THE ROLE OF TRADITIONAL AUTHORITIES IN DEVELOPING CUSTOMARY LAWS IN ACCORDANCE WITH THE CONSTITUTION : SHILUBANA AND OTHERS V NWAMITWA

South African customary law is a body of law by which many South Africans regulate their lives in a multicultural society. South Africa's constitutional dispensation is based on the premise that all existing laws are subject to the Constitution of the Republic of South Africa 1996, including African customary law, and that all laws are limited only by the Constitution. Customary law existed long before the adoption of the Constitution which, among other things, aims at harmonising the different cultural practices that exist in the country. It is apparent that some traditional cultural practices that still exist are in conflict with the Constitution but, until they are challenged before a court of law, they will remain enforceable in our communities. This contribution investigates customary systems of succession that are guided by the principle of male primogeniture: a deceased's heir is his eldest son, failing which, the eldest son's oldest male descendant is his heir. The discussion focuses in particular on the case of Shilubana v Nwamitwa 2008 (9) BCLR 914 (CC). This case concerns an application to the Constitutional Court for a leave to appeal against a decision of the Supreme Court of Appeal substantially confirming a decision of the Pretoria High Court that prevented a woman from being a Hosi (traditional leader) of her own community.


Introduction
South Africa's constitutional dispensation is based on the premise that all existing laws are subject to the Constitution of the Republic of South Africa 1996 (the Constitution), including African customary law, and that all laws are limited only by the Constitution. 1South African customary law is a body of law by which millions of South Africans regulate their lives in a multicultural society. 2 It existed long before the adoption of the Constitution which, among other things, aims at harmonising the different cultural practices that exist in the country.It is apparent that some traditional cultural practices that still exist are in conflict with the Constitution but, until they are challenged before a court of law, they will remain enforceable in our communities.
In other words, even though the Constitution is in force, there are many unresolved theoretical and practical problems arising from the application of customary law within the constitutional framework. 3For example, many customary systems of succession are guided by the principle of male primogeniture: a deceased's heir is his eldest son, failing which, the eldest son's oldest male descendant is his heir. 4* LLB (U) Vista, LLM (UP), Lecturer: Department of Private Law, School of Law, UNISA.
In most cultural traditions women are ineligible to be traditional leaders of their tribes.When the traditional leader has only daughters, the throne automatically passes to his brother or oldest living male heir.It is apparent that, if male children are linked through their father to 137/161 the royal lineage, their inheritance of the traditional chieftaincy is guaranteed irrespective of their seniority or age.This custom, which entails that traditional chieftaincy is retained only in the male line, is in most instances enforced by traditional authorities.The traditional authorities can be seen as communal structures that are capable of either perpetuating the primogeniture principle or developing community customs to bring them in line with the aspirations of the Constitution.It may be asked to what extent traditional authorities are capable of doing the latter.This case note aims at analysing the traditional authority's role in the development of customary practices in line with the Constitution, particularly with regard to the advancement of the right of women to inherit traditional chieftaincy thrones.To date, the emphasis is still mainly on the advancement of women's and children's rights in general, a process that seems to be advancing too slowly, despite being rooted in constitutionally protected rights.
The decision of the Shilubana v Nwamitwa 5 is subsequently discussed.The case concerns an application to the Constitutional Court for a leave to appeal against a decision of the Supreme Court of Appeal 6 substantially confirming a decision of the Pretoria High Court 7 that prevented a woman from being a Hosi of her own community.

