Chapter 23 - Succession to traditional leadership

Question 1

What are the principles of succession to traditional leadership?

Answer 1

Originally,, each tribe and, more in particular, the ruling family, decided on succession.

The following situations may arise upon the death of the ruler:
1. There is a suitable successor, and succession can take place without delay.

2. No successor has yet been born, or the successor, according to the rules of succession, is either unsuitable or incompetent to succeed.

Over time, the original power of the ruling family and the tribe to decide on a successor has been subjected to state authority.

Question 2

What are indigenous principles of succession to traditional leadership?

Answer 2

1. It is a hereditary system and the position of the traditional leader follows the patrilineage
2. The successor is the eldest son of the ruler by the tribal or main wife.
3. The other wives of the ruler occupy a particular position or rank, and this ranking order has significance, especially in situations where an acting traditional leader or regent has to be appointed.
4. The sons of of the ruler by his various wives retain the rank of their mothers
5. The rules according to which younger full brothers and half brothers of a successor may succeed vary greatly among different groups.
6. General recognition of substitution of the ruler by the institution of the levirate and substitution of the tribal wife by the sororate institution.

Question 3

Which case was pivotal in the reform of the principles of succession?

Answer 3

Shilubana v Nwamitwa where the Constitutional court held that both the traditions and the present practice of the community had to considered and that the spirit, purport and objects of the Bill of Rights have to be promoted.

Question 4

What are measures governing succession to traditional leadership?

Answer 4

At present, the provinces are vested with the power to recognise and appoint traditional leaders. In addition to this, the provincial legislature is not bound by the local law of succession of a particular tribe.

Question 5

How are kings and queens recognised?

Answer 5

1. A notice in the Government Gazette recognising the person identified as a king or a queen.
2. The issuing of a certificate of recognition

Question 6

How are principal traditional leaders recognised?

Answer 6

This person is recognised under section 10A

Question 7

How are senior traditional leaders, headmen and headwomen recognised?

Answer 7

1. Placing of a notice in the Provincial Gazette recognising the person so identified.
2. Issuing a certificate of recognition to the identified person
3. Informing the relevant house of traditional leaders of the recognition of the senior traditional leader, headman, or headwoman.

Question 8

How are regents recognised?

Answer 8

1. The Royal family must, within a reasonable time, identify a regent to assume leadership on behalf of a minor
2. The Royal family must, within a reasonable time, through the relevant structure, inform the Premier of the province concerned of the particulars of the person identified as regent and the reasons for the identification of that person.

Question 9

What may the President or Premier do if a person acting as a traditional leader was allegedly not appointed according to the African customary law?

Answer 9

1. Refer the matter back to the National House of Traditional Leaders
2. Refuse to issue a certificate of recognition.
3. Refer the matter back to the royal family for reconsideration and resolution, where there certificate of recognition has been refused

Question 10

On what grounds may the senior traditional leaders, headmen or headwomen be removed?

Answer 10

1. Conviction of an offence carrying a sentence of imprisonment of more than 12 months without the option of a fine.
2. Physical incapacity or mental infirmity, which, based on acceptable medical evidence, makes it impossible for that senior traditional leader, headman or headwoman to function as such.
3. Wrongful appointment or recognition
4. A transgression of a customary rule or principle that warrants removal

Question 11

What are the common causes of the succession in disputes?

Answer 11

1. The traditional leader tries to divorce the tribal wife without the corporation of the ruling family.
2. In modern times, it sometimes happens that the traditional leader marries a wife in a civil marriage without the cooperation of the ruling family or against their wishes .
3. The tribal wife or another wife of the traditional leader is appointed as a regent where issues may arise when -
   a. The tribal wife associates with unacceptable males.
   b. The tribal wife refuses to cooperate with the ruling family.
   c. A wife who is not the tribal wife tries to usurp traditional leadership for her son
   d. The tribal wife is opposed by the deceased by the deceased chief’s brothers and half brothers.
4. The ranking of the traditional leaders’ wives often gives rise to disputes.
5. A temporary lack of a tribal wife also eventually leads to serious problems.

6.Witchcraft also often leads to accusations against the tribal wife in order to exclude the rightful successor.

7. Substitution, particularly of the wife, but sometimes also of the husband, occasionally leads to the rightful successor’s claim being questioned at a later stage.

Question 12

What is the judicial interpretation of succession disputes?

Answer 12

The incidence of succession disputes in respect of traditional leaders and the office of traditional leadership in rural areas is still significant. In the interest of efficient administration, it is therefore necessary that any succession dispute be resolved as soon as possible, this requires cognisance and application of the local law of succession.