Shilubana and Others v. Nwamitwa

The issue in this appeal was whether traditional leaders of a community can develop their customs and traditions to promote gender equality in the succession of traditional leadership in accordance with the Constitution. The dispute was about the right to succeed as Chief to the Valoyi community in Limpopo, where the Chief’s daughter, Ms. Shilubana, could not succeed to the Chief position after her father’s death because the principle of male primogeniture governed succession. Her uncle succeeded the deceased Chief instead, but, during his reign, he and the Royal Family unanimously resolved to confer the chieftainship to Ms. Shilubana when the current Chief died because it aligned with the new Constitution. This was also communicated to and accepted by the Commission for Traditional Leaders of the Northern Province. When Ms. Shilubana’s uncle, the Chief, died, a dispute arose between Ms. Shilubana and the Chief’s son as to who should succeed to Chieftainship. The Court held that where there is a dispute over the legal position under customary law, a court must consider both the traditions and the present practice of the community. If there is a new development within the community, the court must strive to recognize and give effect to that development, to the extent it is consistent with protecting rights. The Court found that the customary law of the Valoyi community did not permit a woman succeeding without amendment, but that the Royal Family had power to amend the customs and that their actions represented a development of law consistent with the spirit of the Constitution. Thus, it was a valid legal change, vesting Ms. Shilubana with the right to succeed to Chieftainship.