Facts
The facts of the case were as follows: The principle of primogeniture governed the succession to the traditional chieftaincy of the Valoyi community for five generations. 8Shilubana v Nwamitwa 2008 (9) BCLR 914 (CC) (hereafter the Shilubana case).
On the death of the Hosi (traditional leader), Fofoza Nwamitwa, in 1968, the traditional chieftaincy lineage of the Valoyi community was disrupted.
Since Hosi Fofoza's eldest child was a daughter and he did not have a male

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Richard succeeded to the throne despite the fact that Hosi Fofoza's eldest daughter (Ms Shilubana) was old enough to be given the throne. 9In 1996 the Valoyi Royal Council unanimously resolved to restore the chieftainship to Hosi Fofoza's eldest daughter.The resolution noted: 10 [T]hough in the past it was not permissible by the Valoyis that a female child be heir, in terms of democracy and the new Republic of South Africa Constitution it is now permissible that a female child be heir since she is also equal to a male child.The matter of chieftainship and regency would be conducted according to the Constitution of the Republic of South Africa.Constitution.Therefore observance of customary law by traditional authorities must be in accordance with the applicable legislation and customs, including amendments to or repeal of that legislation and those customs.Thus it is the duty of the court to apply customary law where it is applicable, subject to the Constitution and relevant legislation. 16The norms of customary law are informed by factors such as the traditions of the community concerned as guided by a consideration of the past practices of the community. 17The court found that the development of customary law would imply some departure from past practices which seem to constitute a threat.A threat to the recognition of the development of customary law occurs when a rule requires an absolute consistency with past practice before a court will recognise the existence of a customary norm.This would result in the courts' applying laws which communities themselves no longer follow, and would stifle the recognition of new rules adopted by the communities in response to the changing face of South African society.This route would be in conflict with the aspirations of the Constitution and thus unacceptable to society at large.
Therefore the development of customary law must be guided by the contemporary practice of the community in question. 18The court acknowledged that past practices should not be interpreted as being irrelevant in today's society, since such practices and traditions may still be of considerable importance in customary law, but should be considered together with other important factors.The court further made it clear that the time when customary law had to be proved as foreign law in South Africa is a thing of the past. 19 Shilubana case par 42 (n 9).
In consequence, where a norm emanates from a tradition, with no indication that a contemporary development has occurred or is occurring, past practice will be sufficient to establish a rule.However, in instances where the contemporary practice of the community suggests that change has occurred, past practice 141/161 alone is not enough and does not establish a right with certainty. 20Past practice will also not be decisive where the Constitution requires the development of the customary law in line with constitutional values. 21 is, furthermore, the very same community that observes customary law that must develop it, and this communal decision must be respected in accordance with section 211 of the Constitution.Therefore, the free development by communities of their own laws to meet the needs of a rapidly changing society should be encouraged, respected and facilitated. 22The Constitution had done away with the hierarchy of laws in which parliamentary statutes and common law were preferred over customary law.'Living' customary law was not always easy to establish and it might sometimes not be possible to determine a new position with clarity.The court encouraged the parties to assist it in resolving their disputes by placing credible evidence of the present practice in their communities before it.The duty of the court, in those instances, would be to examine the law in the context of a community and to acknowledge developments if they had occurred. 23The court found that the need for flexibility and the imperative to facilitate development must be balanced against the value of legal certainty, respect for vested rights and the protection of constitutional rights.In the Bhe case, the Constitutional Court found that the protection of women and children would be achieved by not allowing the development of the customary law of succession in a piecemeal and sometimes slow fashion. 24In adjudicating a customary law matter the court must remain mindful of its obligations under section 39(2) of the Constitution to balance the development of customary law by the communities with the jurisdiction of the courts. 25 Mabuza case par 44-49 (as above).
In addition, the Constitutional Court held in

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Carmichele v Minister of Safety and Security 26 that section 39(2) imposes an obligation on courts to consider whether or not there is a need to develop the common law to bring it into line with the Constitution and, if so, to develop it, as was the case with customary law. 27The court would, however, respect and enforce any development that happened within the community to the extent that such development was in line with the protection of rights.
In addition, the imperative of section 39(2) must be acted on when necessary and deference should be paid to the development by a customary community of its own laws and customs where this is possible and consistent with the continuing effective operation of the law. 28In determining Sidwell Nwamitwa's claim to the traditional chieftaincy, the Constitutional Court held that the past practice of the Valoyi was important but not decisive in determining whether or not Mr Nwamitwa had the right he claimed. 29The Valoyi authorities intended to bring an important aspect of their customs and traditions into line with the values and rights of the Constitution.Several provisions of the Constitution require the application of the common law and customary law, as well as the practice of culture or religion, to comply with the Constitution. 30 it must next be asked whether or not they had the authority to act as they did.
The Constitutional Court found that there was no evidence to permit it to rule on traditional authorities, as they had a broad discretion in appointing a traditional leader and were not bound simply to appoint the heir by birth.Therefore it had no basis on which to overturn the High Court's finding that, in terms of the existing customary law, the role of the royal family is more than formal only where there is no candidate for the chieftainship, or where the candidate is not suitable, which was not alleged to be the case in the matter under consideration.

