The Anatomy of African Jurisprudence: A Basis For Understanding The African Socio-Legal and Political Cosmology

The anatomy of African jurisprudence:
a basis for understanding the African

socio-legal and political cosmology*
Dial Dayana Ndima**
Abstract
An examination of the anatomy of African jurisprudence reveals a
thought system whose institutions relied on the convenience of maleness
and manhood in the appointment of functionaries. In the context of
an agrarian traditional society, this so-called principle of primogeniture
provided much needed benefits associated with accountability,
responsibility and maturity in the handling of the affairs of vulnerable
members. Unfortunately, this principle was compromised by the essence
of maleness, which blighted its efficacy. Virtually all leadership positions,
including family headship and traditional leadership, were occupied by
senior men. Womanhood was a sufficient disqualifying factor regardless
of individual qualities and merit. This reality gave indigenous African
law the undeniable label of a patriarchal system. As society changed,
the shift towards the application of a non-sexist primogeniture principle
developed among many families and communities, living mainly in the
countryside. This development gained impetus from the advent of the
new constitutional dispensation which provided the courts with the
opportunity to nullify the discredited male primogeniture, thus paving
the way for the adherents of African culture to appoint women as well,
where appropriate. Hence sons and daughters now have equal chances to
succeed their predecessors to family and traditional leadership positions
in the post-apartheid customary law of succession.
INTRODUCTION
The concept of jurisprudence refers to the philosophy of law. It includes all
the answers that lawyers give when asked to explain the meaning of law, its
origins, its nature and its place among other disciplines.1 These questions can
*
This article is based on the edited version of Ch 2 of Dial Ndima, ‘Re-imagining and Re-
interpreting African Jurisprudence under the South African Constitution’ (DPhil thesis,
Unisa 2013).
**
Bjuris (Fort Hare); LLB, LLM, LLD (Unisa)
1
See Fidelis Okafor, ‘From Praxis to Theory: A Discourse on the Philosophy of Law’ 37
Cambrian Law Review 37 at 42. See also Richard Posner, The Problems of Jurisprudence
(Harvard UP 1990) 1 quoted by Christopher Roederer, ‘Mapping the Jurisprudential Terrain
in the Search for Truth in Law’ in Christopher Roederer and Darrel Moellendorf (eds),
Jurisprudence (Juta 2004) 1 at 1.
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THE ANATOMY OF AFRICAN JURISPRUDENCE: A BASIS FOR UNDERSTANDING THE
AFRICAN SOCIO-LEGAL AND POLITICAL COSMOLOGY 85
be asked in all legal systems including African law. Hence the indigenous
legal thought system is known as African jurisprudence.2 As part of African
law and its culture, African jurisprudence has characteristics that respond to
its unique and distinctive features. It does not always necessarily conform
to Western jurisprudence, either in content or in methodology.3 The reason
for this is that jurisprudence does not have a life of its own, separate from
its cultural context, but is an integral part of the thought system.4 African
jurisprudence, therefore, is a thought system that focuses on the meaning,
nature, characteristics and functions of African law and culture.
This article offers a systematic and coherent analysis of the anatomy and
ontology of African jurisprudence, and aims at revealing the nature, purpose
and characteristics of the social, political and legal cosmology in which its
institutions operated during its uncorrupted pre-colonial condition. It does
this by examining how African culture functioned within a uniquely African
paradigm of discourse premised solely on a distinctly indigenous frame
of reference. To achieve this, the article identifies a few essential African
cultural principles and establishes their nature, purpose and characteristics
as applied in the uncorrupted pre-colonial society.
I am conscious of the fact that as they functioned in their historical
context, the institutions of African law discussed hereunder may exhibit
features that are patriarchal, sexist, and problematic for a post-1994 South
African observer. However, I attempt to explain why concepts such as male
primogeniture, family headship, and chieftainship were founded on the
basis of manhood, and why those intentions, good as they might have been,
cannot be perpetuated today.
The point I am making is to show how a society whose women were
transient citizens in their maiden homes en route to their permanent sojourn
in their marital homes, resorted to the stable institution of manhood that
could bring with it socio-political obligations for its adherents and for the
nation. Real as this truth is, it must be accompanied by a disclaimer that
any seeming justification for the mainstreaming of patriarchy serves only to
demonstrate traditional society’s quest for accountability and responsibility,
without suggesting that such institutions may be sustained in today’s
environment that is characterised by human rights, freedom and equality.5
When the functions, obligations, and responsibilities associated with
the leadership positions in the context of the relevant institutions are
2
Marius Pieterse, ‘“Traditional” African Jurisprudence’ in Christopher Roederer and Darrel
Moellendorf (eds), Jurisprudence (Juta 2004) 438 at 455.
3
Okafor (n 1) 38.
4
Abiola Ayinla, ‘African Philosophy of Law: A Critic’ (2002) 6 Journal of International and
Comparative Law 147 147. See also Balogun Abiodun, ‘Towards an African Concept of
Law’ (2007) 1 African Journal of Legal Theory 71 at 71–75.
5
S 1(a) of the Constitution reads: ‘The Republic of South Africa is one, sovereign, democratic
state founded on the following values: (a) Human dignity, the achievement of equality and
the advancement of human rights and freedoms.’

86 THE COMPARATIVE AND INTERNATIONAL LAW JOURNAL OF SOUTHERN AFRICA
studied and analysed, their value to society emerges. When transposed to

the post-apartheid conditions prevailing in the rural environment, where
poor communities need communal guidance and assistance, the services of
traditional institutions remain necessary, subject to their transformation to
accommodate women and children.
Whilst the system had noble foundations, my analysis must take account
of the changed socio-economic environment of today where both men and
women often eke out their living in the cities, which coincides with the
increased status of women that demands their acceptance of the responsibility
for family headship in appropriate instances. The changed circumstances
also necessitate substitution arrangements in the administration of the rural
communities whose women often have to fulfil customary responsibilities
at home, whilst their male seniors are engaged in gainful employment
elsewhere.
The fact that nowadays women often occupy various positions of
power and deliver the associated services, functions, obligations, and
responsibilities is proof that maleness was never essential for accession to
the reigns of leadership. Hence contemporary African culture must adjust to
these realities and submit to the dictates of human rights without necessarily
capitulating to the hegemonic influences of westernisation.
Before being contaminated by alien influences, the pillars of Africa’s
metaphysical orientation, rested on a worldview that was characterised by
features of communal living and collective solidarity. This provided a firm
foundation for the emergence of African jurisprudence underpinned by
concepts moulded on its authentic normative values which should form the
basis of the current post-apartheid renaissance of the system. To advance
the objects of African renewal, the complexities of pre-colonial indigenous
institutions, cultures, and values must be revealed in the image of their life-
world which mirrored the interaction between the various organs of African
culture.
This is a reflection of the African family home, personified by the family
head, as a stabilising factor for family members. To avoid confusion, the
relationship between law, custom and culture must now be explained to
illustrate their role in unpacking the anatomy of African jurisprudence.6
These concepts are closely related and are often used interchangeably
in discussions of African law in an endeavour to paint the picture of the
indigenous African cosmology. Law refers to the rules and principles that
govern the application, administration, and enforcement of the rights,
obligations, and responsibilities embodied in the customs; whilst customs
themselves are the reference points where the community’s good habits are
stored as indicators of propriety in society.7
6
See generally Tom Bennett, Customary Law (Juta 2004) 1–7.
7
Ibid.

