Posted on October 24, 2013
"All hail to the King of the vhaVhenda monarchy. In the midst of a joyous celebration at the weekend, Khosikhulu Toni Mphephu-Ramabulana entered his royal palace as a triumphant warrior from a protracted court battle." So announced an article appearing in The Star newspaper in September this year.

The court battle to which the article refers arose out of the findings of what has popularly come to be known as the "Nhlapo Commission." Established under the Traditional Governance and Framework Act, 41 of 2003, the purpose of the Commission is to resolve disputes over traditional leadership, the legitimacy of "tribes" and the boundaries of "traditional communities". In the ten years since its inception, however, the Commission has only issued findings as to kingships.

In 2010 the Commission released its report on the vhaVhenda Kingship, naming the Mphephu clan as the rightful incumbents of the throne. In 2012 President Zuma, by way of Government Gazette, proclaimed Toni Mphephu-Ramabulana as King of the vhaVhenda people. The decision was appealed by a number of chiefs who claimed that they were the rightful heirs to the Kingship.

In January this year, a colleague and I found ourselves in a hired car travelling to the former Venda. The purpose of the trip was to gather evidence to better consider an intervention by the Centre for Law and Society (based at the University of Cape Town) into this latest dispute.

Through the narrative of our research experience, this piece explores the use of archival materials in the particular context of traditional leadership disputes in post-Apartheid South Africa. It aims to show the various ways in which colonial and apartheid materials are used and invoked in a democratic era, and, in so doing, emphasising the importance of different readings and interpretations of the materials.

The Centre for Law and Society (CLS) has intervened in a number of disputes regarding the findings of the Commission. Our submissions have challenged both the Commission's methodology and its findings. We have argued that the Commission's approach mirrors in many ways the practice used by government officials in the colonial and apartheid regimes to appoint leaders. The methodology adopted, we argue, results in an outcome that is often vastly distorting of history, custom and practice. More so, this approach was foundational to the system of indirect rule practiced by the British, and, later, the disenfranchisement of people living in the Bantustans imposed by the Apartheid regime.

Manipulation of the genealogical approach and government-generated ethnographies were used to install leaders that were easily manipulated. The Centre's intervention into leadership disputes arising out of the Commission has often been to show the role of popular support in the appointment of traditional leaders. Using a combination of archival and other historical sources, together with consultations and interviews with community members as to living custom, our Centre seeks to bring to light these distortions and attempts to ensure that they are not repeated in our new, democratic dispensation. At core, our point is that if the same methodology is adopted to interpreting the historical materials available, similar outcomes will be achieved.

The Commission's Report as to the vhaVenda kingship is typical. In a paragraph that is replicated in its entirety in every one of the reports, the Commission found that the need for "uniformity in the Republic" required the "restoration of the kingship." In cut-and-paste reasoning, and applying a formulaic genealogical approach with no apparent basis in history or custom, the Commission ignored all regional variation as to the institution of traditional leadership. The Report reproduces the genealogy and hierarchy recorded by controversial apartheid ethnologist, NJ Van Warmelo, and unsurprisingly, arrived at the conclusion that the incumbent to the throne is none other than a descendant of Patrick Ramabulana, the former President and "Paramount Chief" of Venda installed by the Apartheid government.

Heading off to Venda, then, we had two specific intentions. The first of these was to conduct a search of the archives. In particular, we were hoping to have a look at the reports of two previous commissions of inquiry into the vhaVenda kingship. These two commissions issued reports in in 1990 and 1996 respectively, but arrived at opposite conclusions as to whether there was an accurate historical basis for the recognition of a single vhaVenda kingship. The Mushasha Commission, instituted by General Ramashwana, is rumoured to have found that the institution was a colonial and apartheid creation, designed to better facilitate control over the territory. The Ralushai Commission, appointed under the then Limpopo Premier, Advocate Ramathodi, conversely, reportedly found that the kingship was indeed a legitimate institution.

We were lucky enough to examine portions of the Mushasha Commission transcripts due to historian Dr. Maanda Malaudzi's copying of the transcripts and filing thereof in the Government Publications collection at the University of Cape Town. Unfortunately, in the eight months that we have been researching this case, we have been able to attain neither a copy of the Commission's actual Report, nor have we been able to see the findings of the Ralushai Commission at all. This is despite a trip to the Venda archive (which we found to be closed, with no archivist employed), copious correspondence, and several applications under the Promotion of Access to Information Act.

The second reason for our trip was to interview people in the Vhembe region so as to gather evidence as to the living practice of leadership. It was during the course of these interviews that we came across the greatest wealth of historical and archival material. In interview after interview, the same colonial and apartheid ethnographies, genealogies, mappings, and other official documentation were brought out for us to examine. These materials, copied from archives and libraries, and woven together with oral history and mythology, were used to justify different sides to the dispute, producing vastly different interpretations.

These experiences illustrate the centrality of colonial and apartheid archival materials to present day leadership disputes. They are invoked by litigants, claimants to the Commission, and the commissioners themselves, the different readings of which lay open a wealth of different interpretations as to outcome. It is vital that these resources remain open and maintained so that interpretation thereof can be contested: both by historians and lawyers, and by the people most affected by the decisions.

That prevailing versions of traditional leadership are contested and challenged is not just of esoteric value. Interpretations of the institution are of enormously high stakes. These interpretations affect how land is accessed and how mineral resources are distributed. Over 16 million people in South Africa live in areas in which traditional leaders continue to exercise the similar powers allocated them in the Bantustan era, effectively disenfranchising a large portion of our population, allowing chiefs to claim vast mining royalties "on behalf of the community" and sanctioning chiefly administration of land in a way that strips South Africans of tenure security. Contestation of prevailing interpretations of traditional leadership impact seriously upon the realisation of constitutionally protected rights.

Frances Eberhard is a researcher at the Centre for Law and Society (UCT).