Traditional leadership in South Africa: From blood and might usurpation to constitutional accountability

 Sipho Nkosi
 BJur LLB (Zululand) LLM (Johannesburg) LLD (Western Cape)
 Lecturer, Department of Practical Business Law, University of Johannesburg, South Africa
 http://orcid.orcid.org/0000-0001-7432-2641
 This email address is being protected from spambots. You need JavaScript enabled to view it.

 Edition: AHRLJ Volume 23 No 2 2023
 Pages: 333 - 353
 Citation: S Nkosi ‘Traditional leadership in South Africa: From blood and might usurpation to constitutional accountability’ (2023) 23 African Human Rights Law Journal 333-353
http://dx.doi.org/10.17159/1996-2096/2023/v23n2a5
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Summary

Despite regional variations, traditional leadership has always been practised in the same way all across oceans and nations. It has always been an incident of birth and gender, and the rank and status of the mother of the heir-apparent in his father’s homestead has often been the overriding consideration. In the past there were methods through which dynasties and bloodlines could be altered, namely, (i) the ‘blood and might’ usurpation of power, which is the subject of this article; and (ii) oral wills (‘dying declarations’) that would have been made by the deceased ruler on his deathbed. However, the ‘blood and might’ method now is merely of historical genealogical significance; it only helps to provide context in the event of a dispute in this regard. To that end, relying on BaPedi Marota Mamone v Commission, as an example, the article explains the applicable legal history, including the significance of the ‘blood and might’ method in pre-colonial times, and how this helps to place the recent constitutional developments and judicial pronouncements in their proper perspective. The article also demonstrates that the ‘indirect rule’ of traditional communities – which was the hallmark of colonialism and apartheid – continues to apply albeit under the glare of the Constitution. Although it is crucial, gender transformation should be introduced cautiously into this area of the law, and the change should be gradual and ‘adaptive’, as reflected in section 2 of the Traditional and Khoisan Leadership Act 3 of 2019. The resources of the affected communities also should not be used to curry favour with any political party or any grouping within it. Failing that, the social fabric and moral and ethical fibre of the affected communities would be ruptured.

Key words: Constitution; court; customary law; traditional leadership

1 Introduction

Since the advent of constitutional democracy in South Africa, there has been considerable litigation around traditional leadership.1 The proliferation of court cases appears to have been precipitated by competing claims and disputes with regard to traditional leadership in some traditional communities.2 The reasons for this development are many and varied. First, there is a genuine quest, on the part of the individuals and communities concerned, to assert their constitutional right to culture as set out in sections 30 and 31 of the South African Constitution.3 Second, there is a yearning to ensure justice for the affected communities, and to restore the dynasties and bloodlines, as far as possible, to what they were before the arrival of white people in South Africa.4 Third, the objective is to ensure that the concepts and principles that underpin traditional leadership are ventilated and distilled for posterity. Fourth, there have always been lucrative benefits (and influence) attached to the position of traditional leadership.5

This article seeks to provide a context to these developments That exercise requires the examination of the pre-colonial history, as may be gleaned from literature; the effect of colonialism and apartheid on the institution of traditional leadership; the impact of constitutional democracy; and the resultant jurisprudence on that institution. The objective of this article, therefore, is to demonstrate that (i) first, the usurpation of traditional leadership by force of arms no longer is a determining factor for eligibility insofar as traditional leadership is concerned; (ii) second, under colonialism and apartheid, the institution of traditional leadership was an integral part of the politico-legal scheme of that period, which engendered segregation and exclusion; and (iii) third, even under the current constitutional dispensation, it remains part of one of the spheres of government, albeit subject to the provisions of the Constitution and the Bill of Rights ensconced in it.

The article is divided into four parts. The first part deals with the historical legal background. The second part deals with the current constitutional and statutory framework. The third part is a discussion and analysis of the relevant principles, concepts, applicable statutes and relevant case law. The fourth part presents the conclusion.

