For the amaMpondo, rule by a queen is undermining of male authority and promotes botched circumcisions – so say government representatives in the High Court. (It also happens to be in the interests of the mining industry that Princess Wezizwe should not succeed to the Pondo throne.)

Despite having been teased with “Murphy’s law” jibes ever since his appointment to the High Court in 2006, Judge John Murphy has earned great respect because of his innovative judgments and exceptional competence.

In November 2015 his Facebook friends were heaping congratulations on him for having cracked a part-time appointment to the United Nations Appeals Tribunal for showing the requisite “high moral

character”, impartiality and “at least 15 years of aggregate judicial experience in the field of administrative law, employment law or the equivalent”, which is what the UN General Assembly rules say.

Domestically, he has been willing on more than one occasion to defy the “law” that carries his name to venture courageously into the terrain of judicial law-making by putting some things right that would otherwise keep going wrong and lead to greater injustice in society. In September 2013 he ruled to declare that decisions to withdraw or discontinue serious criminal and disciplinary charges against suspended police crime intelligence head Lieutenant-General Richard Mdluli were unlawful. “At times it would be naive of the courts to pretend to be oblivious to the political context and consequences of disputes before them. In politically contentious matters, the courts should expect to be called upon to explicate the source, nature and extent of their powers,” he reasoned.

More recently in May 2016 while sitting on a full bench of judges adjudicating a labour law matter brought by the Free Market Foundation against the Minister of Labour and others, Judge Murphy found cause to deviate from the general rule in civil cases which requires the losing party to pay the winning party’s legal costs in addition to its own. (See Editorial in this issue.)

The executive arm of government might not have liked Judge Murphy’s boldness in these instances of judicial law-making, but the judgment he handed down on the ongoing kingship dispute of the amaMpondo in December was at least evidence of his impartiality; it largely favoured the case brought by the Director-General of Cooperative Governance and Traditional Affairs (COGTA) and the President.

In effect the judgment said “yes, the President made a mistake due to ambiguities in the wording of legislation governing the certification and appointment of kings and queens, but he could now lawfully appoint Zanozuko Sigcau as King to fill the vacuum since the death of Mpondombini Justice Sigcau” (see nose195).

But the judgment did not go all the way in satisfying the applicants. Judge Murphy did not grant their first request for an order declaring that the Princess had no claim to the monarchy. He said that, since the Constitutional Court had not ruled on this substantive issue (Mpondombini’s argument that the Commission on Traditional Leadership Disputes and Claims was wrong to have found in favour of Zanozuko), Princess Wezizwe Sigcau still had every right to now have that matter ventilated again and adjudicated by the Constitutional Court.

Princess Wezizwe and her mother the Queen (who has been ruling as Regent since the death of her husband in March 2013) instructed their legal team to appeal. It took six months before Judge Murphy could consider argument as to whether another court could come to a different conclusion.

In turn the Director-General of Cooperative Governance and Traditional Affairs (COGTA), Charles Nwaila, brought a motion that, should Judge Murphy grant the Princess the right to appeal to the Constitutional Court, President Jacob Zuma should, in the interim, be permitted to instal Zanozuko as King even though the Constitutional Court might yet find that his cousin, Princess Wezizwe, had a more lawful claim to the throne.

Curiously, even though Zanozuko obviously stands to benefit from being named King, he is listed among the respondents, together with the Queen and Princess, and not among the Applicants. He was present in the public gallery with his supporters but had no legal team of his own to participate in proceedings. This means he will simply abide by the court’s decision (while pinning his hopes on the government).

Judge Murphy expressed compassionate concern for all parties. “Who would suffer the greater prejudice by whatever ruling I make?”

Norman Arendse SC, acting for the DG of COGTA, said it was Zanozuko (although he had no mandate to represent his interests) but that, from the government’s point of view the greatest prejudice by further delay would be felt by vulnerable Mpondo boys at risk of mutilation of their genitals and death, due to botched circumcisions done by illicit initiation schools. Government needed a strong male authority at the apex of the Mpondo Royal family to oversee the traditional custom.