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However, even if the High Court were correct on that point, it had to be true that the traditional authorities had the power to act as they did for the reasons that follow. 32It was noted that the traditional authority was the highest decisionmaking structure within the traditional community on matters of succession.If the authorities had only the narrow discretion the High Court found them to have, it followed that no other body in the community had more power in that regard.This would therefore mean that nobody in the customary community would have the power to make constitutionally driven changes in chieftainship.
This result could be seen if one considered what would have happened, in the narrow view, if the traditional authorities in the present case had sought simply to install a woman as Hosi.Even if she were the eldest child of the previous traditional leader, it would follow on the narrow view that the traditional authorities would have no power to appoint her unless there was no other heir or the male heir was unfit to rule.It would be necessary, according to this view, to approach the courts before a woman could be installed as a Hosi. 33The court emphasised the need to empower communities to bring their customs in line with the norms and values of the Constitution.Any other result would be contrary to section 211(2) and would be disrespectful of the close bonds between a customary community, its leaders and its laws. 34

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[t]he judiciary should confine itself to those incremental changes which are necessary to keep the common law in step with the dynamic and evolving fabric of our society.
The court found that this statement, in the South African context, should not be seen to detract from the obligation of courts to uphold the new values with which our legal system has been infused. 38Therefore, the court found that the appointment of Ms Shilubana as a Hosi represented a development of customary law which was an essential step in respecting community-led change parallel with the value of legal certainty and the need to protect rights. 39e legal effects of the change -the installation of a particular leader -were clear.Mr Nwamitwa was not a Hosi but had an expectation to be appointed Hosi owing to the 1968 decision and on the basis of past practice.The court found that his expectation could not override the decision of the traditional authorities to adapt their customs in accordance with the values and rights of our democracy as embodied in the Constitution. 40The actions of a traditional authority could not be illegitimate just because they involved a departure from past practice. 41The Valoyi authorities had chosen to restore the line of Hosi Fofoza going back one generation, although it was true that Ms Shilubana's installation left some questions unanswered relating to how the Valoyi succession would operate in the future.However, customary law was living law and would in future inevitably be interpreted, applied and, when necessary, amended or developed by the community itself or by the courts.This would be done in the light of existing customs and traditions, previous circumstances and practical needs and, of course, the demands of the Constitution as the supreme law.
Although the Valoyi people had moved away from any previously existing rule that a woman could never be appointed as a Hosi, other aspects of the customs and traditions governing chieftainship had not necessarily been affected.For example, the principle that a Hosi is born and not elected indeed 38 R v Salituro par 36 (n 42).39 Shilubana case par 75 (n 9).40 Shilubana case par 78 (n 9).41 Shilubana case par 79 (n 9).

