Chief Mpofu turns to the court to get control of his land

A rather desperate and lonely fight is playing out in the Thohoyandou High Court, involving a traditional leader who has effectively been stripped of his powers, with no say as to what is happening on his land. 

Vhamusanda Mulatedzi Frans Mpofu also believes one of the region’s most powerful political leaders is driving development on his land, without his consent.

The case goes to the heart of land restitution and the question of whom the land was returned to: Was it returned to the leaders of the tribes that lived on the land centuries ago, or is it now in the hands of a select few individuals?

The case also reflects the struggle of the “independent headmen” who, unlike the traditional leaders in the former homelands, have no claim on the land of their ancestors. They are seemingly at the mercy of the newly created, and mostly dysfunctional, communal property associations (CPAs). Some CPAs hold the notion that a traditional authority, which includes the traditional leader, must be set aside as a relic of the past.

Mpofu, one of the leaders whose origins can be traced back to the main royal families of the Vhavenda, believes that he has received a raw deal. Instead of being a respected leader, he is being ignored by the CPA currently in control of the ancestral land. He alleges that the CPA has started selling off parts of the land and alienating it, without any clear benefits to its members.

Mpofu has therefore turned to the courts to assist him. He also filed for an urgent interdict last month to stop the CPA and Chief Livhuwani Matsila, a very prominent political figure and secretary of the ANC’s provincial electoral committee, from continuing with what is said to be a R24.6-million development project funded by the Department of Tourism and the Development Bank of SA. He also wants to stop Matsila from developing a private lodge on the land. 

The urgent interdict was served before the court on 31 October but was turned down by Judge TC Tshidada for lack of urgency.

 To whom does the land belong?

The Mpofu royal family used to be one of the most influential families in the Vhavenda kingdom, with its roots going back to Rasithu, the son of Munzhedzi Mpofu, who ruled the Vhavenda in the latter part of the 18^th century. Rasithu was the father of Makhado, also known as “The Lion of the North,” who ruled until his death in 1895.

Rasithu also had a son called Tshiembi, with a Botlokwa wife. (The Botlokwa clan occupied the land to the south of where the Vhavenda stayed.) Tshiembi ruled in the area near what became known as Bandelierkop, on a piece of land stretching almost to what is today known as Morebeng.

After Chief Tshiembi’s death, the reins were handed over to his son, who was called Mpofu-Mpofu. The name subsequently became the surname of his children. The next in line was Tshikuvhe, who reigned until his death in 1986.

When Frans Mulatedzi Mpofu was inaugurated as the leader of the Mpofu clan in August 1987, the clan had already been stripped of their land. In 1969, in accordance with the National Party government’s policy, the last members were removed from the farm Bankop, where some of them still lived. They were relocated to an area southeast in the Venda homeland, next to the Nthabalala clan. The clan remained scattered, with members staying in places that included Ha-Nthabalala, Ha-Mulima, Ha-Chabani, Ha-Sinthumule, Ka-Mbhokota, Luonde, Ka-Bungeni, Ha-Kutama, Nzhelele, and Ha-Magau.

In December 1998, four years after the Restitution of Land Rights Act came into effect, Mulatedzi France Mpofu lodged a land claim on behalf of the Mpofu Community on the farms Bankop and Valdiglen. He was, however, not the only one claiming the land. A few months earlier, in April 1998, Mr Avhashoni Solomon Thoba had lodged a land claim on behalf of the Khoro Community.

The claim took several years to be processed, but in March 2005, the claims were consolidated.  The two communities were advised by the departmental officials to merge the two farms into one and form one CPA. At the time Mpofu, who is illiterate, understood this to be granting his clan authority. As a result, the Tshathogwe Communal Property Association (CPA) was formed.

On 14 May 2008, a settlement agreement was signed, paving the way for the land to be restored. Even though traditional leaders such as Mpofu initiated and drove the process to claim back the land, the custodians became the newly formed CPA.

