Abstract

Keywords

Traditional leadership; hereditary succession; royal family.

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1 Introduction

Traditional leadership is the oldest form of government in South Africa. Even before colonialism, traditional leaders held a lot of power and had authority over a number of things, including social welfare, judicial functions, land and the economy. 1

* Siyabonga Sibisi LLB LLM (UKZN), Senior Lecturer, School of Law, University of the Witwatersrand, South Africa. Email: siyabonga.sibisi@wits.ac.za. ORCID: https://orcid.org/0000-0002-2372-5173.

1 Lutabingwa, Sabela and Mbatha 2016 Politeia 74.

Recent events in various traditional communities in South Africa have among other things provoked curiosity about the law regarding the recognition of traditional leaders. These events include the prosecution, conviction, 4

4 Evans 2013 https://mg.co.za/article/2013-07-17-dalindyebo-the-tyrant-the-case-against-the-king/ .

Thulare, 10

10 Singh 2021 https://www.timeslive.co.za/news/south-africa/2021-01-06-bapedi-king-victor-thulare-iii-dead-at-40/ .

Following the bowing of the above-mentioned traditional leaders, succession issues engulfed their respective nations. Chief among these issues were who would succeed them, how the successor would be chosen and who was entitled to participate in the selection of the successor. Without fail the matters ended in court, and they often resulted in protracted litigation. This endless litigation raises an interesting question regarding the law on the recognition of traditional leaders in South Africa and the role of a royal family in the identification of a successor. This article is a critical discussion of two issues, namely the law relating to the recognition of traditional leaders in South Africa and the role of a royal family in the identification of a successor.

The article starts with an exposition of the law on the recognition of traditional leaders. It shows that the recognition is done in accordance with statutory law and customary law. It sets out the salient statutory provisions and then follows this up with a critical discussion thereof. Applicable customary law is also discussed. Since there are various traditional communities following different customary laws and customs of hereditary succession in South Africa, the article discusses only the law of a few traditional communities. The role of the royal family is then set out and critically considered. As shown below, statutes provide that the royal family must identify a successor in terms of the applicable customary law and custom. This raises a number of questions. The first is who forms part of the royal family. This question is important because, as will be shown below through case law, it has an impact on the validity of decisions taken at meetings. Another question regards the extent of the role of the royal family. Is the royal family expected to rubberstamp customary law by simply applying existing rules? To what extent may the royal family depart from the pre-existing rules of customary law? Some of these questions have received the attention of the courts, and these will be referred to.

2 The legislative framework for the recognition of traditional leaders

In line with section 211(2) of the Constitution, the recognition of traditional leaders is regulated by national legislation and the provincial legislation. It must be noted that it is not all of the nine provinces of South Africa that have

traditional leaders. For instance, the Western Cape does not have any recognised traditional leader. It therefore does not have any provincial legislation on traditional leadership. Also, the Western Cape does not have a House of Traditional Leaders. Gauteng is a unique province. Although there may be a number of traditional leaders that either reside or carry out work in Gauteng, these traditional leaders are linked to provinces such as KwaZulu-Natal, the Eastern Cape or any other neighbouring province. 13

13 Staff Writer 2018 https://businesstech.co.za/news/government/263191/south-africa-has-a-huge-number-of-traditional-leaders-heres-how-much-they-get-paid/ . The data serves to illustrate that there are few traditional leaders in Gauteng.

The provincial legislation must be read with the national legislation. Although there is nothing in the national legislation to suggest this, in the event of any clash between national and provincial legislation presumably the provisions of the national legislation would prevail.

2.1 National legislation

The Traditional Khoi-San Leadership Act 17

17 Traditional Khoi-San Leadership Act 3 of 2019 (TKLA).

Speaker of the National Assembly 21

21 Mogale v Speaker of the National Assembly 2023 6 SA 58 (CC).

It is important to point out that for several years into democracy there was no new legislation dealing with the recognition of traditional leaders until the enactment of the TLGFA. This delay was despite the explicit constitutional recognition of traditional leadership in section 212 of the Constitution and the same provision explicitly calling for an enactment on traditional leadership. Prior to the Constitution the only notable piece of legislation that partially dealt with traditional leadership was the notoriously controversial Black Administration Act. 24

24 Black Administration Act 38 of 1927.

2.2 The Traditional and Khoi-San Leadership Act

2.2.1 General purpose of the Act

Since the TKLA is still in force, it is worthwhile discussing its provisions. Even when new legislation is enacted in line with the judgment in Mogale v Speaker of the National Assembly, one strongly doubts that the forms of the provisions discussed below will be any different from their current form. The main objectives of the TKLA are to provide for the recognition (and the withdrawal thereof) of traditional and Khoi-San communities, 25

25 See ch 2, part 1 of the TKLA.

(and withdrawal thereof) of traditional and Khoi-San leaders, 26

26 See ch 2, part 2 of the TKLA.

2.2.2 Traditional leadership positions under the TKLA

This part of the article will focus primarily on the provisions relating to the recognition of traditional leaders. The TKLA recognises the following traditional leadership positions: kings/queens, principal traditional leaders, senior traditional leaders, headmen, and headwomen. 29

