Masindi case to SCA

Friday (30^th) sees the battle for the kingship of the Vhavenda return to the courts. This time it is the Supreme Court of Appeal in Bloemfontein that will listen to the various arguments.

The case to be heard on Friday is almost all about technicalities. Masindi Clementine Mphephu’s legal team will argue that the case is about male primogeniture and gender discrimination, but the legal matters such as jurisdiction, prescription and review processes need to be sorted out first.

Since the matter was debated in the Thohoyandou High Court in 2016, a lot has happened. Back then, Limpopo Judge President Ephraim Makgoba did not spend many days listening to arguments before dismissing the case. He believed Masindi and her legal team could explore other avenues to resolve the impasse.

But that was in a period before the VBS Mutual Bank scandal and during a period when little was known of the close links between the main contender for the throne, Toni Mphephu-Ramabulana, and the then president, Jacob Zuma. The VBS bank came to Zuma’s rescue, giving him the money to pay back his Nkandla debt. Not long before the loan was granted, Zuma announced that Mphephu-Ramabulana would be the next Vhavenda king. What later emerged was that VBS was being operated along the lines of a pyramid scheme, with large-scale looting the order of the day. Toni, through Dyambeu Investments and the Vhavenda Heritage Trust, is a major shareholder in VBS.

The judges listening to the arguments will surely ignore the VBS background, but the matter has definitely swung public sentiment. Last week, support groups were busy organising buses to transport people to Bloemfontein and back.

Understanding the arguments

To complicate matters for the ordinary citizen, the battle in the courts started off by focusing on technical points. Masindi’s legal team requested that these be adjudicated first, before the “main” case could start. These issues included jurisdiction, periods of prescription and the applicable review processes to be followed. In simpler terms – who may decide on such royal matters and what should you do if you do not agree?

Their first stop was the Thohoyandou High Court, where Judge President Ephraim Makgoba was asked to rule on these matters in December 2016. He was not impressed by the arguments and he 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 Masindi’s uncle, Toni Mphephu Ramabulana, as the new king.

Masindi’s lawyers then obtained a court interdict, effectively halting all such ceremonies until all legal processes have been exhausted. They also filed papers to appeal Judge Makgoba’s ruling. When this request was not granted, Masindi’s legal team requested permission to appeal directly to the Supreme Court of Appeal in Bloemfontein. This request was granted in August last year.

Where did it start?

The question of whether a Vhavenda kingship/queenship ever existed, was the subject of a few commissions. In November 2004, the Commission on Traditional Leadership Disputes and Claims was formed, chaired by Prof Thandabantu Nhlapo. In December 2007, he was replaced by Prof Mohlomi Moleleki as chairperson. This commission conducted several hearings before eventually, in January 2010, making an announcement. A declaration was made that such a kingdom/queendom existed and that it was vested within the Mphephu-Ramabulana family line.

No announcement was made as to who the incumbent should be, as it presumably fell outside the mandate of the commission and was the prerogative of the royal council. Masindi’s legal team believes that the commission erred, because she was never afforded an opportunity to state why she should be the incumbent.

On 29 July 2010, former president Zuma announced the findings of the commission, but he also mentioned that the commission still had to decide who the rightful incumbent should be. Not long after this, the (disputed) Mphephu-Ramabulana Royal Council identified Toni Mphephu Ramabulana as the new king.

Several of the other Vhavenda families were not too impressed with the commission’s findings and took it on review. In September 2012, Judge Legodi ruled against them and dismissed the review applications.

On 21 September 2012, former president Zuma published a notice in the Government Gazette that recognised Toni Mphephu Ramabulana as king. Three months later, Masindi Clementine Mphephu’s legal team filed papers in the High Court to declare the president’s decision unconstitutional and invalid.

But should it be Masindi?

When Paramount Chief Tshimangadzo Mphephu, who reigned as King Dimbanyika of the Vhavenda from 1994 to 1997, died, he left behind a daughter, Masindi. She was the only child born out of his marriage with the dzekiso (heir-bearing) wife, Fulufhelo Mphephu.

During a meeting on 14 August 2010, the Royal Family had to decide who was to succeed Dimbanyika. Toni, and not Masindi, was announced as the incumbent. During this meeting, a member of the royal family, David Mphephu, allegedly explained that only males could succeed to the throne. Although he acknowledged the need for progressive reform of the law to allow for a queenship, he reckoned the time had not yet arrived.

Toni’s claim to the title is strongly disputed by Masindi’s legal team. In court documents presented, reference is made to a previous hearing where Judge Lukoto dismissed an application of Toni Mphephu-Ramabulana. The judge stated that Toni was the brother of the late Tshimangadzo Dimbanyika, but he believed the next successor should be a son of Dimbanyika.

Masindi believes that she was not considered to succeed her father because the customary law of male primogeniture was applied. Masindi’s legal team hope to convince the court to rule that this decision was an infringement of her constitutional right to equality.

In the heads of argument, Masindi’s legal advisors state that three options are available to the court. The first is to refer the matter back to the Mphephu-Ramabulana royal family to restart the procedure of appointing an incumbent. The second option is to refer it back to the commission, who must again investigate and make a recommendation in terms of the TLGFA. The third option is for the High Court to listen to arguments and decide. Masindi’s legal team reckons the third option is the only viable option.

They do not, however, want Judge Makgoba to hear the matter, as they believe him to be prejudiced.

The Mphephu-Ramabulana royal family, in their heads of argument, strongly deny that gender discrimination influenced the decision to decide on Toni as the new king. They argue that Masindi was born before her father became king. According to the rules prescribing who the next incumbent should be, an heir must be born from a dzekiso wife after the king has ascended to the throne. Such a candidate must then be nominated by the makhadzi.

The royal family also argue that Masindi was not born from a dzekiso wife. “Accordingly, his house had collapsed, thus reverting the responsibility of identifying his successor to the elders,” it is argued.

Why is it so complicated?

One of the issues to be decided on is whether Masindi should have used the dispute processes prescribed in the amended Traditional Leadership and Governance Framework Act (TLGFA).

The TLGFA is also controversial, as Masindi’s legal team believe that the legislation is not in line with the country’s constitution. They argue that a responsibility exists to recognise the rights of women immediately and not “progressively” advance gender representation.

When the first commission’s time expired, it was replaced by a new commission, established in 2011 under chairmanship of Mr Bagudi Jonathan Tolo. Masindi’s team argue that this new commission had to finish the uncompleted matters, such as the determination of the Vhavenda kingship/queenship. They believe that, because of the former president’s premature announcement, the matter was not left for the royal family to sort out.

Masindi’s legal team argue that, when Zuma announced the name of Toni Mphephu Ramabulana as the new incumbent, he thereby created an expectation that could not be corrected via an internal appeal process. They also argue that, in terms of the amended act, the president first had to consult with the relevant minister before making any such decision.

The eight respondents in the case all disagree with the arguments of Masindi’s legal team. The respondents include the SA president, the minister of Cooperative Governance and Traditional Affairs, the Limpopo Premier, the Limpopo House of Traditional Leaders and the Commission on Traditional Leadership Disputes and Claims. Thus far, they have been successful, but the Supreme Court of Appeal may have a different take on matters.

Date:01 December 2018

By: Anton van Zyl

Anton van Zyl has been with the Zoutpansberger and Limpopo Mirror since 1990. He graduated from the Rand Afrikaans University (now University of Johannesburg) and obtained a BA Communications degree. He is a founder member of the Association of Independent Publishers.

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