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

Zwelibhekile Sibusiso Mbuyazi (the deceased) was the eldest son of late Inkosi Mtholeni Mthiyane Mbuyazi. In August 2006, the umndeni wenkosi (royal family) identified him as the next Inkosi of the Mbuyazi Traditional Community and he was recognised by the Premier of KwaZulu-Natal, serving as de facto Inkosi from September 2006 and receiving a monthly salary. In January 2010, following an investigation, the Premier removed the deceased as Inkosi by cabinet resolution and appointed the deceased's younger brother, Mkhanyiseni Mbuyazi (second respondent), as Inkosi. The deceased launched urgent review proceedings seeking to set aside his removal and to be reinstated, obtaining interim orders. Before the review application could be finalised (having been referred to trial), the deceased died on 7 July 2012. His widow, Sithembile Valencia Mkhize, the executrix of his estate and guardian of his minor son Phathokuhle, applied to be substituted as applicant in the deceased's review application and funding application. The court below dismissed her applications, holding that the right to be reinstated as Inkosi was personal to the deceased and terminated upon his death.

• Whether a claim for reinstatement as a traditional leader (Inkosi) is a personal right that terminates upon the death of the claimant and is not transmissible to heirs
• Whether an executrix can be substituted for a deceased applicant in a claim for reinstatement as Inkosi
• Whether a claim for arrear salary/damages arising from alleged wrongful removal as Inkosi is transmissible to the deceased's estate
• Whether an executrix can be substituted for a deceased applicant in a claim for monetary compensation (arrear salary)
• Whether the minor son of a deceased Inkosi has a right to be considered for succession under customary law and the KwaZulu-Natal Traditional Leadership and Governance Act 5 of 2005

1. The appeal was upheld in part. 2. Save for the dismissal of the application to substitute the appellant as guardian of Phathokuhle, the order of the court below was set aside and substituted with: (a) The appellant, in her capacity as executrix of the deceased's estate, was substituted as applicant in the deceased's damages claim and funding application; (b) The first and second respondents were ordered to pay the appellant's costs in both applications jointly and severally; (c) The first and second respondents' applications for discharge of the rule nisi and rescission of the orders of 7 June 2011 were dismissed with costs. 3. The first and second respondents were ordered to pay the costs of the appeal jointly and severally.

A claim for reinstatement to the position of traditional leader (Inkosi) is a personal right that terminates upon the death of the claimant and is not transmissible to heirs or capable of being pursued by an executor, even after litis contestatio. However, a claim for arrear salary or damages arising from alleged wrongful removal from the position of traditional leader is a patrimonial claim that is transmissible to the deceased's estate. Such a claim, being founded on an alleged wrong causing diminution in the estate's patrimony, can be pursued by the executrix who is the proper person to represent the deceased's estate. The executrix can be substituted as applicant in place of the deceased for purposes of pursuing such monetary/damages claims.

The court noted that while Phathokuhle, as the deceased's eldest son, would not be guaranteed succession to the position of Inkosi merely by virtue of his lineage (given the constitutional obligation under section 3 of the KwaZulu-Natal Traditional Leadership and Governance Act 5 of 2005 to transform customary law to prevent unfair discrimination and promote equality), he would at least have a right to be considered when the umndeni wenkosi undertakes the process of identifying a successor under section 19(1)(a) of the Act. The court expressly stated it was not deciding whether the deceased was wrongfully removed as Inkosi. The court also observed that it would be convenient and advantageous for all parties that the matter proceed to trial as directed by Van Zyl J, so that the important question of rightful succession could be settled.

This case establishes important principles distinguishing between personal rights relating to status/office and patrimonial claims in the context of traditional leadership disputes. It clarifies that while the right to be reinstated as a traditional leader is personal and non-transmissible, claims for monetary compensation arising from alleged wrongful removal are patrimonial rights that survive death and can be pursued by the deceased's estate. The judgment also provides guidance on the application of customary succession laws under the KwaZulu-Natal Traditional Leadership and Governance Act 5 of 2005, noting the requirement to adapt customary law to constitutional principles including equality and non-discrimination. The case is significant for practitioners dealing with traditional leadership disputes and succession matters, particularly in understanding which claims survive death and can be continued by executors.