Zuma's appointment of VhaVenda king unconstitutional, invalid - SCA

Former president Jacob Zuma made an illegal decision during his term in office - and was  chastised by the Supreme Court of Appeal (SCA) for incorrectly interfering in the succession of the VhaVenda king.

On Friday, the SCA in Bloemfontein ruled that Zuma's decision to officially recognise Toni Mphephu Ramabulana in the position of king was invalid, referring the case back to the high court to hear further merits on the succession debate.

"It is declared that the decision of the second respondent [Zuma] dated September 14 2012 to recognise [Ramabulana] as the King of the VhaVenda Traditional Community … is unlawful, unconstitutional and invalid and is reviewed and set aside," ruled Selewe Mothle, acting appellant judge of appeal at the SCA.

Both Zuma and Ramabulana have been linked to the VBS Mutual Bank saga, wherein the Limpopo-based bank and its clients were allegedly robbed of almost R2bn by the bank’s directors, senior executives and well-connected politicians. Ramabulana was one of the 53 names cited in the Great Bank Heist report by advocate Terry Motau – for having illegally benefited from the bank that has since gone into liquidation, with accusations that he received a payment of more than R17m.

Meanwhile, Zuma reportedly used a VBS bond in September 2016 to pay back a portion of funds wrongfully used to upgrade his Nkandla homestead that he was ordered to repay by the Constitutional Court. Media reports have also suggested that the bank gifted Zuma an R8.5m bond which he could not afford.

Since Ramabulana was revealed as allegedly being involved in the looting of VBS, in October he offered to repay "any amount which will be shown to have been the proceeds of illegalities". He said he had read the report, but did not entirely deny receiving money from the bank, though he did suggest the amount listed was wrong.

"In my capacity as the king of the VhaVenda people‚ I receive various grants including financial support from various individuals and entities. Any such receipts I deem them to be legitimate‚ untainted‚ and bona fide support to the responsibilities I hold in relation to VhaVenda people," Ramabulana said.

"Any such amounts as may be shown to have been payments flowing from the fraudulent and/or criminal sources involving VBS‚ I would have received without knowledge of the criminal wrongdoing which the report identifies‚" he added.

However, his status as the VhaVenda king has been under scrutiny for years, leading up to Friday’s ruling at the SCA. Princess Masindi Mphephu challenged her uncle's succession to the throne as the daughter of the previous king. In her application to the Thohoyandou High Court, she claimed she was sidelined because she is a woman, and that the traditional council’s approach to the appointment of the king was unconstitutional.

In December 2016, the Thohoyandou High Court refused Masindi's bid to prevent Ramabulana from taking the throne. However, the case was escalated, and ultimately landed in the hands of  the SCA. On Friday, Judge Mothle ruled that that not only was Zuma's decision unlawful, so too was that of the Mphephu-Ramabulana royal family council to identify Ramabulana as "a suitable person to be appointed as the king".

The judge ruled both the presidency and the premier of Limpopo were also directed to refer the "following issues of customary laws and custom to the [National House of Traditional Leaders and the Limpopo House of  Traditional Leaders] respectively for opinion and advice to be submitted to the high court".

In particular, the high court, when examining the merits of the case, would have to take into account "what measures are in place or have to be in place for the adaptation and transformation of the primogeniture by the traditional communities", whether a child born before the parent is recognised as a traditional leader and qualifies to be the successor, or whether in VhaVenda custom, the Ndumi (or secretary to the king) qualifies to be identified as a successor to the position.

Also part of Mothle’s ruling was that the choice by the president was "based on a criteria that promotes gender discrimination".