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PER/PELJ 2009(12)3 145/161 exists; it was not necessarily changed by this ruling as Ms Shilubana was born as the child of a Hosi.Her birth was crucial to the decision of the royal family. 42rthermore, such additional developments of the law as Ms Shilubana's installation might necessitate were in the first instance a matter for the relevant traditional authorities, acting in accordance with custom, practical needs and the Constitution.It was, however, not these future decisions that were before the Constitutional Court, and nothing further had to be said about them. 43The value of recognising the development of its own law by a traditional authority was not in this instance outweighed by factors relating to legal certainty or the protection of rights.The royal family intended to act to affirm the constitutional values in chieftainship in its community.A balancing of the effects of its action revealed no consideration that should prevent the Constitutional Court from recognising its actions as such. 44The Constitutional Court found that the conclusions of both the High Court and the Supreme Court of Appeal that the traditional authorities lacked the power to act as they did were incorrect.The court found that the Supreme Court of Appeal erred in its judgment, as its decision was too narrow and tied to the statement that a Hosi is never appointed but born, and unable to countenance that the lineage would change from that of Hosi Richard to that of Hosi Fofoza.Accordingly, Mr Nwamitwa had no vested right to the chieftainship of the Valoyi, but only an expectation to be a Hosi.However, past practice of the Valoyi community was not determinative and did not itself guarantee that Mr Nwamitwa's possible expectation had to be fulfilled.The contemporary practice of the Valoyi reflected a valid legal change, resulting in the succession of Ms Shilubana to the chieftainship.
42 Shilubana case par 81 (n 9).43 Shilubana case par 82 (n 9).44 Shilubana case par 84 (n 9).The first example is the succession of the daughter of the late traditional leader Serobatse of the Bafokeng Ba Ga Motlala in Lichtenburg, North-West Province, which was occasioned by the traditional leader not having a male heir.Although she ascended the throne as the daughter of the traditional leader, her descendants are not entitled to the throne because the link with the royal family in her case is through the mother and not the father, as is required by custom. 46 Botswana the progressive development of customary law reached a notable milepost when a woman was appointed by the tribal authority as the first traditional leader in her community after both her brother and her father had died. 47However, the development of customary law in this regard seems to have been clouded with much controversy prior to the acceptance that women should enjoy the same right as men to rule their communities.and her brother is the fifth-born.Refilwe's case is yet to be resolved.On the face of it, Refilwe faces direct discrimination against her as a woman, since the chieftaincy throne has traditionally been exclusively reserved for men. 48vertheless, the fact that more communities seem to accept women as their leaders reflects the progress of true gender transformation in chieftainship.The Shilubana judgment must be seen as a classic example of the application of customary law by the traditional authority that is in line with the Constitution as well as with principles of public policy and natural justice. 49The Shilubana judgement reflects the plight of women under customary law.

