Almost immediately after the death of King Goodwill Zwelithini in 2021, the fight began over who is the rightful heir to the Zulu throne.
This week, the rivalry moves to the Supreme Court of Appeal (SCA), where President Cyril Ramaphosa’s decision to recognise Misuzulu kaZwelithini Zulu as king will be scrutinised.
The position of Zulu king is a powerful one. Governance in KwaZulu-Natal province has, in practice, always required the co-operation of the monarch and political parties have needed his approval to canvass votes in his domain.
The king is also the sole trustee of the Ingonyama Trust, which holds and manages vast tracts of land on behalf of the people of KwaZulu-Natal — a potentially lucrative source of income.
Wednesday’s hearing in the SCA arises from two separate applications in the Pretoria high court — one from King Zwelithini’s half-brother, Prince Mbonisi Bekithemba kaButhelezi, and one from the late king’s firstborn son, Prince Simakade kaZwelithini Zulu. They were heard together and resulted in a single judgment by judge Norman Davis. All the parties — Mbonisi, Simakade, King Misuzulu and the president — take issue with different parts of Davis’s judgment and want different outcomes from the appeal court.
Mbonisi wants the entire process of identifying the king to go back to the royal family and begin afresh. Simakade wants a government-authorised investigation into the customary law on who the rightful heir is. King Misuzulu wants the SCA to pronounce that, according to Zulu custom, he is the rightful heir and that the president was right to recognise him. The president is defending his decision to recognise King Misuzulu.
Ramaphosa’s decision was taken under the Traditional & Khoi-San Leadership Act. In their legal submissions, all the parties agree that the act contemplates two distinct processes: first, the identification of the king, which is done by the royal family, in accordance with customary law. Second is the recognition of the king, which is done by the president under the act.
Davis said he could not make any decision on the first process because there was already a judgment on it: in April 2021 there was an application to the KwaZulu-Natal High Court for an interim interdict to prevent a rumoured coronation. The coronation never in fact happened (at that stage). But in giving judgment, acting judge president Mjabuliseni Madondo pronounced on whether Misuzulu was “legitimately and appropriately identified” as heir.
Madondo said that, at a meeting on May 14 2021, called by the late Mangosuthu Buthelezi, in his capacity as traditional prime minister, the royal family identified Misuzulu as heir. Simakade had disavowed any wish to succeed his father, said Madondo, and Misuzulu was, in terms of customary law, the rightful heir.
To deprive Prince Simakade of his day in court ... would do him a profound injustice. In one blow it would strip him of at least two fundamental rights in the Bill of Rights
— Alan Dodson SC
Whether this meeting was properly constituted and whether Simakade had really disavowed an ambition to ascend to the throne was hotly disputed in the Pretoria court. But Davis said his court was of the same status as the KwaZulu-Natal court. He could not sit as a court of appeal on the identification issue, said Davis. That question was res judicata — already decided.
But he found that Ramaphosa had acted unlawfully in recognising Misuzulu as king, because there was clearly “evidence or an allegation that the identification of [Misuzulu] was not done in terms of customary law or customs”. In these circumstances, the act required that the president set up an “investigative committee” to look into the allegations. He did not do so and therefore acted unlawfully.
This finding was wrong, the president and King Misuzulu will argue before the SCA. There was no requirement for an investigative committee because at the time Ramaphosa took the decision, there was no real evidence or allegations.
In written argument, Ramaphosa’s counsel, Marumo Moerane SC, says the judgment of Madondo, which bound the president, said so. A letter from Buthelezi said much the same, argues Moerane. And even though Mbonisi indicated he would appeal Madondo’s judgment, he had not done so at the time of the recognition decision. Moerane supports Davis’s finding that the court was res judicata when it came to Madondo’s judgment.
This is disputed by Simakade. He was not a party to the litigation in the KwaZulu-Natal court and Madondo’s findings on whether Misuzulu was the rightful heir were not even necessary to decide the case, he says. Madondo “impermissibly took upon himself” to deal with the succession question, says Simakade’s counsel, Alan Dodson SC, adding this was “with great respect, a judicial frolic”.
“To deprive Prince Simakade of his day in court ... would do him a profound injustice. In one blow it would strip him of at least two fundamental rights in the Bill of Rights,” says Dodson.
Dodson argues that Ramaphosa’s claim that there was no evidence or allegation is “startling” as Princess Thembi Ndlovu, sister to the late king, had sent a letter with “serious evidence and serious allegations of a fundamental failure” to comply with customary law.
Misuzulu’s counsel, Tembeka Ngcukaitobi SC, agrees with Moerane that “all allegations were addressed in the judgment of Madondo, whose conclusion was clear”. Ngcukaitobi argues Davis had a duty to ascertain what the applicable customary law was — and to apply it. Had he done so, he would have found that Misuzulu was the lawfully identified Zulu king.
The judge would have found that the prime minister had convened meetings of the royal family “since time immemorial”. Davis would also have found that customary law does not recognise such a thing as a “core” royal family, which is limited only to the prince and princesses born of the last deceased king.
However this portrayal of the applicable customary law is disputed by Mbonisi, who argues that Buthelezi had no authority to call a meeting of the royal family and announce the successor. “There has never been in history a situation where the heir to the Zulu throne was identified by uNdunankulu of the late king or a so-called prime minister of the Zulu nation,” argues Mbonisi’s counsel, Thabani Masuku SC.
He also argues that the May 2021 meeting was not attended by the “core” members of the royal family responsible for the identification of an heir. King Misuzulu was the only one who “appears to dispute that his uncles and aunts ... are responsible for the identification of an heir. That denial has no foundation and is one of the many signs of ignorance of the Zulu customs and traditions which the second respondent would be required to uphold if he was confirmed as king of AmaZulu.”
Mbonisi does not want the court to order an investigative committee, saying this would undermine the role of the royal family.
The appeal will be heard by SCA deputy president Dumisani Zondi and justices Caroline Nicholls, Halima Saldulker, Mmathebe Phatshoane and Pitso Molitsoane.
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