Chapter 21 - Legal recognition of traditional leadership

Question 1

What is traditional leadership?

Answer 1

Section 211(2) refers to a traditional authority that observes indigenous law.

Question 2

Explain in depth how traditional leadership is recognised.

Answer 2

The Constitution of the Republic of South Africa, 1996, makes provision for the continuation of traditional authorities and, by implication, traditional leaders.

Question 3

What are the implications of the recognition?

Answer 3

1. A democracy implies, among other things, regular elections. This system of chosen leaders is in contrast to the traditional system of hereditary leadership. Hereditary leadership is based on the principle of male primogeniture, with due regard to the status of the main wife or tribal wife. The Constitution made a conscious decision that traditional leadership would be an exception to the democratic principle of free elections.
2. At the provincial level, traditional leaders are elected or appointed by traditional authorities to provincial houses, and at the national level, they are elected to the national council. This process is also inconsistent with democratic principles, but is in accordance with the exception made in regard to the traditional style of government. These new bodies have limited powers. They can make laws, which are then considered by the provincial and national legislatures, but they cannot legislate independently. In addition, they can insist on being consulted about matters of African customary law, but they can do little more than delay the legislative process if they do not agree with specific legislation.
3. According to the principle of equality, there can be no argument that the traditional principle that a chief’s daughter cannot succeed if she is the firstborn is discriminatory. According to the principle of primogeniture, the firstborn must succeed, regardless of whether they are male or female. The discriminatory element in the succession system is therefore the principle of patrilineal succession. This means that only males in the patrilineage can succeed. If a woman is allowed to succeed, it would mean that her children cannot succeed, as they are not members of the patrilineage. The question that arises in such circumstances is: Who should succeed her? In a patrilineal system of descent reckoning, a daughter belongs to the patrilineage of her father, but her children belong to the patrilineage of her husband.