29 Generally, see s 7(1)(a) of the TKLA.

A principal traditional leader was defined in the TLGFA as a traditional leader "under whose authority, or within whose area of jurisdiction, senior traditional leaders exercise authority in accordance with customary law". 35

35 Section 1 of the TLGFA.

A senior traditional leader is "inkosi" or "kgosi". The difference between a king and a senior traditional leader is that a king has authority over the whole nation, while a senior traditional leader has authority over a defined jurisdictional area or traditional community within the nation. Therefore, a senior traditional leader exercises authority under the principality of a king, or in limited circumstances, under the principality of a principal traditional leader. It is interesting to pause and question if a principal traditional leader is a position that exists under customary law, or whether it is simply a fiction of the TLGFA and its successor, the TKLA. On a reading of section 10A of the TLGFA and section 63 of the TKLA, it appears that a principal traditional leader is one who does not qualify as a king but possesses more authority than a senior traditional leader.

Finally, headmen and headwomen, "izinduna", are traditional leaders who serve under a king, queen, principal traditional leader and senior traditional leader, but over a smaller jurisdictional area. 37

37 Section 1(1)(viii)(a) of the TKLA.

2.2.3 The recognition of traditional leaders

Section 8 of the TKLA is titled "recognition of kings or queens, principal traditional leaders, senior traditional leaders, headmen or headwomen". However, this section really deals with the process to be followed leading to the recognition of a traditional leader. As will be shown below, the process is three-pronged. The first process is the identification, the second is the application for recognition and the final process is the recognition process itself. 39

39 Netshimbupfe v Mulaudzi 2018 3 All SA 397 (SCA) (hereafter Netshimbupfe v Mulaudzi) para 8. In this decision, the Supreme Court of Appeal (SCA) referred only to the recognition and the identification stages. But in between these two stages is the application for recognition, which is equally important. Without it, the process would not progress to the recognition phase.

In terms of section 8(1), whenever there is a traditional leadership vacancy, the royal family must, within 90 days of the occurrence of the vacancy, and with due regard to customary law, identify a successor who qualifies in terms of customary law and custom. The use of the word "must" in section 8(1) raises an interesting dynamic, especially in the African context. It is

widely known that after the passing of a person, a mourning period is observed varying from three months to a year, depending on who passed away. 40

40 Kotze, Els and Rajuili-Masilo 2012 Death Studies 754.

Nonetheless, a distinction is drawn between the process for the identification of a king or queen and the identification of a principal traditional leader, senior traditional leader and headman or headwoman.

If the vacancy is for a kingship or queenship position, the royal family must apply to the president for the recognition of the person who has been identified to succeed in terms of customary law. 42

42 Section 8(1)(a)(ii) of the TKLA.

In the case of vacancies for senior traditional leaders, headmen and headwomen, the TKLA further draws a distinction between hereditary and non-hereditary positions. 47

47 See generally s 8(2) of the TKLA.

requiring any reasons would simply open the process to abuse and would sanction ignorance of the rules of customary law in the identification process.

According to the TKLA, headmen and headwomen are elected by the community concerned. 51

51 Section 8(2)(b) of the TKLA. The Eastern Cape is a good example where communities elect headmen and headwomen. See Premier, Eastern Cape v Ntamo 2015 6 SA 400 (ECB).

The recognition is effected through the publication of a notice of recognition in the Gazette. In the case of the recognition of a king or queen, the president publishes a notice in the national Gazette. In the case of the recognition of a principal traditional leader, senior traditional leader, headman or headwoman, the premier of the province concerned publishes the notice of recognition in the Provincial Gazette. 53

53 Section 8(3)(a) of the TKLA.

If it happens that the identification was not done in accordance with customary law, the president or premier, depending on the nature of the identification being disputed, may cause an investigation to be carried out by a designated committee. The committee must report on whether the identification was done in accordance with customary law, and if it was not, the committee must state who should have been identified. The report must be referred to the royal family for their comments; and thereafter, the president or premier must identify a person by notice in the Gazette or provincial Gazette. 56

56 Section 8(4) generally of the TKLA.

It is important also to indicate that the recognition of a person will be withdrawn should the person be convicted of an offence with a sentence of more than 12 months imprisonment without the option of a fine, is declared mentally unfit or mentally disordered by a court, or no longer permanently resides in the area of the kingship or queenship council, principal traditional council or traditional council, whichever is applicable. 57

57 Section 9(1)(a) of the TKLA.

law or custom. 58

58 Section 9(1)(b) of the TKLA.

3 Provincial legislation

As pointed out above, eight of the nine provinces in South African each have local legislation dealing with the recognition of traditional leaders. With the recognition of the Khoi-San traditional communities, who mostly reside in the Western Cape and the Northern Cape, the Western Cape may have to enact local legislation to address matters that may not be addressed in the national legislation. It is beyond the scope of this article to discuss all provincial pieces of legislation. As a result, only two provinces’ legislation will be briefly discussed because of their unique features, namely, the Eastern Cape and KwaZulu-Natal.

