Mkhize: In re Mbuyazi v The Premier of the Province of KwaZulu-Natal and Mbuyazi v Mbonambi Community Development Trust

The deceased, Zwelibhekile Sibusiso Mbuyazi, was identified by the royal family (umndeni wenkosi) and recognised by the Premier of KwaZulu-Natal as Inkosi of the Mbuyazi Traditional Community in 2006 and received a salary. In December 2009 the provincial cabinet resolved to remove him as Inkosi following an investigation, and his removal was gazetted in January 2010. His younger brother was announced as Inkosi. The deceased launched urgent proceedings to interdict this removal and to review and set aside the Premier’s decision, seeking reinstatement and payment of arrear salary. Interim orders were granted and the review was later referred to trial due to disputes of fact. The deceased also brought a separate funding application to finance the litigation. Before these matters were finalised, the deceased died in July 2012. His widow, Sithembile Valencia Mkhize, as executrix of his estate and guardian of their minor son, applied to be substituted as applicant in the pending proceedings. The High Court dismissed her substitution applications and the underlying review and funding applications. She appealed to the Supreme Court of Appeal.

The appeal was upheld in part. The executrix was substituted as applicant in the deceased’s damages (arrear salary) claim and in the funding application. The application to substitute her as guardian of the minor child in the reinstatement claim was dismissed. The respondents’ applications to discharge the rule nisi and rescind earlier orders were dismissed. The first and second respondents were ordered to pay the costs in the High Court and on appeal.

The case clarifies the distinction in South African law between personal rights that terminate on death and patrimonial claims that survive for the benefit of a deceased estate. In the context of traditional leadership disputes, it confirms that claims for recognition or reinstatement as Inkosi are non-transmissible, while claims for financial loss arising from alleged wrongful removal are transmissible. It also provides important guidance on substitution of parties, executors’ standing, and the interaction between customary law leadership disputes and civil procedural principles.