2 Historical background

Generally, all across the oceans and nations of the world,6 succession to the position of traditional leadership (especially kingship) has largely been founded on male primogeniture, in that only males could succeed other males within their agnatic group,7 to the exclusion of their female relatives.8 In a sense it was based on the quirk of birth, or a touch of luck and providence.9 Except for a few instances, ascending the throne had nothing to do with the physical stature or intellectual prowess of the individual involved. Royal pedigree was the overarching criterion.10 Everything largely depended on the rank and status of the mother of the heir-apparent in his father’s homestead.11

Shaka is the foremost exception to this principle. He was born ‘off the mat’12 – contrary to custom – and had to use force and violence to take and maintain power.13 Despite some discernible common features, there are distinctive regional and cultural nuances in South Africa where primogeniture is concerned. For that reason, the custom has not been (and still is not) practised uniformly in the various traditional communities in the country.14 The process seems to have depended on one of two considerations, namely, (a) the ranking of the women in a deceased (or deposed) leader’s homestead; or (b) whether the conjugal arrangement in that homestead was monogamous or polygynous.15 In the latter instance, the chronology of the marriages did not (and still does not) count for much. What determined the person’s eligibility and suitability for kingship was whether his mother was assigned to the Indlunkulu (main house), iQadi (right-hand house) or iKhohlo (left-hand house).16 If there were no male children in any of the houses, affiliate houses would be created, of which the main purpose was to provide the main houses with male offspring.17 These women were known, variously, as seantlo or lefeyelo.18 It is this kind of arrangement that created bad blood between King Cetshwayo and his brother Mbuyazi,19 and between Sekhukhune and his half-sibling Mampuru.20 Mbuyazi – who is presumed to have been Shaka’s own son – was the product of a kindred custom, known as ukuvusa.21 This is a custom in terms of which the estate of a deceased widower is utilised to resuscitate his homestead, clan name and totems.22 As in the case of the levirate custom, a sister or cousin of one of the deceased wives was preferred – provided she consented to that arrangement.23

Except for Bolobedu,24 in the Limpopo Province, where succession to traditional leadership has always been matrilineal, pre-colonial South African monarchs almost exclusively were males who had ascended to the throne through other males within their clan. However, in some communities he still had to have been involved in some or other military skirmish to qualify for kingship.25 This ‘blood and might’26 method appears to have been one of the catalysts that, from time to time, were relied upon to upset the genealogical sequence and bloodlines within a particular dynasty.27 For instance, Sekhukhune descended from a line of kings that ruled the BaPedi relatively peacefully, until Thulare usurped power, by force, from his elder brother Dikotope.28 By custom, Thulare was supposed to be succeeded by his son Malekutu whom he had had with his timamollo (main) wife.29 However, the latter was poisoned and replaced by his brother Matsebe. Matsebe, himself, was killed by his brother Phetedi.30 Even though Sekwati – Thulare’s only surviving son at the material time – is often credited with cobbling together the BaPedi into a strong community under very difficult circumstances,31 he was merely meant to be a place holder for his nephew, Malekutu, or his sons, however they might have been procreated.32 In other words, Sekwati also had an obligation to resuscitate (vusa)33 his brother Malekutu’s homestead. For that specific purpose, he married a timamollo wife, and from that union a son, Mampuru, was born.34 To complicate matters even further, Sekwati had a son of his own, Sekhukhune. In the fullness of time, as with their ascendants, their natural, biogenetic connection did not seem to count for much; instead, as indicated below, it precipitated an acrimonious contest for the BaPedi throne.35 In other words, absent usurpation, only the status of their mothers, in Sekwati’s homestead, could turn their royal fortunes.36 As Jafta J stated in BaPedi Marota Mamone, paternity was not ‘an overriding consideration in determining succession to kingship’.37 In order to succeed, therefore, those who for some reason considered themselves disqualified resorted to spilling the blood of any of their brothers or agnates who stood in their way to the throne.