Customs are related to law because the latter reflects the manifestation of
the former in social practice. Culture is also related to custom, and therefore
to law, because it consists of the traditions and contexts of applying the laws
and customs as they impact on the various aspects of social interaction.8 For
example, when the traditions of dressing, singing, dancing, or speaking take
particular forms during funerals, weddings, or other traditional festivities,
these forms concretise into the cultures of their adherents as they begin to
insist on their observance on such occasions.
The relationship between custom, law and culture lies in the fact that
a custom such as initiation into manhood happens in a particular cultural
tradition and is regulated by a set of socio-legal rules which makes it proper
for those people who may prefer to call it a custom, culture or law as they
deem appropriate.9 The analysis of the anatomy of African jurisprudence
to which the present discussion turns focuses on the broad framework and
institutions within which the system functioned rather than the details of
particular rules or customs. In this article I limit my discussion to principles
governing the selection of incumbents for leadership positions at family,
clan, and community levels on the basis of applicable laws, customs, and
cultures.
THE FAMILY AS THE BASIC UNIT OF COMMUNAL LIVING AND

SOLIDARITY
In African society every family head occupied his customary position
by virtue of the principle of primogeniture,10 which defined how he was
selected, appointed, and disciplined in order to serve his constituency.
Leadership at family level was the responsibility of senior men and elders
whose positions committed them to the service of their families.11 This is
the stable environment of the family home in which the role of leadership
was shared between the family head, the elders, and the family collective
within the clan.
The indigenous family home was a corporate body with authority over
family members and material resources, under the leadership of the head
whose duty it was to manage the well-being of the family collective. The
position of the family head reveals the primogeniture principle as the
mainstream of African jurisprudence, conceptualised as the main organ for
the functioning of the family collective. In this sense the primogeniture
principle is presented as the repository of the central values of shared
authority, communal living, common belonging, and collective ownership
– all of which traversed the spectrum of African jurisprudence in which
8
Ibid at 20–23.
9
Ibid at 1–7.
10
Ibid.
11
Ibid at 20–23.

everyone owed his or her being to others. Around this principle, families
were governed as productive units of the clan.
The head of the family had to be selfless in his administration of the family
home so as to instil egalitarian values in the production and distribution
of resources and benefits to the family collective. Consequently, special
qualifications linked to stringent conditions were demanded of candidates
for appointment to the office of the family head. The selection process for
the candidates was necessarily very flexible, and the order of birth served
merely as an entry point.12 The features of competence, commitment, and
capacity in the service of the family collective, were the real requirements
for appointment as family head. Mahao sums up the rule as follows
but a more discerning analysis would reveal that the rule of primogeniture
was merely one of the rules – a point of departure – but most certainly
not final. The correct interpretation of the rule is that it serves the limited
function of providing the order of nomination for high office and nothing
more. Accession was always subject to a second rule – the rule of ratification.
This rule provided for participative processes through the family council, or
the kgotla, and finally through a public assembly.13
Ultimately, eligibility for family headship positions was decided on the

relevance of substantive qualifications rather than the mere fact of having
been born first.14 So strong were the values of flexibility and adaptability
that from the earliest times the rule very often not only led to the selection of
junior brothers15 as family heads, but also accommodated the appointment of
women as traditional leaders in deserving circumstances.16 The principle of
primogeniture notwithstanding, African culture fared favourably compared
to Western societies when it came to the affirmation of women.17 The latter
societies oppressed women without even having a formal basis – such as the
primogeniture rule – for doing so.18
In this article the primogeniture rule is seen as the centre around which the
corporate family home historically demonstrated its personality through the
family head who also managed its affairs and property. In these capacities,
the role of the family head transcended the spheres of the law of persons
where he personified the home and its collective, the law of property where
he was the nominal owner of family resources, the law of succession where
12
See Nqosa Mahao, ‘O se re ho morwa “morwa towe!” – African jurisprudence exhumed’
(2010) XLIII 3 CILSA 317 at 321
13
Ibid.
14
See Samuel Mqhayi, Ityala lamawele (Lovedale Press 1914) 20.
15
Ibid.
16
See Mahao (n 12) 325.
17
Ibid.
18
Ibid.

he exercised the rights and responsibilities of his deceased parents, and the
law of obligations where he paid the debts and prosecuted the claims of the
household and its collective.19
As such, all the concepts and institutions of African culture dovetail
to inform the rule of primogeniture as the pivot of African jurisprudence.
The coincidence of these rules in a single transaction makes the divisions
of Roman law into the law of persons, family, succession, property,
and obligations awkward and inappropriate in African law where this
differentiation serves no useful purpose. As suggested by Ngcobo J, there
is no reason why the positions of successor and family head should not
be equally open to both the son and the daughter of their deceased family
heads where either of them is the senior child in the family.20
THE PRINCIPLE OF PRIMOGENITURE AND THE CONCEPT OF THE FAMILY

HEAD
In the introduction I alluded to the principle of primogeniture as it existed
side by side with the concept of the family head. To understand these
concepts one needs to realise the uniqueness of the African family unit
which was administered by a well-defined collective of members, headed
by a leader selected through the primogeniture principle. In terms of this
principle, the most senior family member was selected as the head of the
family or traditional leader, as the case may be. In this sense, primogeniture
provided a structure for organising society at family, community, or national
level, by conflating the definition of seniority with that of responsibility. In
this context Ngcobo J has this to say about the primogeniture rule
the primary purpose of the rule is to preserve the family unit and ensure that
upon the death of the family head, someone takes over the responsibilities of
the family head. These responsibilities include looking after the dependants
of the deceased and administering the family property on behalf of and for
the benefit of the entire family.21
Contrary to the general belief that the principle of primogeniture serves as

a means of selecting despotic rulers who oppress women and children, the
reality is that it was focused on the selection of a responsible servant to
19
See Jan Christoffel Bekker, Seymour’s Customary Law in Southern Africa (Juta 1989) 81.
20
See Bhe v The Magistrate Khayelitsha; Shibi v Sithole; Human Rights Commission v
President of Republic of South Africa [2005] 1 BCLR 580 (CC) (hereafter Bhe-Shibi). The
court held at para 222: ‘The defect in the rule of male primogeniture is that it excludes
women from being considered for succession to the deceased family head. In this regard it
deviates from section 9 (3) of the Constitution. It needs to be developed so as to bring it in
line with our Bill of Rights. This can be achieved by removing the reference to a male so as
to allow an eldest daughter to succeed to the deceased estate.’
21
See Bhe-Shibi (n 20) para 180.