Around 2012, the Tshathogwe Communal Property Association was “regularised.” The original assessment was that the CPA represented 346 individuals from 97 families.  A total of 3,258 hectares was made available to them, with R10.15-million allocated for the land-restitution process.

The CPA’s declared intentions were to implement job-creation projects to empower its beneficiaries through ecotourism, game farming, agriculture, natural-resources management, nature conservation, and environmental management. Some families said that they wanted to return to the farm to live there.

 Early animosity

 In June 2012, the first cracks started appearing in the CPA. The “marriage” between the two clans who now had control of the land no longer seemed to be harmonious.

The CPA’s executive had to approach the North Gauteng High Court to act against two members, Joshua Nthabalala and Solomon Thoba, who were ordered to stop selling portions of the land to members of the public immediately. Thoba was a former chairperson of the CPA, serving from 2009 to 2011, while Nthabalala was a former committee member. In February 2013, an interdict was granted, prohibiting Nthabalala and Thoba from demarcating and alienating any portion of the land.

In February 2021, the different groups clashed again. Accusations of the misuse of funds were levelled against the Tshathogwe CPA committee members, who in turn approached the court to interdict members who they believed had acted in an illegal manner.

This time, a splinter group of beneficiaries, calling themselves the Concerned Group, started clearing bush on the farm. They argued that they were acting out of frustration and were no longer willing to wait for the CPA committee to develop the land and include them in projects. The group was under the leadership of Mr Solomon Thoba.

At the time of this conflict, the CPA’s chairperson was Mr Willie Hadzhi Ntshengedzeni, but the name of Chief Livhuwani Matsila had already popped up as a “project advisor.” The Concerned Group claimed that the committee’s term of office had expired in March 2019 as committee members were elected in 2016, and were expected to serve for only three years.

The Concerned Group alleged that projects were mismanaged and that funds, amounting to several million rands, could not be accounted for. This was vehemently denied by Ntshengedzeni. At the time, Ntshengedzeni admitted that no elections had been held but said that they were waiting for the Department of Land and Rural Development to approve the process.

On 15 January 2022, new elections were held, and the person who was previously interdicted from interfering with the CPA’s activities, Solomon Thoba, was elected as chairperson. The development project, with Chief Livhuwani Matsila at the helm, started to gather momentum.

The funding expert

Livhuwani Matsila, commonly known as Chief Matsila, is no stranger to controversy. He is also widely acknowledged for his ability to rake in millions in funding aimed at development in the village where he rules. He is a cousin of one of the senior traditional leaders of the Vhavenda, Thovhele Nthumeni Masia. In December 2014, Masia inaugurated him as Vhamusanda (senior chief) responsible for Matsila Tshisimani.

The relationship between the Thovhele and his Vhamusanda quickly started deteriorating, for a variety of reasons. One of Masia’s complaints was that Matsila dealt with government departments and other entities directly, completely ignoring him as the senior traditional leader in the area. In September of this year, Masia announced that he had demoted Matsila and had taken away his position as Vhamusanda.

Matsila did not accept this change in status, and a day after Masia’s announcement, the Matsila Royal Family invited one of the Vhavenda’s highest-ranking leaders, Mailausumbwa Kennedy Tshivhase, to inaugurate him as a Thovhele. He was given a new name and the title of Thovhele Radzambo II. In a statement, the Matsila Royal family said that it did not recognise Mbangiseni Masia as their senior traditional leader.

Matsila is politically well connected and very close to President Cyril Ramaphosa. Many believe that his close ties with prominent politicians have opened up various doors to obtaining funding for development projects. His Matsila Community Development Trust received more than R40-million from the National Lottery.

In its latest annual performance plan, the Department of Tourism revealed that it was funding a tourism attraction at a total cost of R36.37 million at Matsila Lodge. In 2018, the lodge burned down, and a promise was made that money would be raised to rebuild it.

