For all its constitutional commitment to the equality of women, South Africa still experiences difficulties when it comes to matters of traditional leadership. That’s because these are often resolved at the local level in a way that assumes women are ineligible for traditional leadership roles. Take for example the question of who should fill the vacant Vhavenda throne. The Supreme Court of Appeal was asked to decide whether the traditional council acted in a way that promotes gender discrimination and, in answering that question, the court has now given a potentially far-reaching judgment.

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When the traditional mechanisms to fill the Vhavenda throne began work, no-one seems to have given much thought to whether Princess Masindi Clementine Mphephu might be the right person to occupy the position.

At the end of the process, involving the Mphephu-Ramabulana Royal Family Council and others, the SA President officially recognized someone else – Regent Toni Peter Mphephu-Ramabulana, half-brother to the deceased king and uncle of Princess Mphephu. And in September 2012 that recognition was published in the Government Gazette.

Three months later Princess Mphephu went to court to argue that the decision ought to be reviewed and set aside. One of her chief points is a claim that she should have been considered for the throne, but was overlooked because of her gender.

At the start of that case, both sides raised preliminary points, some of which the high court upheld and some of which it dismissed. But the final result in that court was that her application to have Regent Toni Peter Mphephu-Ramabulana’s “identification and recognition” as the King of Vhavenda, set aside was dismissed. So was her application for leave to appeal.

But she was determined that her claim that she was not considered just because she was a woman should be heard by a higher court. For that reason, she brought an application for his coronation and installation to be stopped pending her further legal action in the matter. Successful in putting his installation on hold, she has now won a further round in her dispute.

The background to her claim to be considered is this: her father was the king and his half-brother, Regent Toni, was his official advisor. When the king died in an accident, the half-brother was recognized as the correct person to take over the throne.

The dispute is extremely complicated in terms of the applicable legal framework and the consultations with traditional councils and families that must precede any formal recognition, as well as more arcane matters of custom among other issues. But though the high court held that the matter of her challenge was closed, the Supreme Court of Appeal had other views.

Now that court, in its new decision on the case, has made a number of significant findings and has referred the matter back to the traditional authorities and to the high court for reconsideration.

Of particular interest for anyone concerned about whether women are treated equally in qustions of inheriting traditional leadership positions, are the minutes of a meeting of the royal family in the Vhavenda dispute. Quoted by the appeal court, these minutes record an official explanation of the criteria necessary to ascend the throne. Throughout that explanation of the qualifying characteristics, the potential new leader was referred to as “he”. “He should be from the royal family”; “he should not have criminal records”; “he should be a good leader”. “In the Mphephu-Ramabulana family in particular the chief or king must come or must be a man (sons).”

In the view of the appeal court, this first meeting to identify someone to ascend to the throne thus effectively declared that only men would qualify and that Princess Mphephu “and any other woman who may meet the other criteria to succeed as queen in the Mphephu-Ramabulana Royal Family, would be disqualified by her gender.”

Normally a criterion such as this, clearly promoting gender discrimination, would be set aside and declared unconstitutional. However, said the appeal court, the Constitutional Court and the legislature preferred a different approach: traditional authorities should themselves develop the rules affecting their communities, while the courts should use their powers in a way that “will empower the community itself to continue the development”.

The law under which a new ruler would be identified and recognized says that customary law in relation to “kingship or queenship” must be transformed and adapted to comply with the constitution by way of preventing unfair discrimination, promoting equality and “seeking to progressively advance gender representation in the succession to traditional leadership positions”.

The royal council’s view that only men should fill the Mphephu-Ramabulana throne of the Vhavenda, impeded the development that the constitution required. “The Vhavenda traditional communities have an obligation to develop the criteria for identification of a king or queen to bring (these criteria) in line with the Bill of Rights,” said the court.

In the view of the appeal court, the matter ought to go back to a differently constituted high court, for it to hear evidence on a number of contentious issues before the matter could be finally resolved. The question of how traditional customs should be developed to allow women to contend for a throne is just one of these.

Legally speaking, the appeal was successful, with the identification and recognition of the regent reviewed and set aside, and the unconstitutional approach via gender exclusion identified, but other points of dispute were still far from resolved. For this reason, the appeal court held it would be premature to decide a final outcome at this stage. All the outstanding issues it had identified should still be considered by the high court and they should be resolved before the start of the next process to identify someone to take the throne.

The appeal court said that the specialist bodies meant to advise the authorities on technical issues related to traditional leadership should consider the questions it (the appeal court) had identified and give its views and guidance to the high court when the matter returned to that forum.

Though the judgment is filled with legal technicalities, for Princess Mphephu it represents a way forward. The matter is so important, she says, that she will take her dispute all the way to the Constitutional Court if necessary.

  • Newsletter, Judicial Institute for Africa (Jifa), 18 April 2019