The Eastern Cape has a number of traditional leaders at the level of kings, namely the AbaThembu king, AmaRharhabe king, AmaMpondo aseNyandeni king, AmaMpondo aseQaukeni queen 60

60 The queenship of Amampondwe aseQaukeni is currently being contested in a string of Sigcau cases, some of which are referred to in this article.

Another notable feature regarding the ECTLGA 2017 is that, unlike the national legislature, which allows the royal family up to 90 days to identify a successor, the ECTLGA 2017 provides for a blanket allowance of only 14 days. 64

64 Section 23(1)(a) of the ECTLGA 2017.

KwaZulu-Natal (hereafter KZN) is a unique province in that it has only one king (isilo). In KZN the institution of traditional leadership is governed by the KwaZulu-Natal Traditional Leadership and Governance Act 67

67 KwaZulu-Natal Traditional Leadership and Governance Act 5 of 2005 (KZNTLGA).

In general, whenever a vacancy arises, be it for isilo, inkosi or induna, the royal families play a vital role. However, with respect to the recognition of isilo, what distinguishes KZN from other provinces is that the royal family must inform the premier and the member of the provincial executive council responsible for traditional affairs of the identification of the monarchy. The premier must forward the matter to the president for recognition. 72

72 Section 17 of the KZNTLGA.

An interesting feature of the KZNTLGA is that it allows a royal family "a reasonable time" to identify a successor, as opposed to the 90-day rule of the national legislation. Another interesting feature is that while it provides for the recognition and removal of all other traditional leaders that are recognised in KZN, it does not provide for the removal of isilo. Of course, this does not mean that isilo cannot be removed. Just like the recognition, the removal will have to be carried out in terms of national legislation.

4 Customary law of hereditary succession

The statutes discussed above make it clear that it is the role of the royal family to identify a successor in terms of customary law or custom. This part of the article discusses the customary law of hereditary succession. The immediate challenge that one also faces with this part of the discussion is that there are various traditional communities following different customs. It is beyond the scope of this article to deal with all of them at great length.

Before embarking on a discussion of the customary law of hereditary succession, it is vital to point out that the legal positions discussed below are not cast in stone. The practices and customs may change gradually

along with time. In Yende v Premier of Mpumalanga Province the court indicated that customary law by its nature is a constantly evolving system 73

73 Yende v Premier of Mpumalanga Province (80576/2014, A602/2017) [2019] ZAGPPHC 237 (26 June 2019) (hereafter Yende v Premier) para 23.

What follows below is a summarised discussion of the customs of selected traditional communities.

4.1 AbaThembu customary law of hereditary succession

AbaThembu of the Eastern Cape are part of a larger group of Xhosa-speaking people. Xhosa-speaking people comprise various people including amaMpondo, amBhaca, amaGcaleka and amaRharhabe. Their customary law is in many respects almost identical. Originally, the king (ikumkani) would marry several wives. 77

77 To be exact, the king would marry no less than seven wives: the great wives (undlunkulu), the right-hand wife, iqadi of the great wive, iqadi of the right-hand wife, the seed bearer wife, umsengi of the great wife and umtshayelo of the great house. See summary of a report by the Commission on Traditional Leadership Disputes and Claims 2014 https://www.gov.za/sites/default/files/gcis_document/201409/ determination-matanzima-and-dalindyebo-paramountcies.pdf 15.

It is important to point out that in Sigcau v The President of the Republic of South Africa, 82

82 Sigcau v President of the Republic of South Africa 2022 All SA 315 (SCA) (hereafter Sigcau 4).

the throne could go to the right-hand house. In this case a submission was made that if the great wife did not have any sons, the throne would go to the right-hand house. 83

83 Sigcau 4 para 9.

Whatever the correct position is, the rules above remain in place. However, these rules are effective only if a king has several wives. The rules become redundant, obsolete or unclear if the king has only one wife or fewer than three wives. If a king has only one wife, logic would dictate that the first son of the first wife, who would automatically be the great wife, would succeed.

4.2 AmaZulu customary law of hereditary succession

In terms of Zulu customary law, the position regarding hereditary succession was stated as follows in Umndeni (Clan) of Amantungwa v MEC for Housing and Traditional Affairs KwaZulu-Natal: 84

84 Umndeni (Clan) of Amantungwa v MEC for Housing and Traditional Affairs KwaZulu-Natal 2011 2 All SA 548 (SCA).

the [successor to] the chieftainships is the heir of a deceased chief. In this way succession is retained within the Royal House. In essence the successor to a deceased chief will be the eldest son from the indlunkulu. (This means the first or the great house.) If the eldest son is dead or cannot take up the position, then that eldest son's senior male descendant: failing which the second son of the indlunkulu, failing which the senior male and so on through the sons of the indlunkulu and their descendants… 85

85 Umndeni (Clan) of Amantungwa v MEC for Housing and Traditional Affairs KwaZulu-Natal 2011 2 All SA 548 (SCA) para 21. Also see Yende v Premier para 6. Although this case was against the premier of Mpumalanga Province, the applicable law was the Zulu law of hereditary succession.