serve a particular constituency.22 The primogeniture rule was merely a tool

for providing the family collective with a leader who would facilitate the
participation of the members in the enjoyment of the affairs and resources
of the home.
In this sense the operation of the principle of primogeniture served as
an assurance that the head would not act alone in administering the affairs
of the family. This phenomenon shows how the powers of the family head
were severely circumscribed by custom. In essence, the family head was the
mouthpiece of the council of elders and seniors who were the real owners of
family decisions. This view is confirmed by Bekker as follows:
A family head is by no means a despot in law, as is sometimes supposed; he

has control of each house, but its members have a collective interest in its
affairs and property.23
This is a far cry from the current dominant, pejorative trivialisation

of the concept of primogeniture as ‘the organising principle of male
primogeniture which allows succession from father to firstborn son only’.24
This description springs from ‘official’ customary law, which ignores the
leadership responsibilities imposed by the rule and trivialises it as a rule that
‘discriminates unfairly on the grounds of age, birth and most conspicuously,
gender’.25 This is a narrow view which exposes a deep-seated alien
metaphysics that seeks to juxtapose man’s powers against the very interests
of family, women, and children with whose welfare his position entrusts
him.26 This very limited view defines the rule in terms of its potential for
abuse.
Moreover, by equating the primogeniture rule with a facile preference
for males in matters of inheritance, the narrow view displays a fundamental
ignorance of the nature of the rule, and overlooks that the rule was a tool
for transmitting responsibilities from earlier to succeeding generations
through the instrumentality of seniority and manhood. The narrow view also
undermines the corporate nature of ownership of family assets by ascribing
private ownership to the family estate as an asset that passes from father
22
Ibid.
23
See Bekker (n 19) 70. In this regard Dial Ndima, ‘African Law of the 21st Century in South
Africa’ (2003) XXXVI 3 CILSA 325 at 332 writes: ‘All property was owned by the home
and the head (only one male) merely exercised the rights in the property for and on behalf
of other members and himself. Even the head would not take important decisions without
consulting the other members of the home, especially the mother of the family.’
24
See Obeng Mireku, ‘Customary Law and the Promotion of Gender Equality: An Appraisal of
the Shilubana decision’ (2010) 10 African Human Rights Law Journal 515 at 517.
25
Ibid at 516.
26
See Mthembu v Letsoalo [2000] 3 SA 867 (SCA) (hereafter Mthembu 3) for the manner in
which the distorted narrow view that primogeniture meant that the senior man owned family
property was endorsed by the courts.

to son.27 This view overlooks the fact that family headship as underpinned
by the primogeniture rule was primarily designed to ensure the protection
and safety of women and children by responding to the need to leave them
in the safe hands of a strong leader. More importantly, the adaptability and
flexibility of customary law and the imperatives of human rights under the
democratic Constitution makes it possible for community members to adapt
their laws to accommodate the appointment of women.28
To counter the narrow view, a broader view sees the former as a distortion
of the principle’s communitarian conception. In fact, the principle of
primogeniture and family headship displays the position occupied by the
institution of manhood as the site of obligations and responsibilities, rather
than merely serving the narrow interests of patriarchy. These attributes
focus on issues of competence as opposed to gender, hence the availability
of women to take leadership positions has improved possibilities for
legal transformation towards equality. The broader view does not look at
the difference between men and women merely through gendered lenses.
Rather, it appreciates the role played by the principle of primogeniture in the
social, political, and legal organisation; and is amenable to transformation.
Stripped free of its patriarchal stigma, the rule’s role is to advance the
rights and interests of vulnerable members of the family in accessing their
benefits in the assets and resources of the family by providing them with an
agent for facilitating access. The rights and entitlements of weaker family
members are secured by the notion of communal sharing and common
belonging, which they could enforce against an irresponsible family head
through the family collective.29 Opening the primogeniture principle to both
men and women on the basis of equality can only enrich it, particularly in
communities that are organised as extended families and clans which often
have to meet to take collective decisions.
To this end the powers of the family head were inherently geared
towards promoting the welfare of the entire household, especially its most
vulnerable members. More importantly, as already alluded to, the broad
view appreciates the concept of the family head as the agency through
which the family collective protects its vulnerable members. Seen in
this light, the principle of primogeniture is an institution for allocating
accountability within the household, and for distributing socio-economic
goods and services on the domestic, community, and social levels. In these
circumstances primogeniture provides leadership and maturity in guiding
the youth from extended families where the children of deceased parents
have to fend for themselves. In these contexts, the presence of a central
27
See Sigcau v Sigcau [1944] AD 67 at 79.
28
See Shilubana v Nwamitwa [2008] 9 BCLR 914 (CC) (hereafter Shilubana) para 45.
29

figure could be a source of reassurance, bolstered by feelings of common

belonging and solidarity. Women could excel in such roles.30
As a reminder for family heads the primogeniture principle committed them
to rededicate themselves to the very sources of their powers by connecting
every exercise of authority to responsive purposes, through advancing the
interests of collectivity, communality, and common belonging.31 Indeed, the
principle sought to remind family heads that their job was to administer
goods belonging to others, namely, the family collective, as opposed to
belonging to themselves.
Clearly this article does not attempt to deny the concept of primogeniture’s
historical close association with the institution of manhood. Rather it insists
that the latter institution never existed for its own sake, but was saddled with
the obligation of serving others. This could be explained by the magnitude of
society’s investment in the development of men.32 Manhood was, therefore,
a handy administrative tool by which to provide stability and continuity
in society in order to preserve the identity of communities. At the risk of
repetition, it needs to be emphasised that this is not to say that women could
not do this in a free and democratic society founded on freedom, human
rights, and equality.33
To Africans the presence of men in a family or clan meant that society was
assured of socio-economic stability for vulnerable groups in the unit. These
values demanded that a man’s sons should succeed him so as to perpetuate
the home as a permanent entity for the collective survival of the members.
Furthermore, the virilocal or patrilocal34 nature of the indigenous marriage
ensured that sons remained in their homes to perpetuate the legacy of the
family, whilst daughters could not be considered for those responsibilities
as they were always potentially about to leave their maiden homes for their
marriage homes.
The centrality of the primogeniture rule as an administrative, political, and
leadership institution directed the psyche of Africans towards establishing
an appropriate education system to equip men to assume and advance
the responsibilities of their fathers in line with the dictates of indigenous
30
Ibid at para 221 the court held: ‘The role and status of women in modern urban, and even
rural, areas extend far beyond that imposed on them by their status in traditional society.
Many women are de facto heads of their families. They support themselves and their children
by their own efforts.’
31
Mahao (n 12) 322 observes: ‘[l]eaders were always at pains to stress the pedigree of their
appointment as they understood this was the deciding and legitimising factor of their
appointments. [I]t was customary for leaders to declare publicly that they (the leaders) were
the most humble servants of those whose place they occupied. An understanding of the
relationship between the leader and the people influenced the way in which leaders behaved.
Humility, fairness and empathy had to be the stock-in-trade qualities of leadership.’ See also
Gabriel Setiloane, The Image of God Among the Sotho-Tswana (AA Balkema 1976) 40.
32
See Nelson Mandela, Long Walk to Freedom (Abacus 1994).
33
See South Africa’s Founding Values in s 1 of the Constitution.
34
See Tom Bennett, Customary Law in South Africa (Juta 2004) 213.

