduced Prince Misuzulu as the incoming King, nominated him, and that the audience accepted this. At Prince Buthelezi’s request, Prince Simakade’s statement of 11 May 2021 was read out.

Afterwards, a further meeting on 23 May 2021 (led by Princess Thembi’s faction) sought to confirm Prince Simakade’s identification. Princess Thembi wrote letters to the President on 28 May 2021 and 3 June 2021, asserting a dispute and complaining that the process had not complied with customary law and legislation; she advanced the view that Prince Simakade qualified through the custom of ukufakwa esiswini (affiliation/adoption for succession purposes). The President did not respond to the first letter.

In parallel, correspondence supporting recognition of Prince Misuzulu was addressed to the President, including a letter from attorneys on 16 June 2021 and a later letter from Prince Misuzulu urging intervention. The Premier of KwaZulu-Natal, on 5 August 2021, wrote to the Minister expressing concern that the Royal Family was divided and that mediation efforts were being pursued. The President requested ministerial intervention, and an ad hoc mediation panel was appointed; its report (released 7 January 2022) found consensus that the next King should come from the late Queen’s House but identified divisions over the legitimacy of the process and recommended awaiting court outcomes.

On 29 September 2021, a meeting of all Houses of the Zulu Royal Family convened by Prince Buthelezi resolved to recognise Prince Misuzulu as King and rejected the competing nomination advanced by Princess Thembi’s faction.

On 19 November 2021, Prince Mbonisi brought an application in the Pietermaritzburg High Court seeking interdictory relief against coronation preparations and against presidential recognition steps. That application was consolidated with the earlier Pietermaritzburg matters, and all were heard by Madondo AJP on 12 January 2022, with judgment delivered on 2 March 2022. Among other outcomes, Madondo AJP dismissed Prince Mbonisi’s application with costs. The SCA judgment treated Madondo AJP’s findings as materially addressing the legitimacy of Prince Misuzulu’s identification, the absence of a cognisable dispute requiring investigation under section 8(4), and the status of competing claims.

Following Madondo AJP’s judgment, Prince Buthelezi wrote on 12 March 2022 requesting the President to finalise de jure commencement of Prince Misuzulu’s reign. The Minister supported recognition by letter dated 16 March 2022, emphasising that Prince Misuzulu had been identified at the meetings of 14 May 2021 and 29 September 2021. The President, noting the absence of any pending application for leave to appeal against Madondo AJP’s judgment, recognised Prince Misuzulu in terms of section 8(3) of the Leadership Act, and the decision was published in the Government Gazette on 17 March 2022.

In the Pretoria High Court review applications, Prince Mbonisi and Prince Simakade (in separate applications heard together) sought to review and set aside both the 14 May 2021 identification decision and the President’s recognition decision. Davis J held that the identification decision could not be revisited due to res judicata, but set aside the recognition decision and remitted the matter to the President to appoint an investigative committee.

3. Legal Issues

The central legal questions before the Supreme Court of Appeal were whether the Pretoria High Court correctly set aside the President’s recognition decision, and whether it correctly treated the identification issue as res judicata based on Madondo AJP’s prior judgment.

The dispute involved questions of law (interpretation and application of the Leadership Act; the doctrine of res judicata and issue estoppel), the application of law to fact (whether the information before the President constituted “evidence or an allegation” sufficient to trigger section 8(4)), and a limited evaluative component concerning what qualifies as an “allegation” for statutory purposes (without treating that as a merits inquiry into customary law itself).

A further issue raised (principally by Prince Mbonisi) was whether the President complied with the statutory requirement of consultation with the Premier and the Minister under section 8(1)(b), and whether alleged non-consultation rendered the recognition decision unlawful.

Prince Simakade’s cross-appeal also raised procedural issues regarding the striking-out applications and the record, although the SCA treated these as not properly before it due to deficiencies in the record.

