Human Rights Interpretation – Female Succession to Traditional Leadership in South Africa

Manyeleti is a remote rural subregion located in the South-East of Mpumalanga Province in South Africa. It comprises of 27 villages of the Vatsonga tribe. Hosi (Chief) Basani Masana ruled Manyeleti from 1965, when his father died, until his death in 1997. Hosi Basani’s only child, Princess Senzeni Masana, was just two years old in 1997 when her father passed on.

In terms of the Vatsonga customs, when a Hosi dies, his firstborn son inherits the throne. If the son is still a minor, an uncle, normally a younger brother or a paternal uncle to the Hosi, will assume regency until such time the heir to the throne reaches the age of maturity and is ready to take over the role of Hosi.

Upon the death of Hosi Basani in 1997, the Manyeleti Tribal Council appointed his uncle, Mr Madala Masana, as the regent. In August 2024, Madala passed on, and his eldest son, Kulani Masana, wanted to take over the role of Hosi. Princess Senzeni, the only child of the late Hosi Basani, objected, indicating her readiness to assume the position of Hosi as rightful heiress to the throne. The Manyeleti Tribal Council has been divided, with some in support of Princess Senzeni and the others in favour of Kulani Masana. As a result, there has been a stalemate, and the position of Hosi in Manyeleti has been vacant since August 2024.

Princess Masana has now taken the matter to the Constitutional Court (CC), citing amongst other things that the challenge to the throne by her relative Kulani tramples on her constitutional rights such as equality, human dignity, etc. A non-governmental organization called Justice and Equality for Rural Women (JERWO), which advocates for the rights of women in rural areas, has since developed an interest in the matter and wants to apply to the CC to be admitted as an amicus curiae.

Assume that the legal team for Princess Senzenl Masana approaches you for legal advice. Write a legal opinion In which you advise Princess Senzenl about the current position of the law regarding females’ Inheritance Into traditional leadership positions. In your opinion, refer to the relevant previous case law, published scholarly works and further address the issue of direct access to the Constitutional Court and the grounds for admission of amicus curiae In terms of the rules of the Constitutional Court.

Experts Answer on Above Question on Law

Central legal issue

The central legal issue in the given case is whether Princess Senzeni Masana can inherit the Manyeleti traditional leadership position even after a customary rule favouring a firstborn male heir. The legal rights need to reconcile Vatsonga customary succession with that of constitutional rights to equality, dignity and freedom.

Current constitutional position on female traditional leadership.

There is a proper recognition of customary law in the constitution but it is subject to other legislation as well. It is possible to challenge a customary succession rule that excludes a woman only because she is a woman and the argument that supports Princess Senzeni is that the customary law is not frozen in its historical form. The constitutional values need to be considered in developing it consistently.

Relevant case law

The case cited as Bhe v Magistrate Khayelitsha (2005) Is the most significant one because The Constitutional Court invalidates the customary law rule of male primogeniture in intestate succession where there is a discrimination noted with respect to women and children.

Another case cited as Melane v Ngwenama (2013) is Also, an important point as it clearly indicates that the customary law must be interpreted in line with the constitutional rights with emphasis on equality and dignity.

Strongest argument for Princess Senzeni

Princess Senzeni can argue that she is the only child of the deceased Hosi and denying her succession only because she is female creates gender-based discrimination. Such kind of discrimination affects her equality and dignity.

Impact of being a minor on her succession

It is not necessary that the Princess Senzeni was a minor in 1997 to prevent her succession because the 1997 appointment of a regent can be differentiated from permanent succession to the traditional leadership position.

Scholarly literature to consider

The scholarly literature that needs to be considered are the living customary law and its development by communities, Constitutional recognition of customary law, gender-based discrimination in customary succession, women and traditional leadership and the interaction between customer authority and constitutional equality.

Can princess Senzeni Approach the Constitutional Court directly

Yes, she can approach the constitutional court directly but it is exceptional. Section 167(6) of the constitution provides opportunities in terms of direct access in appropriate circumstances. It is important for the applicant to satisfy the court that it is in the interest of justice.

Can JERWO be admitted as amicus curiae

Yes, JERWO is required to satisfy the constitution about the requirements for admission as an amicus curiae as per the constitutional court rules.

JERWO contribution

It is important for JERWO to stop repeating Princess Senzeni legal submission and the strongest contribution is the evidence-based argument in relation to the practical impact of gender-based exclusion, and also the participation of women in rural customary governance. The arguments in relation to the constitutional development of customary law along with the implication of recognising a gender-neutral succession approach is crucial.

Overall legal Opinion

It is concluded that Princess Senzeni has the substantial constitutional argument for recognition as the rightful successor particularly the living customary law does not establish that Madala or his descendants acquired permanent hereditary entitlement.

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