Government might have shown a better sense of strategy by positing Zanozuko as the one best able to help the vast numbers of amaMpondo men who are sick and dying of silicosis and TB. It would be a great service to them for traditional leaders to now assist in the identification of victims to ensure they join the class action that another progressive judge, Judge Phineas Mojapelo, has just certified. It would speed up compensation claims before more of them die from what has been a much more devastating scourge on the lives of amaMpondo men than botched circumcisions, serious as these may be.

But that would have set Zanozuku in an adversarial position against the mining industry. He would then be at variance with the ambitions of that industry to mine the Pondoland Wild Coast for heavy mineral deposits. Zanozuko is a firm supporter of the Xolobeni Mining scheme as well as Sanral’s N2 Wild Coast Toll Road schemes.

Game of thrones: Wezizwe Sigcau

Which by contrast Princess Wezizwe is not. Her attendance, with the Queen at the funeral of the assassinated chair of the Amadiba Crisis Committee Sikosiphi Bazooka Rhadebe on 2 April was significant. The statement made by her spokesperson Chief MG Cinani left no doubt as to where their sympathies lay.

“If a ‘crisis’ lasts more than ten years, and people lose their lives in the process, it says that the government has not simply failed to resolve the crisis. It is part of the crisis.

“The local residents have said no to mining on their land, but the government has not respected that decision.”

To great applause from the mourners, he concluded, “the keys to the Xolobeni heavy mineral deposits have now been effectively buried six foot underground in the grave of Bazooka Rhadebe”.

But Judge Murphy is constrained by what is in the papers before him, and nowhere is mention made of what this writer believes are the real issues behind the Pondo game-of-thrones judicial caution and a reluctance to undermine the lawful prerogatives of either the Executive or the Legislature, could further inhibit any inclination he might have to take note of these undoubtedly serious issues. Nevertheless, because Arendse SC cited facts that were not in evidence about the exact number of deaths due to illicit initiation schools, Judge Murphy adjourned proceedings to consider his decision.

One can only hope that he will not be “naive... to pretend to be oblivious to the political context and consequences of the disputes” before him, to quote his own words, and read the report carried by City Press in September last year in a front-page story. It reported that Zanozuko, in the process of defining himself as uniquely capable of addressing the problem of illicit initiation schools and the harm caused to young Mpondo men, had insulted both Zulu King Zwelithini and President Jacob Zuma by saying that they could not do so because they were “amakwenke” (boys), for not having undergone traditional circumcision rituals. The incumbent Royal Family had to apologise to King Zwelithini for the foolish remarks.

Princess Sigcau, by contrast, says: “The distinctive cultural quality of the amaMpondo is our inclusiveness. Since the rule of King Faku who died in 1867, the amaMpondo have been known as ‘ikhaya lezizwe’ – the refuge of the nations. We are not in the business of making distinctions between people based on particular cultural practices, but in assimilating and integrating people into our culture.”

According to City Press, President Zuma immediately set up a mediation team led by Deputy Minister of COGTA, Obed Bapela, which included Presidency Director-General Cassius Lubisi and his COGTA counterpart, Charles Nwaila, to smooth relations. Given that, it seems an extraordinary own-goal for the government to punt Zanozuko as a good leader with wisdom to offer on that score.

The institution of traditional leadership is entrenched in the Constitution, so we are stuck with it. If it is to serve a useful purpose, the leaders within it have to side with the people, not the politicians. The dispute over whether Wezizwe or Zanozuko should assume the throne of amaMpondo aseQaukeni must surely be decided not simply over whether Nelson (Zanozuko’s grandfather) or Botha (Wezizwe’s grandfather) should have inherited the throne from their brother Mandlonke, who died without an heir 80 years ago, but who has shown the better sense of principle and accountability to the amaMpondo over the past six years.

Judge John Murphy earned his appointment to the United Nations Appeal Tribunal because of his track record. The fact that his father, grandfather and many ancestors before them were all Murphy’s had no bearing on the decision.

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