Resumo

NKOSI, Sipho. Traditional leadership in South Africa: From blood and might usurpation to constitutional accountability. Afr. hum. rights law j. [online]. 2023, vol.23, n.2, pp.333-353. ISSN 1996-2096.  http://dx.doi.org/10.17159/1996-2096/2023/v23n2a5.

Despite regional variations, traditional leadership has always been practised in the same way all across oceans and nations. It has always been an incident of birth and gender, and that the rank and status of the mother of the heir-apparent in his father's homestead has often been the overriding consideration. In the past there were methods through which dynasties and bloodlines could be altered, namely, (i) the 'blood and might' usurpation of power, which is the subject of this article; and (ii) oral wills ('dying declarations') that would have been made by the deceased ruler on his deathbed. However, the 'blood and might' method now is merely of historical genealogical significance; it only helps to provide context in the event of a dispute in this regard. To that end, relying on BaPedi Marota Mamone v Commission, as an example, the article explains the applicable legal history, including the significance of the 'blood and might' method in pre-colonial times, and how this helps to place the recent constitutional developments and judicial pronouncements in their proper perspective. The article also demonstrates that the 'indirect rule' of traditional communities -which was the hallmark of colonialism and apartheid - continues to apply albeit under the glare of the Constitution. However, crucial gender transformation should be introduced cautiously into this area of the law, and the change should be gradual and 'adaptive', as reflected in section 2 of the Traditional and Khoisan Leadership Act 3 of 2019. The resources of the affected communities also should not be used to curry favour with any political party or any grouping within it. Failing that, the social fabric and moral and ethical fibre of the affected communities would be ruptured.

Palavras-chave : Constitution; court; customary law; traditional leadership.

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