King MisuZulu ka Zwelithini. (RAJESH JANTILAL/AFP via Getty Images)
The Pietermaritzburg High Court has dismissed — with costs — an application by King MisuZulu ka Zwelithini’s uncle, Prince Mbonisi Zulu, and other members of the royal family, for an interdict to prevent him from exercising his powers over the Ingonyama Trust Board.
Mbonisi and other royals had also asked the court for an urgent interdict to stop the ITB from making payments on the king’s behalf — including his legal fees in his court battle with them and his half brother, Simakade.
They had also asked that the appointment of the board be declared unlawful and set aside, but this part of the application will be heard at a later date, according to Mbonisi’s legal team.
The Pietermaritzburg application was made parallel to a separate challenge to the king’s recognition by President Cyril Ramaphosa in 2022, which was brought in the Johannesburg high court.
In December, the Johannesburg High Court ruled the recognition of the king by Ramaphosa was unlawful, but the decision of the court is now the subject of a challenge at the Supreme court of appeal.
Last week, Judge Peter Olsen handed down a judgment in Pietermaritzburg in which he found that Mbonisi and the other applicants should have approached the Gauteng high court for the interdict they sought.
Olsen found that, because an order regarding the legality of the king’s appointment had already been made in the Johannesburg court, they should have taken their interdict application there.
He said in his judgment that Mbonisi and the other applicants could be regarded as “unsuitable litigants” in that they “undeniably intend” to use the court to deprive the king “of the legal representation he requires to defend his position as monarch”.
‘They may fairly be described as the principal litigants seeking his removal from office, and therefore they have a special personal interest in the relief relating to costs, which transcends their professed concern for the public interest and the reputation of the royal family,” Olsen said.
They had approached the court with claims that the king was planning to use ITB funds for his personal benefit, and that he planned to loot its coffers, but had subsequently withdrawn some of these assertions.
Olsen said that, while the standing of the applicants was questionable, it was still in the public interest that the content of their claims be put to the test by the court.
He found that they had provided “no direct evidence” that the ITB had paid any of the king’s legal bills, with the exception of his account with Strauss Daly attorneys, the payment for which had been agreed to by its previous chairperson, Jerome Ngwenya.
Ngwenya was removed by the king last March and replaced with inkosi Thanduyise Mzimela. The monarch has since recalled Mzimela and taken on the role of chairperson himself.
Olsen said the board had provided documentation that it had paid R1 million and agreed to make a further 26 payments of just more than R200 000 a month to honour this agreement.
It had done so in terms of the formula giving the king 5% of income generated by the trust in terms of its 2015 disbursement policy.
Olsen said that misuse of ITB funds to pay for the lifestyle of the late monarch, King Goodwill Zwelithini ka BhekuZulu, by the board headed by Ngwenya, had taken place, as evidenced by documentation provided by the current board.
“The conduct which the applicants seem to complain of against the trust and its board is conduct historically perpetuated through and by the current board’s predecessors. The present board has taken serious measures to ensure that it brings the trust back to a place of compliance with legislation and its policies,” Olsen said.
The board had made it clear that it would not be paying any further legal costs – or meeting any of the king’s other expenses — as it believed it was not its legal role to do so.
In the light of this, the applicants had failed to establish any “reasonable apprehension” of harm, should the court fail to issue an interdict against the board, Olsen said.
Olsen expressed concerns about the disbursement policy adopted by the ITB, saying that he was “unable to reconcile” its provisions with those of the Ingonyama Trust Act, in terms of which it was meant to operate.
The policy was skewed against the residents of traditionally administered land which did not secure revenue from mining or other commercial rights and was likely to produce “arbitrary conduct” as it was “at best misleading”.
He said the fact that the board had avoided an order preventing it from implementing the disbursement policy was “merely incidental”.
“I find it necessary to record that this judgment should not be interpreted to convey any endorsement of the policy,” Olsen said.
Funding of king’s legal battles
Turning to the request that the provincial government stop funding the king’s legal battle, Olsen said that royals had not met the requirement that they were “the right persons to bring such proceedings”.
“I do not accept that they are motivated by a concern over a misuse of public funds by the premier” in funding the king’s legal defence, Olsen said.
“They seek a personal advantage which no court can regard as legitimate; that is to say the benefit of litigating against someone who, for want of funds, cannot mount a defence.”
The decision appears to have emboldened the king, who has since written to the board’s chief executive officer, Vela Mngwengwe, informing him that his contract, which expires next month, will not be extended.
Mngwengwe headed a turnaround team appointed at the ITB by then agriculture, land reform and rural development minister Thoko Didiza and was subsequently retained on a three year contract, which expires next month.
He has drawn the monarch’s ire and has been publicly accused of refusing to “cooperate” with the king over a number of issues, including a proposal that his lawyers be granted a major contract with the ITB.
Mngwengwe has insisted that the trust and board are “creatures of statute” and are subject to the Public Finance Management Act and the oversight of parliament and the auditor general.
In the letter, the king reminds Mngwengwe of the expiry date for this contract — and the fact that it is not renewable — and instructs him to hand over all equipment and documentation belonging to the ITB.
A source at the ITB said that the letter was delivered to Mngwengwe by hand on Wednesday — after it had appeared on social media — by staff from the office of the MEC for cooperative governance and traditional affairs, Thulasizwe Buthelezi, who is also traditional prime minister to the king.
Buthelezi told the Mail & Guardian that the “departure of Mr Mngwengwe is long overdue since he has no inclination to support his majesty’s vision for the Ingonyama Trust”.
“Instead, Mr Mngwengwe found every reason to frustrate and undermine his majesty’s leadership. We hope that the next CEO will be mindful that he is accountable to the king and amakhosi and not the minister,” Buthelezi said.
A source at the ITB said that it had been planning to hold a special board meeting at which its human resources committee would make presentations on a number of matters, including the contract of the CEO.
ITB spokesperson Simpiwe Mxakhaza said on Wednesday that they had become aware of the letter through social media.
He said the board’s human resources committee “will present to the board relevant recommendations and proposals on any issues relating to HR matters in the organisation, including the issue of the CEO.”
“In line with good corporate governance, it is a norm for close out reports to be complied by employees vacating their positions at work in order to give the incumbent an overview of the organisation, challenges, successes and related information. That will be our approach in the handover process.”