In many circles, Chief Matsila is lauded as someone who brings development to rural areas and creates job opportunities for many.

The Department of Tourism is also funding the construction of the R24.63 million Tshathogwe Community Lodge that will be erected on the farm Bankop, adjacent to the N1 main road leading to the north. The project is administered by the Development Bank of South Africa, which in turn appointed Maranje Consulting CC to do the construction.

 A chief with no powers

The fact that the development on his ancestral land continued without his involvement did not go down well with Vhamusanda Mpofu. In his court papers, he argues that “the property is under my rule and authority as the Chief, as contemplated in section 19 of the Traditional Leadership and Governance Framework Act, 41 of 2003.”

Mpofu quotes the CPA’s constitution, which prohibits the committee from selling or alienating any piece of their land. “It is a customary requirement that I be consulted when any large-scale or significant decisions are to be made on the land under my rule and/or authority. The respondents could not commence the construction without my consent or approval as chief or headman,” he states in an affidavit.

In his answering affidavit, the chairperson of the Tshathogwe CPA, Solomon Thoba, makes clear that the land does not belong to the traditional leader, but to the CPA. He denies that any onus rests on the CPA members to first get the blessing of the traditional leader.

“[The] Traditional Leadership and Governance Framework Act 41 of 2003 was repealed by the Traditional and Khoi-San Leadership Act 3 of 2019 which came into operation on 1 April 2021. It is therefore not possible that the Applicant [Mpofu] exercises authority over the property since it is governed by its constitution and not in terms of customary law,” Thoba said.

The legitimacy of the current executive committee of the CPA is also questioned in the court papers. Mpofu refers to a special general meeting that was called on 29 October 2022, during which a decision was taken to dissolve the committee. He argues that the decision to remove the committee members was taken after concerns were raised about the way the CPA was being managed, with no proper accounting systems in place and a lack of proper management.

Thoba, however, argues that the meeting held on 29 October was not properly constituted and that the decisions taken were invalid, because they ignored sections of the CPA’s constitution. “However, should the Applicants wish to call for a special general meeting, they are at liberty to do so, provided they comply with the Constitution of the [CPA],” he states.

Some strings attached?

The court documents include copies of the agreement between the Tshathogwe CPA and Chief Matsila. In this contract, Matsila is appointed as project advisor because of his specialist skills in community development and job-creation projects. The period of appointment is 20 years, ending in April 2039.

“Unless otherwise stated, the Projects Advisor will render the above services to the CPA free of charge,” the contract reads. Some sort of quid pro quo does exist, however, in that Matsila is allowed to use a portion of the farm for grazing purposes. He can also erect an entertainment facility on a plot at Bankop farm, to generate an income as he sees fit.

When the contract between the CPA and Matsila ends, the CPA “undertakes to purchase Chief Matsila’s entertainment area or any other immovable property at a negotiated cost recovery and reasonable price to be agreed upon by the parties,” the contract reads.

Vhamusanda Mulatedzi Frans Mpofu currently finds himself in a situation where he has no direct influence on what is happening on the land that his forefathers lived on. To add insult to the injury, a traditional leader from a neighbouring area has the right to live on the land and even rent out the facilities.

The border of the former Venda homeland is only a few kilometres from the home of Vhamusanda Mpofu. Here, traditional leaders such as Vhamusanda Khishimusi Nthabalala rule, but unlike Mpofu, they have the authority to make land available and decide on development projects.

Mpofu vowed to continue fighting for his land, no matter how long this takes. 

While he previously fought against a repressive government, Mpofu says he believes he now fights against “self-proclaimed ndunas”, who because of their close proximity to the previous regime, were elevated to leadership positions. “It is this fight that the house of Mpofu, which I represent, is willing to continue with until justice is seen to be done,” he said.

Because the urgent application has been turned down, the matter is not expected to be heard in court for some time - and Vhamusanda Mpofu and his loyal followers now have to play the waiting game.

Date:02 December 2023

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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