Mathabatha’s headache: traditional leadership disputes’ court challenges

By City Press

Limpopo premier Stanley Mathabatha is in a crisis regarding resolving traditional leadership as he loses every challenge in court.

This time, in a court judgment dated April 18, the Thohoyandou High Court has set aside Mathabatha’s decision to recognise Mandela Wilson Nnengwekhulu as a senior traditional leader.

Like the three previous court judgements regarding chieftaincy disputes, Judge Matsaro Semenya also found a pattern of bias on the part of the Limpopo Commission on Traditional Disputes and Claims on the latest dispute between the Nnengwekhulu and the Davhana royal families.

The Davhana royal family went to court to set aside Mathababatha’s decision taken on April 25 2018 to restore the traditional leadership of the Nnengwekhulus. These traditional communities are neighbours on land that is situated south of the Levhuvu River. The Davhanas rule over Mpheni village and other traditional communities, such as Nnengwekhulu, Masia, Mashau and Tshimbupfe and have jurisdiction over villages nearby.

Judge Semenya set aside Mathabatha’s decision on the basis that the commission failed to conduct an inspection in loco at Tshiruruluni, where the Davhana head kraal is situated, as it did with collecting evidence on the Nnengwekhulu’s head kraal.

“I find that the [commission’s] failure to conduct an inspection in loco at Tshiruruluni, where the Davhanas head kraal is situated as it did with the Nnengwekhulus amounts to bias on its part,” Semenya said.

“Furthermore,” the judge added, “the commission restored to the fifth respondent (Mandela Wilson Nnengwekhulu) the status he never possessed before.”

The Nnengwekhulu had the status of traditional headman, argued the Davhanas. The Davhanas said that Chief King Davhana installed Ndavheleseni Nnengwekhulu as a headman in 1940.

Semenya said that Mathabatha’s decision to bestow the status of traditional leadership on Nnengwekhulu was unlawful and stood to be set aside.

This is the fourth traditional leadership matter Mathabatha has lost in court this year. His spokesperson, Willy Mosoma, however, said that they would continue to defend the decisions of the commissions. “The premier will continue working with the House of Traditional Leaders and all traditional leaders in Limpopo to find lasting solutions and to ensure stability within the institution of traditional leadership,” Mosoma said.

The Makuleke matter

Last month, the Polokwane High Court found that Mathabatha glossed over facts in settling a traditional leadership dispute between the Makuleke and Mhinga traditional communities.

The Makuleke community won its application to be recognised as an independent traditional community that deserves to have its own chief or senior traditional leader following a series of events since the apartheid era, which relegated the community’s leadership status to that of a headman.

The Makuleke community originally settled in the Pafuri Triangle – an area between the Limpopo and Levuvhu rivers at the confluence of South Africa, Zimbabwe and Mozambique – around 1820, but were removed in 1936 to make way for the creation of the Kruger National Park.

Before 1945, the Gazankulu government gave the Mhinga, Makuleke and Shikundu communities different pieces of land in Ntlhavheni to preside over but after 1945, the chief or hosi of the Makulekes was demoted to a status of a headman.

The Makuleke community has since lodged a claim with the Commission on the Restitution of Land Rights and Claims, and the Pafuri Triangle has been given back to them. Their status has, however, remained under the Mhinga traditional leadership all these years. The community lodged its claim for recognition to the committee in 2005 and, again, in 2012.

Phahlela Magakula, who is the de facto chief, and the community approached the Polokwane High Court to have Mathabatha’s and the Limpopo Committee on Traditional Disputes and Claims’ decision denying them recognition as a traditional community to be reviewed.

They accused the committee of having ignored recommendations of the Ralushai Commission, which was appointed by erstwhile premier, Ngoako Ramatlhodi, in 1996 recognising the Makuleke as a traditional community and recommending that their chieftainship be restored.

The community also accused the committee of failing to consider relevant information on genealogy.

“The second respondent’s (the committee) failure to take into account relevant information which [the Makuleke community] submitted shows bias or at the very least a harboured intention to arrive at a particular outcome,” the community argued in its court papers.

In a judgment dated March 3 2023, Judge Marisa Naudé-Odendaal found that the Makulekes were a traditional community independent of the Mhinga tribe but left the matter of who the traditional leader was in the hands of the royal family to decide.

Naudé-Odendaal said that the Limpopo Committee on Traditional Disputes and Claims’ decision to reject the Makulekes’ application to be recognised as a traditional community was reviewed and set aside.

“[Mathabatha’s] acceptance of the recommendation by the [committee] is reviewed and set aside and declared invalid,” she said.

Mathabatha also accused of bias in Hlaneki and Maswanganyi matters

Mathabatha has lately been accused of bias in these matters and has lost at two Polokwane High Court cases involving the Hlaneki and Maswanganyi communities and the Shiviti and Khakhala communities.

Mathabatha’s controversial decision included giving a certificate of recognition to Khayizeni Maswanganyi as a senior traditional leader in 2020. Mathabatha issued the certificate knowing very well that Mkhacani Hlaneki and the Hlaneki Traditional Council had lodged an application in the Polokwane High Court to set aside a recommendation of the Kgatla Commission that guided Mathabatha to recognise Maswanganyi.

The court overturned the premier’s decision and it failed on appeal.

In 2021, Mathabatha made the same mistake when he dethroned Hosi Mkhacani Shiviti of the Shiviti Traditional Council and gave a certificate of recognition to Masenyane Baloyi of the Khakhala Traditional Council.

Shiviti had already applied for an interdict in the Polokwane High Court to stop him. The court granted Shiviti the interdict on June 18 2021.

The Khakhala Traditional Authority appealed the Shiviti interdict but lost on October 14 2022.

This article first appeared in City Press on 24 April 2023.

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