4. Court’s Reasoning

The Court located the dispute within the constitutional framework recognising traditional leadership and customary law, noting that the Traditional and Khoi-San Leadership Act 3 of 2019 is legislation specifically dealing with customary-law-governed traditional leadership. It emphasised the statutory architecture of section 8, which separates the identification stage (by the royal family, according to customary law and custom, without presidential involvement) from the recognition stage (a public power exercised by the President under statute). The Court rejected the notion that customary identification is “without consequence” absent recognition, but equally affirmed that both stages must comply with the Constitution and the statutory scheme.

Res judicata and issue estoppel on the identification issue

The Court endorsed the High Court’s conclusion that the identification issue had been finally determined in earlier litigation and was therefore not open to re-litigation. It restated the doctrine of res judicata and its policy rationale of finality in litigation, and explained that South African law permits relaxation of strict identity requirements through issue estoppel, where the same parties (or sufficiently connected parties) and the same essential issue arise.

Applying those principles, the Court examined Madondo AJP’s judgment and held that it had directly addressed the legitimacy of Prince Misuzulu’s identification and whether there was a dispute requiring investigative steps. Madondo AJP had identified as central issues whether Prince Misuzulu was legitimately and appropriately identified and nominated, and whether any dispute existed. He had recorded that the Royal Family met on 14 May 2021 and identified Prince Misuzulu, that no dispute was raised at that meeting, and that challenges to the meeting and its composition were unsubstantiated. He had also treated Prince Simakade’s 11 May 2021 statement as a disavowal of a claim and willingness to abide by the Royal Family’s decision, and concluded that Princess Thembi’s letter did not comply with section 8(4) requirements.

The Court rejected the argument that res judicata could not apply because the earlier Pietermaritzburg proceedings sought interim interdictory relief. It reasoned that although interim orders ordinarily lack finality, a dismissal of an interim application can be final in effect and capable of grounding res judicata. It also rejected Prince Simakade’s contention that he was not a party to the earlier proceedings, finding that he had been cited and had the opportunity to participate; in those circumstances, relaxing strict requirements caused no prejudice. The Court concluded that Prince Mbonisi and Prince Simakade were precluded by estoppel from re-litigating the identification issue determined by Madondo AJP.

Lawfulness of the President’s recognition decision under section 8(4)–(5)

Despite the High Court’s stance that identification was res judicata, Davis J had nonetheless set aside recognition on the basis that “allegations” triggered a peremptory duty to appoint an investigative committee under section 8(4). The SCA held that this approach was incorrect.

The Court accepted, as a point of statutory construction, that section 8(4) is triggered by either “evidence” or “an allegation”, and that “allegation” reflects a lower threshold than proof. However, it rejected the High Court’s conclusion that any mere assertion that customary law and custom had not been followed automatically obliges the President to appoint an investigative committee. The Court reasoned that such an approach would allow any opposing group to stymie recognition simply by making bare statements.

Instead, the Court held that an “allegation” for section 8(4) purposes must contain facts necessary to sustain the conclusion that the identification was not done in terms of customary law and custom. It must set out the customary-law norms regulating identification and explain the respects in which the identification process deviated from them, rather than amounting to bald or conclusory assertions.

Assessing the materials said to have triggered section 8(4), the Court analysed Princess Thembi’s 3 June 2021 letter and found that it did not identify with sufficient specificity the respects in which Zulu customary law had not been followed in Prince Misuzulu’s identification. Certain complaints concerned authority to convene meetings and the regent’s competence to “appoint” a successor, but the Court treated these as insufficient in the form presented to the President, and also noted that Prince Misuzulu’s eligibility was in any event governed by customary law rather than by a nomination in a will.

The Court further reasoned that even if irregularities were alleged regarding meetings in May 2021, the Zulu Royal Family later reaffirmed Prince Misuzulu’s position at the meeting of 29 September 2021, and the lawfulness of that meeting was not challenged in the litigation before it.

