Authored By: Thereso Mphela
University of Fort Hare
Introduction
Section 9 of the Constitution of South Africa mandates that neither the state nor any person may unfairly discriminate against anyone on the grounds of gender.[1] While customary law has long been the heartbeat of traditional governance, the landmark case of Shilubana and others v Nwamitwa serves as a definitive reminder that no tradition, however ancient, is immune to the “transformative” reach of the Bill of Rights.
Facts of the case
The Shilubana case revolves around a succession dispute for the Hosi (chief) position in the Valoyi traditional community in Limpopo, South Africa, pitting Ms. Shilubana—eldest daughter of the late Hosi Fofoza, who died in 1968 without a male heir—against Mr. Nwamitwa, eldest son of Hosi Richard (Fofoza’s younger brother, who succeeded under male primogeniture rules). After Hosi Richard died in 2001, the Valoyi Royal Family repeatedly resolved in 1996, 1997, and post-2001 to appoint Ms. Shilubana as Hosi, with Richard initially acknowledging her as heir; tribal meetings confirmed this, a provincial letter approving her appointment effective May 2002, and stakeholder gatherings.[2]
However, Hosi Richard later withdrew his support in a 1999 letter. Community factions backed Mr. Nwamitwa, and his court challenge succeeded in the High Court and the Supreme Court of Appeal, which ruled that, even if Valoyi customs had evolved to allow female succession, Mr. Nwamitwa, as Richard’s eldest son, prevailed under primogeniture principles. Ms. Shilubana sought leave to appeal to the Constitutional Court, highlighting tensions between evolving customary law and rigid male-line traditions.[3]
Legal issue
whether the community has the authority to restore the position of traditional leadership to the house from which it was removed by reason of gender discrimination, even if this discrimination occurred prior to the coming into operation of the Constitution, and whether the royal family has the authority to restore leadership to a house from which it was removed due to pre-constitutional gender discrimination.[4]
Arguments presented
The applicants argue that Valoyi customary law is living and adaptable under section 211(2) of the Constitution, constrained only by constitutional and legislative limits, allowing the community to amend traditions like rejecting male primogeniture to fit modern circumstances, as seen in foreign examples and left open by this Court’s Bhe judgment on traditional leadership.[5] They assert the appointment process for Ms. Shilubana fully complied with community rules: the Royal Family (including Hosi Richard) initiated and approved it, the Royal Council ratified it, the Tribal Council reviewed it, and all key structures participated without procedural flaws or contrary evidence.[6]
Mr. Nwamitwa contends that succession hinges not just on gender but on lineage, prohibiting the “election” of Ms. Shilubana outside the traditional family line, as Valoyi custom bars women from being Hosi; male primogeniture is “fair” since her succession would break the chain of Hosi-fathered heirs, risking community chaos, and thus involves no unconstitutional gender discrimination or if any, it is justifiable as reasonable.[7] He further argues the Royal Family lacks authority to evolve customs against gender discrimination in Hosi succession or to rectify past gender-based displacements of leadership houses, as its role is merely to recognize and confirm the heir.[8]
The court’s reasoning and analysis
In Shilubana v Nwamitwa, the Constitutional Court overturned the SCA and High Court, affirming Ms Shilubana’s right to succeed as Hosi of the Valoyi by recognizing the community’s evolution of customary law to permit female succession. This change stemmed from Royal Family resolutions (1996 onwards, initially endorsed by His Royal Highness Richard, despite his 1999 withdrawal), Royal Council and Tribal Council approvals, and post-2001 confirmations, aligning with internal processes. Section 211(2) was central, upholding communities’ authority to develop living customary law under the Constitution, overriding male primogeniture. The lower courts had prioritized Mr. Nwamitwa’s lineage as Richard’s son, invalidating Shilubana’s “election” and deeming male primogeniture non-discriminatory. The Court scrutinized the authorities’ power, rejected Nwamitwa’s claim of invalidity, and favored the view that they deliberately evolved rules, citing historical Tsonga flexibility and constitutional equality (sections 1(c), 2, 30, 31, 39(2), 211(3)), despite evidentiary gaps[9].