metaphysics. The latter philosophy’s import is that the current generation

does not own the world it occupies as it had received it from the previous
generation, but rather holds it in trust for onward transmission to future
generations.35
An appreciation of their position as transient caretakers of their
responsibilities was vital to understanding why men were always preferred
over their sisters in the appointment of successors to family headship.
The successor had to remain at the family home to look after women and
children,36 whilst their sisters moved on to their marriage homes. Hence
these historical back-locks must now be factored in if the empowerment of
women is to release the full potential of girl children to climb to leadership
on the social ladder. The legitimacy of the principle of primogeniture in
the present constitutional dispensation to ensure the socio-economic
security and stability of vulnerable groups, depends on its transformation to
accommodate gender equality. This view is bolstered by the reality that in
social practice large numbers of women are already functioning as family
heads.37
Whilst the constitutionality of the official version of the primogeniture
rule as practised under colonial and apartheid legislation was found to be
unconstitutional in the Bhe-Shibi judgment, and was declared invalid,38 in
the same case the application of the rule in social practice as described
in this article was found to be justifiable in terms of section 36 (1) of the
Constitution in a free and democratic society characterised by equality and
human dignity.39 Because of its emphasis on the lofty values of responsibility
and accountability, the rule justifies the preference it gives to seniors in a
non-sexist society on the basis of competence and capacity. This neutralises
the apparently unfair nature of its discrimination against juniors and the
youth.40
It appears from the above analysis that the patriarchal application of the
primogeniture rule has had its fair share of problems in legal practice. Before
it was struck down as unconstitutional in the Bhe-Shibi case, section 23 of
the Black Administration Act41 provided for the administration of estates for
black people. Over the years this provision was interpreted as the statutory
recognition of the male primogeniture principle and was applied to mean
that senior men were preferred over women, children, and junior people.
35
See Prophet Landwandwe, “Akusiko Kwami, Kwebantfu” Unearthing King Sobuza II’s
Philosophy (Umgangatho 2009) 178.
36
37
s 6 of the Recognition of Customary Marriages Act 120 of 1998 provides that the spouses in
a customary marriage have equal legal status.
38
Ibid at para 97 per Langa DCJ.
39
Ibid at para 183 per Ngcobo J who believes that primogeniture should rather be extended to
include women who should also be appointed as heirs.
40
Ibid.
41
Act 38 of 1927.

Section 8 of the interim Constitution, 1993, brought an end to this untenable

position by entrenching the principle of equality between men, women, and
all people in South Africa. Section 9 of the 1996 Constitution confirmed
this position, essentially burying the principle of male primogeniture.
However, old habits die hard. The Mthembu cases presented the earliest
opportunity to confirm the death of the principle of male primogeniture.
Regrettably both the Gauteng High Court42 and the Supreme Court of
Appeal43 missed this golden opportunity. It was not until the Bhe-Shibi
case that the Constitutional Court found an opportunity to sound the death
knell for the principle of male primogeniture in the customary law of
succession once and for all. In a detailed judgment the court confirmed
the demise of this principle on the basis of its inconsistency with section
9 of the Constitution. Thereupon the value of equality became entrenched
in customary- law adjudication. The resolution of this intractable question
paved the way for the legislature to enact the Reform of Customary Law
of Succession and Regulation of Related Matters Act which in essence
implemented the Bhe-Shibi judgment.44
Similarly, in the Shilubana case the Constitutional Court affirmed the
decision of the Baloyi Traditional Authority to amend its customary law
of succession to allow for the appointment a woman as a hosi (traditional
leader).45 Pursuant to the amendment, the traditional authority appointed
Shilubana, the daughter of the traditional leader who died in 1968. At the
time she (being a woman) was not allowed to succeed her father – although
she was the hosi’s only child – due to the unfair discrimination immanent in
the application of the principle of male primogeniture. Instead, her father’s
brother, Richard, was appointed hosi. On Richard’s death in 2001 his son,
Nwamitwa, challenged Shilubana’s appointment relying on the principle
of male primogeniture. In both the Gauteng High Court46 and the Supreme
Court of Appeal,47 Nwamitwa won the case on that basis. The Constitutional
Court was called upon to vindicate the Constitution by invalidating the
principle of male primogeniture and confirming Shilubana’s appointment
as hosi.
In its judgment the court stressed that the equality clause meant that
Nwamitwa’s maleness did not give him a stronger right to the traditional
leadership position than the woman, Shilubana, who had been appointed.48
Thus, the official principle of male primogeniture as entrenched in
section 23 of the Black Administration Act was struck down even in the
42
See Mthembu v Letsela [1997] 2 SA 936 (T) and Mthembu v Letsela [1998] 2 SA 675 (T).
43
See Mthembu 3 above (n 26).
44
Act 11 of 2009.
45
See Shilubana (n 28) para 75.
46
Nwamitwa v Philia [2005] 3 SA 536 (T).
47
See Shilubana (n 28).
48
Ibid at para 86.

public law sphere of traditional leadership. In addition to this section

which applied country-wide, two more codes entrenching this principle
applied in the KwaZulu-Natal Province. This arose in the Gumede case
where the Constitutional Court struck them down for conflicting with the
Constitution.49 These codes had laid down that all matrimonial property
belonged to the husband and the wife owed him a duty of respect.
This article hails these developments as correctly reflecting the current
position in South African law. In all three cases the Constitutional Court was
asked to invalidate the principle of male primogeniture for its inconsistency
with the Constitution, which it did. There is nothing in these judgments
to indicate that a gender-neutral principle of primogeniture is in conflict
with the Constitution. This legal framework does not prevent communities
at living law from applying their customary law, including their law of
succession, in a non-racial and non-sexist fashion.50
Indeed, the Constitutional Court held in the Mayelane case that
communities may apply their living law provided that it conforms to
the values of human dignity and equality.51 In addition, according to the
Shilubana case, living law applies in a community as past practice until it
is established that a new practice has developed to replace it, or the law has
been amended to accord with the Constitution. In that event the later practice
or development prevails over past practice. Until then, a constitutionally
compliant community practice remains valid customary law for the people
concerned.52
The marriage institution has also contributed to the development of the
customary law of succession. An important part of the marriage agreement
entailed the transfer of the woman together with her reproductive capacity53
from her maiden family to the husband’s family so as to provide the latter with
a successor who would be charged with the responsibility of perpetuating
that family’s legacy. This is in accordance with the African tradition which
directed that when a daughter married she bore children who ‘belonged’
to her marital family.54 For this reason African culture could not imagine a
marriage entered into for a purpose other than the provision of children. A
childless marriage, therefore, was regarded as the most abysmal thing that
could befall an African family.55
When viewed from the reality that most African women necessarily
married away from their maiden families and were actually integrated
49
KwaZulu and Natal Codes of Zulu Law. See also Gumede v President of the Republic of
South Africa [2009] 3 SA 152 (CC) para 27.
50
See the judgment of Ngcobo J in Bhe-Shibi (n 20).
51
Mayelane v Ngwenyama [2013] 8 BCLR 918 (CC).
52
See Shilubana above paras 44–46.
53
See Bekker (n 19) 150.
54
See Tiyo Soga, Intlalo kaXhosa (Lovedale Press 1937) 72. See also Bekker (n 19) 234.
55
See Balogun Abiodun, ‘Towards an African Concept of Law’ (2007) African Journal of
Legal Theory 71 at 74.

