The Changing Identity on Succession to Chieftaincy in the Institution of Traditional Leadership: Mphephu v Mphephu-Ramabulana (948/17) [2019] ZASCA 58

Authors

DOI:

https://doi.org/10.17159/1727-3781/2020/v23i0a6804

Keywords:

Traditional leadership, customary law, gender equality, gender discrimination, human rights

Abstract

The institution of traditional leadership has from time immemorial been central to traditional authority in the system of customary law. After the dawn of democracy in 1994, the role was fundamentally entrenched in the Constitution of the Republic of South Africa, 1996. The entrenchment would seem to entail the development of a new set of norms and a new ethos in customary law in line with the ideals of the new democracy, and the modification of certain aspects of the system. Of great significance for the transformation of the system is the promotion of the right to gender equality with reference to women's succession to the throne. Various commentators argue for this as an attempt to transform the culture of domination entrenched in a patriarchal system that always undermined the rights of women.

Against this background, this article undertakes a comparative analysis of the recent judgments of the Supreme Court of Appeal in Mphephu v Mphephu-Ramabulana 2019 7 BCLR 862 (SCA) and Ludidi v Ludidi 2018 4 All SA 1 (SCA) to determine whether the succession of women to the throne is evidence of the desired transformation of the institution of traditional leadership. The article argues that these judgments have initiated a transformation which has the potential to destroy the identity of the institution of traditional leadership by paving the way for the nomination of women to occupy not just any leadership position in the chieftaincy but the throne itself. It also argues that the interpretation of the right to gender equality through the lens of common law instead of in its own context, which has a communal focus, compromises the transformative or developmental agenda of the institution of traditional leadership as envisaged in the Constitution. The discussion is limited to succession to the "throne" and is not applicable to other leadership positions such as occur in matrilineal systems, or regency and other such traditional leadership roles. This is also not a comparative study that considers other jurisdictions, is further limited to the concept of "gender discrimination", and does not deal with the other technicalities that were raised in these cases.

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References

Bibliography

Literature

Ake C "The African Context of Human Rights" 1987 Africa Today 5-12

Allot AN "Customary Law in East Africa" 1969 Africa Spectrum 12-22

Bekker JC Seymour's Customary Law in Southern Africa (Juta Cape Town 1989)

Chakunda V and Chikerema AF "Indiginisation of Democracy: Harnessing Traditional Leadership in Promoting Democratic Values in Zimbabwe" 2014 Journal of Power, Politics and Governance 67-78

Chauke MT "The Role of Women in Traditional Leadership with Special Reference to the Valoyi Tribe" 2015 Studies of Tribes and Tribals 34-39

Chigwata T "The Role of Traditional Leaders in Zimbabwe: Are they Still Relevant?" 2016 LDD 69-90

Claassens A and Budlender G "Transformative Constitutionalism and Customary Law" 2016 CCR 75-104

Khunou SF "Traditional Leadership and Independent Bantustans of South Africa: Some Milestones of Transformative Constitutionalism beyond Apartheid" 2009 PELJ 81-122

Ndima DD "The African Law of the 21st Century in South Africa" 2003 CILSA 325-345

Ndima DD "The Resurrection of the Indigenous Value System in Post-apartheid African Law: South Africa's Constitutional and Legislative Framework Revisited" 2014 SAPL 294-312

Ndima DD "The Anatomy of African Jurisprudence: A Basis for Understanding the African Socio-legal and Political Cosmology" 2017 CILSA 84-108

Nhlapo T "African Customary Law in the Interim Constitution" in Liebenberg S (ed) The Constitution of South Africa from a Gender Perspective (Community Law Centre University of Cape Town Cape Town 1995) 157-166

Ntlama N "Equality Misplaced in the Development of the Customary Law of Succession: Lessons from Shilubana v Nwamitwa 2009 2 SA 66 (CC)" 2009 Stell LR 333-356

Rautenbach C (ed) Introduction to Legal Pluralism 5th ed (Durban LexisNexis 2018)

Trotha V "The Relevance of Traditional Authorities in Africa" in Chakunda V and Chikerema AF (eds) "Indiginisation of Democracy: Harnessing Traditional Leadership in Promoting Democratic Values in Zimbabwe" 2014 Journal of Power, Politics and Governance 67-78

Tshitangoni M and Francis J "Relevance of Traditional Leadership in Rural Community Development amidst Democratic Institutions in Southern Africa: A Critical Review" 2017 Studies of Tribes and Tribals 70-83

Wicomb W and Smith H "Customary Communities as 'Peoples' and their Customary Tenure as 'Culture': What We can do with the Endorois Decision" 2011 AHRLJ 422-446

Case law

Alexkor Ltd v Richtersveld Community 2003 12 BLCR 1301 (CC)

Bhe v Khayelitsha Magistrate 2005 1 BCLR 1 (CC)

Coetzee v Government of the Republic of South Africa, Matiso v Commanding Officer Port Elizabeth Prisons 1995 10 BCLR 1382 (CC)

Gumede (born Shange) v President of the Republic of South Africa 2009 3 BCLR 243 (CC)

Harksen v Lane 1997 11 BCLR 1489 (CC)

Ludidi v Ludidi 2018 4 All SA 1 (SCA)

Mphephu v Mphephu-Ramabulana 2019 7 BCLR 862 (SCA)

Pilane v Pilane 2013 4 BCLR 431 (CC)

Shilubana v Nwamitwa 2008 9 BCLR 914 (CC)

Legislation

Constitution of the Republic of South Africa, 1996

Eastern Cape Traditional Leadership and Governance Act 4 of 2005

Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000

Recognition of Customary Marriages Act 120 of 1998

Traditional Leadership Framework Act 41 of 2003

Traditional Leadership Framework Amendment Act 23 of 2009

Transkei Authorities Act 4 of 1965

Transkei Constitution Act 48 of 1963

Internet sources

De Vos P 2010 Time to Rethink Traditional Leadership https://constitutionallyspeaking.co.za/time-for-rethink-on-traditional-leaders/ accessed 1 May 2019

Ncapayi L and Ntungwa S 2018 Land Reform – A Critique Of Traditional Leadership http://aidc.org.za/land-reform-a-critique-of-traditional-leadership/ accessed 5 June 2019

Nkasawe M 2008 Women Traditional Leaders: Progress or Not https://mg.co.za/article/2008-06-24-women-traditional-leaders-progress-or-not accessed 25 May 2019

Sithole P and Mbele T 2008 Fifteen Year Review on Traditional Leadership: A Research Paper http://repository.hsrc.ac.za/handle/20.500.11910/5547 accessed 24 January 2020

Wang V 2017 It takes a Female Chief: Gender and Effective Policy Advocacy in Malawi https://www.cmi.no/news/1834-it-takes-a-female-chief accessed 20 May 2019

Published

04-05-2020

How to Cite

Ntlama, N. (2020). The Changing Identity on Succession to Chieftaincy in the Institution of Traditional Leadership: Mphephu v Mphephu-Ramabulana (948/17) [2019] ZASCA 58 . Potchefstroom Electronic Law Journal, 23, 1–25. https://doi.org/10.17159/1727-3781/2020/v23i0a6804

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Section

Case Notes

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