Masindi case likely to introduce new era of customary law

The court battle currently playing out to determine who should be the king or queen of the VhaVenda may very well introduce a new era of customary law in South Africa. At the heart of the case are issues such as whether only male contenders are allowed to rule and whether known fraudsters should be contenders for the highest title. It also addresses the issue of whether the courts should assist in developing customary law in cases where the various kingdoms neglect to do so to bring it in line with the country’s constitution.

An application to amend a notice of motion was served before Judge President Moletje George Phatudi in the Limpopo High Court last week. The amended notice of motion asks the court to provide clarity on several issues before the main case to determine the VhaVenda leader commences.

Background

The “Masindi case” has already entered its 12^th year, dating back to December 2012 when the then-21-year-old Masindi Clementine Mphephu filed papers in the Limpopo High Court, some three months after former President Jacob Zuma had published a notice in the Government Gazette that recognised Toni Mphephu-Ramabulana as king of the Venda nation. Masindi claimed that she was the rightful heir to the throne but was overlooked because of her gender.

The case lingered for almost four years before the first ruling was made. The parties asked the court to provide clarity on some technical issues, or points in limine. These included matters of jurisdiction, the periods of prescription, and the applicable review processes to be followed.

In December 2016, Judge President Ephraim Makgoba dismissed Masindi’s case. He was not convinced that 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. Judge Makgoba later also refused them permission to appeal his verdict.

While this was happening, Masindi’s legal team managed to obtain an interdict to stop the inauguration of Toni Mphephu as king. They later successfully applied for permission to appeal directly to the Supreme Court of Appeal (SCA).

On Friday, 12 April 2019, the SCA announced its judgment, which came as a severe blow to the Mphephu-Ramabulana royal family. The five Supreme Court judges agreed with the High Court on some of its findings but disagreed on most of the important issues raised. They also disagreed with Judge Makgoba’s stance that the courts should not give direction in such matters. “The courts are vested with authority to adjudicate customary law issues in appropriate cases and to that end Section 211 of the Constitution obliges them to apply and give effect to customary law where it is implicated,” the judgment reads.

The SCA ruled that the process to appoint a new leader must start afresh. The case was referred back to the Limpopo High Court for a new hearing, but this time in front of another judge. The SCA emphasised that the royal family has an obligation to reform traditional practices such as those that promote gender discrimination. The House of Traditional Leaders was also ordered to provide input to the court.

After waiting for more than a year, the legal team of the Mphephu-Ramabulana royal family filed papers with the Constitutional Court, asking that the SCA’s decision be set aside. Masindi Mphephu’s legal team also filed a counter-application, asking that the stay order of the SCA (which meant that Toni continued as an interim ruler) be set aside and that she be awarded costs in the various cases.

The royal family’s application was dismissed, but Masindi’s was entertained by the Constitutional Court, which ruled that hearing her case was in the interest of justice. On Friday, 12 November 2021, Judge Sisi Khampepe delivered the judgment - a unanimous decision supported by her seven fellow judges.

The SCA's order to allow Toni Mphephu-Ramabulana to keep reigning was summarily set aside. “It could be years before the review proceedings are finally settled … It also means that Mr Mphephu-Ramabulana will continue to unlawfully occupy the throne in circumstances where his appointment has been found to have been unconstitutional and invalid,” the judges ruled. A cost order was also awarded in Masindi’s favour for all the cases up to that point.

The war starts afresh – with some new battles

The extremely slow pace of the legal system is very evident in the Masindi case. A pre-trial conference was held early in February 2022, but what became clear was that the royal family would raise numerous technical objections. This was followed by a series of more pre-trial conferences, where issues such as the VBS matter and the necessity to develop customary law were debated.

The first hurdle Masindi’s legal team must clear now is to get the court’s approval to amend their notice of motion. They argue that this was necessitated because of events happening after the original papers had been filed, such as the SCA ruling and the ruling in the Constitutional Court. They also argue that the VBS saga, where Toni Mphephu has been implicated in the fraud, emphasised the need to bring in a “corruption amendment”.

The request to amend the notice of motion was only opposed by the eighth respondent, the Mphephu-Ramabulana royal family council. The other respondents, which include the SA President, the Limpopo Premier, and the national and provincial houses of traditional leaders, opted not to oppose the amendments.

In the amended notice of motion, Masindi’s legal team requests that all the affidavits filed by the parties in the SCA and the Constitutional Court form part of the record of evidence. This is likely a move aimed at also introducing evidence of perjury, where they believe senior members of the royal family had lied under oath to protect Toni Ramabulana.

One of the amendments that is sure to cause a lot of discussion, should it be allowed, is the “corruption amendment”. Masindi’s legal team asks the court to make a declaration that no person associated with corruption may succeed to the position of king or queen of the VhaVenda. “This amendment is essential because, since the hearing in the High Court, there has been an avalanche of evidence to demonstrate that the first respondent is associated with corruption pertaining to the VBS Bank,” the application reads.

The amendments dwell at length on the need for an “anti-corruption” clause. “The fact that they [traditional leaders] are not subject to elections, and hold positions for life, means that they are all the more compelled to be scrupulously incorruptible and honest. It is therefore essential that in these proceedings that will determine who will end up as life-long king or queen of the VhaVenda, this issue is aired and scrutinised,” the amendment states.

The Dzekiso wife conundrum

An argument previously raised by the royal family is that Masindi was not born from a “dzekiso” or candle wife. In cases where a king has several wives, a rule is often applied that the successor may only come from the children of the specially selected wife. The argument is that VhaVenda custom prohibits the successor to the crown from being the child of a musiwana (commoner), which also means that neither Masindi nor Toni would qualify.

In the amendments, the problems that such an arbitrary selection mechanism holds are highlighted. Masindi is the only child of the late ruler, Dimbanyika, which means that no need for such a selection mechanism exists, they argue. The court is asked to declare that VhaVenda customary law makes provision for this, or needs to be developed to make provision that an only child be considered as being from the Dzekiso wife.

A further amendment addresses the issue raised that Masindi was born before her father became king. The royal family has argued that only children born after a king was inaugurated may be in line to succeed him. Masindi disputes that any such rule exists, and she is supported in this regard by the national and provincial houses. “However, if contrary to the applicant's contentions it were to be established that there is such a rule, then the only logic would be to act as a selection mechanism between pre- and post-accession children competing for the throne. Here the applicant is the only contender, which illustrates the futility of the application of the rule in the present circumstances,” Masindi’s legal team argues.

Still a long way to go

Masindi’s attorney, Mr Johann Hammann, was very optimistic that they would succeed in their application to have the amendments approved by the court. Judge Phatudi is expected to make a ruling before the end of February. However, this does not mean that the case will be heard within the next few months. Hammann said that they were pushing to set a date for a hearing, but the other parties were not very cooperative.

The issue of an interim leader is also still far from being settled. In July last year, the Mphephu-Ramabulana royal council asked the Constitutional Court to make a ruling regarding the appointment of an interim leader. The Limpopo High Court previously ruled that an interim leader could not be appointed while a review application was pending.

The royal family wants to appoint Mavhungu David Mphephu (commonly known as Japan Mphephu) as acting king, but this is opposed by the Limpopo Premier and the MEC, as well as by Masindi. In Masindi’s case, one of their arguments is that Japan Mphephu is not a proper candidate because he allegedly lied under oath in his affidavits.

The case is expected to be heard before the Constitutional Court on Thursday (29 February).

News - Date: 24 February 2024

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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