The belief that women should not be appointed as senior traditional leaders took another beating last week when the Limpopo High Court ruled that Ms Thifhelimbilu Nesengani must be considered for the position of Khosi of the Nesengani people. She was previously not considered for the position because of her gender.
In another ground-breaking ruling, judge Marisa Naudé-Odendaal set aside the appointment of Mr Fhatuwani Douglas Nesengani as Khosi of Hanesengani in the Vuwani area. Her ruling should also serve as a serious indictment of institutions such as the House of Traditional Leaders, who previously recommended that only men should be successors to such titles.
The ruling last Monday (14th) may end a leadership battle that started several years before 2018, when the name of Fhatuwani Douglas Nesengani was forwarded as the candidate to replace the late Khosi Nesengani Tshimbiluni Philemon Mbokota, who had passed away on 12 May 2016. He was installed in this position in 2020 by the then Vhavenda king, Toni Mphephu Ramabulana.
Shortly after the installation, the 26-year-old Thifhelimbilu and other parties who felt aggrieved within the royal family approached the High Court in Polokwane to set aside the decision to install Fhatuwani Nesengani.
In a very detailed ruling, Judge Naudé-Odendaal set the background to the case. The animosity started back in 1987, when the family could not agree on who should succeed Andries Kolokoshani Nesengani, who had died in 1964. (No leader seemed to have been appointed for more than 20 years.) When a part of the family went ahead to install Obert Vele Nesengani in 1987, the step caused a lot of problems. The case made its way to the then Venda Supreme Court for a ruling.
The then Venda government referred the leadership battle to a commission of enquiry. "After several court battles and the outcome of the Commission of MJ Geyser, the late Chief Nesengani Tshimbiluni Philemon Mbokota was finally identified, recognised and appointed as chief ..., with effect from 28 April 1990," said Judge Naudé-Odendaal.
When Khosi Nesengani Tshimbiluni Philemon Mbokota passed away on 12 May 2016, the fight as to who should be the next leader erupted again. His dzekiso wife was Masakona Peggy, and they were blessed with one daughter, namely Thifhelimbilu.
At the time, the Nesengani royal family argued that the first-born son from the dzekiso must become heir to the throne. If no son had been born, the throne was to be inherited by the second house. The royal family then proposed that the son of the late Nesengani Ramarumo Aldon be appointed as successor.
The pleas from Ms Thifhelimbilu Nesengani that she was discriminating against because of her gender, fell on deaf ears. The secretariat as well as the executive committee of the House of Traditional Leaders brushed the arguments aside. Even appeals to the MEC and the Premier made no impact. Instead of considering the arguments and weighing them up against their Constitutional obligations, the green light was given for the installation ceremony to proceed.
The aggrieved parties then took the matter to court for a ruling. This process took several years, and various "technical points" first had to be considered before a ruling could be made.
"In the present matter, the 3rd Applicant [Thifhelimbilu] was not identified to ascend to the throne as Senior Traditional Leader due to gender discrimination, which offends the Bill of Rights in the Constitution," said Judge Naudé-Odendaal. She said that the effect of this would be that no woman would meet the criteria to succeed to the throne. "This issue, contrary to what was submitted by the Respondents, is very much alive as it establishes a criterion that upholds the principle of primogeniture, which offends the right to equality in the Bill of Rights," she said.
Judge Naudé-Odendaal repeated what the Supreme Court of Appeal and the Constitutional Court had said in the case where Masindi Mphephu Ramabulana took on Toni Mphephu Ramabulana for the Venda kingship position, namely that customary laws and processes must be developed in such a way as to harmonise them with the Bill of Rights and the ethos of the Constitution of the Republic of South Africa.
Last week's ruling has set the stage for the installation of the first ever woman Khosi for the Nesengani people, but the members of the family still have to sit and decide on the person to be installed. Judge Naudé-Odendaal did not make a ruling as to who should be the successor.
The past Sunday (19th), an air of celebration prevailed at the Nesengani Traditional Council, where the community gathered to get feedback about the court case. Residents who already knew the outcome could not contain their excitement and ululated and blew vuvuzelas, urging the royal family to install Thifhelimbilu as a matter of urgency.
An ecstatic Khadzi Vho-Sarah Mutangwa Tshiteku Nesengani said the road had been a long and uneasy one for them, but they were excited that the truth had finally prevailed. "This mess started after the passing of Khosi Vho-Philemon Nesengani in 2016 and cracks in the family started showing up. We have been through a lot, having to change many lawyers in the process," she said.
She added that the family members had waited a long time to reach this point. She said the family would now sit down to choose a successor and ensure that all the proper protocols were followed.
Vhavenda Vho-Phillip Davhana Nesengani urged the community to rally around the soon-to-be inaugurated Thifhelimbilu Nesengani. "It has been a long wait but worth it. God answered our prayers, and we urge you all to support her. Let the truth prevail," he said. He said that the Constitution of the country should be upheld and people should move with the times and allow women to reign.
"We cannot end this gathering without thanking advocate Patrick Matodzi, who did a sterling job after we have been failed by many other lawyers," he said.
The former Khosi, Fhatuwani Nesengani, refused to comment and referred all questions to Vhavenda Vho-Mulomoni Nesengani, who indicated they were still to study the court ruling. "We still have to sit and acclimatise ourselves with the court documents. More so, the court has ordered that we convene as a family, which we are going to do. If we have erred, there is still room to rectify the mistakes, and at this stage we cannot even mention the word appeal," he said.
Thifhelimbilu was not at the meeting, as advised by the elders.