## Facts

- The Valoyi traditional community in Limpopo followed customary rules of succession to the position of Hosi (chief) that, at the relevant time, excluded women from succession.
- On 24 February 1968, Hosi Fofoza Nwamitwa died without a male heir. Under the then-accepted rule of male primogeniture, his eldest daughter, Tinyiko Shilubana, was not considered for the position, despite being of age.
- Hosi Fofoza’s younger brother, Malathini Richard Nwamitwa, succeeded as Hosi of the Valoyi.
- After South Africa’s constitutional transition, the Constitution recognized customary law and traditional leadership subject to constitutional rights, including equality and non-discrimination.
- In 1996 and 1997, the Valoyi royal family and traditional authorities resolved that their succession practice should change to permit women to succeed, and further resolved that Ms Shilubana should succeed Hosi Richard and that the chieftainship should return to Hosi Fofoza’s house.
- The relevant provincial authorities approved the resolutions and the steps taken to recognize Ms Shilubana as Hosi-in-waiting.
- Hosi Richard died on 1 October 2001. His eldest son, Sidwell Nwamitwa, challenged Ms Shilubana’s appointment and sought to prevent her installation.
- Mr Nwamitwa approached the Pretoria High Court for a declaration that he was the rightful successor as Hosi under customary law.
- The Pretoria High Court found for Mr Nwamitwa, and the Supreme Court of Appeal substantially confirmed that outcome, holding that the resolutions did not validly change the rule governing succession.
- Ms Shilubana and other applicants sought leave to appeal to the Constitutional Court.

## Issues

1. Whether the Valoyi traditional authorities could validly change their customary law of succession after 1994 to allow a woman to succeed as Hosi and to return the chieftainship to the Fofoza house.
2. How a court should determine the content of customary law when the community’s practice is disputed, including the role of present community practice (“living” customary law) and the community’s own decision-making structures.
3. Whether legal certainty or alleged vested interests of the male claimant prevented recognition of the community’s changed succession rule.

## Decision

- The Constitutional Court granted leave to appeal.
- The Court upheld the appeal and set aside the orders of the Supreme Court of Appeal and the Pretoria High Court.
- The Court held that the Valoyi community, acting through its royal family and traditional authorities, had validly changed its customary law of succession to allow women to succeed.
- The Court recognized the change that designated Ms Shilubana as Hosi and returned the chieftainship to Hosi Fofoza’s house.
- The Court rejected a rigid approach that treated customary law as fixed and determined only by past recorded practice, without proper regard to post-Constitution community developments and constitutional norms.
- The Court made no order as to costs.

## Legal Principles

- Customary law is not a static code; it is law that exists in the practices of a community. When its content is disputed, courts must examine customary law in its social setting, considering both historical practice and current practice.
- The Constitution requires courts to apply customary law when applicable, subject to the Constitution, and to respect the institution of traditional leadership and the operation of traditional authorities within the constitutional order (including section 211).
- Section 211(2) recognizes that a traditional authority observing customary law may function subject to “customs,” including changes to, or repeal of, those customs; courts should acknowledge legitimate community changes to customary rules.
- In deciding whether an asserted change in customary law should be recognized, relevant considerations include: (1) the nature of the rule and its role in the community, (2) the effect of the rule on constitutional and other legal rights, (3) the process by which the change was made and whether it reflects legitimate community authority, and (4) the vulnerability of those affected by the rule.
- Community-led change to customary law that aligns with constitutional equality (including gender equality) may be given effect even where the earlier rule excluded women; the need for predictability does not automatically outweigh recognition of a valid change.
- Claims of entitlement based on older succession rules do not necessarily amount to protected vested rights that bar application of a properly established, constitutionally consistent new rule to the next succession.

## Conclusion

The Constitutional Court held that the Valoyi community, through its recognized structures, validly changed its customary succession rule to allow a woman to become Hosi and to restore the chieftainship to Hosi Fofoza’s house, and it gave effect to that change by recognizing Ms Shilubana as the rightful successor.


Shilubana and Others v. Nwamitwa, Case CCT 3/07 [2008] ZACC 9 (2008)