into their marital homes, family headship meant that women would not
ordinarily be available to provide their maiden homes with the requisite
stability and continuity associated with the nature of the position of family
head. As alluded to earlier, the primogeniture principle centred around the
values of accountability and responsibility, which reveals the purpose of the
family head’s life as the ‘advancer’ of the lives of other family members.56
In a democracy such a noble purpose cannot be allowed to be tarnished by
associating it with patriarchy.
While men’s responsibility was to advance the interests of their families,
women were transferred through the lobolo/bogadi agreement to their
husband’s families to enrich them with children, particularly successors
to headship positions.57 This explains why women were not selected as
successors. In order to provide the services demanded by her married
condition, a woman relinquished all her succession rights within her maiden
family,58 since ‘[s]uccessorship also carries with it the obligation to remain
in the family home for the purposes of discharging the responsibilities
associated with heirship’.59 This was particularly so in the case of succession
to traditional leadership as a princess who married a commoner outside of
her maiden heritage could not demand to succeed to the position of her
deceased father.60 The court should have explained that the Shilubana case
was an exception to this rule. However, it was silent as to how a woman
who was married away from the royal family could conduct her important
leadership duties.
The functions of traditional leadership are required to be exercised from
the royal family and not from some family of commoners into which the
princess may have married.61 In the latter event, the princess could be seen as
having abdicated her royal heritage and assumed the status of a commoner,
and thus could not claim the traditional leadership position. For this reason,
under the South African Constitution, an unmarried maiden who meets the
primogeniture qualification should have no difficulty in succeeding her
56
In this sense primogeniture functioned to advance the philosophy of ubuntu.
57
Bekker (n 19) 150.
58
The case of Shilubana above discusses a daughter of a traditional leader who married a
commoner outside the royal household but came back to claim succession rights to the
traditional leadership position at her maiden home. As she had left the Nwamitwa lineage
when she joined the Shilubana one, the appointment is unusual. One has to wonder how she
was going to fulfil her obligations and responsibilities away from the royal household. The
court would have done well to explain this.
59
60
CRM Dlamini, ‘The Clash Between Customary Law and Universal Human Rights’ (2002)
1/1 Speculum Juris 26 at 39.
61
In Shilubana above the Constitutional Court overlooked the rule that ‘[s]uccessorship also
carries with it the obligation to remain in the family home for the purposes of discharging the
responsibilities associated with heirship’ and appointed the princess who had married into a
commoner family and could not satisfy the requirement of remaining at the royal family and
discharging her duties.

deceased father as a traditional leader if the relevant traditional authority

recognises the legitimacy of her claim.62
A married woman and her children acquired succession rights within
her marital family, while the marriage itself established a secure economic
entity known as the house.63 One of the most important consequences of
the indigenous marriage was the duty of the husband to provide such an
estate, to enable the wife and her children to prosper in accordance with the
principle that upon marriage the wife and her children’s welfare became the
responsibility of the corporate home of her husband which they accessed
through its head. This ensured that the husband established and headed the
house as a unit for the wife and her children. After the husband’s death the
house remained under the protection of the family head.64
For these reasons, I cannot accept the narrow view that the primary
purpose of the concept of primogeniture is to promote the interests of males
and to oppress women in society. The relegation of women to a seemingly
subordinate position is the natural adjunct of a culture where common
survival and shared belonging are more greatly prized than individual
autonomy. This must be viewed against the reality that marriage changed
women’s family relations and made them members of the marital family.
This broad view of the primogeniture rule rejects its pejorative equation
with mere patriarchy in the sense that conflates the relationship between
manhood and womanhood with the Western liberal ‘contest’ between
feminism and male chauvinism. This is rejected as part of Euro-Western
liberalism which tends to impose its hegemonic features on the definition
of indigenous institutions in order to undermine the African life-world and
its underpinnings.
THE AFRICAN FAMILY AND THE CONCEPT OF THE CORPORATE HOME

The indigenous African home was a corporate legal entity which enjoyed the
right to own property and incur obligations in respect of wrongs committed
by family members through the agency of the family head. Every family
home owned the collective family estate through the head.65 This much
is conceded by Bekker, who otherwise ascribes family property to the
ownership of the head.66 He writes:
62
63
64
See the Mthembu cases (n 26, n 42) for a family head who repudiated his customary obligations
by contesting the validity of his daughter-in-law’s marriage and thus the legitimacy of his
grandchildren.
65
Bekker (n 19) 74 states: ‘Although the property of the house is commonly spoken of as
belonging to the family head, because this is a brief and convenient way of describing the
matter, it belongs in law to his family as a unit, under his supervision and control; it has
also been described as belonging in communal ownership to the family, which, of course,
includes the family head’.
66
Ibid at 82.

The family home was not owned outright by the family head, but was held
in communal ownership by the family as a unit, under his administration
and control.67
Bekker’s admission that the family owned the estate as a unit, is at odds
with his simultaneous insistence that the goods of other family members
vested in the family head.68 In fact, it is the juristic personality of the family
home that capacitated it to sue and be sued through the family head and a
council of elders. The family head prosecuted claims due to the home and
defended those against it. In this sense the corporate legal personality of the
indigenous home was predicated on the principle of primogeniture through
which it functioned.69
As the personification of the communal home, the family head was
the nominal manager of its estate and the nominal guardian of the entire
corporate family.70 In respect of the estate, the head was the accounting
officer bearing obligations to settle claims against the family home.71
With regard to the family collective, the head enjoyed paternal powers to
maintain discipline and instil good behaviour. In both capacities, the head
executed his functions together with family elders and seniors who had the
experience to preserve the identity and the legacy of the family.72
The position of the family head was, therefore, that of the servant of the
corporate home as opposed to its owner.73 This accounts for the severely
circumscribed manner in which he exercised his powers and capacities.
Contrary to popular belief regarding the apparently expansive extent of his
powers, the true position is that the family head, like everyone else in the
family, never had the capacity to own major assets such as livestock and
farms, which were in fact owned by the corporate home itself for the benefit
of the family collective.74 Consequently, ownership of such items as the
cattle was always expressed in inclusive terms with connotations of a shared
access to their enjoyment.75
67
Ibid.
68
Ibid.
69
Ibid at 297.
70
See Chukwuemeka Ebo, ‘Indigenous Law and Justice: Some Major Concepts and Practices’
in Gordon R Woodman and Akintunde Olusegun Obilade (eds), African Law and Legal
Theory (New York UP 1995) 139 at 143.
71
72
Ibid at 298 refers to the ‘official’ version of customary law when he presents the heir as
having the sole interest in family property and cannot be required to account by family elders
and seniors.
73
See Prophet Landwandwe, “Asiko Kwami, Kwebantfu” Unearthing King Sobuza II’s
Philosophy at para C of the ‘Foreword’ by Prince Mabandla.
74
75
See Johannes Seema, ‘The Significance of BaSotho Philosophy of Development as Expressed
in their Proverbs’ (2012) 11 1 Indilinga African Journal of Indigenous Knowledge Systems:
Africa Indigenous Systems: An Account 128 at 129.

This explains why people always referred to family assets in non-

possessive language such as inkomo yakuthi (translation – ‘our cow’ or,
literally, ‘the cow of our home’),76 which located the ownership of the beast
at the behest of the corporate home whose resources were shared by every
family member. Corporate ownership ensured that every family member,
including the women and children, was a shareholder in the family estate
proportionate to his or her rank and status.
The family head maintained and supported the other family members as
the nominal manager of the family resources. Yet he was not dispensing his
own generosity to the family. Instead, for accountability purposes, he merely
controlled the distribution of the shares to the real owners.77 His position
as a family agent demanded that he be accountable for the welfare of even
the most vulnerable family member.78 It also belies the representation of the
family head as the owner of the family estate79 with powers to evict other
members from the family home.80 The request for goods and services by
family members from the family head was, in fact, a demand to him to make
their shares accessible for use. He, therefore, had no discretion to refuse
that to which they were entitled by custom.
The family head’s designation made him the first servant of the corporate
home and not the owner of family assets. To assure family elders and seniors
of his loyalty to the corporate home, the head would often rededicate himself
to the status of his position in family council meetings. As his normative
referent he emphasised his commitment to the responsibility of serving
his father’s family.81 He demonstrated his unwavering commitment to the
service of the corporate home by calling his house motse wa borra (the
household of my fathers).82
This customary convention ensured that humility was the main
characteristic of a competent head of the family who respected and showed
regard for order in society.83 Commitment to a fair and equitable service to
the family members, particularly women and children, was a prerequisite
for the application of the principle of primogeniture. Ngcobo J has this to
say in this regard:
76
See Dial Ndima, ‘The Place of Customary Law in the General Law of South Africa’ (2002)
1 2 Speculum Juris 233 at 334–335.
77
See Seema (n 75) 129.
78
See Soga (n 54) 72.
79
Bekker (n 19) 72 refers to the ‘official’ version of customary law by presenting the family
head as the owner of family property.
80
See the Mthembu and the Bhe-Shibi (n 20) cases above.
81
82
See Setiloane (n 31) 40.
83