However, since the arrival of white people in South Africa – and the advent of colonialism and apartheid – this mode of transfer of power has had limited significance, if at all.38 It now is only of evidentiary relevance, and helps to provide some historical perspective on the claims and disputes between siblings or relatives in matters of this nature. Instead, ‘indirect rule’39 (also known as the ‘Shepstone system’),40 which was the hallmark of colonial rule on the continent of Africa, dictated who became a king, queen or traditional leader at any particular time.41 In many ways, the chosen person had to fit into the ideological and political mould of the ruling elite in order to enjoy gubernatorial support.42 In many ways, this system was the precursor to the ‘homeland system’ in South Africa,43 the main objective of which it was to deprive black South Africans of their rights to citizenship and genuine self-rule – and many other concomitant rights.44 The consequences of this system were succinctly described by the Constitutional Court, per Ngcobo J, in Tongoane v Minister of Agriculture and Another45 in the following terms:46

African people would, as a consequence, have no claim to any land in ‘white’ South Africa. African people were tolerated in ‘white’ South Africa only to the extent that they were needed to provide labour to run the economy. They had precarious title to the land they occupied to remind them of the impermanence of their residence in ‘white’ South Africa.

During that period, the Governor-General (under colonialism) – or the State President (during the apartheid era) – was the statutory ‘supreme chief’ of all the black people in South Africa.47 In effect, he had very wide legislative powers where black people were concerned; a legal and constitutional paradox. Except for one insignificant procedural bump,48 the State President ruled these communities by decree.49 He could, therefore,50 alter the territorial borders of black communities;51 appoint, recognise or remove any person as chief or headman of a particular community;52 or expel any person from a particular area. These powers were open to abuse and, indeed, were abused. The head of state could issue a banishment order (trekpas), forcing persons or a family that he considered rebellious or recalcitrant out of a particular area.53

When a traditional leader was to be chosen for a particular community, the wishes of the members of that community were often ignored.54 The leader could only be appointed or recognised by the Governor-General or State President.55 In the words of Jafta J in BaPedi Marota Mamone v Commission, this development marked the beginning of the ‘de-legitimisation of traditional leadership’ in South Africa, and the stunting of the customary law as a system of normative values.56 It is for this reason that Laband made the following observation in relation to King Goodwill Zwelithini kaBhekuZululu Zulu:57

Even so, it is not hard to conceive the incredulous derision with which Shaka, the formidable and all-powerful founder of the Zulu kingdom, would have viewed the present King’s emasculated royal prerogatives, closely constrained as they are by the constitution of a constitutional republic. Indeed, for all the royal protocol and prestige that lap him about, [he] is essentially no more than a ceremonial figure embodying Zulu traditions and customs.

In a sense, the position of traditional leadership has now been hollowed out and eviscerated of all its traditional and cultural essence.

3 Current constitutional and statutory framework

3.1 Provisions of the Constitution

The position as stated in the previous rubric persists, albeit subject to the provisions of the Constitution of the Republic of South Africa, 1996 (Constitution) and the Bill of Rights.58 It is important to note that it is the Constitution Act, 1993 (interim Constitution)59 that set South Africa on this path. For instance, section 181 of the interim Constitution regulated the recognition and application of customary law in the context of constitutional democracy and the then still nascent human rights culture. Its provisions were the following:

1. traditional authority which observes a system of indigenous law, and which is recognised by existing law, shall continue to exercise its powers and functions;
2. subject to modification or repeal of such law by a competent authority.

In addition, section 211 of the Constitution is on all fours with section 181 of the interim Constitution. Its provisions serve to buttress the recognition of the institution of traditional leadership. Of course, the recognition was to be subject or subservient to the Constitution and applicable legislation.60 An example of such legislation is the Traditional Leadership and Khoisan Act (TLKA).61 The other Act is the Reform of the Customary Law of Succession and Regulation of Related Matters Act.62 However, the latter Act does not apply to succession to traditional leadership and the inheritance of property connected therewith.

It would seem as though the reconfiguration of the of constitutional and statutory framework was intended to ensure that traditional leaders (and their communities) are not lured into becoming members (or supporters) of a particular political party through financial or political inducements.63 In other words, the relevant royal family should not be induced by any political party (or any of its members or a faction within it) into recommending a particular member of that family with an eye on elections or similar event, nor is the family supposed to subvert the process or suborn anyone with an eye on patronage and other similar benefits from the governing party.64

3.2 Requirements for identification and recognition of a traditional leader

Like its precursor, the South African Constitution – seminal though it be – it does not set out the requirements for eligibility for the position of a king, queen or any other type of traditional leader.65 That task has been left to Parliament to set out the modalities or mechanics of it all.66 It is for that reason that Parliament has enacted two pieces of legislation in that regard: the Traditional Leadership and Governance Framework Act (TLGFA)67 and the TLKA. The provisions of the TLKA must also be read together with the equivalent provincial enactments in this regard.68

