Dlomo v Premier of Kwazulu-Natal and others

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Madondo DJP
• Judgment Date: 29 May 2023
• Citation: 2023 JDR 1872 (KZP)
• Hearing Date: 28 April 2023
• Docket Number: 4491/18P
• Court: KwaZulu-Natal Division, Pietermaritzburg

Madondo DJP:

Introduction:

[1]

On 14 March 2016, under case number 6236/2013, this Court granted the following order in favour of the third respondent against the applicant:

(a)

reviewing and setting aside the decision of the first respondent recognising the applicant as an Inkosi of the Dlomo Traditional Community;

(b)

directing the first and second respondents to do all things necessary and publish all notices to withdraw the appointment of the applicant; and

(c)

directing the first and second respondents to pay the costs.

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[2]

The applicant now seeks an order reviewing and setting aside the decision of the first respondent not to appoint him as Inkosi of the eMakhabeleni Community (Dlomo Traditional Community) in terms of the KwaZulu-Natal Traditional Leadership and Governance Act (KZN Governance Act), [1] and among other relief, directing the first respondent to take all the necessary steps in recognising the applicant as such. In fact, the applicant demands that he should be reinstated in the position he held prior to the setting aside of his recognition as Inkosi, within 90 days of the order sought.

[3]

The applicant's application is based on the ground that the uMndeni weNkosi has every right to appoint any person as Inkosi. The applicant contends that the order setting aside his recognition as Inkosi did not preclude him from being identified and nominated as Inkosi in the future. It only set aside his appointment. The applicant states that he was appointed by the uMndeni weNkosi on the recommendation of Luthuli Sithole Attorneys and that it now rests with the first respondent whether it carries out that recommendation. According to the applicant, the matter was referred back to the uMndeni weNkosi and that the latter identified and nominated him for re-appointment. It was contented that the first respondent should accordingly recognise him as Inkosi - as the KZN Governance Act directs.

[4]

The third respondent has lodged a counter-application in which he seeks the following order:

(a)

declaring him to be the Inkosi of the Dlomo Traditional Community;

(b)

directing the first and second respondents to do all things necessary in compliance with the KZN Governance Act to appoint him as Inkosi of the Dlomo Traditional Community;

(c)

directing the first and second respondents to issue a certificate appointing him as Inkosi of the Dlomo Traditional Community; and

(d)

ordering the applicant to pay the costs of the counter-application.

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[5]

The third respondent grounds his counter-application on three grounds. Firstly, that as the oldest son of the deceased Inkosi, he is in terms of Zulu law and customs entitled to succeed his father. Secondly, that the applicant does not in terms of customary law and traditions qualify to assume the position of Inkosi and he is therefore not a rightful heir to the throne. Thirdly, that as the third respondent's grandmother, MaGasa II, was affiliated to the house of MaGasa I, and, ultimately, to the great house as seed-raiser, his oldest uncle, Khumukani, was entitled to succeed Bubula, the son of MaGasa I, and the late Inkosi Zingelwayo.

Factual background:

[6]

Zingelwayo, the son of Mkhuzangwe of Gayede and of Makhedama, the founder of the Dlomo Traditional Community, was the Inkosi of the Dlomo Traditional Community from 1936 to 1972. He passed away on 19 June 1972. The Dlomo Traditional Community is situated between Kranskop and Nkandla.

[7]

Inkosi Zingelwayo had 14 wives. However, for the purposes of determining the issues in this matter, emphasis will be placed on four of his wives, namely, MaNgcobo, MaGasa, MaGasa and MaBhengu, who are prominent, and relevant to the matter, as well as on four of his sons, Bubula, Zenzo, Khumukani and Muntukaboni. [2] For clarity sake, the first MaGasa will hereinafter be referred to as MaGasa I and the second as MaGasa II.

[8]

The Dlomo Traditional Community consists of five royal homesteads, namely Sokheni, Qhudeni, Nhlanhleni, Gulukudela and Ndumakude. The second wife of the late Inkosi Zingelwayo was MaGasa I, and the third wife was MaNgcobo, the great wife (undlunkulu), from whom the successor to the chieftainship had to be drawn. MaNgcobo was a daughter of another Inkosi and her lobolo had been contributed by the Dlomo Traditional Community. The fourth wife was MaBhengu.

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[9]

Inkosi Zingelwayo moved from his father's homestead, Qhudeni, to establish his own royal homestead, Nhlanhleni. He took along his four wives, MaNgcobo, MaGasa I, MaBhengu and MaMsane, who does not feature much in this matter. The Nhlanhleni homestead is traditionally recognised as the bearer of an heir to the throne of the Dlomo Traditional Community. At Nhlanhleni royal homestead, MaNgcobo's house was the main house, iNdlunkulu, situated at the top centre of the homestead. The house of MaGasa II was rank immediately next to the iNdlunkulu on the right-hand side, and MaBhengu was on the left-hand side and so was MaMsane's house.