Two points need to be stressed here. First, indlalifa [the heir] does not inherit
as that term is understood in common law. What happens is best conveyed
by the expression that ‘indlalifa steps into the shoes of the family head’. Far
from getting any property benefit, the indlalifa assumes the responsibilities
of a family head. He is required to administer the family property for the
benefit of the entire family ... where there are insufficient assets in the
family, indlalifa must use his own resources. Second, the selection of the
eldest child must also be seen against the flexibility of the rule and the fact
that he may be removed from office.
If the eldest child considers that he cannot perform the responsibilities,

the next eldest [child] takes over the responsibility. What is more, the
indlalifa may be held to account by the family if he does not perform his
responsibilities. The family may, if he fails to perform his duties, remove
him.84
SHARED BELONGING AND GUARDIANSHIP IN AFRICAN LAW

Guardianship over children was a communal activity which involved the
participation of the family collective. This included the position of a child
who was a ward85 from another family who had joined the family collective
to be raised by them. Through the head, the ward became a member of the
latter’s extended family and of the entire clan. When the time came for
him or her to return home,86 the ward’s group had to deliver one female
beast known as the isondlo/dikotlo beast,87 to the host family as a way of
registering the ward’s transfer home.
Like marriage, isondlo was an affirmation of the relationship between
two groups which were connected through an individual whose membership
of the host family could only be terminated by the transfer of a communal
asset such as a cow.88 The purpose of isondlo was to account for the
termination of the ward’s membership of the host family.89 Isondlo had
spiritual connotations because it was a procedure by which to transfer the
ward from the ancestral traditions of the host family to those of his or her
biological family. This ritual symbolised his or her transfer from the one
family’s religious cult, and amounted to a licence for re-integration to the
biological family for protection by its gods through the transfer of the cow.90
For this reason, isondlo was different from the common-law concept of
maintenance because the delivery of the cow was not aimed at providing
84
85
A ward is a child living under a guardian who is not its parent. See Bekker (n 19) 343.
86
Ibid at 242.
87
See Soga (n 54) 93.
88
See Bekker (n 19) 242–246.
89
See Bennett (n 6) 282.
90

support for the ward, and remained payable even if the ward was the one
who sustained the host family financially. In this scenario the latter would
have gained, rather than lost, assets whilst staying with the ward, yet
isondlo was deliverable for his or her transfer. It was, therefore, unrelated
to compensation for any losses incurred by the host. The delivery of the cow
merely served to smooth the transition of the ward from one spiritual belief
system to another.91
This explains why isondlo was always deliverable in one cow, regardless
of the amount of resources expended or the length of time spent in looking
after the ward. The amount of one cow rather represented a token of
appreciation for the assistance given, than compensation for the expenses
incurred. Isondlo can therefore not be properly compared to maintenance,
which could properly be claimed even if isondlo had been paid. It was rather
a record used by an oral society as a collective signature to release the ward
from the communal guardianship of the host clan.
The transfer of the cow was not without its own challenges, not least
of which was that it happened to have an economic value. Cultural
outsiders often, erroneously, equated isondlo with the western concept of
maintenance.92 The latter concept relates to the actual expenses incurred for
the sustenance and upbringing of the child of another.
COLLECTIVE OWNERSHIP AND GROUP SOLIDARITY IN AFRICAN LAW

African law recognised categories of property which were classified by the
nature of the object and of the transaction through which it was acquired.93
The individual could only own personal items such as clothes, tobacco,
cash, smoking pipes, cell phones, books, poultry, and pets.94 The other
members did not have a direct interest in such items, although the latter also
fell under the protection of the group.95
However, communal ownership applied in respect of major assets such
as land, livestock, farming implements, vehicles, investments, or weapons
of war. The entire family exercised corporate ownership through the living-
dead as the source of the assets, via the living as the trustees of the unborn
who were the ultimate beneficiaries. In other words, major forms of property
such as cattle and farms belonged to the home as a corporate entity and
91
Bennett (n 6) 282.
92
See also Witness Tamsanqa, Ithemba liyaphilisa (Lovedale Press 1979) 125 who shows how
the rituals associated with initiation usually produced humble, generous and resourceful
men.
93
See Jan Christoffel Bekker and Ignatius Maithufi, ‘Law of property’ in Jan Christoffel
Bekker, Christa Rautenbach and Nazeem Goolam (eds), Introduction to Legal Pluralism in
South Africa (Lexis Nexis 2006) 55.
94
See Juanita Pienaar, ‘Customary Law of Property’ in Rautenbach, Bekker and Goolam (eds),
Introduction to legal pluralism in South Africa (2010) 75 at 78–79 and Bennett (n 6) 259–
260.
95
Ibid Pienaar 78–79.

were collectively owned by the family as its heritage from the living-dead
for onward transmission by the living to the unborn.96 Consequently, the
ownership of these major family assets was always expressed in inclusive
terms with a collective connotation, for example, intsimi yakuthi (our land),
or inkomo zakuthi (our cattle).97
The effect of using inclusive language was to limit the power of the
seniors and elders who were thereby constantly reminded of the ancestral
pedigree of their heritage.98 This language served to encourage the head
to consult other participants in their dealings with property rights. It must,
however, be emphasised that the claims to collective ownership were
solidarity claims aimed at bolstering the claims of the family in times of
need, and not beneficial claims aimed at personal consumption.
Whilst all the means of production belonged to the family, the extended
family shared the claim to their ownership. When members of the extended
family asserted the ethos of common belonging among one another, they
actually pledged solidarity to cooperate with each other, and if need be, to
die together in protecting group property. By extension of this principle,
family assets such as land and farms did not exclude the claims of the rest
of the clan. These were also not beneficial claims but claims of belonging
and pledging solidarity to protect family property from possible outside
threat.99 Communal ownership differed from beneficial ownership because
its purpose was group cooperation if protection was needed.
In this regard, the interest of family members in the property, including
that of the head, amounted to shareholding.100 Whilst African law always
embodied the notion of individual property ownership, it did not couch
it in exclusive terms, as even in respect of personal items, individual
property merely weakened, but did not oust, the collective interest of the
group in regard to the protection of the assets from claims emanating from
outsiders.101
TRADITIONAL LEADERSHIP AND GOVERNANCE

Traditional communities consisting of the various families led by their
family heads were the constituent parts of a system of traditional leadership.
Such communities were organised into lineage clans which, in turn, were
led by clan heads. This is the hierarchy that administered the affairs of the
community from the lowest to the highest levels. Each extended family had
96
Bekker (n 19) 70 writes: ‘This mutual interest is difficult to define, but it is most real; it is
attributable to the idea of collective right and responsibility which pervades customary law’.
97
See Ndima (n 23) 334–335. See also Seema (n 75) 129.
98
99
Ibid. See also AJ van der Walt and GJ Pienaar, Introduction to the Law of Property (Juta
1977) 388; and Bekker (n 19) 69.
100
See Bekker and Maithufi (n 93) 55.
101
See Ndima (n 76) 234.

