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.
Highlights
The institution of traditional leadership has from time immemorial been at the apex of customary law rules and practices
Bekker1 traces this history as he points out that: During the existence of the pre-colonial sovereign Black 'states', customary law was an established system of immemorial rules which had evolved from the way of life and natural wants of the people, the general context of which was a matter of common knowledge, coupled with precedents applying to special cases, which were retained in the memories of the chief and his councillors, their sons and their sons' sons, until forgotten, or until they become part of the immemorial rules
Value-based and case-oriented framework ... [which] is not restrictive to ad hoc techinicism but rather [a focus] ... on synergetic relation between the values underlying the guarantee of fundamental rights and the circumstances of the particular case. ... based on an understanding of the values our society is being built on and the interests at stake ... that cannot be made in the abstract, ...[and] the judge must situate the analysis in the facts of the particular case, weighing the different values represented in that context. Drawing from this test, the question that has to be asked is whether the imposition of the western concept of gender equality, which is imposed in a different setting of law, is related to a legitimate government purpose? In the context of customary law, the question that needs to be asked is whether the development taken by the Royal Families, the criteria in Mphephu and the act of recognition of a woman in Ludidi were related to a legitimate government purpose, which, as argued in this paper, has to do with the governance and authority of the institution of traditional leadership? Preserving the throne only to males is whether its importance and purpose captures the content of the legitimacy, which the rule seeks to achieve
Summary
The institution of traditional leadership has from time immemorial been at the apex of customary law rules and practices. Bekker traces this history as he points out that: During the existence of the pre-colonial sovereign Black 'states', customary law was an established system of immemorial rules which had evolved from the way of life and natural wants of the people, the general context of which was a matter of common knowledge, coupled with precedents applying to special cases, which were retained in the memories of the chief and his councillors, their sons and their sons' sons, until forgotten, or until they become part of the immemorial rules. Today the history which encapsulates the institution's primary responsibility is grounded in the constitutional recognition of traditional leadership in the 1996 Constitution.. See Chigwata 2016 LDD 69-
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