Judge questions whether traditional leadership disputes belong in courts

Judge questions whether traditional leadership disputes belong in courts

An acting judge, in dealing with a traditional leadership dispute application, questioned whether these types of disputes should in fact serve before courts which are steeped in Roman Dutch law.

An application by the Nkhamanyane Royal Family against an earlier decision by the premier of Limpopo not granting their late father, Magezi, recognition as a traditional leader and for his community of Nkhamanyani to be recognised as a traditional community, sparked the questions of the court.

The family turned to the Limpopo High Court, sitting in Thohoyandou to have the premier’s decision reviewed.

In his judgment delivered recently, Acting Judge MS Monene questioned at the opening of his judgment whether these types of disputes should actually be determined in court.

“Often I wonder, perhaps inappropriately and injudiciously, whether there is anything traditional and African in African leadership disputes being determined in courts steeped in Roman-Dutch law ethos; which courts are manned, in the main, by persons of European descent, deculturised Africans and sometimes by persons too young to can ever have had standing in African traditional decision making processes and fora.

“Similarly, at times I struggle not to doubt whether there is anything leadership or sovereign or respectful in any leader who has to subsist on a salary or stipend or allowance from an authority or dominion foreign to the hierarchy and culture he belongs to and lording over such leader.”

Judge Monene added that was the law and courts, inclusive of this one, owed fidelity to the law and must apply it as it currently stood.

He said the incidence of disputes over traditional leadership on these shores was so pervasive and prevalent, that what really informed it deserved pertinent probing and studying.

The judge said it was a mystery exactly what it was that made our traditional communities to forever be entangled in disputes over recognition, pitting sibling against sibling and uncle against aunt.

“It surely cannot be merely engendered by the prospect of the prestige of one being referred to as Thovhele, as Hosi, as Nkosi, or as Kgoshi or as Kgosigadi by mainly poverty-stricken, unemployed and unemployable indigenous African people constituting the demographics of these hotly contested traditional leadership spaces.”

Nor, he added, could it merely be flowing from a pure traditionalist ethic, seeking to protect the purity and authenticity of true royal blood lineage and so address the “mess caused by the white colonial masters who in their heyday, definitely deposed authentic leaders in preference for collaborationist imposters”.

“One hopes all these are not visited on our already bloated court rolls daily owing to the scramble for the stipend or salary paid to the traditional leaders by the government in a manner that would suggest that, (minus) the salary, the prospect of a monumental drop in traditional leadership disputes will be very high.”

The judge, meanwhile, turned down the application by the Nkhamanyane Royal Family on a technical point. They had launched their application late and out of time, but asked the court to accept their reasons for being late.

Judge Monene found that their reasons for the late application were not sufficient. He subsequently did not deal with the merits of their application and dismissed it on this basis.

Pretoria News

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