Exposition of the position of women under customary law
It needs to be acknowledged that women have been assigned a subservient role by customary practices since time immemorial.Their stigmatisation by their communities has played a critical role in discrimination against their gender for many years, and it has exposed women to various obstacles of a historical and cultural nature to their active and equitable participation in the political and social realms (particularly in denying them access to traditional chieftaincies).
This was largely a function of men's traditional roles as breadwinners and defenders of the family against danger. 50The traditional chieftaincy, according to the rules of patrilineal succession, was always inherited by the eldest son of the founding father of the land. 51early, if they objected to this custom women could have been ostracised for disobeying the dictates of the culture of their community, and thus deemed to be inviting misfortune.Bennett states that women were treated as minors in 148/161 guardianship of her husband. 53One exception to this is the custom of the Modjadji community, which dictates that only women may rise to the leadership of their community.From 1854 until 2005 all of the leaders of the Modjadji community have been women. 54On the basis of the Shilubana decision, the Modjadji customs can be challenged on the basis of gender discrimination, and there would be no merit in attempts to deny the claims of any rightful male heir on the grounds of his gender.Despite improvements in the protection of women's rights, gender discrimination is still prevalent in South African society.
Little has changed in the lives of ordinary women, many of whom are subject to customary law, tradition and other patriarchal social and cultural practices. 55nnett states that, because African culture is steeped in the principle of patriarchy, the gender equality clause threatens a thorough purge of customary law. 56One example is the achievement of gender equality in traditional authorities, which is still seen as a challenge.In terms of customary law, with the exception of the Modjadji traditional chieftaincy, women may not hold political office. 57aditional authorities have lobbied in vain to have customary law exempted from the Bill of Rights, 58 one of their reasons being that they saw the Constitution as a threat to their customary and traditionally accepted views on the position of women in society.However, the drafters of the Constitution declared gender equality as one of the non-negotiable clauses to be included therein. 59The adoption of the Constitution was a milestone in ending discrimination and ensuring equality for all, particularly previously disadvantaged groups -women constituting one of the most severely disadvantaged Albertyn and Goldblatt state that equality, as a value and as a right, is central to the task of transformation. 64As a value, equality gives substance to the vision of the Constitution.As a right, it provides the mechanism for achieving substantive equality, thus legally entitling groups and persons to claim the promise of this fundamental value and providing them with the means to achieve it.The Constitution regards everyone as being equal in the eyes of the law, and has entrenched the practical implementation of this equality.This means that no one is perceived as having more rights than others, and that men and women enjoy equal rights regardless of their culture, status and gender.It is the same customary practices that allow women to act as regents in situations where an heir may not be in a position to ascend the throne.Such a practice can be seen in Lichtenburg, in the North-West Province, where the widow of the late traditional leader Seatlholo was appointed to rule the community in an acting capacity on her son's behalf from the time of her husband's death. 65 Ntshabele (n 46).
Therefore, the permanent appointment of a woman would not come as a surprise to the communities concerned.The debate around the continued existence of many (if not virtually all) customary practices in the Africa has an obligation under international law to eradicate all forms of discrimination against women. 67In terms of article 2(f), states are called upon to take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women.
68 Therefore the advancement of women's rights in South Africa can be seen as a progressively developing process under the guidance of both the Constitution and international law.
The patrilineal way of doing things has been remodelled to accommodate women as leaders of their communities.This accommodation has initiated discussion regarding the role of women in other cultural practices that have been exclusively reserved for males.Such cultural practices include but are not limited to the performance of certain customary rituals that were mainly performed by men, allowing women to now enter previously secluded places such as a cattle kraal to participate in certain rituals.But it remains up to the respective traditional authorities to prescribe from time to time how such cultural practices that conflict with their constitutional rights could be remodelled to include women who are leaders in their communities.

Transformation of the traditional leadership
The transformation of traditional leadership (as defined below) was spearheaded by the enactment of the 151/161 the Constitution, at the same time undertaking to restore the integrity and legitimacy of the traditional authority as an institution in accordance with customary laws and practices. 70One of its goals is the progressive realisation of gender equality within traditional authorities in a manner that promotes freedom, human dignity, and the achievement of equality and non-sexism.To ensure compliance with these undertakings, the Act determines that at least a third of the members of a traditional council must be women. 71ction 3(2) (d) of the Traditional Leadership and Governance Framework Act determines that where it has been proved that an insufficient number of women are available to participate in a traditional council, the Premier concerned may, in accordance with a procedure provided for in the provincial legislation, determine a lower threshold for the particular traditional council than that required by paragraph (b) of the same section. 72However, there is a huge disparity between reality and the ideal of what the Act states to be a minimum threshold.As a rule, the members of traditional councils are still predominantly men, who are reluctant to relinquish their customs to accommodate women.
The Act envisages that the appointment of traditional leaders should be done with due regard to the observance of the customary laws of the community concerned. 73The Act accommodates the role of traditional leaders on all levels of executive government, but it is a role that is more symbolic than substantive. 74The ruling on the role of traditional authorities in the Shilubana judgment may have come at a time when it was not expected by most African communities that reserve traditional leadership exclusively for men.

Defining traditional authority/leadership
Traditional authority/leadership is defined as an aggregate institution which includes the position of the traditional leader or king, the deputy, the royal family, the secret advisory body, the headmen of small villages, and the 152/161 traditional council. 75Previously traditional authorities were generally viewed as still holding conservative views about the customs and traditions of their communities. 76Traditional authorities are perceived to be at the forefront of hindering the development of customary laws in accordance with the applicable constitutional principles.At the same time they are seen as playing a critical role in the day-to-day operation of their communities by ensuring observance of and compliance with the customs of the community by the subjects, as well as disciplining contraventions by members of the community. 77 is clear that the exercise of their power must operate within the parameters of the Constitution.Moreover, these authorities must be seen to play an important part in the development of customary law in line with the Constitution.They should monitor whether or not socio-economic and political developments are taking place in their communities.They enjoy a high status and significant support among their people since they are regarded as the custodians of African culture and customary law, and hence they also perform a variety of important executive and judicial functions. 78Accordingly, they play a critical role in educating and empowering their community to understand the impact of the Constitution and its relations with their customary laws.As a result they should also be able to develop their customary laws in line with the Constitution without first being forced to do so by the courts.

