Shilubana and Others v. Nwamitwa

Case CCT 3/07 [2008] ZACC 9 (2008)

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Shilubana and Others v. Nwamitwa

South Africa Constitutional Court
Case CCT 3/07 [2008] ZACC 9 (2008)

KS

Facts

In the Valoyi community in Limpopo, South Africa, customary law prevented women from leading the group. In 1968, the Valoyi leader Hosi (Chief) Fofoza Nwamitwa died without a son. Hosi Fofoza’s daughter, Tinyiko Shilubana (defendant), would have succeeded to the leadership position if not for the accepted traditional law that prevented women from succession. In the alternative, Hosi Fofoza’s brother, Richard Nwamitwa, became the chief. In the years that followed, South Africa adopted a constitution that prohibited gender discrimination. Additionally, the traditional authorities of the Valoyi community passed resolutions to allow Shilubana to become the chief after Hosi Richard. These resolutions were approved by the provincial government. When Hosi Richard died in 2001, his son Sidwell Nwamitwa (plaintiff) challenged Shilubana’s right to the leadership position. Nwamitwa sought a declaration by the Pretoria High Court that Nwamitwa was the proper successor to his father. Both the Pretoria High Court and, in appeal, the Supreme Court of Appeal determined that Nwamitwa was the proper successor to Hosi Ricard. Shilubana appealed to the South Africa Constitutional Court.

Rule of Law

Issue

Holding and Reasoning (Van der Westhuizen, J.)

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