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

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.