A ruling made by the Constitutional Court some three weeks ago may bring about a whole new twist to the battle for the kingship of the Vhavenda. The Constitutional Court ruled that a notice issued in 2010 by Pres. Jacob Zuma, which effectively gave him the power to appoint kings, was invalid.

In the case that served before the Constitutional Court, Justice Mpondombini Sigcau took on Zuma and argued that he (Sigcau) should not have been deposed as king of the amaPondo. In 2010, Zuma acted on the recommendations of the Commission on Traditional Leadership Disputes and Claims and recognised Zanozuko Tyelovuyo Sigcau as king.

The case that served before the court did not focus on which of the two contenders should be the new king, but rather on whether President Zuma had the necessary power to make such a decision. An expert on Constitutional Law, Prof Pierre de Vos, writes in his blog on the website, Constitutionally Speaking, that Zuma had relied on the amended provisions of the Traditional Leadership and Governance Framework Amendment Act to give effect to the decisions of the Commission on Traditional Leadership Disputes. “This was wrong as the provisions of the old (unamended) Act applied to the commission's decision. The lawyers in the Presidency may have been unaware of the ordinary rule of our law that statutes operate only prospectively and not retrospectively and that one cannot rely on an Act retrospectively.”

An attorney at the Legal Resource Centre, Wilmien Wicomb, reckons that the ruling will have an effect on all decisions made by President Zuma after the notice was issued. In an article that first appeared in the Mail & Guardian, it is argued that:

“This decision will apply to each of the Commission’s other findings on king- and queenships, which means that the setting aside of all the appointments made by the country’s president in terms of the Commission’s findings will be a mere legal formality for the other challengers. That is, until the Presidency finds a way to solve the procedural conundrum.”(The co-author of this article was Monica de Souza, a researcher at the Rural Women’s Action Research Programme, Centre for Law and Society, University of Cape Town.)

An attorney from Makhado who is also representing the young Masindi Clementine Mphephu in her court battle for the Vhavenda kingship, Mr Johann Hammann, agrees with this statement. He explains that part of the problem started in 2003 when the Commission of Traditional Leadership Disputes (commonly known as the Nhlapo Commission) was formed in terms of the Traditional Leadership and Governance Act. This commission investigated claims to the various kingships and made recommendations to the President. The report of the Nhlapo Commission was published in 2008. In this report, no specific candidate is identified for the Vhavenda kingship, other than to say that it should be from the Ramabulana family.

The amended provisions to the act were published after this report was published, and it was only on 5 November 2010 that President Zuma published a notice wherein the incumbent for the Sigcau kingship was recognised, together with a number of other kingships. In this notice, Pres Zuma recognised the Vhavenda kingship, but no specific candidate for the kingship was mentioned. The notice was, however, placed in terms of the new act, which was unlawful.

In the local battle for the kingship, the process is also continuing at an extremely slow pace. At the end of 2012, the 21-year-old Masindi Clementine Mphephu filed papers in the Thohoyandou High Court, claiming that she should have been next in line for the throne but was overlooked because of gender discrimination.

The second applicant in the case is Mbulaheni Charles Mphephu, eldest son of the late Patrick Mphephu. He argues that, should Masindi not be considered for the kingship position, he would be next in line. They dispute the recommendation made by the royal family in August 2010 that the rightful incumbent is Toni Mphephu Ramabulana.

According to Hammann, the legal team of President Zuma (one of the respondents in the case) asked for an extension before filing their opposing papers. They asked for more time to study the Constitutional Court’s verdict and how it will influence this case. “We will in all probability also have to amend our application to the High Court,” he said.