[10]

Inkosi Zingelwayo fixed the status of his wives who were at Nhlanhleni as follows: MaNgcobo, as she was the daughter of an Inkosi, and whose lobolo was contributed by the Dlomo Traditional Community was ranked as undlunkulu. MaGasa I was affiliated to the house of MaNgcobo, the Great House (iNdlunkulu), and MaBhengu was allegedly affiliated to the house of MaNgcobo, as the second affiliate. No specific status was accorded to MaMsane.

[11]

MaNgcobo only had a daughter, Sizani. MaGasa I had only one son, Bubula Sipho Alias and MaBhengu had two sons, Zenzo and Langa. When it became apparent that MaNgcobo could not have any more children due to ill health, Inkosi Zingelwayo, on 12 June 1972, nominated his son by MaGasa I, Bubula, to be his general heir and successor. Such nomination was witnessed by Zephaniah Dlomo, Z Ndlovu and others. Bubula then became MaNgcobo's son. This translated to mean that Bubula was implanted in the womb of MaNgcobo in order to provide an heir. However, this was preceded by the affiliation of Bubula's mother to the house of MaNgcobo. The late Inkosi Zingelwayo then registered Bubula at the Nkandla Magistrate as his general heir and successor.

[12]

MaGasa I died, leaving her son, Bubula, a teenager. In order to ensure that the house of MaGasa I was revived and that Bubula was well cared for, Inkosi Zingelwayo married MaGasa II, the sister of the MaGasa I. This was seen as a practical and reasonable solution to the problem. She was a blood relation of Bubula and was more likely to take good care of him. However, MaGasa II was not only brought to Nhlanhleni

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royal homestead as a foster mother to Bubula, but was to replace her sister in all respects. She was affiliated to the house of MaGasa I. In fact, MaGasa II was put at Nhlanhleni as seed-raiser and as replacement for MaNgcobo. MaNgcobo approved of her substitution of MaGasa I and her incorporation into the senior house. MaGasa II gave birth to six sons, Khumukani Ntandoyenkosi Dlomo, Muntukaboni Jabulani Dlomo, and four others.

[13]

After the death of Inkosi Zingelwayo on 19 June 1972, the uMndeni weNkosi convened a meeting on 11 October 1973 and formally identified and nominated Bubula for appointment as the rightful heir and successor to the deceased Inkosi Zingelwayo. The uMndeni weNkosi thereby endorsed the deceased Inkosi Zingelwayo's wishes of appointing Bubula as his heir and successor. Such meeting was chaired by Zephaniah Dlomo. The Acting Chief (ibambabukhosi) Mlingo Mahlaba was also present at the meeting and announced that he would step down as soon as the new Inkosi assumed the position.

[14]

On 25 October 1973, the uMndeni weNkosi, being accompanied by the ibambabukhosi, the Tribal (Traditional) Secretary and headmen (izinduna) presented Bubula to the Nkandla Magistrate for appointment as the successor to the deceased Inkosi Zingelwayo. Unfortunately, Bubula died of a snake bite soon after the letters of his appointment as Inkosi had been issued to him. His wife was pregnant at the time, and later gave birth to a baby girl. As a consequence, Bubula died without a male heir.

[15]

The late Inkosi Zingelwayo, before his passing, had properly arranged his affairs and fixed the status of his wives, according to his election. The untimely death of Bubula, offered a section of the uMndeni weNkosi, led by Majubane Dlomo, an opportunity to purportedly alter all what the late Inkosi Zingelwayo had done. At the uMndeni weNkosi's meeting held in 1974, a night preceding the burial of Bubula, such section of the uMndeni weNkosi nominated Zenzo as the general heir and successor of the late Inkosi Zingelwayo. Sihlangu Dlomo presided over this meeting. The basis for nominating Zenzo was allegedly that MaBhengu was affiliated to the house of MaNgcobo (iNdlunkulu), and as she was holding such a positon, she was entitled to bear an heir for the Dlomo

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chieftainship. By identifying and nominating Zenzo as successor, the uMndeni weNkosi purported to revert to the custom and tradition of the Dlomo Traditional Community and thereby restore order in the family. The meeting was said to not have been properly convened and was not representative of the uMndeni weNkosi, and therefore invalid.

[16]

At the funeral of Bubula, Majubane made an impromptu announcement, and announced Zenzo as the successor to Bubula. According to witnesses, Majubane did not have the authority to do so. The unruly and unlawful behaviour of Majubane in making such announcement without the necessary permission to do so, infuriated the senior members of the family. A few months after the death of Bubula, an uMndeni weNkosi meeting was held in 1975, and such meeting culminated in the identification and...