The author observes that the word indlunkulu has a number of meanings. Generally, it refers to the wider royal family/house that includes various generations and their descendants. The word comprises two parts. The first part is "indlu", meaning house. The second part is "nkulu", which means big or great. The word is also used to refer to the first wife of isilo or inkosi and it is also used to refer to any woman who is married to the wider royal house. However, the term is never used to refer to the wife of induna. Neither is it ever used to refer to a wife belonging to the family of induna. As pointed out above, the position of induna is not hereditary and his or her family is not a royal family.

Another factor that is considered in identifying a successor in terms of Zulu law is the status of the mother of the candidate [or of the maternal

grandfather of the candidate]. If the candidate's mother is a princess, her descendants will take preference, even if their mother is not the first wife. 86

86 Zulu v Mathe (2751/2021P 2752/2021P) [2022] ZAKZPHC 6 (2 February 2022) (hereafter Zulu v Mathe) para 97.

The position above provokes further thoughts regarding what would happen if a king has various royal wives. Will all of them be great wives? What happens if all or some of them bear sons for the king? Which among the sons will succeed his father? In Zulu v Mathe 87

87 Zulu v Mathe para 97.

Perhaps common sense will dictate that where a king has a number of royal wives, the first of the royal wives will be the great wife and her eldest son shall succeed. Since the TKLA and the KZNTLGA do not make provisions for the wishes of the predecessor to be considered, perhaps the wishes of the predecessor may influence the decision of the royal family and arguably, this may be in line with customary law and custom.

4.3 Tshivenda customary law of hereditary succession

Venda customary law of hereditary succession determines that the first-born son of the dzekiso wife usually succeeds. 93

93 Mphephu v Mphephu-Ramabulana 2019 3 All SA 51 (SCA) (hereafter Mphephu v Mphephu-Ramabulana) para 28.

dzekiso wife will succeed the deceased/ However, until such time, a regent will be appointed.

In addition to the requirements above, a successor must be identified by the royal family in the presence of the khadzi and ndumi. 96

96 Netshimbupfe v Mulaudzi para 6; Mphephu v Mphephu-Ramabulana para 22, where it is stated that the khadzi (the sister of the incumbent ruler) would announce her choice of successor.

4.4 Valoyi customary law of hereditary succession

Before Shilubana v Nwamitwa 97

97 Shilubana v Nwamitwa 2002 9 SA 66 (CC) (herafter Shilubana v Nwamitwa).

4.5 Bapedi customary law of hereditary succession

According to Bapedi customary law of hereditary succession, there are two ways of ascending to a traditional leadership position, particularly a kingship. The first is that the first son of a timamollo wife (the great wife) is the heir presumptive. The timamollo wife was nominated by the royal family and the community. If the timamollo wife did not have a son to succeed, ancillary rules were applied. The second way of ascending to the throne was acquisition through might and bloodshed (the usurpation rule). 98

98 Bapedi Marota Mamone v Commission on Traditional Leadership Disputes and Claims 2015 3 BCLR 268 (CC) (hereafter Bapedi Marota Mamone v Commission) para 71.

The case in Bapedi Marota Mamone v Commission on Traditional Leadership Disputes and Claims 99

99 Bapedi Marota Mamone v Commission para 71.

usurped the Bapedi kingship. Some time later Mampuru II returned and killed Kgosi Sekhukhune. After killing Kgosi Sekhukhune, Mampuru II immediately fled. For decades to come, the Bapedi community was seized with the question of the legitimate lineage of the Bapedi kingship between the descendants of Kgosi Sekhukhune and that of Mampuru II. This question would go unresolved until the decision under the present discussion.

In Bapedi Marota Mamone v Commission on Traditional Leadership Disputes and Claims the Constitutional Court found that on the death of Kgosi Sekwati, Kgosi Sekhukhune became king through usurpation. Although Mampuru II later returned to lay claim to the throne, he did not become king as he immediately fled after killing Kgosi Sekhukhune. According to the majority of the court this was not consistent with successfully laying a claim to the throne in terms of the Bapedi hereditary law of succession as Mampuru II "did not exert his authority over the Bapedi nation". 100

100 Bapedi Marota Mamone v Commission paras 88-90.

It is submitted that in the light of the Constitution that upholds the sanctity of life, the usurpation rule cannot be sustained. In this light the first son of a timamollo wife may succeed as king.

5 The royal family

5.1 The composition of the royal family

Although it is clear that it is the royal family that is entrusted with the identification of a successor, there are a few preliminary issues that are not as clear. The question of who forms part of the royal family is contentious. In terms of section 1 of the TKLA, the royal family is defined as "the core customary institution or structure consisting of immediate relatives of the ruling family within a traditional or Khoi-San community, who have been identified in terms of customary law or custom, and includes, where applicable, other family members who are close relatives of the ruling family."

