Authored By: Mbuyelo Nkhumeleni
University of Forthare
Case Name: Shilubana and Others v. Nwamitwa [2008] ZACC9:2009 (2) SA 66 (CC).
Citation: 2009 (2) SA 66 (CC) [2008] ZACC 9Court: Constitutional Court of South Africa
Date of Decision: 4 June 2008
Bench Composition: Langa CJ, Madala J, Mokgoro J, Moseneke DCJ, Ngcobo J, Nkabinde J, O’Regan J, Sachs J, Skweyiya J, Van der Westhuizen J, Yacoob J.
Introduction
The case of Shilubana and others v Nwamitwa[1] is a very big and Important South African Court Ruling. It shows how old traditions, equal rights for women, and the top power of the Constitution fit together.[2] The dispute was over who would become the Hosi (chief) of the Valoyi people in Limpopo. [3]Traditionally, succession followed male primogeniture, excluding women from leadership. Ms. Tinyiko Shilubana, daughter of a past chief, fought this after her people decided women could now lead.
The case is important because it confirms that traditional leaders can change old customary law to follow the Constitution. It balances keeping culture free with key rights in the Bill of Rights, such as Section 8[4] of the Constitution, which states that courts can apply Bill of Rights rules directly to people and groups if it fits. And section 39[5], which states that Courts must use foreign and local law to interpret rights and treat living customary law as real current practice. And section 211[6] which states that Traditional leaders have power if they follow the Constitution; their customs must match democratic values.
Facts of The Case
In 1968, Hosi Fofoza Nwamitwa of the Valoyi community died without leaving a son.[7] His daughter, Tinyiko Shilubana, was the next in line, but she was blocked by customary law that followed male primogeniture. Because of this rule, Fofoza’s brother, Richard Nwamitwa, was chosen as the new Hosi.[8] After South Africa’s 1996 Constitution and the end of apartheid changes, Valoyi leaders made rules in 1996 and 2001.[9] These rules changed the custom to let women become chiefs and picked Shilubana after Richard died in 2001.[10] The Mpumalanga provincial government agreed with these rules.[11] Richard’s son, Sidwell Nwamitwa, went to the Pretoria High Court to challenge Shilubana’s appointment.[12] He asked the court to declare that, as the eldest son, he was the one entitled to become Hosi.[13] The High Court, with Judge Swart presiding, decided in favour of Nwamitwa.[14]
The court said that changing the family line of succession was not proper, even though there had been progress on gender equality. It found that Shilubana could not be Hosi because she was not part of the direct line while Richard was alive. The matter was then taken to the Supreme Court of Appeal, which supported Nwamitwa by stressing old succession practices over new resolutions.[15] which led Ms. Shilubana to appeal to the Constitutional Court with backing from groups like the Commission for Gender Equality.[16]
Legal Issues
The first issue was whether the Valoyi traditional authorities had the power, under customary law and section 211(2)[17] of the Constitution, to change succession rules and allow women to become chiefs instead of following male primogeniture. The second issue was whether this development was consistent with constitutional values, especially equality under section 9[18], human dignity under section 10,[19] and the recognition of the living nature of customary law under section 39(3),[20] And the last issue was whether Nwamitwa had a guaranteed right to become chief that could not be changed by the community’s later decision to update its customs.[21]
Arguments presented
The applicants, Shilubana and the Valoyi Royal Family, argued that customary law is not fixed but develops over time, as shown by the community’s resolutions that reflected constitutional principles. [22] They emphasised that section 211(2)[23] of the Constitution gives traditional leaders the authority to apply and adapt customs in line with constitutional values, even if this means moving away from strict male primogeniture. To support their case, they referred to Bhe v Magistrate, Khayelitsha,[24] which recognised the transformative nature of customary law. They further maintained that excluding women from succession under primogeniture amounted to gender discrimination and violated constitutional rights to equality and dignity.[25]
The Respondent Nwamitwa claimed that the rules of succession were based on the long‑standing custom of male primogeniture, which gave him the right to inherit the chieftaincy.[26] He argued that the Valoyi community could not change these rules afterwards to take away his entitlement,[27] since customary law should respect continuity and past practice.[28] In his view, the 1996 resolution was invalid because it went against the established principle of primogeniture, and any attempt to alter succession rules could not override his expectation of becoming chief.
