In 1968 Hosi Fofoza, of the Valoyi traditional community in Limpopo, died without a male heir. At the time, succession to be Hosi was governed by the customary rule of male succession. Indeed, Hosi Fofoza had succeeded his father only because his elder sister was ineligible to be Hosi. Therefore, Tinyiko Shilubana, his eldest daughter was not considered for the position, despite being of age in 1968. Instead Hosi Fofoza’s younger brother Richard succeeded him as Hosi of the Valoyi.

In an attempt to align their customary law with the Constitution, on 22 December 1996, Hosi Richard and the Royal Family of the Valoyi unanimously resolved to bestow chieftainship in the next succession to Ms Shilubana. On 5 August 1997 the Royal Council confirmed this decision, and on the same day the Valoyi tribe resolved that ‘in accordance with the usages and customs of the tribe’ Ms Shilubana would be appointed Hosi. Hosi Richard died in 2001.

However in 2002, Hosi Richard’s eldest son, Sidwell Nwamitwa, interdicted Ms Shilubana’s installation as Hosi and challenged her succession, claiming that the traditional authorities had acted unlawfully. He subsequently sought a declaration in the Pretoria High Court that he was the rightful heir of the Valoyi community and should succeed his father. Both the High Court and the Supreme Court of Appeal ruled in his favour.

Ms Shilubana approached the Constitutional Court for leave to appeal in 2007 on the ground of gender equality. The Constitutional Litigation unit (CLU) of the Legal Resources Centre in Johannesburg acted on behalf of the Commission for Gender Equality (CGE) and the National Movement of Rural Women (NMRW) who intervened as amicus curiae (friends of the court) in the matter.

The CGE argued that where a traditional community has on its own accord developed its customary law to reflect the spirit and purpose of the Constitution, the court must as far as possible recognise the development. The NMRW argued that the actions of the Valoyi authorities were well within their powers and reflected the spirit and purpose of the Constitution. They emphasized that customary law is a flexible, living system of the law, which develops over time according to the needs of the community and that the authority conferred upon traditional leaders to bring their customs in line with the Constitution includes the ability to remedy discrimination.

The unanimous decision of the majority of the Constitutional Court, read by
Justice Van der Westhuizen explained that Section 211 of the Constitution requires that courts apply customary law subject to the Constitution and that courts must respect the right of traditional communities to develop their own law. Courts, after receiving evidence of the past and present practice of traditional communities, must acknowledge developments where they have occurred. The Constitutional Court stated that the value of recognising the development by a traditional community of its own law, in accordance with the constitutional right to equality, was not on the facts of this case outweighed by the need for legal certainty and the protection of rights. In any case, the Court concluded that Mr Nwanitwa did not have a vested right to be Hosi.

Achmed Mayet of the CLU said: ‘The LRC is extremely happy with the judgment.’ It builds on the gains made in the judgement of Bhe and Shibi where the rule of primogeniture as applied in intestate succession was declared discriminatory and therefore unconstitutional. He also added that: ‘This case is yet another example of how the LRC works together with Chapter 9 institutions to promote, protect and fulfil the rights enshrined in our Bill of Rights.’

Excited about her upcoming inauguration in August, Ms Shilubana said: ‘I am glad that the whole thing is over, we can now move on with our lives. I’m planning to retire from politics next year so that I can be closer to my people.’ She said that her new role would include overseeing the construction of a new dam near Tzaneen, expected to create hundreds of jobs for local people, and lobbying government to build more clinics in the Valoyi area so that sick people wouldn’t have to walk long distances to get treatment.