The above definition would have been more helpful had it specified the persons who form part of the immediate family, immediate relatives and close relatives. For instance, it may have specified that the immediate family is the spouse(s), descendants and siblings of the reigning traditional leader. But the TKLA does not do this; even its predecessor, the TLGFA, did not

specify who formed part of the royal family. It is well known that African families tend to be big and that those who may otherwise be regarded as "relatives" may easily be close family members. For example, the siblings of a person's parents are close family members in the African context. Further, in the African context a close relative may not be as genealogically close.

The composition of the royal family is very important as it determines the validity of decisions taken at meetings of the royal family. A decision taken by an improperly constituted royal family will be invalid. In Yende v The Premier of Mpumalanga, decisions taken at a meeting convened by the Commission on Traditional Leadership Disputes and Claims were declared invalid because the key members of the royal family, being the surviving descendants of the deceased senior traditional leader, had not been provided with an opportunity to be present and to make contributions. 102

102 Yende v Premier para 46.

Further, one must carefully distinguish between the royal family and the royal council. The latter is a smaller body that normally oversees the work of the traditional leader. 106

106 Section 19 of the TKLA.

In Netshimbupfe v Mulaudzi the first appellant was identified by the royal family for the position of senior traditional leader of the Tshimbupfe traditional community, whereas the fifth respondent was identified by the royal council for the same position. 108

108 Netshimbupfe v Mulaudzi para 2.

was not the first son. 109

109 Netshimbupfe v Mulaudzi para 6.

5.2 The role of the royal family

Perhaps a great starting point in regard to the role of the royal family is the repealed TLGFA. Arguably this Act, though repealed, remains an important piece of legislation as the first enactment of its kind. Briefly, section 9(1)(a) of the TLGFA, which dealt with the recognition of kings and queens, made it a duty of the royal family to identify a person who qualified to succeed in terms of customary law. Under the TLGFA the royal family was (and still is) the traditional authority that was entrusted with the responsibility to identify the successor in terms of customary law, and to cause the details of the person so identified to be forwarded by the relevant structure to the relevant authority for recognition (the president or premier, depending on the level of recognition).

The fact that such a responsibility was conferred upon the royal family created the impression that the role of the royal family was more than simply rubberstamping the customary law of hereditary succession and endorsing male primogeniture. However, section 9(1)(a) and similar provisions made it clear that the royal family could not go beyond the prescripts of the customary law of hereditary succession. According to section 9(3), if there was evidence that the identification of a person was not in accordance with the customary law and custom, the president or the relevant premier, depending on the level of traditional leadership, could refer the matter to the House of Traditional Leaders for its recommendation, 112

112 Section 9(3)(a) of the TLGFA.

The provisions referred to above inhibited the powers of the royal family to be creative in the identification of a successor. In accordance with the customary law of hereditary succession of an overwhelming number (if not all) of traditional communities, the eldest son of the great house will succeed. If anyone other than the eldest son of the great house were to be

identified, the powers of the president or the relevant premier to refer the matter to investigations or even refuse to recognise the person identified, as pointed out above, were triggered. 115

115 Section 8(4) of the TLGFA.

Although a handful of decisions on the customary law of hereditary succession have acknowledged that customary law is flexible enough to change along with the changing values of society, one does foresee difficulty in proving that customary law has evolved so as to recognise that the eldest son who is born out of wedlock may succeed his father. Indeed, this difficulty is evident in the Umndeni (Clan) of Amantungwa. A similar case is currently pending before the High Court where the eldest son of the late AmaZulu King Goodwill Zwelithini, Prince Simakade Zulu, who was born out of wedlock, is laying a claim to the Zulu throne on the ground that he is the eldest son of the late king. 116

116 Matiwane 2022 https://www.timeslive.co.za/news/south-africa/2022-09-16-prince-simakade-kazwelithini-takes-claim-to-the-throne-to-the-high-court/ .

In Shilubana v Nwamitwa – a trailblazer on women and traditional leadership – the appellant's father, Hosi Fofoza Nwamitwa (a senior traditional leader) of the Valoyi clan, passed away in 1968 without any male heir. Because the appellant was a woman, her father was instead succeeded by his brother, Hosi Richard Nwamitwa. 117

117 Shilubana v Nwamitwa para 3.

When Hosi Richard passed away in 2001, the Limpopo provincial government issued the appellant with a letter of recognition as hosi of the Valoyi clan in 2002. 119

119 Shilubana v Nwamitwa para 6.

different grounds). The appellant then petitioned the Constitutional Court. The main issue before the Constitutional Court was whether the royal family had the authority to develop the customs and traditions of the Valoyi and thus recognise the succession of a woman as hosi. The respondent argued that the royal family did not have this authority and that its role was confined only to the identification of a successor in terms of custom. He also argued that the royal family did not have the authority to restore a traditional leadership position to a house where it had earlier been removed through custom. 121