Who should develop customary law?
The Constitutional Court has noted the power of traditional authorities to make constitutionally driven changes to customs and traditions, as failure to do so 155/161

Conclusion
Without doubt one is likely to see more women appointed to traditional chieftaincy thrones as a result of the Shilubana judgment.This approach is indeed an achievement for the protection and fulfilment of women rights.The Shilubana judgment builds on the Bhe judgment, in which the court imposed changes to the customary law rules on inheritance, thus bringing them in line with the requirements of gender equality in the Constitution. 92The Shilubana judgment 93 is sensitive to the needs of the community itself and emphasises the importance of respecting decisions made by traditional authorities especially when they are in line with the spirit and purport of the Bill of Rights. 94e restoration, especially by traditional authorities, of the chieftaincy thrones to people (women) who were historically barred by custom and tradition indeed brings legal certainty -women are also eligible to occupy positions such as those of traditional leadership.The Constitution should be used as a vehicle for reforming traditional authorities and the latter should be encouraged to take the initiative in developing their own customary law before it becomes necessary for the courts to intervene.
The development of customary law in response to the Shilubana judgment is an essential step in reversing the unfair discrimination that prevented women from succeeding to traditional chieftaincy thrones. 95 It is important that separate cases be dealt with on their own merits.There is a need for a strong and sustained initiative to educate rural communities so as to make a qualitative improvement in gender relations in the rural areas and to pave the way for more substantive equality in the full range of socio-economic issues. 98An essential step in the entrenchment of constitutional democracy in those segments of our society that practice customary law is to encourage traditional authorities to transform themselves voluntarily, taking into account the provisions of the Constitution.Equal citizenship entails being able to take part in the shaping of the society in which an individual or people live.To women it means challenging the spoken and unspoken prejudices that keep them out of public life. 99The Shilubana decision has ensured that the appointment of women to traditional chieftaincy thrones will be in accordance with the boni mores test, when seen in the context of the societal conditions and the dynamic nature of particular societal groupings.The decision gives recognition to women as adult human beings who are capable of leading and building their communities as leaders.Traditional authorities that take the initiative in appointing women as traditional leaders should therefore be praised for developing customary law in fulfilment of their duties as enunciated in section 211 of the Constitution.
Both the legislature and the judiciary are mandated to provide remedies in order to correct injustices and promote the values that underlie an open and democratic society, such as equality, human dignity and freedom.45Despite numerous objections to women as leaders in their respective communities, recent trends indicate that the 1996 Constitution is progressively harmonising customary practices with constitutional values in enabling women to occupy traditional chieftaincy thrones.The following examples indicate the changing trends in viewing women as equally capable leaders in their respective communities.
62 S 9 of the 1996 Constitution.63 Bennett (n 4) 127.Heureux-Dube 1997 SAJHR 338.64 Albertyn and Goldblatt 1998 SAJHR 248.65 Ntshabele (n 46).manifests as a conflict between the right to gender equality and the right to culture. 