the authority to finalise the matters it handled in its council consisting of

the various heads of families. In turn, extended families met in a council
chaired by the head of their clan who shared a common ancestor with them.
In the domestic sphere the clan council was the highest authority that
finalised disputes and administrative matters among kinsmen.102 A number
of these clans formed a village with its own council headed by clan heads
chaired by the headman103 (usibonda/induna). Headmanship is the lowest
rung in the official (public) hierarchical structure of traditional leadership
recognised by the state today. More serious inter-clan disputes were handled
by the village council and adjudicated upon by the village headman.
Clans were the main organs of the village scheme. For that purpose the
village was modelled as a ‘mega-clan’ under the leadership of the village
headman (usibonda). The family head, clan head, and the village headman
were so called because of their positions as leaders of their respective
units and were related to one another through their common ancestor.104
The jurisdiction of the clans was very extensive in matters that were quite
intimate to council members and it overlapped with most of the village
responsibilities.105 Consequently, village authorities did not have many
socio-political functions and served mostly as an appeal body.
The first level in the exercise of participatory democracy in the public
sphere was the village forum where ordinary men participated fully without
interference from the traditional leader. Hence Ade Ajayi observes from the
Nigerian perspective, that ‘participation could be at village assemblies in
which every adult had a right to speak and be listened to, and decisions were
taken by consensus’.106
The next level was the chiefdom (a ‘mega-village’) comprising several
interrelated villages headed by the inkosi/kgosi (senior traditional leader,107
previously known as the chief) who was the incumbent of the position that
102
See Nomthandazo Ntlama and Dial Ndima, ‘The Significance of South Africa’s Traditional
Courts Bill to the Challenge of Promoting African Traditional Justice Systems’ (2009) 4 1
IJARS 6 at 8–9.
103
See Jeff Peires, The House of Phalo – a history of the Xhosa People in the Days of Their
Independence (Univ of California Press 1981) 32–34.
104
See Ntlama and Ndima (n 102) 8–9.
105
Ibid. Ntlama and Ndima note: ‘The lowest level of governance was the head of the household.
The person who occupied this position was connected to every member of his lineage through
his grandfather and his brothers, his father and his brothers, [his brother and their sons], his
sons and their sons, with whom he formed a powerful patrilineage (Pereis 1981). The group
managed its own economic production and security, settled domestic quarrels and performed
its religious functions (ibid). 37 ... The head of the household presided over the first level
of the traditional justice system, to which every member of the lineage had access, before a
matter could proceed to the ruler and further to the court of the king for final determination
(Mqhayi 1914) 3’.
106
See Ade Ajayi, ‘Social Justice in Traditional African Societies’ in Toyin Falola (ed), Tradition
and Change in Africa (Africa World Press 2002) 3 at 3–8.
107
See Traditional Leadership Framework and Governance Act 41 of 2003.

he inherited from his ancient ascendant who was the common ancestor of all
the headmen in the chiefdom. The decisions of village councils (headmen’s
courts) were appealable and reviewable before the forum of the chiefdom
(inkundla/lekgotla) where inkosi/kgosi, sitting with his isigqeba (council)
led the discussions concernng matters arising from the villages under their
jurisdiction.
The chiefdom was usually named after the common ancestor of the
interrelated clan leaders and was led by the inkosi/kgosi who was related
to all the heads of the clans through their common ancestry, such as the
amaNqabe Chiefdom. Inkosi/kgosi pronounced on all the political decisions
made by the imbizo/pitso (assembly) or judicial decisions made by the
lekgotla/inkundla consisting of all the headmen, councillors, and the people
in the forum of his chiefdom. In most smaller polities the chiefdom was
the highest authority and the jurisprudence generated from its proceedings
defined the chiefdoms’ value system and concept of justice as they impacted
on social organisation, public administration, education, economics, law,
religion, agriculture, and war.
The various chiefdoms such as amaQwathi, amaQiha, amaHegebe, to
mention a few from the Thembuland Kingdom of the Eastern Cape, were
distinct and autonomous authorities, each of which was famous for its
unique sense of justice in various fields. The jurisprudence produced by the
various chiefdoms was similar because it developed from the same broad,
binding principles of the kingdom, but there were fine distinctions between
groups on certain matters of detail.
In bigger polities all related chiefdoms shared the collective identity as
constituent parts of their kingdom, for example, the Thembuland Kingdom.
For many groups the chiefdom was the highest level of African sovereignty.
Whilst the various chiefdoms maintained their individual identities, at the
same time they had to harmonise with the design of their kingdom (a mega-
chiefdom) headed by the king (ukumkani), whose position was transmitted
through his ascendants from the ancestor he shared with his subordinate
traditional leaders. Such subordinate chiefdoms reported to the king who
presided with them as members of his council over the highest judicial,
political, and social decisions.
The king was the most senior descendent of their common ancestor
and was respected by all traditional leaders as the father of the nation.108
He was the mouth-piece for the entire kingdom which consisted of all
the various levels of traditional leaders, isigqeba (councillors),109 and the
people, who freely participated in the discussions which culminated in the
108
Peires (n 103) 32.
109
John Solilo, ‘Izinto zeKomkhulu lamaXhosa’ (author’s translation: Xhosa royal institutions)
in John Bennie (ed), Imibengo (Lovedale Press 1935) 219 at 220 uses this term to include
the place where the councillors sit and deliberate on issues regarding their royal advisory
functions. See also Soga (n 54) 154.

kingdom’s royal decisions that were reached by consensus. The kingdom’s

jurisprudence was distinct from that of other kingdoms, and distinguished
between the law of the amaZulu and that of the Batswana, and so on. In all
clans, communities, and kingdoms the main objective of dispute resolution
was the attainment of consensus, restorative justice, conciliation, and
mediation.
The current condition of traditional leaders has been ameliorated by the
Traditional Leadership and Governance Framework Act (the Act).110 The Act
seeks to restore the status and dignity of traditional leaders as understood
in African society through the reaffirmation of the participation of royal
families and traditional authorities in the identification and appointment of
traditional leaders.111
The Act takes account of the imperatives of the Constitution and
transforms the traditional leadership institution to accommodate democratic
changes and the dictates of human rights. Whilst retaining some indigenous
aspects such as the identification of the traditional leader by the royal family
before he or she can be appointed by the government, it also introduces some
novel statutory features such as the participation of women, the contribution
of the national and the provincial houses of traditional leaders, as well as
the royal and traditional councils. All these structures serve at least two
purposes – to shed the traditional leadership’s lingering apartheid hang-over
that continues to haunt its image; and to promote its concordance with the
Constitution.
CONCLUSION
As a system which embraced communal living, a shared belonging and group
solidarity, African culture developed the principles of primogeniture, the
family head and a corporate home to ensure a collective administration of,
and equitable access to, family resources. These principles ran as a golden
thread through all the structures of society in selecting leaders such as heads
of families, clans, villages, and the community as a whole, to ensure that
each department had a responsible and accountable manager to facilitate
equitable access to resources that belonged to all members collectively.112
The selection of these leaders by the relevant councils and the need for
them to rededicate themselves to that process as the source of their powers,
insulated the resources they presided over from personal abuse by powerful
individuals who might otherwise wish to appropriate them for their own
selfish purposes.113 Although social and cultural factors linked the selection
process to patriarchy, the principles underlying the role of the institutions
themselves were noble and praiseworthy. Some of such lofty attributes,
110
Act 41 of 2003.
111
s 11 of Act 41 of 2003.
112
See Ndima (n 23) 234–235.
113

