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Customary law and the promotion of gender equality: An appraisal of the Shilubana decision

Obeng Mireku

Professor of Law and Executive Dean, Faculty of Management and Law, University of Limpopo, South Africa

SUMMARY

This case note examines the South African Constitutional Court's recent decision overturning the customary law rule of male primogeniture in a dispute as to whether a woman could succeed her late father as a tribal chief. The Court overruled the hitherto central doctrine of male primogeniture by upholding a woman's right to equality to become the first female chief to inherit a chieftaincy position since the advent of South Africa's new constitutional dispensation in 1994. The article welcomes the decision as it empowers appropriate traditional authorities to effect incremental developments which are necessary to keep customary law in line with the dynamic and evolving fabric of the South African constitutional state.

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* LLB (Hons) (Ghana), LLM (Witwatersrand), Dr Jur (Germany); omireku@usa.net. This contribution is based on a paper delivered at the IALS Conference on Constitutional Law, American University College of Law and Georgetown University Law Center, Washington DC, 11-12 September 2009.
1 Shilubana & Others v Nwamitwa [2008] ZACC 9. The judgment might serve as a useful precedent in a potential litigation by a woman who aspires to become the tribal chief of the Baphiring near Rustenberg in North West Province (see The Citizen 1 July 2009 5).
2 Nwamitwa v Phillia 2005 3 SA 536 (T), judgment by Swart J presiding over the Gauteng North High Court (formerly the Pretoria High Court). On 1 December 2006, the Supreme Court of Appeal unanimously dismissed an appeal against the High Court judgment in this case. For more elaborate commentary on this first case, see O Mireku 'Balancing male primogeniture, gender equality and chieftaincy succession: Nwamitwa v Philia and Others' (2007) 21 Speculum juris 266-275. The Supreme Court of Appeal judgment, which largely upheld the reasoning of the High Court, is reported as Shilubana & Othersv Nwamitwa 2007 2 SA 432 (SCA).
3 Nwamitwa case (n 2 above) 546D.
4 Nwamitwa case (n 2 above) 539I-J.
5 Nwamitwa case (n 2 above) 5450E-F.
6 Nwamitwa case (n 2 above) 545G-H.
7 Act 41 of 2003. In terms of sec 22(1) of Act 41, the national government established the Nhlapo Commission on Traditional Leadership Disputes and Claims in 2004 that submitted its final report in July 2010. Although the Commission had a general mandate to investigate and resolve all claims and disputes relating to any traditional leadership, the focus of its final report was mainly on the rightful incumbents of various kingships. Therefore, the Nhlapo Commission did not investigate and report on the position of senior traditional leadership such as the Shilubana dispute is about.
8 Sec 2(3)(c) Traditional Leadership and Governance Framework Act 41 of 2003.
9 W Lehnert 'The role of the courts in the conflict between African customary law and human rights' (2005) 21 South African Journal on Human Rights 241 264 266.         [ Links ]
10 C Himonga 'The advancement of African women's rights in the first decade of democracy in South Africa: The reform of the customary law of marriage and succession' (2005) Acta Juridica 82 107.         [ Links ]
11 Shilubana (n 1 above) para 85.
12 Shilubana (n 1 above) para 81.
13 N Ntlama & DD Ndima 'The significance of South Africa's Traditional Courts Bill to the challenge of promoting African traditional justice systems' (2009) 4 International Journal of African Renaissance Studies - Multi-, Inter- and Transdisciplinarity 6 15.         [ Links ]
14 As above.
15 As above.
16 Shilubana (n 1 above) para 55.
17 n 9 above.
18 D Moseneke 'The burden of history: The legacy of apartheid judiciary; the legitimacy of the present judiciary' public address delivered at the University of Cape Town Summer School, January 2010 http://www.mg.co.za/moseneke (accessed 25 March 2010).         [ Links ]
19 N Reilly Womens human rights (2009) 37.
20 M O'Sullivan & C Murray 'Brooms sweeping oceans? Women's rights in South Africa's first decade of democracy' (2005) Acta juridica 1-2.
21 Eg Prinsloo v Van der Linde & Another 1997 3 SA 1012 (CC); 1997 6 BCLR 759 (CC), President of the Republic of South Africa & Another v Hugo 1997 4 SA 1 (CC); 1997 BCLR 708 (CC); Brink v Kitshoff 1996 6 BCLR 752 (CC); 1996 4 SA 197 (CC).
22 Eg Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa.
23 C Albertyn 'Substantive equality and transformation in South Africa' (2007) 23 South African Journal on Human Rights 253 276.         [ Links ]
24 Y Mokgoro 'Constitutional claims for gender equality in South Africa: A judicial response' (2003) 67 Albany Law Review 565 573.         [ Links ]
25 As above.
26 A Kok 'The promotion of equality and the Promotion of Unfair Discrimination Act of 2000: Court-driven or legislature-driven societal transformation?' (2008) 19 Stellenbosch Law Review 122 139.         [ Links ]
27 Bhe & Others v Magistrate, Khayelitsha & Others 2005 1 SA 580 (CC)
28 Besides the Balobedu and Pondomisa ethnic communities in South Africa that have been famous for having female rulers, the African continent has isolated cases of female chiefs, such as among the Amarharbe, Nkoya and Barotse in Zambia, two paramount chiefs in Sierra Leone, the Deji in Nigeria as well as the Appraponso tribe in Ghana.