Court’s Reasoning and Analysis
All Constitutional Court judges agreed, with Judge Van der Westhuizen writing the main opinion.[29] They stressed that customary law evolves and must work together with the Constitution.[30] It rejected the idea that customary law stays the same forever.[31] Instead, it confirmed communities can change their traditions to match constitutional values.[32] The Court said the Valoyi Royal Family and Traditional Council stayed within their rights when they changed the succession rules, as customary law gets its power from the community.[33] It said section 211(2)[34] The Constitution lets traditional communities change their customary law, as long as it fits with the Constitution’s main rules.
The Court said keeping women out of succession causes unfair treatment based on gender.[35] But letting Ms. Shilubana become chief helps real equality and respects women’s dignity.[36] Customary law, the Court said, is a living system that can grow and change with society.[37] Sidwell claimed he had fixed rights to be Chief, but the Court said this was not 100% true. The community’s fair vote to choose Ms. Shilubana had stronger backing.
Judgment and Ration Decidendi
The decision of the court is that it allowed the appeal.[38] It overturned the High Court and Supreme Court of Appeal rulings.[39] Shilubana was confirmed as Hosi (chief).[40] No costs were ordered. The ration decendi was that Traditional leaders can change customary law if it follows the Constitution (sections 211(2) and 39(3)).[41] Changes must have proof and respect rights. Old practices guide, but do not lock in the rules forever.
Critical Analysis
The judgment is important because it brings together the ideas of ubuntu, which include human dignity and community values, cultural rights, and equality.[42] It was groundbreaking because it allowed communities themselves to change their customs from the bottom up, instead of having courts or lawmakers force changes from the top down. This approach was different from other cases like Bhe v Magistrate, Khayelitsha,[43] whreby A father died intestate, leaving only daughters as heirs. However, the customary law of male primogeniture excluded them from inheriting. The Constitutional Court struck down this rule as unconstitutional. and the case of MM v MN,[44] whereby a man married a second wife according to Xitsonga customary law. His first wife claimed she hadn’t consented. The court decided that the first wife’s approval is necessary for the marriage to be valid. These ruling safeguards women’s dignity and equality in polygamous unions. It strengthens section 211 institutions and builds their legitimacy, but it could lead to inconsistencies if resolutions aren’t properly documented or if disputes arise.
Critics argue that relying on evidence from changes after 1996 might undervalue older pre-constitutional practices, which could reduce legal certainty. The Rural Women’s call for remedies under section 9(2) was ignored, leaving broader discrimination issues unresolved. Still, the ruling pushes forward decolonised law and shaped cases like Pilane v Pilane,[45] whereby there was a dispute in the Bakgatla ba Kgafela traditional community where some members sought to hold meetings and make decisions without the chief’s permission. The chief intervened to block them, asserting his sole authority. The Constitutional Court ruled that communities have the right to assemble and participate in their customary matters. This showed the importance of participatory custom, where people, not just leaders, shape tradition.
Conclusion
The Shilubana v Nwamitwa is a key South African case that transformed how customary law interacts with constitutional rights. It confirmed that customary law evolves rather than staying fixed, and communities can update their traditions to align with the Constitution. Recognizing Princess Nwamitwa’s appointment as Hosi was a major advance for gender equality in traditional leadership.
Bibliography
Case laws
Shilubana and Others v. Nwamitwa, 2009 (2) SA 66 (CC) [2008] ZACC 9 (S. Afr.).
Bhe v. Magistrate, Khayelitsha, 2005 (1) SA 580 (CC) [2004] ZACC 17 (S. Afr.).
