The legal team of Masindi Clementine Mphephu intend to approach the Supreme Court of Appeal in Bloemfontein for leave to appeal against the decision of Limpopo Judge President Ephraim Makgoba.
Judge Makgoba dismissed on Thursday (25 May) their application to appeal against the ruling that he had made in December last year that she may not challenge the appointment of her cousin, Toni Mphephu Ramabulana, as king of the Vhavenda.
Last year, the legal team of Masindi Mphephu approached the court, asking it to first rule on numerous technical aspects in the case. The case was heard in the Limpopo High Court in Thohoyandou and the applicants asked that the court rule on 17 questions, which include matters of jurisdiction, the periods of prescription and the applicable review processes to be followed. The court was also asked to determine whether the President's decision to acknowledge Toni Mphephu as king of the Vhavenda should first be challenged and whether the legislation had been in place to make it a lawful decision.
Judge President Ephraim Makgoba questioned whether the applicants had exhausted all other avenues, such as the Commission on Traditional Leadership Disputes and Claims, to resolve the dispute. He was also not convinced that the issue of male primogeniture was central to the case. He dismissed the case, paving the way for the coronation of a new king.
Masindi's lawyers then obtained a court interdict effectively halting all such ceremonies until such time as the legal processes are exhausted. They also filed papers requesting the Limpopo High Court's permission to appeal Judge Makgoba's ruling.
On Thursday, Judge Makgoba was unmoved and said that an appeal will have no reasonable prospect of success. He was not persuaded that another court will come to another conclusion. The judge told Masindi's counsel that they only raised similar arguments to the ones raised during the main application in December.
Masindi's legal counsel, advocate Allan Dodson, argued, among other things, that his client had only been 14 years old when the Nhlapo Commission investigated the kingship dispute in 2010 and could thus not raise her grievances. He said that she had been sidelined when the Mphephu Royal Council had endorsed Ramabulana as king.
Advocate Thabiso Machaba, representing the Mphephu Royal Council, argued that Masindi should have submitted objections to the Commission on Traditional Leadership Disputes and Claims and not used the courts to try and change a process concluded years ago. He was supported in his arguments by Advocate Norman Arendse, representing president Zuma.
Masindi's lawyer, Mr Johann Hammann, was still very optimistic about his client's prospects on Thursday afternoon. "We will now apply for leave to appeal directly to the Supreme Court of Appeal in Bloemfontein," he said. Hammann reckoned that they had a very strong case and that a full bench of judges might very well arrive at a different conclusion.
The interdict prohibiting the inauguration of Toni Mphephu Ramabulana as new king of the Vhavenda still stands. "All remedies must first be exhausted before this interdict falls away," Hammann said.