ConCourt rules only one family may appoint headman or headwoman

The Constitutional Court held on Wednesday that, as a matter of law, the authority to identify a new headman or headwoman for Tshibvumo Village in Limpopo rests exclusively with the Rambuda royal family. 

The court made this finding in an appeal by the royal family, whose decision to appoint a headman for Tshibvumo Village had been set aside by the high court in 2018. 

The Constitutional Court was adjudicating on a dispute involving the position of headman of the Vhembe village which has been under the traditional leadership of the Rambuda royal family for several decades. 

Its last headwoman was Nthambeleni Tshibvumo Singo, who was in the position from 1982 until she died in 2014. 

After her death, two successors were identified, with the Rambuda royal family identifying Ndwambi Donald Rambuda while the Tshibvumo royal family identified Mbulaheni Lucas Mavhungu, the son of the deceased headwoman. 

The central enquiry, in this case, was whether the Rambuda or the Tshibvumo royal family was entitled to identify the headman. Related to this enquiry was whether the Limpopo high court, when adjudicating, was correct in finding that there were two royal families. 

In its judgment, the Constitutional Court said these royal families in dispute both fell under the governance of the Rambuda Traditional Council. 

In May 2018, the premier recognised Ndwambi Rambuda as headman of Tshibvumo Village. This led to the Tshibvumo royal family instituting a review of the premier's decision. The family also sought an order declaring Mavhungu as headman. 

The high court reviewed and set aside the premier’s decision. It found that the Limpopo Traditional Leadership Act was silent as to which royal family — that of the senior traditional leader or of the headman — had the authority to identify a successor to the headman or headwoman.

The high court referred the matter back to the premier to resolve the dispute.

The Rambuda family failed in its bid to apply to the high court for leave to appeal and a further application for leave to appeal to the Supreme Court of Appeal suffered a similar fate. 

In the Constitutional Court, the Rambuda family said the high court erred in finding there were two royal families and argued it was the sole family that had ruled over the Tshibvumo Village for many generations.

It said as the family of the senior traditional leader, it was empowered to nominate a headman or headwoman for Tshibvumo Village. It said the high court was wrong to hold that the family of the headman also has the power to appoint a successor. 

However, the Tshibvumo royal family said once Mavhungu and Rambuda were identified as competing successors to the deceased headwoman, a dispute existed, which obliged the premier to act in terms of the Limpopo Traditional Leadership Act. 

In a unanimous judgment, judge Rammaka Mathopo said the Rambuda family was the “core customary institution ... consisting of immediate relatives of the ruling family within a traditional community” under the leadership of a senior traditional leader, chief Avhatendi Rambuda.

“They have ruled over the Tshibvumo Village for many generations and meet the statutory definition of a royal family as set out in section 1 of the Limpopo Traditional Leadership Act,” Mathopo said.

Mathopo sad the Tshibvumo royal family’s position was different. “They fall under the Rambuda Traditional Council and do not have a statutorily recognised royal family or traditional council that conducts administrative functions or duties like the Rambuda royal family and traditional council.” 

Mathopo said a royal family must align with a traditional community headed by a senior traditional leader and not with a headwomanship or headmanship headed by a headwoman or headman.

Mathopo said section 12(1) of the Limpopo Traditional Leadership Act provided that the identification for a headman position shall be done by the royal family and in terms of the customary law of the traditional community concerned.

“It follows clearly from the definition of a royal family in section 1 of the ... act, namely, 'the ruling family within a traditional community,' not 'a ruling family within a traditional community' that there can only be one royal family per traditional community.” 

However, Mathopo remitted the decision back to the premier in terms of section 12(2) of the act to satisfy herself that the proper process was followed in terms of customary law for the nomination of the headman. 

“This issue arises against the backdrop of chief Avhatendi’s contention that Mr Mavhungu cannot succeed the deceased headwoman because he is not Rambuda by blood. 

“In light of the inherent complexities and nuanced nature of this matter, a comprehensive and prudent determination cannot be achieved without due consideration and integration of living customary law,” Mathopo said.

Mathopo instructed the premier to refer the matter to the provincial house of traditional leaders for their recommendations.

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