However, it is important to mention that the TLKA – which came into operation on 1 April 2021 – was recently declared unconstitutional and invalid by the Constitutional Court.69 The Court came to the conclusion that Parliament had ‘failed to comply with its constitutional obligation to facilitate public involvement before passing the [TLKA]’; and that, as a consequence, the TLKA was ‘adopted in a manner that is inconsistent with the Constitution’.70 However, the Constitutional Court ordered that its order be suspended for 24 months – in order to give Parliament an opportunity to consult, properly, with the members of the affected traditional communities. For that reason, where relevant, and for completeness, the provisions of the TLKA are discussed in this article together with those of the TLGFA and provincial equivalents.71

Section 8 sets out, albeit in broad terms, what must be done in the event of a vacancy occurring in a particular traditional community. The first requirement is for the family72 of the deceased traditional leader to meet ‘within 90 days after the need arises for the position … to be filled’,73 a reasonable time after the need for such a meeting to be held has arisen, in order to identify and recommend one among their number as the preferred successor.74 In some traditional communities there are other structures, such as the Royal Council, that play a very important role and, therefore, must be part of such a meeting.75 However, due to a lack of clarity and for a variety of other reasons, some people straddle these structures.76 In pre-colonial times, one such role for these structures was to decide whether, in a particular instance, the usurpation of power through violent means was one of the qualifying criteria for that purpose.77 Moreover, it is the members of the relevant community who give credence and legitimacy to the these structures and attendant processes. For that reason, in some communities the main wife is known as Masechaba – the Mother of the Community (or Nation).78 This is because that community would have provided lobolo in respect of such a wife, who eventually would give birth to a traditional leader. In other words, the person who is identified at such a meeting must be a blood relative of the deceased leader. That is implicit in the manner in which the provisions of the TLGFA79 and the TLKA are couched.80 Needless to say, this complex statutory arrangement behoves royal families, and other related structures, such as the Royal Council,81 to keep abreast of the latest legislative developments.82

In many traditional communities the process often leads to the eldest son of the deceased83 (or the one born of his Indlunkulu84 or timamollo wife being chosen for this purpose). 85 As indicated above, she is often referred to as the Mother of the Nation or Dzekiso wife86 and should be chosen and recommended for this purpose. Also, it could happen that the family is not of one mind as to the eligibility of the person or persons who are contesting for leadership. There also could be a dispute as to whether the identification of a particular person was in accordance with the applicable customary law. In that case, the appropriate course to follow would be to make representations to the President87 or the premier of the relevant province in terms of section 8(4)(a) of the TLKA,88 to set up an investigative committee89 (which has since replaced the Commission on Disputes and Claims of Traditional Leadership).90 Another point of disagreement could be that an old custom, sought to be relied on by one or some of the members of the family, has undergone some transmogrification, or been completely discarded.91 Invariably, the provincial High Court is the forum of first instance.92 In order to succeed, the applicant93 will have to demonstrate that the existing custom (for example, male primogeniture) has been replaced by another custom, and that the new custom complies with the sprit, purport and objects of the Bill of Rights.94 However, the decision in BaPedi Marota Mamone95 serves as a reminder that the historical context remains an important consideration in the adjudication of these matters.

3.3 Excursus: Bapedi Marota Mamone v Commission

This case had its genesis in an application for review and setting aside of a determination and decision made by the Commission on Disputes and Claims of Traditional Leadership (Commission), namely, that the traditional leadership of the BaPedi resorted with the house of Sekhukhune I, not that of Mampuru II. The matter ultimately came before the Constitutional Court, the Supreme Court of Appeal having dismissed the appeal from the North Gauteng High Court. The main issue to be determined was whether kingship could, as a matter of custom and tradition among the BaPedi, be usurped through ‘might and bloodshed’, and whether, if it did happen, it constituted a deviation from the customary law rules of succession. Stated otherwise, the legal question was whether there was any point of distinction between what Sekhukhune did when he deposed Mampuru, and what the latter did to the former, killing him, two decades later.

