Tli4801-and-lcp4804

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School
University of South Africa **We aren't endorsed by this school
Course
TLI 4801
Subject
Law
Date
Oct 26, 2023
Pages
24
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Studocu is not sponsored or endorsed by any college or university Tli4801 and lcp4804 Advanced Indigenous Law (University of South Africa) Studocu is not sponsored or endorsed by any college or university Tli4801 and lcp4804 Advanced Indigenous Law (University of South Africa) Downloaded by Bjorn Esterhuizen ([email protected]) lOMoARcPSD|13279854
Advanced Indigenous Law Questions CLS CC 1 ADV INDIGENOUS LAW QUESTIONS: Question 1: Examine the following scenario and answer the questions that follow: 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 a stronger right than X to succeed her father (B), and that her feminine gender is no 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 to the 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; and why? (10) (ii) If the traditional authority has not amended its past practices for appointing traditional leaders, and no contemporary practices have been adopted in line with the values of the new constitutional order, which version of customary law would it have to apply in their recommendations and why? (10) (iii) if a contemporary practice has emerged among the entire community, mainstreaming compliance with the Bill of Rights in the appointment processes of traditional functionaries, which version of customary law would the traditional authority be obliged to apply in their recommendations and why? (15) Downloaded by Bjorn Esterhuizen ([email protected]) lOMoARcPSD|13279854
Advanced Indigenous Law Questions CLS CC 2 (i) Taking into account 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. As the following cases demonstrate even the courts treated patriarchy and patrilineal succession as the guiding principle for the customary law of succession: ( Mthembu v Letsela and Another 1997 (2) SA 936 (T), Mthembu v Letsela and Another 1998 (2) SA 675 (T), Mthembu v Letsela and Another 2000 (3) SA 867 (SCA), Nwamitwa v Philia and Others 2005 (3) SA 536 (T) and Shilubana and Others v Nwamitwa 2007 (2) SA 432 (SCA)). That being the historical reality one can hardly blame the traditional authority for assuming that X is the eligible candidate. So central was the principle of primogeniture that Y would have failed, not only at the level of the traditional authority, but also in any, and all, of the above courts. Even in the cases of Bhe v The Magistrate Khayelitsha 1998 (3) 2004 (1) BCLR 27 (C) and Shibi v Sithole and Others Gauteng Case 7292/01 dated 19 November 2003 (unreported), the High Courts had to intervene after the respective magistrates had chosen their successors on the basis of the principle of primogeniture (ii) If the traditional authority had not amended its past practices for appointing traditional leaders, and no contemporary practices have been adopted in line with the values of the new constitutional order, the version of customary law that the traditional authority would have had to apply in their recommendations would have been their unamended past practices; and the result would be to recommend X for appointment. For the same reasons of history, tradition, culture and gender, Y would have failed to persuade the traditional authority to recommend her. The same cases as in (i) above remain applicable. (iii) if a contemporary practice had emerged among the entire community, mainstreaming compliance with the Bill of Rights in the appointment processes of traditional functionaries, the version of customary law the traditional authority would have been obliged to apply in their recommendations would have been the amended one which complies with the democratic Constitution. In line with the principle of gender equality as entrenched in section 9 of the 1996 Constitution, section 11 of the Traditional Leadership and Governance Framework Act 41 of 2003; and the cases the follow hereunder, Y would have had a fair chance of being appointed, now Downloaded by Bjorn Esterhuizen ([email protected]) lOMoARcPSD|13279854
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