In the battle for the throne, Masindi Clementine Mfephu asked the court to declare that no person associated with corruption could become king or queen of Vāvenda. File photo: Lucas Ledwaba/Mukurukuru Media
The legal battle to decide who should become King or Queen of Vervenda is very likely to usher in a new era of common law in South Africa. At the heart of the case are questions such as whether only male candidates should be allowed to govern, and whether a known fraudster should be the top candidate.
It also raises the question of whether courts should assist in the enactment of customary law in order to make it compatible with the country's constitution if a kingdom fails to do so.
The application to amend the notice of motion was served on Limpopo High Court Judge Moleche George Fatudi last week. The amended notice of motion asks the court to clarify several issues before the main action to determine VhaVenda's leadership begins.
background
The 'Masindi incident' dates back to December 2012, when 21-year-old Masindi Clementine Mphephu filed papers in the Limpopo High Court. This was three months after then President Jacob Zuma published a notice in the Official Gazette recognizing Toni Mphepou-Ramabulana as King of Venda. Masindi claimed he was the rightful heir to the throne but had been overlooked because of his gender.
It took almost four years for the first verdict to be handed down. In December 2016, Chief Judge Ephraim Makkoba dismissed Masindi's appeal. He was not satisfied that the applicants had exhausted all other avenues to resolve the dispute, such as the Traditional Leadership Disputes and Claims Commission. He was also unconvinced that the issue of male primogeniture was central to the case. Justice Makgoba later also refused leave to appeal the verdict.
While this was happening, Masindi's lawyers managed to obtain an injunction to prevent Toni Mfephu from becoming king. They then successfully applied for permission to appeal directly to the Supreme Court of Appeal (SCA).
On Friday, April 12, 2019, the SCA announced a judgment that is a severe blow to the Mphephu-Ramabulana royal family. The five justices of the Supreme Court agreed with the high court's opinion on some decisions, but disagreed on most of the key issues raised. They also disagreed with Justice Makgoba's position that the court should not give directions on such matters. “Courts are empowered to decide common law questions in appropriate cases, and to that end, Article 211 of the Constitution requires courts to apply and give effect to customary law in cases where it is involved. “It is mandatory,” the judgment says.
The SCA ruled that the process to appoint a new leader must start anew. The case was remanded to the Limpopo High Court for a new hearing before a different judge. The SCA stressed that the royal family has a duty to reform traditional practices that promote gender discrimination. The House of Traditional Leaders was also ordered to provide an opinion to the court.
After waiting for more than a year, the Mphepou-Ramabulana royal family's legal team filed papers with the Constitutional Court asking for the SCA's decision to be put on hold. Masindi Mphepu's lawyers have also filed a counter-complaint seeking to set aside the SCA's suspension order (which means Toni remains interim ruler) and award her costs in various proceedings. .
Although the Crown's application was rejected, Masindi's application was accepted by the Constitutional Court, which ruled that it was in the interests of justice to hear her case. Judge Sisi Kampepe handed down the verdict on Friday, November 12, 2021. For Masindi, the decision was unanimous, with support from seven of her fellow judges.
The SCA's order allowing Toni Mphepou-Ramabulana to continue to rule was immediately revoked. “The review process could take years to reach a final conclusion… It also means that Mr Mphepou-Ramabulana continues to occupy the throne illegally in circumstances where his appointment was found to be unconstitutional and invalid. ” the judges ruled. A costs order was also made in Masindi's favor on all previous proceedings.
corruption clause
The extremely slow pace of the legal system is very evident in the Masindi case. A pre-trial conference was held in early February 2022, and it became clear that the Crown would raise numerous technical objections.
The first hurdle Masindi's legal team now has to clear is getting court approval to amend the notice of claim. They argue that this is necessary because of events that have occurred since the original paper was submitted, including the SCA judgment and the Constitutional Court decision. They also claim that Toni Mphephu's involvement in fraud at VBS Mutual Bank highlights the need to table a “Corruption Amendment Bill”.
Masindi's lawyers are asking the court to declare that no one associated with corruption can become king or queen of Vavenda. “This amendment is essential as since the hearing in the High Court, an avalanche of evidence has emerged implicating the first defendant in corruption related to VBS Bank,” they argued in their application. are doing.
The amendment details the need for an “anti-corruption” clause. “They are [traditional leaders] Being non-electable and holding office for life means they are forced to be even more methodical, dishonest, and honest. It is therefore imperative that this issue be aired and scrutinized in these proceedings to determine who will become the lifelong King or Queen of Vervenda,” they argue.
In an amended notice of claim, Masindi's lawyers requested that all affidavits filed by the SCA and the Constitutional Court parties be made part of the evidentiary record.
The move is likely to be aimed at presenting evidence of perjury, as they believe senior royal officials lied under oath to protect Toni Ramabulana.
The only person who opposed the request to amend the notice of motion was the eighth respondent, the Royal Council of Mphephu Ramabulana. Other respondents, including the President of South Africa, the Premier of Limpopo Province, the National Assembly of Traditional Leaders and local councils, chose not to oppose the amendment.
jexo's wife
An argument previously put forward by the royal family was that Masindi was not born of a “Jekiso” or “Candle Wife”. If a king has more than one wife, there is often a rule that heirs can only be born to the children of specially chosen wives. It is claimed that Vavenda custom prohibits heirs to the throne from being the children of msiwana (commoners), meaning that neither Masindi nor Toni are eligible.
The proposed amendment highlights the problems with this arbitrary mechanism for selecting rulers. Ms Masindi is the only child of the late Ms Dimbanyika, which means such a selection mechanism is unnecessary, her lawyers argue. The court is asked to declare that the Vavenda customary law has a provision for this or that it should make a provision for an only child to be considered as born to a Gekiso wife.
Further amendments address the issue of Masindi being born before his father became king. The royal family insisted that only children born after the king's inauguration could become his successor. Masindi disputes the existence of such a regulation and is supported in this regard by the national and state legislatures.
There's still a long way to go
Judge Fatudi is expected to issue a ruling by the end of February. However, this does not mean the case will be heard in the coming months. Masindi's lawyer, Johan Hamann, said he was working on setting a date for the trial.
The issue of an interim leader is still far from being resolved. In July last year, the Mphephu Ramabulana Royal Council asked the Constitutional Court to issue a ruling as far as the appointment of an interim leader is concerned. The Limpopo High Court previously ruled that an interim leader cannot be appointed while a review application is pending.
The royal family wants to appoint Mabhung David Mphephu (commonly known as Japan Mphephu) as the acting king, but this is opposed by the Limpopo Premier, MEC and Masindi. In Mr. Masindi's case, one of their arguments is that Mr. Mphephu of Japan is not a suitable candidate because he allegedly lied under oath in an affidavit.
The case is scheduled to be heard in the Constitutional Court on Thursday, February 29th.
This article was published in association with Limpopo Mirror and first appeared on GroundUp.