121 Shilubana v Nwamitwa para 32.

In summary, the court held that if the royal family or traditional authorities did not have the power to develop its customs, it would mean that nobody in the community had the power to make constitutionally-driven changes. 122

122 Shilubana v Nwamitwa para 72.

The decision of the Constitutional Court has been lauded for being a breakthrough for women in traditional leadership and promoting gender-equality. 125

125 Mireku 2010 AHRLJ 515

After the decision in Shilubana, the SCA had the opportunity to explain the role of the royal family in Ludidi v Ludidi. 128

128 Ludidi v Ludidi 2018 4 All SA 1 (SCA).

Remains the custodian of the customs…and the royal family's lineage and is the sole repository of the rights to identify the chief…And it is significant that when it exercises this right, it does not consider only that the candidate is the

eldest child in the great house. It vets the potential candidate against the relevant customary law. 129

129 Ludidi v Ludidi 2018 4 All SA 1 (SCA) para 23.

Despite the decisions above, there are still hanging questions regarding the role of the royal family in the light of the provisions of the TKLA. The TKLA still has provisions which inhibit the royal family. For example, section 8(1)(a), which deals with the identification of traditional leaders, enjoins the royal family to identify a person who qualifies to succeed in terms of customary law and customs. It is worth pointing out that the TKLA was enacted after the landmark decisions referred to above. The legislature already knew that the courts had held that the role of the royal family goes beyond simply rubberstamping customary law of hereditary succession.

Like its predecessor, section 8(4) of the TKLA empowers the president or the relevant premier to cause an investigation to be conducted by an investigative committee if there is evidence that the identification of a person was not conducted in terms of customary law or custom. It is submitted that the continued insistence on the royal family’s identifying a person who qualifies to succeed in terms of customary law indirectly undermines the powers of the royal family and promotes endless litigation in the guise that the identification did not accord with the principle of male primogeniture.

An ideal role of the royal family is one which does not confine the royal family to any rule of customary law of hereditary succession. It is one where the royal family has the discretion to make decisions that are in the best interest of the traditional community. These may or may not be in line with any bygone rule of customary law of hereditary succession. If a predecessor had a few sons, the royal family should be able to identify any son amongst them, regardless of whether the identified person was born in or out of wedlock. It should also be able to identify a daughter if there are no male heirs within the descendants of the departed traditional leader. The royal family should be able to develop a practice of identifying any eldest child of a predecessor, regardless of gender or the marital status of the mother. These acts should be possible without risking any investigation on the ground that the identification is not supported by customary law.

6 Conclusion

This article has critically discussed the applicable law in the process leading to the recognition of traditional leaders. It has shown that the recognition of traditional leaders is done in accordance with both statutory law and customary law of hereditary succession. The statutory law comprises national legislation and the various provincial legislations on traditional leadership. Some of the salient statutory provisions of the national legislation have been carefully set out and analysed. Selected provincial

statutes were chosen for their unique features. It has been shown that the Eastern Cape province is unique in that it has several monarchs. While the ECTLGA 2017 deals with the recognition of traditional leaders, it does not deal with the recognition of kings and queens. It has also been shown that the KZNTLGA recognises isilo as the only monarch in KZN and that the recognition process goes through the office of the premier.

The customary law of hereditary succession in a number of South African traditional communities has also been set out with particular reference to case law. The benefit of case law is that it also reflects on the law that is actually observed. This article has also shown that courts have stepped in to align the living customary law of hereditary succession with the Constitution. In addition, it has been shown that male primogeniture is commonly observed by an overwhelming majority of traditional communities.

The composition and the role of the royal family have been scrutinised. The article has asserted the importance of the correct composition of the royal family as this has a bearing on the validity of decisions taken at meetings of the royal family. A distinction has also been drawn between a royal family and a royal council. Both of these are traditional authorities. However, each may not usurp the powers of the other. The royal family is the only role player in the identification of traditional leaders. However, the law is different with headmen, headwomen and iziphakanyiswa. These positions are not hereditary and the communities may play a role in the election process.

Finally, the extent to which the family may exercise its discretion in the identification of a traditional leader has been considered. It has been argued that certain statutory provisions of the TKLA and the repealed TLGFA inhibit the role of the royal family and confine it to merely rubberstamping rules of customary law of hereditary succession. This is contrary to the decision in Shilubana, wherein the customary law was developed so that traditional authorities have the power to make changes that are aligned with the Constitution. The irony is that the TKLA was enacted after Shilubana, and despite that, it still contains provisions that limit the powers of the royal family to infuse constitutional norms in the identification process.

