Tradition and Gender Equality Reinforced by Constitutional Court of South Africa
A Female Child can Inherit her Father's Chieftaincy Title - The Case of Tinyiko Shilubana v Sidwell Nwamitwa [2008] ZACC 9
28-07-2008
Respect for women’s equality gains ground in South Africa where the decision by the traditional authorities of the Royal family of the Valoyi in Limpopo to grant a daughter the right to succeed her father’s chieftaincy’s title as Hosi was upheld by the Constitutional Court of South Africa.
When in 1968, Hosi Fofoza Nwamitwa died without a male heir, he was succeeded by his brother Richard Nwamitwa instead of his eldest child, a female, Ms Tinyiko Shilubana. At the time, Ms. Shilubana was disqualified to inherit the title under Customary Law because of her gender. However, between 1996 and 1997, the elders of the royal family of Valoyi decided to modify the customary law to include females by virtue of the constitutional right to equality of men and women. In their resolution, they stated that although “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 African Constitution it is now permissible that a female child be heir since she is also equal to a male child”. It was further agreed that Hosi Richard Nwamitwa continues This position was approved by the provincial government. The dispute for Hosi began October 1, 2001, when Hosi Richard Nwamitwa died and his eldest son, Sidwell Nwamitwa challenged Ms. Shilubana succession on the basis that the traditional authorities acted unlawfully.
The Pretoria High Court and the Supreme Court of Appeal decided in Mr. Sidwell Nwamitwa favour. On appeal by Ms. Shilubana, the Constitutional Court of South Africa (Van Der Westhuizen J) held that the while the succession to the leadership of the Valoyi in the past has been according to the principle of male primogeniture, the traditional authorities had the authority to develop customary Law under the Constitution and that Mr. Nwamitwa did not have a right to be declared Hosi. This judgment was delivered in June 2008.
For the full judgment please visit the following link.
http://www.constitutionalcourt.org.za/uhtbin/cgisirsi/3CO7a8Cfbg/MAIN/81170008/9#top
For more details visit the Constitutional Court of South Africa’s website: http://www.constitutionalcourt.org.za/site/home.htm