THE High Court has declined jurisdiction on the matter where the eldest daughter of the late Chief Mvuthu Mlotshwa of Hwange District, Miss Silibaziso Mlotshwa, is suing the District Administrator and her uncle for disqualifying her from becoming chief.
Bulawayo High Court judge Justice Nicholas Mathonsi, citing section 283 of the Constitution on Thursday last week ruled that the matter could only be resolved by President Mugabe. Justice Mathonsi, however, conceded that Miss Mlotshwa’s constitutional rights were breached when she was overlooked in the nomination process on the basis of her gender. The throne became vacant after the death of Chief Mvuthu Mlotshwa in 2014 and his brother Mr Saunders Mlotshwa was appointed chief.
However, Miss Mlotshwa contested her uncle’s appointment contending that she was supposed to be appointed chief, taking over from her late father because she is the eldest of her father’s three daughters. The Nguni culture follows a lineal system of succession where the eldest child of the chief is heir to the throne.
Miss Mlotshwa, through her lawyer Mr Nkosilathi Mlala of Sansole and Senda Legal Practitioners last year approached the High Court seeking an order to declare null and void the appointment of her uncle as substantive Chief Mvuthu. Hwange District Administrator, Mr Mlotshwa, Minister of Rural Development, Preservation of Culture and Heritage Cde Abedinico Ncube and President Robert Mugabe were cited as the first, second, third and fourth defendants respectively.
The respondents filed special pleas praying for Miss Mlotshwa’s claim to be dismissed with costs on the basis that she had approached the wrong forum as the High Court did not have jurisdiction to determine disputes concerning the appointment, suspension and removal of traditional leaders. Justice Mathonsi upheld the respondent’s special pleas and dismissed Miss Mlotshwa’s case with costs.
He, however, conceded that Miss Mlotshwa was discriminated against in the nomination process and that the appointment of her uncle as chief was at variance with the Nguni culture.
“As the last Chief Mvuthu is survived by only three daughters, she being the eldest, and he had no son whatsoever, it means that she should succeed her father as the next Chief Mvuthu. On account of her gender, those charged with the responsibility of selecting a successor, discriminated against and moved the chieftainship sideways to the second defendant her uncle.
“As if the discrimination on the basis of gender was not bad enough, the second respondent does not hail from the chief’s area of jurisdiction, he does not even have a homestead there, but has lived all his life in South Africa. His appointment is therefore at variance with all norms and customs of the people and is motivated only by sexism, greed and other vices,” noted Justice Mathonsi.
He further posited, “I have no doubt that the plaintiff has a good case to make about how and indeed why she was overlooked on gender bias in breach of her constitutional right. However, the debatement of those issues must take place before the President in terms of current law. There is therefore merit in the special pleas by the defendants and this court has declined jurisdiction.”
In her summons, Miss Mlotshwa said following the death of her father in March 2014, the DA acting on discriminatory grounds and ill-conceived advice from unknown uncles and relatives appointed Mr Saunders Mlotshwa as the substantive Chief Mvuthu.
Miss Mlotshwa argues that the DA acted against provisions of the Nguni customs and norms as well as against clear provisions of Section 3 of the Traditional leaders Act.
“The late Chief Mvuthu Mlotshwa is survived by three daughters and the plaintiff is the eldest. The plaintiff was disqualified from being appointed a chief because she is a woman. This is despite the fact that being a woman is no longer an impediment in the Nguni culture and statutes for one to be appointed a chief,” read the papers.
She further argued that in KwaZulu-Natal where the Ngunis originate, there are now many female chiefs who have undertaken the tasks equally competently.