Mkhize: In re Mbuyazi v Premier of the Province of Kwazulu-Natal and Mbuyazi v Mbonambi Community Development Trust (822/13) [2014] ZASCA 204 (28 November 2014)

Mkhize: In re Mbuyazi v Premier of the Province of Kwazulu-Natal and Mbuyazi v Mbonambi Community Development Trust (822/13) [2014] ZASCA 204 (28 November 2014)

The Supreme Court of Appeal held that the claim for reinstatement as Inkosi was personal to the deceased and terminated upon his death, making substitution in the review application impermissible. The right to challenge the Premier's decision and seek reinstatement could not be ceded or transmitted to heirs or the estate. However, the claim for damages for loss of salary due to wrongful removal was transmissible to the estate and could be pursued by the executrix. The appellant, as executrix, was therefore entitled to be substituted as applicant in the damages claim and the funding application. The minor son, while potentially eligible for succession under customary law, did not have...

Citation
[2014] ZASCA 204
Parties
Appellant: Sithembile Valencia Mkhize; Respondent: Premier of the Province of KwaZulu-Natal; Respondent: Mkhanyiseni Mbuyazi; Respondent: uMndeni wenkosi of the late Inkosi Mtholeni Mbuyazi; Applicant: Zwelibhekile Sibusiso Mbuyazi; Respondent: Mbuyazi Community Development Trust; Respondent: Mbuyazi Community Public Benefit Trust; Respondent: Minias Mafuleka N.O.; Respondent: Thandiwe Virginia Mafuleka N.O.
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
28 November 2014
Case Number
822/13
Procedural Posture
Civil Appeal / Appeal From the Kwazulu Natal High Court, Pietermaritzburg
Outcome
Appeal upheld in part; substitution granted for damages and funding claims, but not for reinstatement or succession claims.
Judges
Mpati, Swain, Fourie
Legal Topics
Substitution of Parties, Traditional Leadership, Damages for Loss of Salary, Hereditary Succession, Review of Administrative Action
Civil Procedure Land and Property Substitution of Parties Traditional Leadership Damages for Loss of Salary Hereditary Succession Review of Administrative Action

Case Brief

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Parties

Sithembile Valencia Mkhize

Appellant

Premier of the Province of KwaZulu-Natal

Respondent

Mkhanyiseni Mbuyazi

Respondent

uMndeni wenkosi of the late Inkosi Mtholeni Mbuyazi

Respondent

Zwelibhekile Sibusiso Mbuyazi

Applicant

Mbuyazi Community Development Trust

Respondent

Mbuyazi Community Public Benefit Trust

Respondent

Minias Mafuleka N.O.

Respondent

Thandiwe Virginia Mafuleka N.O.

Respondent

Procedural Posture

Civil Appeal / Appeal From the Kwazulu Natal High Court, Pietermaritzburg

Legal Issues

  1. 1 Whether the executrix of the deceased Inkosi's estate may be substituted as applicant in claims for reinstatement and loss of salary.
  2. 2 Whether the claim for reinstatement as Inkosi survives the death of the claimant.
  3. 3 Whether the claim for loss of salary is transmissible to the deceased's estate.

Ratio Decidendi

The Supreme Court of Appeal held that the claim for reinstatement as Inkosi was personal to the deceased and terminated upon his death, making substitution in the review application impermissible. The right to challenge the Premier's decision and seek reinstatement could not be ceded or transmitted to heirs or the estate. However, the claim for damages for loss of salary due to wrongful removal was transmissible to the estate and could be pursued by the executrix. The appellant, as executrix, was therefore entitled to be substituted as applicant in the damages claim and the funding application. The minor son, while potentially eligible for succession under customary law, did not have...

Court Disposition

Appeal upheld in part; substitution granted for damages and funding claims, but not for reinstatement or succession claims.

Orders

  • The applicant, Sithembile Valencia Mkhize, in her capacity as executrix of the estate of the late Zwelibhekile Sibusiso Mbuyazi, is substituted as applicant in the deceased's damages claim and in his funding application.
  • The first and second respondents are ordered to pay the applicant's costs in both applications, jointly and severally, the one paying the other to be absolved.