'Corruption clause' may not be slipped into kingship case

The efforts of Masindi Clementine Mphephu’s legal team to amend their court application to also include discussions on a clause that would mean that traditional leaders linked to corruption are excluded from holding senior positions, have failed. Judge President Moletje George Phathudi refused permission for this aspect to be added to the court case. He did, however, grant her permission to raise various other issues not originally specified in the Notice of Motion.

Judge Phathudi was asked to rule on an application by Princess Masindi Mphephu to amend the court papers, especially in light of earlier rulings by the Supreme Court of Appeal (SCA) and the Constitutional Court (CC). The case itself concerns the recognition of Toni Mphephu Ramabulana as king of the Vhavenda. Before a hearing can start to determine who the ruler of the Vhavenda should be, the court needs to provide clarity on issues such as male primogeniture, dzekiso (candle) wives and the role of the ndumi (caretaker leader).

The “Masindi case” has already entered its 12^th year, dating back to December 2012 when the then-21-year-old Masindi 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.

In December 2016, Judge President Ephraim Makgoba dismissed Masindi’s case. His ruling was taken on appeal and the SCA decided in Masindi’s favour, sending the process back to the High Court (HC), but this time for another judge to consider. The CC added to this by removing Toni Mphephu as interim ruler.

The case is now re-entering the preliminary phase, with the first hurdle for the various legal teams to clear being the “points in limine”. The court needs to provide clarity on matters of jurisdiction, the periods of prescription, and the applicable review processes to be followed. The SCA also pointed out that the courts have the responsibility to expand traditional law and bring this in line with constitutional values, such as gender equality.

Because of all the new information and the higher-court rulings, Masindi’s legal team applied for various amendments and additions to their Notice of Motion, originally filed on 19 April 2013. The application was opposed by the Mphephu-Ramabulana royal family council. Judge Phathudi made his ruling available last Thursday (28 March).

Judge Phathudi had no problem with “minor” changes to the Notice of Motion. He also allowed the issues identified by the SCA to be included, such as whether only a child born from a dzekiso wife is eligible to be appointed as a ruler. The HC will also need to listen to arguments as to whether opinions expressed by the national and provincial house of traditional leaders are admissible.

Some of the other matters that Judge Phathudi included in the list of amendments allowed are the transformation of the principle of primogeniture and whether Vhavenda customary law allows for the recognition of a child before the parent is recognised as a traditional leader. The question of whether a ndumi (interim leader) may qualify to be permanently appointed may also be debated.

The judge was not convinced, however,  that the “corruption clause” could be added to the case. Masindi’s legal team requested that “no person associated with, alternatively, negligently, alternatively, knowingly associated with perjury, dishonesty, fraud, corruption or theft, may succeed to the position of a traditional leader.”

This clause may have been aimed at Toni Ramabulana, who has been linked to the VBS Bank fraud. It may also be aimed at Mavhungu David Mphephu (commonly known as Japan Mphephu), who is being accused of lying under oath in court papers.

In his ruling, Judge Phathudi criticises this attempt to develop customary law beyond existing precedent. “…it purports to lay down [the] criminal law justice system (common law) as a yardstick to determine the VhaVenda customary law of succession to the matters of traditional leadership, in particular, Kingship/Queenship,” he said. Judge Phathudi warned against what he calls “overzealous judicial reform”. He added that the Limpopo Traditional Leadership Act of 2005 makes provision for the removal of a traditional leader, should the circumstances require such.

Date:05 April 2024

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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