In his minority judgment Jafta J (Nkabinde J concurring) stated that the Commission had misconstrued its statutory obligation and had failed to take into account the applicable customs and customary law, namely, that the son of the timamollo wife had the right to succeed his father.96 In other words, the Commission ignored the evidence relating to events that took place after the death of Sekhukhune (and Mampuru being installed in that position by the Boers).97 Jafta J stated that such evidence could not be ignored (despite it having been raised for the first time in the Constitutional Court). His view was that the Commission would not have been prejudiced if such evidence were to be admitted.98 He stated that ‘the new ground of review raises a question of law that does not depend on new facts not on record already [and that] it can hardly be argued that the Commission would be prejudiced by its determination’.99 The report formed part of the court record, the judge said, and that the applicant was not adding new facts.100 In his view, the ‘the acquisition of kingship through violence did not translate into an automatic transmission of power to the offspring of a king who assumed kingship by violent means’.101 In other words, only the usurper or the aggressor benefited from his violent conduct; not his offspring or descendants. The justice of the apex court also said that the Commission, in its investigations and the resultant report, had failed to consider BaPedi law on succession to traditional leadership as it existed at the time when the events under investigation occurred.102 While acknowledging the fact that any person could, by custom, acquire kingship through violence and usurpation, Jafta J emphasised the point that such a person ‘did not acquire it for his own house and could not, therefore, pass kingship on to his successors’.103 Therefore, even though Sekwati was Mampuru’s actual biological father, he was he disqualified by custom from being the rightful heir to the BaPedi throne after the death of Malekutu (his brother’s son). In the particular circumstances, he was merely a regent, a place holder, for Malekutu’s children. Moreover, paternity was not even a factor; it still is not a factor.104 Although fathered by Sekwati, Mampuru, in terms of custom, was Malektu’s child, and none of Sekwati’s descendants, such as Sekhukhune, was entitled to step into his traditional shoes. Jafta J concluded by holding that the decision of the Commission was irrational, in that it was not connected to the ‘common cause facts’ or ‘undisputed facts’105 that were presented to it.106 In his view, the BaPedi kingship ought to resort to the house of Sekhukhune.107

Kamphephe J, for the majority, stated that there was ‘no reason to unsettle the Commission’s decision’,108 and that the appeal should fail. In the course of her judgment, she emphasised the importance of deference, on the part of the courts, when they consider reports compiled by expert bodies,109 and that they should be careful not to substitute their own decisions for those that have been made by bodies such as the Commission.110 She also stated that respect and due regard should be given to factual findings made by such ‘specialist’ bodies, which are made up of men and women with the necessary knowledge and expertise.111 However, it is important to point out that deference should not be confused with judicial timidity that often takes refuge behind the doctrine of trias politica at every turn.112 On the statutory scope113 of the Commission’s duties and functions, the judge said that not only was the Commission tasked ‘with applying the relevant customary law to the case before it, but also with determining what that law was at the relevant time’.114 The applicable customary law, she said, depended ‘primarily on historical and social facts, which the Commission must establish through evidence led before it and its own investigation’.115 Kamphephe J stated that the Commission could not be faulted for failing to cover something that was never an issue before it.116

On the usurpation of power as a customary law practice, Kamphephe J stated that when Mampuru fled after having been challenged by Sekhukhune, the latter ‘[legitimately] took the throne’.117 However, she was really at pains to tell apart that occurrence from the killing of Sekhukhune by Mampuru, 20 years later, under somewhat similar circumstances. The justice was of the view that Mampuru’s position ‘was different in a material respect’.118 Her view was that ‘[Mampuru] did not exert authority over the BaPedi nation’, and that he just decided to flee.119 Also, endorsing the view of the Supreme Court of Appeal on this point, she stated that Mampuru’s ascension to the BaPedi throne ‘was inconsequential as it was a unilateral act, inconsistent with Bapedi customary law, and intended merely to fulfil that government’s policy’.120 She also stated that Mampuru’s coronation was not even sanctioned by the Bakgoma and Bakgomana.121 For that reason, she said, Sekhukhune was able to legitimately reclaim his position as soon as he was released from custody. However, it is important to point out that Mampuru did not only abdicate from his position. Sekhukhune, with the support of the Boers, was on his heels – in hot pursuit. The role of the Boers and the British, on either side of the dispute, cannot easily be discounted. Like all the African leaders of their time, the brothers ruled at the pleasure of their colonial rulers.122 An impression should not be created that being supported by the British, as Sekhukhune was, was less of an evil. The brothers were both in the throes of ‘indirect rule’ as described above. The original traditions and the correlative customary law practices of their community did not matter much.123 Further, in pre-colonial times, the matter seemed to revolve on who was more capable of spilling blood and then ascend the throne – and remain ensconced in it – for the time being. It was not so much the nature of the act that resulted in the deposition of the incumbent as the point of time at which it occurred. As the English adage teaches us, ‘he laughs best who laughs last’.

