LCP4804
ASSIGNMENT 2
SEMESTER 2 OF 2022
WITH DETAILED FOOTNOTES & REFERENCING
BY ARIA
THE LAW TUTOR
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X is the most senior son of B, a deceased traditional leader of one of the prominent
kingdoms in South Africa. He hopes to succeed his father as a traditional leader and
head of the relevant traditional authority in terms of legislation and customs presently
practised by the jural community. The royal family has identified him (X) as the person
qualified for appointment to those roles and has presented his particulars to the
government for that purpose in terms of section 11 of the Traditional Leadership and
Governance Framework
Act 41 of 2003.
X has an elder sister Y who also aspires to succeed her father as the traditional leader
and head of the said traditional authority. She believes that she has astronger right than
X to succeed her father (B), and that her feminine gender isno bar to her assumption of
that role. However, Y's bid has not been supported by the royal family and consequently
has not been recommended by the traditional authority in terms of the Act.
Y has launched a high court application to be declared the rightful successor tothe
position left vacant by her father's (B's) death. The traditional authority is supporting X in
his defence against Y's High Court application.
Critically evaluate X's and Y's chances of success for appointment in the position of
traditional leader and head of the traditional authority.
i. Taking into account the historical traditions and the culture surrounding
appointments to traditional leadership in South Africa, what considerations do you
think would have persuaded the traditional authority to support X rather than Y in
their recommendations to the government, notwithstanding Y’s age and the
provisions of section 11 of the Traditional Leadership and Governance Framework
Act, 41 of 2003 and case law. Provide reasons.
The general rule that emerged from the Constitutional Court's judgment in the case Shilubana
and Others v Nwamitwa 2007 (2) SA 432 (SCA))1 is that the most senior child, male or female,
of the previous traditional leader shall be appointed as the successor 2. We say “most senior”
advisedly because it would be a mistake to say “eldest child”. An eldest child of the previous
traditional leader may be illegitimate and therefore not the most senior in terms of rank and
status.3
Even among legitimate children, the house to which children belong is of great importance. For
instance, in the kingdom of Thembuland4 the most senior son of the king’s senior wife, King
1
Shilubana and Others v Nwamitwa (2007:16)
2
The Children's Act 38 of 2005
3
Law of Evidence Amendment Act 45 of 1988
4
Kingdom of Thembuland (1871:1)
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