“Equality” misplaced in the Development of the Customary Law of Succession: Lessons from Shilubana v Nwamitwa 2009 2 SA 66 (CC)

• Jurisdiction: South Africa
• Citation: (2009) 20 Stell LR 333
• Date: 16 August 2019
• Pages: 333-356
• Author: Nomthandazo Ntlama
• Published date: 16 August 2019

333

“EQUALITY” MISPLACED IN THE

DEVELOPMENT OF THE CUSTOMARY LAW OF

SUCCESSION: LESSONS FROM SHILUBANA V

NWAMITWA 2009 2 SA 66 (CC)

Nomthandazo Ntlama

B Juris LLB, Certif‌icate in Comparative Human Rights, LLM

Senior Lecturer, Department of Constitutional Law, UNISA

1 Introduction

The Constitution of the Republic of South Africa, 1996 (“the Constitution”)

is commit ted to the protect ion and promotion of the right t o gender equality

as well as the right t o culture and t o participate in c ultural life. This dual

commitment ha s presented signicant opport unities for the development

of these competing int erests alongside each other. The equal recognition of

the right t o gender equality and the right to culture has also created te nsions

between the a pplication of customa ry law values and the nat ional agenda for

the realisation of gender e quality. This tension has resulted in c ustomary law

being viewed as a source of potential conict and as perpetuat ing inequalities

and prejudices against women owing to the past with which South Af rica is

coming to term s.1

The potential conict be tween customary law and the general human

rights f ramework relates to the former’s exible ch aracter, the fact that it is

not univers al, and the lack of an accepted denition of what it entails.2 T he

conict is fu rther exacerbated by colonial and apart heid laws that limited the

development of customary law alongside common law.3 The non-development

of cust omary law alongside common law has effectively led to its margin-

alisation, as the majority of t hose subscribing to the syst em of customary

law did not have a direct inuence on its development.4 This is endorsed by

Deveaux, who states that the more sinister side of the development of custom-

ary law lies in the history of manipulation and co-option of traditional leader s

by c olonial and apart heid administ rators.5 Hence Fishbayn’s a rgument that

even though the recognition of cust omary law dur ing this per iod seemed to

1 See Rautenb ach “South Africa n Common and C ustomary Law of Intestate Succession: a Qu estion of

Harmonis ation, Int egration o r Abolition” 2008 12(1) E JCL htt p://www ejcl org/121/abs121-20htm l 1 4

(accessed 07-05-20 09)

2 See Deveaux “C onflictin g Equalities? Cultural Group Rights and Sex Eq uality” 200 0 Political S tudies

522

3 See the background in Kaga nas & Murray “ The Contes t between Culture and G ender Equ ality un der

South Afri ca’s Interim Constitu tion” 1994 Journal of Law a nd Society 409

4 See Mokg oro “ The Customary Law Quest ion i n t he So uth African Constit ution” 1997 Saint Louis

University L aw Journal 1279

5 “Liberal Const itutions and Traditional Cultures: the South Africa C ustomary L aw Debate” 2003

Citizenshi p Studies 161

(2009) 20 Stell LR 333

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have been an effor t to f ree the African cult ure from the burden of emulat-

ing Europe an norms, it was nothing more than a desire to appease the local

leadership by showing defere nce to thei r authority, where traditional chiefs

were empowered to apply customa ry law to black South Africans.6 A lthough

the applicat ion of customary law was treated by the cou rts as i f it were t he

same as common law, only commissioner’s courts and traditional court s were

permitte d to apply it in terms of the Black Administrat ion Act 38 of 1927 (“the

Black Administ ration Act”).7 This contention th at the colonial and apar theid

period resulted in customa ry law being applied through the prism of common

law was endorsed by the Con stitutional Court in Alexkor Ltd v Richtersveld

Community8 (“Alexkor”).

The recognit ion of trad itional leadership and its i nstitutions, including the

right to cultural pract ices, therefore, has created a new cha llenge relating to

their role in the development of customa ry law values and principles. The

constitutional status of customar y law has fuelled debates on its rec ognition

and created the need for a delicate balance in the area of gender equality. This

constitutional and legal status and the tensions arisi ng from the recognition of

these competi ng rights have given rise to court challenges. These challenges

relate to the nature of these r ights and the interrelationship between t hem,

requiring the Cou rt not only to apply them, but also to develop and adjust

them within the spi rit and purport of the Bill of Rights.9

Many of these cour t challenges10 have focused on the rule of male

primogenitur e in respect of in heritance and succession to proper ty within

the framework of family law rel ationships. One area of con ict tha t has

not received any attent ion from t he court s, unti l the Constitution al Cour t

was called upon t o consider t his conict in Shilub ana v Nwa mitwa11

(“Shilubana”), is the woman’s succession to chieftaincy. The purpose of

this art icle is to analyse Shilubana and the legal fram ework in which it wa s

decided, and to consider it s implications for the fut ure of the customa ry

law of succession to chieftaincy in South A frica. It will be a rgued that the

characterisat ion of gender equality as i rreconcilable with the values and

principle s of custo mary law undermin es the ve ry social change objec tives

that are entrenched i n the Constitution.

6 “Litigating t he Right to Cultu re: Family Law in the New So uth Afri ca” 1999 Inte rnational Journal of

Law, Policy and the Fa mily 147

7 S 11 Bennett Customar y Law i n South Africa (200 4) 44 al so highlig hts the fact tha t it was only af ter

1988 that the c ourts were r equired to t ake judicial not ice of customar y law in ter ms of s 1 of the Law of

Evidence Am endment Act 45 of 1988 This chan ge was a resu lt of the invest igation by the Commission

of Inquiry i nto the Struct ure and Functio ning of the Court s (the Hoexter Commis sion) The Commission

recommend ed tha t tr aditional courts contin ue to apply customa ry law while other cour ts we re only

required t o recognise it See pa ra 6 1 of Part 5 of the 1983 Hoexter Rep ort

8 2003 12 BCLR 1301 (CC) para 51

9 See section 39(2) of the Constit ution

10 See Mthembu v Letsela 2000 3 SA 867 (SCA); Gumede v Preside nt of the Republic o f South Africa 20 09

3 BC LR 243 (CC); Bhe v Magist rate Kh ayelitsha; Shibi v Si thole; SA Human Rights Commiss ion v

President of t he RSA 2005 1 BCLR 1 (CC)

11 2009 2 SA 66 (CC)

334 STELL LR 2009 2

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