4 Eligibility, statutory formalities and processes

From the foregoing it clear that South Africa has moved from pre-colonial times to colonialism, and later to apartheid, with the Black Administration Act as its statutory cornerstone.124 The Constitution and the Bill of Rights (and the resultant jurisprudence) are a major consideration in situations of this nature.125 Needless to say, the process of recommending any person, for this specific purpose, has changed significantly. It takes the form of an application to the President of South Africa or the premier of a particular province.126 Where the predecessor was a king or queen, such an application must be made to the President. Also, where the person to be replaced was a principal traditional leader, senior traditional leader, headman or headwoman, the application must be submitted to a premier.127 In all instances, the application should indicate that the royal family did, indeed, meet for this specific purpose128 and, importantly, due regard should be paid to the ‘applicable customary law and customs’ of that particular community when such a person is identified (and recommended).129

In considering the application, the President or the premier, as the case may be, must ensure that the candidate meets certain statutory, customary law and ethical standards.130 The President or the premier, as the case may be, must then consider the recommendations submitted by the particular royal family, and the reasons provided for identifying and recommending such a person. If the President decides to accept the application as submitted, and the reasons proffered therefor, he may, after having consulted the premier and the Minister (of Cooperative Governance and Traditional Affairs),131 appoint such a person as the premier may, after considering the requirements set out in section 8(1)(a) of the TLKA – on eligibility and adherence to process – appoint the person identified and recommended. The language of these provisions is permissive; and the President or the premier, as the case may be, is not obliged or compelled to recognise and appoint that person. However, if satisfied, the President or premier must indicate such recognition and appointment by notice in the national or provincial Government Gazette.132 A certificate signifying that fact must be issued to the person.133 The premier of the relevant province is required to notify the Provincial House of Traditional Leaders of the person’s recognition and appointment.134

5 Evaluation

African traditional leadership no longer is exclusively an incident of birth, nor is it likely to be a function of gender for long. This area of the law now is a constitutionalised version of the original one. There also is the ‘living’ version of this body of law to consider.135 There is a catalogue of constitutional rights (and duties) to contend with. In other words, South African lawyers and academics now have to rely on the Constitution and the jurisprudence flowing from it to support their arguments. As indicated above, the exercise requires a sound grasp of the provisions of the Constitution, TLKA and the provincial equivalents thereof. However, the historical legal context cannot easily be ignored. That includes the significance of the ‘blood and might’ mode of usurpation of power. Needless to say, the violent usurpation of power now is only of limited relevance. However, there are a few factors that need to be considered, and constantly borne in mind. First, in the same way that a failed coup d’état would be dealt with, legally, violent usurpation could lead to several charges – including murder136 – being preferred against him or her. Second, it actually lost its currency and potency with the advent of ‘indirect rule’. However, it is important to note that there was military and violent meddling – in the affairs of African traditional communities – by both the Boer Volksraad and the British administration on either side of the royal bloodline.137 In a sense, Cetshwayo and Mbuyazi, and Sekhukhune and Mampuru – and their contemporaries – ruled at the pleasure of the successive Boer and British administrators.138 That is why the view of the Supreme Court of Appeal – which was endorsed by the Constitutional Court in BaPedi Marota Mamone – seems incongruous. As indicated above, Kamphephe J, for the majority, stated that ‘Mampuru II’s conduct in clandestinely killing Sekhukhune I and thereafter fleeing was entirely inconsistent with an intention to conquer and take over kingship and was sheer murder for which he was accordingly convicted by a court of law and executed’.139 However, there really is no substantive difference between the alternate acts of the royal siblings, Sekhukhune and Mampuru, in their respective or alternate attempts at usurping power.

