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News - Date: 08 November 2019
Written by: Anton van Zyl / Viewed: 31771
Toni Mphephu Ramabulana cannot be king of the Vhavenda and nothing prohibits the royal council from appointing Masindi Clementine Mphephu as the new queen.
These, in short, were the findings of the Limpopo House of Traditional Leaders (LHTL) and the National House of Traditional Leaders (NHTL). The two Houses were instructed to provide input to the Limpopo High Court in the case between Toni Mphephu-Ramabulana and his niece, Masindi. In April this year, the Supreme Court of Appeal (SCA) ruled in favour of Masindi in their legal battle and the recognising of Toni as king of the Vhavenda was set aside.
The SCA instructed the LHTL and the NHTL to provide clarity on three issues. The first was whether measures had been put in place to promote the principle of primogeniture in traditional communities. This issue was fiercely debated in the case before the SCA, where Masindi argued that she had been side-lined in the succession battle because of her gender.
The two Houses cite several examples where women are in leadership positions. They believe that much has been done the past decade to adhere to the requirements of the Constitution. “The Vhavenda customary law of succession had already been changed to accommodate women,” state the findings. The example is used of Ms Phophi Mphephu, who, as Makhadzi, served as acting paramount chief for a long period of time.
The second issue on which clarity was required, was whether a child born before his or her parent became king or queen could be recognised as a successor. In the Vhavenda succession case, the argument was that Masindi had been born before her father, Dimbanyika, became king. The two Houses explained that the Vhavenda customary law is basically the same as that of most communities. The only requirement is that the successor must be born from a Dzekiso wife. In the case of Masindi, it was accepted that her mother, Fhulufhelo, was the official Dzekiso wife and she was married to Dimbanyika according to all the required customs.
The last issue that the SCA regarded as crucial to the case was whether a Ndumi qualified as a successor to a position of traditional leadership. “The Ndumi is described as a male person appointed by the royal family as one of the assistants to the reigning King or Queen,” the report states. The two Houses highlighted that Toni was appointed as Ndumi to his late brother, Dimbanyika. “His appointment as Ndumi automatically disqualifies him from succeeding in a position of traditional leadership,” the report reads.
The matter is now back at the Limpopo High Court for the merits to be adjudicated. The parties are now expected to peruse the documentation and decide on a way forward.
According to Mr Johann Hammann, attorney for Masindi, some time may elapse before a new successor for the Vhavenda is announced. Toni’s legal team may not take the report from the two Houses on review, which means the court will have to consider it. When the High Court makes a decision, this may be taken on appeal.
Masindi Clementine Mphephu.
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.