Molosi and Others v King Phahlo Royal Family and Others

The dispute arose over the kingship of AmaMpondomise following its restoration by a high court judgment (Brooks judgment) after historical dispossession. The Traditional Leadership and Governance Framework Act 41 of 2003 requires the royal family to identify and nominate a king or queen under section 9. Two families, the Dosini Royal Family (appellants) and the King Phahlo Royal Family (respondents), both claimed to be the legitimate royal family entitled to nominate. The Phahlo family traced its lineage through an unbroken line of succession from King Ngcwina through King Cira to King Mhlonthlo, who was dispossessed by colonial proclamation in 1904. They nominated Luzuko Matiwane (King Mhlonthlo's grandson) as king. The Dosini family claimed legitimacy through Dosini, who they argued was unlawfully disinherited by King Ngcwina in the 1300s in favour of Cira. They nominated Ntombenkonzo Maseti as queen. The President received both nominations and referred the matter back to the families to resolve. The Phahlo family then sought declaratory and interdictory relief in the high court to prevent the Dosini family from nominating and to have their own nomination recognized. The high court granted relief in favour of the Phahlo family. After the second high court judgment granting leave to execute pending appeal, the President recognized Matiwane as king on 21 September 2020, although this fact was not disclosed in the appeal record.

• Which royal family is entitled to nominate a king or queen under section 9 of the Traditional Leadership and Governance Framework Act 41 of 2003?
• Whether the high court had jurisdiction given the appellants' claim that internal remedies under section 21 of the Act had not been exhausted?
• Whether the appeal had become moot following the President's recognition of Matiwane as king after the first high court judgment but before the Supreme Court of Appeal hearing?
• Whether the Court should exercise its discretion to hear a moot appeal in the circumstances?

The appeal was dismissed. No order as to costs was made.

Where the President has exercised the power under section 9 of the Traditional Leadership and Governance Framework Act 41 of 2003 to recognize a person as king, and that recognition has been published in the Government Gazette as required, an appeal against declaratory and interdictory relief that was sought as a precursor to that recognition becomes moot and should be dismissed under section 16(2)(a)(i) of the Superior Courts Act 10 of 2013, as the decision sought will have no practical effect or result. The supervening executive action renders the judicial relief of no further practical utility. Unless and until an administrative decision such as presidential recognition is set aside, it remains valid and effective (applying the Oudekraal principle).

The Court made several important obiter observations: (1) It severely censured the legal representatives of both parties for failing to disclose to both the full court and the Supreme Court of Appeal that the President had recognized Matiwane as king, stating such conduct was "disturbing" and "egregious." (2) The Court observed that the underlying dispute between the parties was "essentially one of fact, rather than law" concerning events that occurred approximately 700 years ago regarding the alleged unlawful disinheritance of Dosini by King Ngcwina. (3) The Court noted that the broader historical question of whether Dosini was unlawfully disinherited centuries ago "did not require determination" by either the high court or the Supreme Court of Appeal. (4) The Court commented that the declaratory and interdictory relief sought by the Phahlo family was "deliberately narrowly tailored" and "specifically aimed at obtaining clarity on which asserted royal family could legitimately nominate a replacement for King Mhlonthlo." (5) The Court rejected as "groundless" and "pure speculation" the appellants' submission that a pending review application against the President's recognition saved the appeal from mootness. (6) The Court emphasized that the failure to disclose material facts "has had the direct result that valuable Court time and resources have been expended on this matter, directly undermining the very purpose of the rule against mootness" and that "[s]uch conduct is to be deprecated."

This case is significant for several reasons: (1) It reinforces the principle of mootness in South African appellate procedure under section 16(2)(a)(i) of the Superior Courts Act, particularly where supervening events render the relief sought of no practical effect. (2) It demonstrates the Court's discretion to decline to hear moot appeals where the underlying dispute is factual rather than raising important questions of law. (3) It emphasizes the professional obligations of legal practitioners to disclose material facts to courts, particularly developments that fundamentally affect the nature of the dispute. The severe censure of legal representatives underscores the importance of candor with the court. (4) It addresses the interplay between judicial processes for declaratory and interdictory relief and executive action under the Traditional Leadership and Governance Framework Act, particularly the President's power to recognize traditional leaders under section 9. (5) It illustrates the application of the Oudekraal principle that administrative decisions remain valid and effective unless and until set aside. (6) The case highlights challenges in resolving traditional leadership disputes rooted in historical events spanning centuries, particularly where factual evidence is limited.