Critically, the Court relied on the fact that the lawfulness of the 14 May 2021 meeting and the disputes about succession had already been raised before and rejected by Madondo AJP, who had concluded there was no dispute requiring an investigation and that section 8(4) was not engaged on the materials presented. The Court held that, by the time the President took the recognition decision, there was neither “evidence” nor sufficiently particularised “allegations” that would trigger section 8(4)–(5). Accordingly, the High Court erred in reviewing and setting aside the recognition decision and remitting the matter for appointment of an investigative committee.

Consultation with the Premier

Prince Mbonisi contended that the President failed to consult the Premier as required by section 8(1)(b). The Court emphasised the importance of consultation for provincial relevance, governance integration, legitimacy and stability, and cooperative governance under the Constitution. On the facts, it found that the Premier had been engaged through the process, including through correspondence and the joint involvement of the Minister and provincial government, and that the Minister’s recommendation to the President recorded provincial support. The Court concluded that the President had consulted with the Premier as required, and that this attack on the recognition decision failed.

Strike-out cross-appeal issues

The Court held that Prince Simakade’s cross-appeal relating to striking-out applications was not properly before it because the relevant order and ruling were not included in the appeal record. It nevertheless observed that the objectionable material had in substance been dealt with by the manner in which answering affidavits and confirmatory affidavits were ultimately placed before the court.

5. Outcome and Relief

The Supreme Court of Appeal upheld the appeals of the President and Prince Misuzulu, setting aside the Pretoria High Court’s order that had declared the recognition decision unlawful, set it aside, and remitted the matter for an investigative committee.

The High Court’s order was replaced with an order dismissing both review applications in their entirety. In respect of costs, the SCA ordered that Prince Mbonisi (as first applicant in case number 19891/2022) pay Prince Simakade’s costs in that application, and that Prince Simakade (as applicant in case number 38670/2022) likewise pay Prince Simakade’s costs in that application, including costs of two counsel where employed.

The SCA further ordered that the first and second respondents pay Prince Misuzulu’s costs in the SCA, including costs of two counsel. The cross-appeals brought by Prince Mbonisi and Prince Simakade were dismissed with costs, including costs of two counsel. The Court declined, as between the first appellant and the first and second respondents, to make an adverse costs order against the respondents on the basis that the recognition challenge was not vexatious.

Cases Cited

Prinsloo N O v Goldex 15 (Pty) Ltd and Another [2012] ZASCA 28; 2014 (5) SA 297 (SCA)

National Sorghum Breweries Ltd (t/a Vivo African Breweries) v International Liquor Distributors (Pty) Ltd 2001 (2) SA 232 (SCA)

Ascendis Animal Health (Pty) Limited v Merck Sharpe Dohme Corporation and Others [2019] ZACC 41; 2020 (1) SA 327 (CC); 2020 (1) BCLR 1 (CC); 2019 BIP 34 (CC)

Boshoff v Union Government 1932 TPD 345

Smith v Porritt [2007] ZASCA 19; 2008 (6) SA 303 (SCA)

Kommissaris van Binnelandse Inkomste v Absa Bank Bpk 1995 (1) SA 653 (A)

Shokkos v Lampert N O 1963 (3) SA 421 (W)

Cassim v The Master and Others 1960 (2) SA 347 (D)

Rail Commuters Action Group and Others v Transnet Limited and Others 2006 (6) SA 68 (C)

Man Truck & Bus SA (Pty) Ltd v Dusbus Leasing CC and Others 2004 (1) SA 454 (W)

Kruger and Another v Shoprite Checkers (65/05) [2006] ZANCHC 114 (26 May 2006)

Royal Sechaba Holdings (Pty) Ltd v Coote and Another [2014] ZASCA 85; 2014 (5) SA 562 (SCA)

Caesarstone Sdot-Yam Ltd v The World of Marble and Granite 2000 CC and Others [2013] ZASCA 129; 2013 (6) SA 499 (SCA); [2013] 4 All SA 509 (SCA)

