Shilubana and Others v Nwamitwa

This dispute concerned succession to the chieftainship (Hosi) of the Valoyi traditional community in Limpopo. When Hosi Fofoza died in 1968 without a male heir, his daughter Ms Shilubana was not considered due to the customary rule of male primogeniture. Instead, his younger brother Richard succeeded him. In December 1996, during Hosi Richard's reign and with his participation, the Royal Family unanimously resolved to confer chieftainship on Ms Shilubana, noting that under the new Constitution a female child could now be heir. Hosi Richard acknowledged this in 1997, though he later withdrew support in 1999. After his death in 2001, the Royal Family confirmed Ms Shilubana as Hosi. However, Mr Nwamitwa (son of Hosi Richard) claimed he was entitled to succeed as the eldest son of the previous Hosi and sought a declarator from the High Court. Both the High Court and Supreme Court of Appeal ruled in his favor, finding that the traditional authorities lacked power to change family lines and that Ms Shilubana's appointment was not in accordance with custom.

• Whether a traditional community's Royal Family has authority to develop customs and traditions to eliminate gender discrimination in succession to traditional leadership
• Whether traditional authorities can restore traditional leadership to a house from which it was removed due to pre-constitutional gender discrimination
• What is the proper approach for courts to determine the content of customary law
• Whether the Van Breda test for proving custom applies to indigenous customary law
• Whether courts must develop customary law under section 39(2) of the Constitution to empower communities to align their customs with constitutional values
• The relationship between traditional community structures and courts under section 211 of the Constitution

The application for leave to appeal was granted. The appeal against the Supreme Court of Appeal was upheld. The orders of both the High Court and Supreme Court of Appeal were set aside. The application for a declarator (that Mr Nwamitwa was entitled to succeed as Hosi) was dismissed. No order was made as to costs before the Constitutional Court or in respect of the Supreme Court of Appeal costs order.

The binding legal principles established are: (1) Customary law is living law that develops over time and must be recognized as an independent source of norms within the legal system. (2) The Van Breda test for custom (certainty, uniform observance over time, reasonableness) does not apply to indigenous customary law where development of living law is at issue, as it would prevent recognition of legitimate developments. (3) When determining customary law, courts must consider: (a) the traditions and past practice of the community; (b) the community's right under section 211(2) to develop their law; and (c) the balance between facilitating development and protecting legal certainty and rights. (4) Traditional authorities have constitutional power under section 211(2) to develop their customary law to bring it into line with the Constitution, including to remedy past gender discrimination. (5) Where customary law authorities lack such power, courts must use section 39(2) to develop customary law incrementally to empower communities to act on constitutional considerations in traditional leadership matters. (6) Past practice alone does not establish a customary law rule with certainty where contemporary practice suggests change has occurred or the Constitution requires development. (7) An expectation based on past discriminatory practice cannot override a community's valid constitutional adaptation of its customs.

Van der Westhuizen J made several non-binding observations: (1) Courts must exercise caution regarding historical records of customary law due to the distorting tendency of colonial and apartheid-era authorities to view customary law through foreign legal conceptions. (2) The stagnation of customary law under colonial and apartheid regimes should not continue, and free development by communities must be facilitated. (3) While the Court could not conclusively determine from the evidence whether Valoyi customary law inherently permitted flexible succession decisions, this possibility was left open. (4) The judgment does not definitively resolve how Valoyi succession will operate in future - such developments are primarily for the traditional authorities acting in accordance with custom, practical needs and the Constitution. (5) The principle that "a Hosi is born not elected" is not necessarily changed by this ruling, as Ms Shilubana was born as a child of a Hosi. (6) It was unnecessary to determine whether the decision constituted remedial action under section 9(2) of the Constitution. (7) It was unnecessary to consider whether the Traditional Leadership and Governance Framework Act applied to these proceedings.

This is a landmark judgment on the development of customary law under the Constitution. It establishes that: (1) customary law is "living law" that must be recognized as an independent source of norms capable of development; (2) the Van Breda test for proving custom does not apply to indigenous customary law; (3) courts must consider both past traditions and present practice when determining customary law; (4) traditional communities have constitutional authority under section 211(2) to develop their own laws, including to remedy past discrimination; (5) courts must use section 39(2) powers to develop customary law incrementally to empower communities to align customs with constitutional values; and (6) communities can take remedial measures to undo effects of past gender discrimination in traditional succession. The case demonstrates profound respect for the autonomy of traditional communities while ensuring their practices comply with constitutional equality guarantees. It represents a model of how courts should engage with customary law as a living system within the constitutional framework.