Toni Mphephu Ramabulana (left) and Masindi Mphephu-Ramabulana (right).

Did Toni’s legal team lie to the court?

 

The decade-long battle to determine who will be the king or queen of the Vhavenda is heading for a dramatic turn of events. The Constitutional Court (ConCourt) has now received the final submissions from the parties and can proceed to rule on the appeal application. The submissions, however, contain some interesting statements, among others that Toni Mphephu Ramabulana’s legal team had lied to the court about his involvement in the VBS Bank saga.

The legal team of Toni lodged an appeal last year against the April 2019 ruling of the Supreme Court of Appeal (SCA). The SCA ruled that Masindi Mphephu-Ramabulana had been discriminated against because of her gender when the name of a candidate was forwarded as to who the new leader of the Vhavenda should be. This court set aside former president Jacob Zuma’s declaration that Toni was the incumbent. The SCA also ruled that Toni would serve as interim ruler, so as not to create a leadership vacuum while the case awaited a date for a hearing in the Limpopo High Court.

Masindi’s legal team had hit back and filed a cross-appeal, requesting the court to remove Toni as “caretaker” king. She argued that the current situation was being abused, because while the case was dragging on, Toni was receiving a king’s salary and had no incentive to speed up the process.

The ConCourt judges sent letters to the parties directing them to comment on the request that the certificate of recognition of Toni as king of the Vhavenda be withdrawn immediately. The parties were also required to make input as to the decision of the SCA not to issue a cost order against Toni in the appeal case. Finally, the parties were required to respond to Masindi’s legal team’s request that the application for appeal to the Constitutional Court be dismissed with a punitive cost order. The cut-off date for submissions was set for 2 April.

Masindi’s arguments

In Masindi’s submission, argument is presented that the appointment of Toni as interim ruler created an untenable situation. “It incentivises delay tactics on the part of the applicants in the litigation, while affording the first applicant continued access to public resources to which he is not entitled, including to finance protracted litigation,” they argue.

They also posit that to remove Toni from the position he currently holds will not be prejudicial to the Vhavenda nation. Masindi’s team argue that Toni is already compromised “in that he has been found in a report of the Prudential Authority to have corruptly received large sums of money stolen from VBS bank”.

The stay order that allows Toni to reign, they argue, was never requested by any of the parties. The SCA also did not allow any of the parties concerned to make input on the matter. This step of the SCA was described as going against the principle of fairness that should be applied by courts. “This requires affording the parties the opportunity to address the court on the appropriateness of the proposed remedy before it is granted, and especially so if they may be prejudicially affected by the order,” they argue.

On the issue of cost, Masindi’s legal team contend that the court should have awarded cost, according to the principles set in another case, often referred to as the Biowatch principle, which concerns litigation between a private party and organs of State. “The review application is, therefore, constitutional litigation against the State for the protection and enforcement of rights in the Bill of Rights,” they say.

The State respondents in the case sided with Toni and should be held liable for costs, they state.

However, the issue of punitive costs is where Masindi’s team pulled out the big guns. They present the argument that Toni has a history of trying to obstruct justice and that the royal house has effectively lied to the court. In his replying affidavit, the spokesperson for the royal family, Mr David Mphephu, states that Toni “is not a suspect in any investigations or at risk of being arrested for the crimes committed against VBS”.

Masindi’s legal team has questioned this statement and asked for clarity from, among others, the Directorate of Priority Crime Investigations (DPCI) and the National Prosecuting Authority (NPA). “The DPCI and NPA also denied the correctness of the statements made by the applicants,” states Masindi’s submission, along with the responses from the various law-enforcement bodies.

“No such representations were ever made by the first applicant, let alone favourably considered. He remains the subject matter of ongoing investigations and has not been exonerated.”

Toni Mphephu’s arguments

Toni has made use of three senior advocates to prepare his submission, namely advocates I Semenya, TJ Machaba and S Poswa-Lerotholi, which may indicate how serious they consider the matter to be.

In an interesting twist they agree with Masindi’s legal team that the SCA had erred in ordering the stay of the withdrawal of the certificate of recognition. “Both parties are in agreement that the Court is best suited to finalise the matter. No further review is warranted. The SCA erred further in staying the proceedings without inviting the parties to make submissions in this regard,” they claim.

In their submission, a lot of emphasis is placed on the context of the case. The Limpopo High Court found that Masindi had not adhered to the processes prescribed by the Traditional Leadership and Governance Framework Act when contesting the kingship. When the case ended up in the SCA, this finding was not dismissed. The SCA ruling stated that “the high court was also correct in dismissing her allegation that she held a legitimate expectation that the leadership incumbency was under investigation by both commissions.”

The SCA found that Masindi’s claim to the title or a declaration of a leadership dispute had in fact expired, as it was out of date. “Having found the judgment of the High Court to be correct in the manner described above, the SCA should have dismissed the appeal,” Toni's team argue.

On the issue of costs, they argue that the discretion used by the SCA was proper. “It is self-evident that this matter is of great importance to the Vhavenda people and their history that the issue of kingship/queenship be resolved for now and for the future,” they claim.

In the submission, the argument is presented that nothing vexatious exists about the manner in which the applicants had conducted this litigation. “The resolution of the dispute is also a constitutional matter under chapter 12 of the Constitution … and an adverse cost order or a punitive one at that, would in principle, be wrong,” they say.

In response to the allegations that they had lied to the courts regarding the VBS matter, they simply state that “(the) VBS Mutual Bank issues are strictly irrelevant for the determination of this matter. They have never served before the High Court nor the SCA”.

They further argue that Masindi’s request that she be recognised as the queen of the Vhavenda people would offend the separation of powers doctrine and the rule of law. “By statute, the determination of kingship or queenship is a matter legislated by the Framework Act, as amended. It would be most incongruent to have such an order which is inconsistent with the person nominated by (the) Makhadzi to be king according to the customs and traditions of (the) Vhavenda people,” they say.

 

 

 

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Date:02 April 2021 - By: Anton van Zyl

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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