The President of the Republic of South Africa and Others v Prince Mbonisi and Others

King Zwelithini Ka Bhekuzulu died on 12 March 2021. In his will, he nominated Queen Mantfombi Dlamini-Zulu as his successor. The Royal Family appointed her as regent on 24 March 2021. Before her death on 29 April 2021, Queen Mantfombi nominated Prince Misuzulu (her first-born son) as successor to the throne. On 14 May 2021, the Zulu Royal Family met and identified Prince Misuzulu as King. A rival faction led by Princess Thembi held a meeting on 5 May 2021 identifying Prince Simakade as king. Prince Simakade wrote a statement on 11 May 2021 disavowing any claim to the throne. On 16 March 2022, the President recognized Prince Misuzulu as King. Prince Mbonisi and Prince Simakade brought review applications in the Gauteng High Court challenging both the identification and recognition decisions. The High Court (Davis J) held that the identification issue was res judicata due to a previous judgment by Madondo AJP in the Pietermaritzburg High Court, but set aside the recognition decision, directing the President to appoint an investigative committee under s 8(4) of the Traditional and Khoi-San Leadership Act 3 of 2019.

• Whether the identification of Prince Misuzulu by the Zulu Royal House was in accordance with Zulu customary law and customs
• Whether the President's recognition decision complied with s 8 of the Traditional and Khoi-San Leadership Act 3 of 2019
• Whether the doctrine of res judicata applied to the identification issue, precluding review
• Whether the President was obliged to appoint an investigative committee under s 8(4) of the Act before recognizing the King
• Whether the remittal order by the high court was competent

1. The first and second appellants' appeal is upheld. 2. The high court order is set aside and replaced with an order dismissing both review applications (case numbers 19891/2022 and 38670/2022). 3. The first and second respondents (Prince Mbonisi and Prince Simakade) are ordered to pay the second appellant's (Prince Misuzulu's) costs including costs of two counsel. 4. The first and second respondents' cross-appeals are dismissed with costs, including costs of two counsel.

1. The doctrine of res judicata, including issue estoppel, applies to traditional leadership disputes where the same issues between the same parties (or privies) have been finally determined by a competent court. 2. Section 8(4) of the Traditional and Khoi-San Leadership Act is triggered only where there is evidence or an allegation containing sufficient facts to sustain the conclusion that customary law was not followed in the identification - mere assertions are insufficient. 3. Both the identification decision (by the royal family under customary law) and the recognition decision (by the President under statute) must comply with the Constitution, but they are distinct processes under different legal regimes. 4. The President is not required to appoint an investigative committee under s 8(4) where previous court proceedings have conclusively determined that the identification was lawful and in accordance with customary law. 5. Consultation with the Premier under s 8(1)(b) can be satisfied through engagement with the Minister who works in conjunction with the Premier.

The Court made critical observations about the preparation of appeal records, noting that the 5000+ page record in this case was poorly prepared with duplications, incorrect page references, and illegible copies. The Court reiterated that it is the duty of attorneys to ensure only necessary documents are included, and failure to do so could amount to breach of duty to the client. While the Court considered punitive cost orders, it declined to make such an order as all parties were equally to blame. The Court also commented on the importance of consultation with the Premier in traditional leadership recognition, explaining that it serves four purposes: provincial relevance, integration of governance, legitimacy and stability, and upholding the constitutional principle of cooperative governance. The Court noted disagreements among senior members of the Zulu Royal Family (Princess Thembi and Prince Mbonisi) on the application of customary law, particularly regarding the automatic succession rights of a first-born son and the effect of the custom of ukufakwa esiswini (affiliation/adoption).

This case clarifies the interaction between customary law and statutory frameworks in traditional leadership succession in South Africa. It establishes important principles regarding: (1) the application of res judicata to traditional leadership disputes; (2) the threshold for triggering the investigative committee mechanism under s 8(4) of the Traditional and Khoi-San Leadership Act; (3) the respective roles of the royal family (identification under customary law) and the President (recognition under statute) in the succession process; (4) the requirement that allegations challenging identification must contain sufficient factual basis, not mere assertions; (5) the constitutional principle of cooperative governance between national and provincial governments in traditional leadership matters. The judgment affirms the importance of finality in traditional leadership succession disputes while maintaining appropriate constitutional and statutory oversight.