REPUBLIC OF SOUTH AFRICA COMBINED SECOND PERIODIC REPORT UNDER THE AFRICAN CHARTER ON HUMAN AND PEOPLE`S RIGHTS and INITIAL REPORT UNDER THE PROTOCOL TO THE AFRICAN CHARTER ON THE RIGHTS OF WOMEN IN AFRICA Traditional leadership 360. The Constitution recognises customary law as an independent source of law, embodied in the customary law is the custom of traditional leadership amongst others. The National House of Traditional Leaders was established in terms of the National House of Traditions Leaders Act, 1997.204 Its objectives and functions are to promote the role of traditional leadership within a democratic constitutional dispensation, enhance unity and understanding among traditional communities and advise national government. Provincial houses of traditional leaders were established in eight (8) provinces, namely the Eastern Cape, Western Cape, Northern Cape, KwaZulu-Natal, the Free State, Mpumalanga, Limpopo and North West. Unlike the other provinces, Gauteng only has a Council of Traditional Leaders and not a Provincial House of Traditional Leaders. 361. The Traditional Leadership and Governance Framework Act, 2003205 provides for the establishment of local houses of traditional leaders. The national and provincial houses of traditional leaders enhance the co-operative relationships within national and provincial government, while the establishment of local houses of traditional leaders deepen and cement the relationship between municipalities and traditional leaders on customary law and development initiatives. The Act has transformed the composition of traditional councils to provide for elements of democracy. 362. Closely connected to the role of traditional leadership in South Africa is the position of customary law. The status and relevance of customary law in South Africa has been acknowledged by the Constitutional Court, however, customary law and the institution of traditional leadership cannot be used to perpetrate racial discrimination as it would then fall foul of the Constitution.206 204 Act No. 10 of 1997 Act No 41 of 2003 206 Bhe v Magistrate Khayelitsha 2005 (1) BCLR 1 (CC) and Alexkor Ltd v Richtersveld Community 2003 (12) BCLR 1301 (CC). In Shilubana and Others v Nwamitwa 2008 (9) BCLR 914 (CC) a dispute arose between Ms Shilubana, the daughter of Hosi Fofoza Nwamitwa and Mr Nwamitwa, the son of Hosi Malathini Richard Nwamitwa. On 24 February 1968 Hosi Fofoza died without a male heir. At that time, succession to Hosi (the Chieftainship) was governed by the principle of male primogeniture. Therefore, Ms Shilubana, HosiFofoza’s eldest daughter, was not considered for the position, despite being of age in 1968. Instead, Hosi Fofoza’s younger brother, Richard, succeeded him as Hosi of the Valoyi community. The dispute in this case arose following the death of Hosi Richard on 1 October 2001. The Constitutional Court explained that the issue to be decided was whether the community has the authority to restore the position of traditional leadership to the house from which it was removed due to gender discrimination, even if this discrimination occurred prior to the coming into operation of the Constitution. The Court reiterated that Section 211(2) specifically provides for the right of traditional communities to function subject to their own system of customary law, including amendment or repeal of laws. If the traditional authority had only those powers accorded it by the narrow view; it would be contrary to the Constitution and would frustrate the achievement of the values in the Bill of Rights as Section 39(2) of the Constitution obliges the Court to develop the customary law in accordance with the spirit, purport and aims of the Bill of Rights. 205 103