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Bazza MB "African Hegemon before Colonialism: A Case Study of Zulu, 1818 to 1828" 2023 VUNA JHIR 1-10

Bekker 2011 PELJ

Bekker JC "The Establishment of Kingdoms and the Identification of Kings and Queens in Terms of the Traditional Leadership and Governance Framework Act 41 of 2003" 2011 PELJ 27-39

Diko 2023 Southern African Linguistics and Applied Languages Studies

Diko M "Isixhosa as a Preservative Instrument of Culture: A Consideration of Ethnolinguistics" 2023 Southern African Linguistics and Applied Languages Studies 1-12

George and Binza 2011 Journal of Public Administration

George K and Binza MS "The Role of Traditional Leadership in Promoting Governance and Development in Rural South Africa: A Case Study of the Mgwalawa Traditional Authority" 2011 Journal of Public Administration 947-962

Khoza Discussion of R.R.R. Dhlomo's Historical Novels

Khoza FP The Discussion of R.R.R. Dhlomo's Historical Novels (MA-thesis University of Durban-Westville 2001)

Kotze, Je Els and Rajuili-Masilo 2012 Death Studies

Kotze E, Je Els L and Rajuili-Masilo N "'Women … Mourn and Men Carry On': African Women Storying Mourning Practices: A South African Example" 2012 Death Studies 742-766

Lutabingwa, Sabela and Mbatha 2016 Politeia

Lutabingwa J, Sabela T and Mbatha JS "Traditional Leadership and Local Governments in South Africa: Shared Governance Possible" 2016 Politeia 73-88

Mireku 2010 AHRLJ

Mireku O "Customary Law and the Promotion of Gender Equality: An Appraisal of the Shilubana Decision" 2010 AHRLJ 515-523

Mmusinyane 2009 PELJ

Mmusinyane T "The Role of Traditional Authorities in Developing Customary Laws in Accordance with the Constitution: Shilubana and Others v Nwamitwa 2008 (9) BCLR 914 (CC)" 2009 PELJ 136-161

Morrissey Fugitive Queens

Morrissey CD Fugitive Queens: Amakhosikazi and the Continuous Evolution of Gender and Power in KwaZulu-Natal (1816–1889) (BA-thesis University of Oregon 2015)

Motasa and Nortje-Meyer 2021 Pharos Journal of Theology

Motasa KO and Nortje-Meyer SJ "Patriarchal Usurpation of the Modjadji Dynasty: A Gender-Critical Reading of the History and Reign of the Modjadji Rain Queens" 2021 Pharos Journal of Theology 1-19

Ntlama 2020 PELJ

Ntlama N "The Changing Identity of Succession to Chieftaincy in the Institution of Traditional Leadership: Mphephu v Mphephu-Ramabulana (948/17) [2019] ZASCA 58" 2020 PELJ 1-25

Otlogetswe 2018 Nomina Africana

Otlogetswe T "Power Relations in Setswana Names: A Study of Kgotla and Kgosi Names" 2018 Nomina Africana 57-71

Case law

Bapedi Marota Mamone v Commission on Traditional Leadership Disputes and Claims 2015 3 BCLR 268 (CC)

Ludidi v Ludidi 2018 4 All SA 1 (SCA)

Mogale v Speaker of the National Assembly 2023 6 SA 58 (CC)

Mphephu v Mphephu-Ramabulana 2019 3 All SA 51 (SCA)

Netshimbupfe v Mulaudzi 2018 3 All SA 397 (SCA)

Premier, Eastern Cape v Ntamo 2015 6 SA 400 (ECB)

Shilubana v Nwamitwa 2009 2 SA 66 (CC)

Sigcau v Minister of Cooperative Governance and Traditional Affairs 2017 3 All SA 608 (SCA)

Sigcau v President of the Republic of South Africa 2022 All SA 315 (SCA)

Tshivhulana Royal Family v Netshivhulana 2017 6 BCLR 800 (CC)

Umndeni (Clan) of Amantungwa v MEC for Housing and Traditional Affairs KwaZulu-Natal 2011 2 All SA 548 (SCA)

Yende v The Premier of Mpumalanga Province (80576/2014, A602/2017) [2019] ZAGPPHC 237 (26 June 2019)

Yende v Yende (1128/19) [2020] ZASCA 179 (18 December 2020)

Zulu v Mathe (2751/2021P 2752/2021P) [2022] ZAKZPHC 6 (2 February 2022)

Legislation

Black Administration Act 38 of 1927

Constitution of the Republic of South Africa, 1996

Eastern Cape Traditional Leadership and Governance Act 1 of 2017

KwaZulu-Natal Traditional Leadership and Governance Act 5 of 2005

Traditional Khoi-San Leadership Act 3 of 2019

Traditional Leadership and Governance Framework Act 41 of 2003

Government publications

Proc 38 in GG 43981 of 11 December 2020

Internet sources

Commission on Traditional Leadership Disputes and Claims 2014 https://www.gov.za/sites/default/files/gcis_document/201409/determination-matanzima-and-dalindyebo-paramountcies.pdf

Commission on Traditional Leadership Disputes and Claims 2014 Determination on Matanzima and Dalindyebo Paramountcies https://www.gov.za/sites/default/files/gcis_document/201409/determination-matanzima-and-dalindyebo-paramountcies.pdf accessed 21 March 2021

Department of Cooperative Governance and Traditional Affairs 2017 https://www.cogta.gov.za/index.php/2017/10/20/provincial-houses-traditional-leaders-constituted-successfully/