Also, it really would have made no sense at all for anyone to spill blood under those circumstances, without any future plan or purpose in mind. The distinction between the respective positions of these royal siblings actually lay in the genesis of their entitlement to kingship, and who, between them, was the last to usurp power in that manner. Mampuru was the son of King Sekwati’s timamollo wife, and Sekhukhune ascended the throne by force of arms. In a sense, the latter was the more fortunate; and the one who ‘laughed last’. The majority proffered no plausible reason as to why the Commission would suffer prejudice if the court granted the applicant the opportunity to file additional papers in support of its contention.140 It is submitted, therefore, that the decision of the Commission fell to be declared irrational and set aside, for excluding the facts that the applicant sought to present for consideration and ventilation. Third, the role of the ‘blood and might’ mode of usurpation, under the current South African constitutional order, is limited only to providing a historical matrix for the justification of the practice.141 Fourth, even though ‘the blood and might’ method is sometimes described as having been a frequent occurrence or permanent feature of that period and landscape,142 the instances in which it was resorted to were very few and far between.143 The military skirmishes or bloody battles appear to have been so periodic or episodic to constitute a concrete custom. Moreover, the decision as to whether usurpation, in the particular circumstances, was constitutive of kingship depended on the approval and ratification of very powerful structures within a particular community.144

It would appear as though a will – be it a testamentary document or a verbal dying declaration – was another method in terms of which dynasties and bloodlines could be altered in terms of customary law.145 Therefore, if a deceased traditional leader has executed a valid will during his or her lifetime, its provisions would have to be interpreted and given effect to.146 A will, therefore, remains the only way – closest to usurpation – through which such a change can be effected.147 Therefore, in that specific context, the wishes of the deceased monarch should be the overriding consideration.148 In all the other instances, the rules of select, which regulate intestate succession, are almost fixed, and somewhat rigid.149

Where the recognition and appointment of a particular person turns on gender and sex, care and caution would have to be exercised. Except where, as in Shilubana v Nwamitwa,150 there is glaring unfair discrimination, women should not abruptly displace their brothers or cousins from these positions, merely because they are women. As against that, the strand of customary law of the affected community would have to be gradually adapted. Otherwise, the social fabric and moral fibre of that community would be torn asunder. It would seem that Van der Westhuizen J was alive to that reality when he delivered his judgment in Shilubana v Nwamitwa.151 The judge specifically stated that ‘deference should be paid to the development by a customary community of its own laws and customs where this is possible, consistent with the continuing effective operation of the law’.152 That is what the provisions of section 2(1) of TLKA actually enjoin the courts to do in these circumstances. Therefore, while gender transformation is paramount in this context, it must be characterised by gradual ‘adaptation’ of the existing local body of customary law. That process of adaptation should also ensure that every member of the royal family, male or female – extramarital or not – is part of the meeting where one among them is likely to identified – and recommended – for the position of traditional leadership.153

6 Conclusion

In 1994 the institution of traditional leadership and the status of the persons involved became fully constitutionalised. That position persists to this day. For that reason, the legal history in this regard is now of limited significance. It only serves to provide the judges with a rear view perspective of the politico-legal terrain as they search for viable juridical solutions to the problems that are associated with traditional leadership. The Constitution behoves the courts to rid South Africa of all the vestiges of colonialism and apartheid, particularly as they relate to customary law and traditional leadership. Legislation has been enacted for that specific purposes, namely, to ensure that the institution comports to the values of the Constitution. There have also been legislative attempts at insulating traditional communities and their leaders from political inducement and manipulation. Traditional leaders should not be at the beck and call of the government or any of its functionaries.

However, a measure of caution is required; and a delicate balance would have to be struck between the right to culture (which encompasses traditional leadership and related customs) and the right of every affected person not to be unfairly discriminated against. In other words, the change that is agitated for, in this regard, would have to be gradual and adaptive, and not be imposed on the affected communities in an overly hasty manner, lest there be constitutionally compliant, yet dysfunctional, communities.