Masindi Clementine Mphephu (Photo: Kaizer Nengovhela)
Date: 24 December 2016 By: Anton van Zyl
The legal team of Masindi Clementine Mphephu intend to appeal against the decision of Judge Makgoba to dismiss the case in which they challenge the appointment of her uncle, King Toni Mphephu Ramabulana, as king of the Vhavenda.
The case eventually made it to the Limpopo High Court in Thohoyandou last week. The presiding Limpopo Judge President Ephraim Makgoba was critical of them approaching the court, questioning whether they have exhausted all other avenues to resolve the dispute. He dismissed the case, but gave no reasons. He promised to supply reasons for his ruling, but these would probably only be available in the new year.
Masindi’s legal representative, advocate Alan Dodson, tried his best to convince the judge that the case should be heard. The case focusses a lot on the practice of male primogeniture, which Dodson argued should be declared unconstitutional, because it unfairly discriminates against the rights of women.
Masindi is the only child of the late King Dimbanyika Tshimangadzo Mphephu, who died in a car crash in 1997. Her uncle, Toni Mphephu Ramabulana, is the half-brother of her late father. Both are sons of the late Chief Patrick Mphephu.
In 2010, the Mphephu Ramabulana Royal Council held a meeting to decide who the new incumbent will be. This meeting followed the announcement of the Nhlapo Commission that the kingship of the Vhavenda resides in the house of the Mphephu Ramabulana family. The Royal Family had to decide, based on certain criteria, who the incumbent should be. The recommendation to the President was that it must be Toni Ramabulana. In 2012, this decision by the Royal Council was confirmed by President Jacob Zuma when he announced that Toni Mphephu Ramabulana will be the new king of the Vhavenda.
During last week’s court hearing, advocate Dodson tried to convince the court that Masindi was unfairly discriminated against when this decision was made. Apart from the fact that she was discriminated against as a woman, he argued that the procedures followed were flawed. Dodson referred to minutes of the royal council meeting where a member, David Mphephu, stated that a woman cannot be considered for the position of king. Masindi’s legal team also questioned the validity of the committee that made the decision, arguing that various parties were excluded from the process.
In their original application that served before the court, 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 was in place to make it a lawful decision.
Judge Makgoba was not convinced that the issue of male primogeniture was central to the case. He pointed out that in Venda custom there seems to be no problem with women assuming senior roles. He also wanted to know why other avenues, such as the Commission on Traditional Leadership Disputes and Claims were not followed.
Advocate Dodson argued that, for various reasons, the applicable legislation and processes made this impossible. He also argued that President Zuma, as head of State, created an expectation with his announcements that a fair and transparent process would be followed when he announced that the new commission will investigate and advise as to who the incumbent would be.
The Nhlapo Commission made no recommendation as to who the new incumbent should be, only saying that it should be from the Ramabulana clan. The Commission on Traditional Leadership Disputes and Claims took over from the Nhlapo Commission, but passed the decision-making function to government.
When Judge Makgoba dismissed the case last Wednesday he ruled that each party should pay their own cost.
On Thursday Masindi’s lawyer, Johann Hammann, said that they will seek permission to appeal the ruling. Papers were filed to that effect in the Thohoyandou division of the Limpopo Court on Thursday.
Hammann said that their appeal will focus on the procedures that were not followed when a new incumbent was announced. He said legislation must be effected in a transparent manner and processes should not be closed to certain parties. “We were only officially informed in 2013 of the decision that the royal council took in 2010,” he said.
The spokesperson for the Royal Family, Mr Jackson Masungwairi, did not want to comment on the outcome of the case this week. He said that it would be more proper to do this after they had received the reasons for the judge’s decision. He did, however, welcome the ruling of the court.
On a question of whether the Royal Family will now go ahead with the crowning ceremony, he said that it is not on the immediate agenda.
Anton van Zyl has been with the Zoutpansberger and Limpopo Mirror for over 27 years. He graduated at the 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.