Department of Cooperative Governance and Traditional Affairs 2017 Provincial Houses of Traditional Leaders Constituted Successfully https://www.cogta.gov.za/index.php/2017/10/20/provincial-houses-traditional-leaders-constituted-successfully/ accessed 14 August 2023

Evans 2013 https://mg.co.za/article/2013-07-17-dalindyebo-the-tyrant-the-case-against-the-king/

Evans S 2013 Dalindyebo the "Tyrant": The Court Case against the King https://mg.co.za/article/2013-07-17-dalindyebo-the-tyrant-the-case-against-the-king/ accessed 19 July 2023

Eyewitness News 2021 https://ewn.co.za/2021/03/12/zulu-king-goodwill-zwelithini-dies-aged-72

Eyewitness News 2021 Zulu King Goodwill Zwelithini Dies Aged 72 https://ewn.co.za/2021/03/12/zulu-king-goodwill-zwelithini-dies-aged-72 accessed 20 July 2023

Feni 2019 https://www.timeslive.co.za/news/south-africa/2019-11-14-amaxhosa-king-sigcawu-has-died/

Feni L 2019 AmaXhosa King Sigcawu Dies in Mthatha Hospital https://www.timeslive.co.za/news/south-africa/2019-11-14-amaxhosa-king-sigcawu-has-died/ accessed 20 July 2023

Feni 2020 https://www.timeslive.co.za/news/south-africa/2020-06-23-premier-restores-dalindyebos-throne-demands-azenathi-vacate-great-place/

Feni L 2020 Premier Restores Dalindyebo's Throne, Demands Azenathi Vacates Great Place https://www.timeslive.co.za/news/south-africa/2020-06-23-premier-restores-dalindyebos-throne-demands-azenathi-vacate-great-place/ accessed 19 July 2023

Feni 2020 https://www.timeslive.co.za/news/south-africa/2020-07-09-amarharhabe-queen-noloyiso-sandile-dies-after-short-illness/

Feni L 2020 AmaRharhabe Queen Noloyiso Sandile Dies after a Short Illness https://www.timeslive.co.za/news/south-africa/2020-07-09-amarharhabe-queen-noloyiso-sandile-dies-after-short-illness/ accessed 20 July 2023

Gauteng Cooperative Governance, Traditional Affairs and Human Settlement Portfolio Committee 2022 https://www.gpl.gov.za/wp-content/uploads/2022/03/CoGTA-FIS-Oversight-Report-on-the-Department-of-CoGTA-Sitting-22-March-2022.pdf

Gauteng Cooperative Governance, Traditional Affairs and Human Settlement Portfolio Committee 2022 Announcements, Tablings and Committee Reports https://www.gpl.gov.za/wp-content/uploads/2022/03/ CoGTA-FIS-Oversight-Report-on-the-Department-of-CoGTA-Sitting-22-March-2022.pdf accessed 12 August 2023

Matiwane 2022 https://www.timeslive.co.za/news/south-africa/2022-09-16-prince-simakade-kazwelithini-takes-claim-to-the-throne-to-the-high-court/

Matiwane Z 2022 Prince Simakade kaZwelithini Takes Claim to the Throne to the High Court https://www.timeslive.co.za/news/south-africa/2022-09-16-prince-simakade-kazwelithini-takes-claim-to-the-throne-to-the-high-court/ accessed 16 August 2023

Pheto 2021 https://www.timeslive.co.za/news/south-africa/2021-02-22-bhaca-chief-thandisizwe-diko-dies-in-east-london-hospital/

Pheto B 2021 Bhaca Chief Thandisizwe Diko Dies in East London Hospital https://www.timeslive.co.za/news/south-africa/2021-02-22-bhaca-chief-thandisizwe-diko-dies-in-east-london-hospital/ accessed 19 July 2023

Singh 2021 https://www.timeslive.co.za/news/south-africa/2021-01-06-bapedi-king-victor-thulare-iii-dead-at-40/

Singh O 2021 Bapedi King Victor Thulare III Dies https://www.timeslive.co.za/news/south-africa/2021-01-06-bapedi-king-victor-thulare-iii-dead-at-40/ accessed 20 July 2023

Staff Writer 2018 https://businesstech.co.za/news/government/ 263191/south-africa-has-a-huge-number-of-traditional-leaders-heres-how-much-they-get-paid/

Staff Writer 2018 South Africa has a Huge Number of Traditional Leaders – Here's How Much They Get Paid https://businesstech.co.za/news/

government/263191/south-africa-has-a-huge-number-of-traditional-leaders-heres-how-much-they-get-paid/ accessed 20 July 2023

Tandwa 2019 https://www.news24.com/news24/just-in-king-dalindyebo-released-from-prison-20191223

Tandwa L 2019 King Dalindyebo Released from Prison https://www.news24.com/news24/just-in-king-dalindyebo-released-from-prison-20191223 accessed 19 July 2023

List of Abbreviations