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LCP4804 ASSIGNMENT 2, SEMESTER 2, 2022
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LCP4804 ASSIGNMENT 2, SEMESTER 2, 2022
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STUDENT NO: 62789600MODULE CODE: LCP4804
ASSIGNMENT: NO 2
DUE DATE: 9 SEPTEMBER 2022
i. The historical traditions and the culture surrounding appointments to
traditional leadership in South Africa, the considerations that would have
persuaded the traditional authority to support X (the son) rather than Y (the
daughter) in their recommendations to the government for appointment as
traditional leader, notwithstanding Y’s age and the provisions of section 11 of
the Traditional Leadership and Governance Framework Act, 41 of 2003 and
case law would be founded in the history of the prevailing traditional cultures
governing succession in general and to traditional leadership in particular.
Nwamitwa v Philia and Others 2000 (3) SA 867 2005 (3) SA 536 (T) and
Others v Nwamitwa 2007 (2) SA 432 (SCA )).
In Shilubana and others v Nwamitwa, the court emphasised the fact that
customary law is a living system of law and it was not bound by historical
precedent. Its flexibility allowed it to evolve as its community changed. Once it
was clear that the contemporary practices of the community have replaced its
past practices, the latter no longer applied. The court defined customary law
as a system that reflected the current practices of the particular community.
Living customary law came to be defined with reference to the constantly
evolving practices that indicate the current system of norms by which that
community has chosen to live. The CC held that the customary law regarding
the appointment of a traditional leader (hosi) had legitimately evolved to allow
for the appointment of a women as a traditional leader and that this
development was consistent with the constitution.
The rule of male primogeniture was challenged in Mthembu v Letsela where
the Supreme Court of Appeal (SCA) held that this rule did not unfairly
, discriminate on the grounds of age and gender as the heir was under a duty
to maintain all the dependants of the deceased. The SCA, however, indicated
that if the rule of male primogeniture was applied in an urban setting, there
was a possibility that its application may be discriminatory on the basis of age
and gender. The SCA also pointed out that this rule of customary law could
not be developed by the SCA as it was ill-equipped to do so.
Therefore, the reason for traditional authority to think or assume that X is the
eligible candidate, is because of our historical system ( male primogeniture).
The principle of primogeniture is the one that made them presume that Y
would have failed, not only at the level of the traditional authority, but also in
any, and all, of the above courts.
ii. In Shilubana case, Mrs Shilubana was legally appointed as the legitimate
traditional leader (hosi) of the Valoyi people. The Court emphasised the fact
that customary law is a living system of law. As such it was not bound by
historical precedent. Its flexibility allowed it to evolve as its community
changed. Once it was clear that the contemporary practices of the community
have replaced its past practices, the latter no longer applied.
Because of this, the Constitutional Court deviated from prior decisions that
had served as a test for determining the content of customary law even
though they indicated long-standing and historical practices. Instead the Court
redefined customary law as a system that reflected the current practices of
the particular community. Living customary law came to be defined with
reference to the constantly evolving practices that indicate the current system
of norms by which that community has chosen to live.
The Constitutional Court held that the customary law regarding the
appointment of a traditional leader (hosi) had legitimately evolved to allow for
the appointment of a woman as a traditional leader (hosi) and that this
development was consistent with the Constitution. After finding that Philia
Shilubana had been validly appointed the Constitutional Court upheld the
appeal, thus confirming her appointment as a traditional leader (hosi) of her
Valoyi community.
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