The Court balanced communal self-determination against legal certainty, vested rights, and women’s protections, granting traditional authorities’ broad power to appoint chiefs like Shilubana, even beyond narrow customary exceptions (e.g., no male heir). A restrictive approach would hinder section 211(2) reforms, frustrating the Bill of Rights values and the judicial duty to develop customary law incrementally. Unlike Bhe’s national intestate uncertainty, this localized Valoyi decision, documented in resolutions, poses no chaos, restoring the chieftainship to Shilubana (eligible in 1968 but for her gender) and to Hosi Fofoza’s line, while preserving core customs like royal lineage. Recognizing her appointment advances gender equality without erasing traditions, exemplifying the adaptability of customary law to constitutional norms.[10]
Judgements and Ratio decidendi
The Constitutional Court held that the Valoyi traditional authorities could develop customary law to allow Ms. Shilubana, as a daughter of a former Hosi, to succeed despite the earlier male‑primogeniture practice. It found the lower courts wrong in denying them this power and held that Mr. Nwamitwa’s expectation did not amount to a vested right. Emphasising section 211(2) and the need to balance legal certainty with rights protection, the Court declared Ms. Shilubana the rightful heir and set aside the orders in favour of Mr. Nwamitwa.[11]
The court treated these events as clear evidence that the Valoyi traditional authorities had validly developed their customary law to allow a woman to succeed as Hosi, in line with the 1996 Constitution and the principle of gender equality. It held that the Royal Family’s 1996 resolution, Hosi Richard’s 1997 acknowledgment, and the later tribal meeting and letters to the Commission all showed a deliberate, community-led change rather than a mere irregularity. The court therefore found that Ms. Shilubana had been lawfully recognised as the heir and that the authorities’ actions amounted to a constitutionally‑consistent development of customary law, which the lower courts had wrongly ignored or discounted.[12]
The ratio decidendi is that customary law in South Africa is constitutionally entrenched, recognised as an integral, independent source of norms that must comply with the Constitution and be treated with the same respect as any other law. When determining the content of a customary norm, a court must consider both the community’s traditions and its present practice, while being cautious of historically distorted records and ensuring that customary law is not measured solely by the standard law paradigm. Courts must further respect the community’s right, under section 211(2), to amend and develop its own customs, recognising that customary law is inherently evolving rather than static. This development must be balanced against legal certainty, vested rights, and the protection of constitutional rights, with courts applying section 39(2) to develop customary law incrementally where necessary, while generally deferring to genuine, rights-consistent community-led change.[13]
The ratio decidendi is that traditional authorities must have the constitutional power to develop customary leadership rules to align succession practices with the Bill of Rights, even if their formal discretion under existing custom appears narrow. Because traditional authorities hold the highest authority within the customary community on succession, limiting their role to a narrow one would deny any community body the ability to make constitutionally driven changes, such as installing a woman as Hosi, even if she is the eldest child. This would undermine section 211(2), which entitles communities to function under and amend their own customary law in line with constitutional values. Section 39(2), therefore, requires courts to develop customary law incrementally, while empowering communities themselves to drive such change. On that basis, the appointment of Ms. Shilubana is recognised as a legitimate development of customary law, subject only to whether countervailing factors outweigh this development in determining the legal position.[14]
The ratio is that community-led development of customary law must be balanced against legal certainty and rights protection, but where the change is clear, documented in written resolutions, and affects only one chieftainship, there is no need for judicial‑interim measures as in Bhe. The expectation of a contender such as Mr. Nwamitwa does not amount to a vested right. It cannot override the traditional authorities’ power to adapt their customs in line with constitutional values and the right of communities to self-regulation.[15]
Critical analysis
The Shilubana judgment is widely praised for affirming that customary law is a living, constitution-aligned system and for entrenching the community’s right to develop its own succession rules, including the right of women to succeed as chiefs. The Court’s emphasis on sections 211(2) and 39(2) rebalances power away from rigid, colonial-era interpretations toward participatory, values-based development, which is seen as a significant step toward gender equality.[16]
Critics, however, argue that the Court under‑developed the normative content of “equality” and effectively outsourced too much of the reform burden to traditional authorities who may be internally patriarchal or politically motivated, risking selective or cosmetic change rather than genuine transformation. Some scholars also contend that by deferring to community-led change heavily, the Court downplayed its own duty actively to reshape sexist customs, especially where vulnerable women or younger generations may lack a voice in the “traditional” decision-making process.[17]
Conclusion
The Shilubana v Nwamitwa decision stands as a landmark affirmation that customary law in South Africa is not a frozen relic but a living, constitutionally‑anchored system that must evolve in line with democracy and human rights. The key takeaway is that traditional authorities have real constitutional power to develop customary succession rules, such as allowing women to become chiefs, so long as the change respects the Bill of Rights and is genuinely rooted in community practice rather than arbitrary preference. The Court also clarified that community-led reform must be balanced against legal certainty and the protection of rights, but that mere expectations based on past practice do not amount to vested rights that can block constitutional progress.
The lasting impact of the case is that it entrenched female succession in customary leadership as constitutionally valid, strengthened the status of customary law as an independent source of norms within South Africa’s legal order, and empowered communities themselves to drive internal reform. It has become a key reference point for how courts should apply section 211(2) and section 39(2), signalling that deference to custom must not come at the cost of gender equality and the transformative spirit of the Constitution.
Bibliography
Constitution of the republic of south Africa,1996.
Shilubana and Others v Nwamitwa and Others (also cited as Shilubana v Nwamitwa). .2009 (2) SA 66 (CC); ZACC 9;2008 (9) BCLR 914 (CC).
[1] Constitution of the republic of south Africa, 1996.
[2] Shilubana v Nwabitwa para 3-5.
[3] para 6-7.
[4] Id para 1.
[5] Id para 27-28.
[6]Id para 29.
[7]Id para 30-31.
[8]Id para 32.
[9] Id para 41-48.
[10]Id para 58-66.
[11] Id para 3-4.
[12] Id para 5.
[13] Id para 42-49.
[14] Id para71-75.
[15] Id para 75-78.
[16] Id para 41-49.
[17] Id para 67-82.