66As a signatory of the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW), South Goldblatt B "Facing the challenge of transformation: difficulties in the development of an indigenous jurisprudence of equality" 1998 South African Journal of Human Rights 248-276 Bennett 1994 SAJHR Bennett "The equality clause and customary law" 1994 South African Journal of Human Rights 123-130 Bennett Customary law Bennett TW Customary Law in South Africa (Juta Cape Town 2004) Heureux-Dube 1997 SAJHR Heureux-Dube CL "Making a difference: the pursuit of equality and a compassionate justice" 1997 South African Journal of Human Rights 335-353 Himonga and Bosch 2000 SALJ Himonga C and Bosch C "The application of African customary law under the Constitution of South Africa: problems solved or just beginning?"2000 South African Law Journal 307-341 Molefe 'Ruling clouds' City Press Molefe R 'Ruling clouds Modjadji's reign' City Press Newspaper 8 Reflections about gender equality in the institution of chieftainship" in Foundation of Tertiary Institutions of the Northern Metropolis (FOTIM) International Conference Gender Studies Here and Now 17-19 January 2006 CSIR Convention Centre, Pretoria Olivier et al Indigenous law Olivier NJJ et al Indigenous law (Butterworths Durban 1995) Pieterse 2000 De Jure Pieterse M "Killing it softly: customary law in the new constitutional order" 2000 De Jure 35-53 Rautenbach 2003 Stell LR Rautenbach C "Some comments on the status of customary law in relation to the Bill of Rights" 2003 (1) Stellenbosch Law Review 107-114 Rautenbach and Du Plessis 2004 SAJHR Rautenbach C and Du Plessis W "Evolution of customary succession laws in South Africa" 2004 South African Journal of Human Rights 1-27 SALC 'Harmonisation' South African Law Commission 'Harmonisation of the common law and indigenous law: The application of customary law: conflict of personal laws' Issue Paper 4-Project 90 1996 Schoeman-Malan 2007 PER Schoeman-Malan MC "Recent development regarding South Africa's common and customary law of succession" 2007 (1) PER Potchefstroom Electronic Law Journal 1-33 Hosi.14Therefore, the SCA agreed with the high court on the following However, Ms Shilubana did not want to replace Hosi Richard at that stage, and he continued to rule.In 1997 Hosi Richard endorsed a resolution appointing Ms Shilubana as Hosi but later, in 2001, he withdrew his support.After the death of Hosi Richard in 2001, the chieftainship of the Valoyi community, the royal family, tribal council, local government representatives, civic structures and stakeholders of various organisations again proclaimed Ms Shilubana as the Hosi. 11i Richard's eldest son, Sidwell Nwamitwa, obtained a court interdict against the inauguration ceremony of Hosi Shilubana on the grounds that he was entitled to succeed to the traditional chieftaincy of the Valoyi as an heir to the late Hosi Richard.He obtained a further court order that the third to sixth applicants (third applicant: District Control Officer, fourth applicant: the Premier, Limpopo Province, fifth applicant: MEC for Local Government and Housing, Limpopo, sixth applicant: National House of Traditional Leaders) should withdraw the letters of appointment issued to Ms Shilubana and should instead issue letters of appointment to him.12TheHighCourt and the Supreme Court of Appeal decisions respectively found that prior to the interim Constitution, 13 9Nwamitwa case 540F par 3 (n 11).interms of the Valoyi cultural practices from 24 October 1968 and at least prior to 1994, women could not be appointed 10 Nwamitwa case 540F par 4 (n 11).11 Nwamitwa case 540F par 5-6 (n 11).12 Nwamitwa case 540F par 6-7(n 11).13 Constitution of the Republic of South Africa Act 200 of 1993 (Interim Constitution).Therefore, Ms Shilubana took the matter to the Constitutional Court on the grounds that she had been prevented from being a Hosi by virtue of her gender.The Constitutional Court set aside the decisions of the Supreme Court of Appeal with the under-mentioned judgment.
Of six children born into the royal family Refilwe is the eldest child, are more generally vulnerable in society are also likely to experience the discriminatory effects of such distinctions more severely.The final Constitution can be regarded as a catalyst that aims to ensure the removal of all traces of patriarchy in our society.61Itpromotesnon-discriminationandrequires everyone to be treated with equal dignity irrespective of the obedience to traditional cultural values that a certain community may have observed until now.62Itshouldbe noted that customary law was designed principally to regulate family relationships.Although most women in contemporary society, through force of circumstances, engage in extra-familial activities, there is no directly relevant rule of customary law to govern this novel situation aside from generally outdated notions that women are subordinate to men.63