MM v. MN, 2013 (4) SA 415 (CC) [2012] ZACC 12 (S. Afr.).
Pilane v. Pilane, 2013 (4) BCLR 431 (CC) [2013] ZACC 3 (S. Afr.).
Legislation
Afr. Const., 1996, § 8.
Afr. Const., 1996, § 9.
Afr. Const., 1996, § 10.
Afr. Const., 1996, § 39(3).
Afr. Const., 1996, § 211(2).
[1] Shilubana and Others v. Nwamitwa, 2009 (2) SA 66 (CC) [2008] ZACC 9 (S. Afr.) .
[2] Shilubana, supra.
[3] Shilubana, supra.
[4] S. Afr. Const., 1996, § 8.
[5] S. Afr. Const., 1996, § 39.
[6] S. Afr. Const., 1996, § 211.
[7] Shilubana, supra note 1, paras. 6–9, at 70–71.
[8] Shilubana, supra note 1, paras. 6–9, at 70–71.
[9] S. Afr. Const., 1996, § 211(2).
[10] Shilubana, supra note 1, paras. 6–9, at 70–71.
[11] Shilubana, supra note 1, paras. 6–9, at 70–71
[12] Shilubana and Others v. Nwamitwa, 2009 (2) SA 66 (CC) [2008] ZACC 9 (S. Afr.) paras. 6–9, at 70–71.
[13] Shilubana, supra note 1, paras. 35–38, at 445–47, paras. 6–9, at 70–71.
[14] Shilubana, supra note 1, paras. 6–9, at 70–71.
[15] Shilubana, supra note 1, paras. 6–9, at 70–71.
[16] Shilubana, supra note 1, paras. 6–9, at 70–71.
[17] S. Afr. Const., 1996, § 211(2).
[18] S. Afr. Const., 1996, § 9.
[19]S. Afr. Const., 1996, § 10.
[20] S. Afr. Const., 1996, § 39(3).
[21] Shilubana, supra note 1, paras. 31–34, at 77–78.
[22] Shilubana, supra, Note 1, paras. 31–34, at 77–78.
[23] S. Afr. Const., 1996, § 211(2).
[24] Bhe v. Magistrate, Khayelitsha, 2005 (1) SA 580 (CC) [2004] ZACC 17 (S. Afr.). paras. 93–97, at 610–12.
[25] S. Afr. Const., 1996, §§ 9–10.
[26] Shilubana, supra note 1, paras. 35–37, at 79.
[27] Shilubana, supra note, paras. 35–37, at 79.
[28] Shilubana, supra, note 1, paras. 35–37, at 79.
[29] Shilubana, supra note 1, paras. 35–37, at 79.
[30] S. Afr. Const., 1996, § 39(3).
[31] Shilubana, supra note 1, para. 86, at 88.
[32] S. Afr. Const., 1996, § 211(2).
[33] Shilubana, supra note 1, para. 55, at 84.
[34] S. Afr. Const., 1996, § 211.
[35] S. Afr. Const., 1996, § 9.
[36] S. Afr. Const., 1996, § 10.
[37] S. Afr. Const., 1996, §39.
[38] Shilubana and Others v. Nwamitwa, 2009 (2) SA 66 (CC) [2008] ZACC 9 (S. Afr.), paras. 18–20, at 74.
[39]Shilubana, supra, paras. 18–20, at 74.
[40] Shilubana, supra, paras. 21–23, at 75.
[41] S. Afr. Const., 1996, §§ 211(2), 39(3).
[42] S. Afr. Const., 1996, §§ 9–10.
[43] Bhe, supra note 2, paras. 93–97, at 610–12.
[44] MM v. MN, 2013 (4) SA 415 (CC) [2012] ZACC 12 (S. Afr.), paras. 47–50, at 430–32.
[45] Pilane v. Pilane, 2013 (4) BCLR 431 (CC) [2013] ZACC 3 (S. Afr.), paras. 35–38, at 445–47.