African Wanderers Football Club (Pty) Ltd v Wanders Football Club 1977 (2) SA 38 (A)

Mkhize N O v Premier of the Province of KwaZulu-Natal and Others [2018] ZACC 50; 2019 (3) BCLR 360 (CC)

Sigcau and Another v Minister of Cooperative Governance and Traditional Affairs and Others [2018] ZACC 28; 2018 (12) BCLR 1525 (CC)

Chief Avhatendi Ratshibvumo Rambuda and Others v Tshibvumo Royal Family and Others [2024] ZACC 15 (17 July 2024)

Salviati and Santori (Pty) Ltd v Primesite Outdoor Advertising (Pty) Ltd 2001 (3) SA 766 (SCA)

Olivier N O v Rondalia Versekeringsmaatskappy van SA Bpk 1979 (3) SA 20 (A)

Woji v Santam Insurance Co Ltd 1981 (1) SA 1020 (A)

Die Meester v Joubert en andere 1981 (4) SA 211 (A)

Machumela v Santam Insurance Co Ltd 1977 (1) SA 660 (A)

Legislation Cited

Constitution of the Republic of South Africa, 1996 (including Chapter 12, sections 211 and 212; and Chapter 3)

Traditional and Khoi-San Leadership Act 3 of 2019

KwaZulu-Natal Traditional Leadership and Governance Act 5 of 2005

Promotion of Administrative Justice Act 3 of 2000

Rules of Court Cited

Rule 8 of the Rules of the Supreme Court of Appeal

Held

The Supreme Court of Appeal held that the Pretoria High Court correctly treated the customary-law identification issue as barred by res judicata/issue estoppel because Madondo AJP had already finally determined the essential issues concerning the legitimacy of Prince Misuzulu’s identification and the absence of a cognisable dispute requiring investigation.

The Court further held that the Pretoria High Court erred in setting aside the President’s recognition decision and ordering remittal for an investigative committee. Although section 8(4) of the Leadership Act is triggered by “evidence or an allegation”, the Court held that an “allegation” must contain sufficient factual material to sustain the conclusion that customary law and custom were not followed, and that the materials relied upon did not meet that standard, particularly in light of Madondo AJP’s prior findings.

The Court held that the President had consulted the Premier as required by the Leadership Act and that the recognition decision was lawful.

LEGAL PRINCIPLES

The doctrine of res judicata, including its relaxed form known as issue estoppel, may preclude re-litigation of issues already finally determined where the same issue was essential to the earlier judgment and where the party against whom it is raised had a fair opportunity to participate in the earlier proceedings. The strict requirements of identical relief and identical cause of action may, in appropriate circumstances, be relaxed while maintaining careful scrutiny with regard to fairness and equity.

A dismissal of an application for interim interdictory relief may be final in effect, and in such circumstances may found a plea of res judicata/issue estoppel in later proceedings where the same essential issue is sought to be re-litigated.

Under section 8 of the Traditional and Khoi-San Leadership Act 3 of 2019, the process of filling a kingship involves two distinct stages governed by different legal regimes: an identification by the relevant royal family with due regard to customary law and custom, and a recognition decision by the President exercising statutory public power. Both stages must comply with the Constitution and the statutory scheme.

For purposes of section 8(4), although an “allegation” is a lower threshold than evidence, it is not satisfied by a bare assertion. The allegation must contain sufficient factual content to provide a basis for concluding that the identification was not done in terms of customary law and custom; otherwise, the investigative-committee mechanism would be capable of being triggered by any unsupported opposition and would unduly impede recognition.

The consultation requirement in section 8(1)(b) is informed by considerations of provincial relevance, governance integration, legitimacy and stability, and constitutional cooperative governance, and may be satisfied on the facts where the Premier is engaged through the consultative process leading to recognition.

President of the Republic of South Africa and Others v Prince Mbonisi and Others (147/2024; 148/2024; 217/2024; 250/2024; 38670/2022) [2025] ZASCA 143 (6 October 2025)