Mtungwa and Another v Premier of Kwazulu-Natal and Others (3618/22P) [2022] ZAKZPHC 74 (18 November 2022)

Mtungwa and Another v Premier of Kwazulu-Natal and Others (3618/22P) [2022] ZAKZPHC 74 (18 November 2022)

The court found that the identification and recognition of the third respondent as iNkosi of the Mabaso clan was conducted in accordance with both customary law and the statutory requirements of the KwaZulu-Natal Traditional Leadership and Governance Act. The evidence established that the umndeni wenkosi held a valid gathering at which the third respondent, as the eldest surviving son of the late iNkosi Thembitshe, was identified as successor. The applicants' claim that the first applicant should have succeeded based on being the last-born son was unsupported by authority and inconsistent with the established principle of male primogeniture in Zulu customary law. The Premier exercised his...

Citation
[2022] ZAKZPHC 74
Parties
Applicant: Mfaniseni Mboniseni Mtungwa; Applicant: Members of Umndeni Wenkosi listed in Annexure 'A'; Respondent: Premier of Kwazulu-Natal; Respondent: Department of Co-operative Governance and Traditional Affairs, Kwazulu-Natal; Respondent: Thokozani Mtungwa
Court
Kwazulu-Natal High Court, Pietermaritzburg
Jurisdiction
South Africa
Judgment Date
18 November 2022
Case Number
3618/22P
Procedural Posture
Review Application / Final Judgment
Outcome
Application dismissed with costs, including costs of senior counsel.
Judges
Mossop
Legal Topics
Traditional Leadership Succession, Customary Law, Review of Administrative Action, Kwazulu Natal Traditional Leadership and Governance Act, Decision Making Discretion
Administrative Law Land and Property Traditional Leadership Succession Customary Law Review of Administrative Action Kwazulu Natal Traditional Leadership and Governance Act Decision Making Discretion

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Parties

Mfaniseni Mboniseni Mtungwa

Applicant

Members of Umndeni Wenkosi listed in Annexure 'A'

Applicant

Premier of Kwazulu-Natal

Respondent

Department of Co-operative Governance and Traditional Affairs, Kwazulu-Natal

Respondent

Thokozani Mtungwa

Respondent

Procedural Posture

Review Application / Final Judgment

Legal Issues

  1. 1 Whether the identification and recognition of the third respondent as iNkosi of the Mabaso clan complied with customary law and statutory requirements.
  2. 2 Whether the Premier of Kwazulu-Natal properly considered objections and procedural complaints raised by the applicants.
  3. 3 Whether the first applicant is entitled to recognition as iNkosi under Zulu customary law succession principles.

Ratio Decidendi

The court found that the identification and recognition of the third respondent as iNkosi of the Mabaso clan was conducted in accordance with both customary law and the statutory requirements of the KwaZulu-Natal Traditional Leadership and Governance Act. The evidence established that the umndeni wenkosi held a valid gathering at which the third respondent, as the eldest surviving son of the late iNkosi Thembitshe, was identified as successor. The applicants' claim that the first applicant should have succeeded based on being the last-born son was unsupported by authority and inconsistent with the established principle of male primogeniture in Zulu customary law. The Premier exercised his...

Court Disposition

Application dismissed with costs, including costs of senior counsel.

Orders

  • The review application is dismissed with costs, such costs to include the costs associated with the employment of senior counsel.