obligations, and responsibilities associated with the indigenous structures

were the advancement of group survival, service delivery, and development.
However, as I have pointed out, their close association with maleness
tarnishes whatever they might have succeeded in achieving.
As the Shilubana case demonstrates, the Baloyi community who still
adhered to their traditional leadership institution, took advantage of the
Bill of Rights and amended their law to accommodate gender equality.
This means that whilst they were comfortable with their traditional
leadership institution in South Africa’s democracy, they no longer wished
to see their cherished institution being tarnished by patriarchy. Indeed, the
Constitutional Court has developed a jurisprudential basis for communities
to continue maintaining their socio-cultural institutions provided that the
values of human dignity and fundamental equality are upheld.114
To facilitate social change, section 9 of the Constitution sets gender
equality as a pre-requisite for ensuring fair participation by men and
women without prejudice. As shown in the discussion of the Bhe-Shibi
case above, the imperative of gender equality also brought the application
of male primogeniture to an end.115 At this point it becomes significant to
note that the court was cautious to ensure that it is the male primogeniture
rule as practised under section 23 of the Black Administration Act that was
invalidated. Based on the Constitutional Court’s decision in the Mayelane
case that communities can continue to apply their living law subject to respect
for the Bill of Rights, it is possible for willing families and communities
who subscribe to the values of mature guidance and leadership to maintain
a non-sexist version of family headship. As Ngcobo J found in the Bhe-
Shibi case, some communities who still lead communal lives and need the
guidance, support, and leadership of their senior members can continue to
enjoy these services in a way that is consistent with the Bill of Rights.116
Indeed, a constitutionally compliant rule that is practised by the community
continues in that role until changed by that community.117
As nominal managers rather than owners of the resources belonging
to their constituencies, the indigenous leaders were customarily obliged
to support members of their constituency by affording them access to the
latter’s own customary shares as opposed to the former dispensing their
own generosity. To care for, support, and defend vulnerable constituency
members, especially women and children, was the duty the leaders inherited
from their predecessors in title. In any dispute involving allocation of
resources council members would inquire whether the impugned family
head, clan head, or village head, as the case might be, handled the matter
114
115
See Bhe-Shibi (n 20).
116
Ibid.
117

as required by the position they occupied, rather than their own personal
whims and idiosyncrasies.118
As a culture that favoured stability and continuity in the family and
harmony in the community, the African tradition developed the principle
of primogeniture which relied on seniority as the criterion for appointing
responsible and accountable leaders to preserve the corporate home as
a primary unit of society.119 This method ensured that the enormous
responsibilities necessary to keep family resources intact were entrusted to
a mature family head, to ensure healthy families, clans, communities and
the society at large. The entry of women as participants should enhance
these lofty objectives.120
The purpose of the rule was the perpetuation of the family legacy, using
the stable institution of primogeniture that was unfortunately tainted by the
stigma of patriarchy. This compromise stuck to of this principle because its
focus was not only towards finding a responsible and accountable family
head, but also one who would remain permanently available at the family
home.121 This entailed identifying someone with the capacity to personify
the family home by bearing the characteristics of the collective identity of
all its members at all times.
As such the family head would sue or be sued together with, and on behalf
of, other family members whose collective resources he administered. By
so doing he would foster communal living through an equitable sharing of
the resources without necessarily receiving any personal gain from these
activities.122 As such, primogeniture operated within a tradition where
women often married away from their maiden homes and became members
of their marital families to enrich them with children.
Considerations of survival and self-preservation also pressured African
society to choose men for appointment to leadership positions in the family
and in the community because the primogeniture rule demanded that that
position be occupied by someone who was always available to administer
the daily affairs of the family home, as opposed to someone who would
be married away to another family. That principle was replicated at clan
and community level where it was equally compulsory to have focused and
dedicated leadership. As discussed above, the necessity for every woman to
marry no longer exists. In fact, many women choose to remain single. Their
continued exclusion from holding leadership positions is therefore neither
desirable nor necessary.
118
See Chuma Himonga, ‘The Right to Health in an African Cultural Context: The Role of
Ubuntu in the Realization of the Right to Health with Special Reference to South Africa’
(2013) 52 2 Journal of African Law 165 at 179.
119
See Bhe-Shibi (n 20).
120
Mahao (n 12) 324.
121
Ibid.
122
Bekker (n 19) 161.

In summary, Ngcobo J’s famous observation in the Bhe-Shibi case is

particularly apposite:
The rule of male primogeniture might have been justified by the social and
economic context in which it developed. It developed in the context of a
traditional society which was based on a subsistence agricultural economy
characterised by a self-sufficient family organisation. Within this system, an
elaborate network of reciprocal obligations between members of a family
existed which ensured that the needs of every member for food, shelter and
clothing were provided for. The roles that were assigned to men and women
in traditional African society were based on the type of social structure and
economy that prevailed then…
The role that women play in modern society and the transformation of
the traditional African communities into urban industrialised communities
with all their trappings, make it quite clear that whatever role the rule of
male primogeniture may have played in traditional society, it can no longer
be justified in the present day and age. Indeed, there are instances where in
practice women have assumed the role of the head of the family. [T]he rule
has therefore lost its vitality to a certain degree.
Jurisprudence from African courts, which have considered the position
of women in the context of succession, further demonstrates that the rule in
its present form no longer has any place in modern times.123
123
See Bhe-Shibi (n 20) paras 188–191.

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The anatomy of African jurisprudence:

a basis for understanding the African

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studied and analysed, their value to society emerges. When transposed to

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THE FAMILY AS THE BASIC UNIT OF COMMUNAL LIVING AND

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Ultimately, eligibility for family headship positions was decided on the

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THE PRINCIPLE OF PRIMOGENITURE AND THE CONCEPT OF THE FAMILY

Contrary to the general belief that the principle of primogeniture serves as

CILSA_Vol_1_no_1_March_2017_BOOK.indb 89 2017/07/04 1:56 PM

serve a particular constituency.22 The primogeniture rule was merely a tool

A family head is by no means a despot in law, as is sometimes supposed; he

This is a far cry from the current dominant, pejorative trivialisation

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CILSA_Vol_1_no_1_March_2017_BOOK.indb 91 2017/07/04 1:56 PM

figure could be a source of reassurance, bolstered by feelings of common

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metaphysics. The latter philosophy’s import is that the current generation

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Section 8 of the interim Constitution, 1993, brought an end to this untenable

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public law sphere of traditional leadership. In addition to this section

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deceased father as a traditional leader if the relevant traditional authority

THE AFRICAN FAMILY AND THE CONCEPT OF THE CORPORATE HOME

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This explains why people always referred to family assets in non-

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If the eldest child considers that he cannot perform the responsibilities,

SHARED BELONGING AND GUARDIANSHIP IN AFRICAN LAW

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COLLECTIVE OWNERSHIP AND GROUP SOLIDARITY IN AFRICAN LAW

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TRADITIONAL LEADERSHIP AND GOVERNANCE

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the authority to finalise the matters it handled in its council consisting of

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kingdom’s royal decisions that were reached by consensus. The kingdom’s

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obligations, and responsibilities associated with the indigenous structures

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In summary, Ngcobo J’s famous observation in the Bhe-Shibi case is

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