The Role of Traditional Authorities in Developing Customary Laws in Accordance with the Constitution: Shilubana and Others v Nwamitwa 2008 (9) BCLR 914 (CC)
DOI:
https://doi.org/10.17159/1727-3781/2009/v12i3a2737Abstract
South African customary law is a body of law by which many South Africans regulate their lives in a multicultural society. South Africa's constitutional dispensation is based on the premise that all existing laws are subject to the Constitution of the Republic of South Africa 1996, including African customary law, and that all laws are limited only by the Constitution. Customary law existed long before the adoption of the Constitution which, among other things, aims at harmonising the different cultural practices that exist in the country. It is apparent that some traditional cultural practices that still exist are in conflict with the Constitution but, until they are challenged before a court of law, they will remain enforceable in our communities. This contribution investigates customary systems of succession that are guided by the principle of male primogeniture: a deceased's heir is his eldest son, failing which, the eldest son's oldest male descendant is his heir. The discussion focuses in particular on the case of Shilubana v Nwamitwa 2008 (9) BCLR 914 (CC). This case concerns an application to the Constitutional Court for a leave to appeal against a decision of the Supreme Court of Appeal substantially confirming a decision of the Pretoria High Court that prevented a woman from being a Hosi (traditional leader) of her own community
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References
Bibliography
Albertyn and Goldblatt 1998 SAJHR
Albertyn C and Goldblatt B "Facing the challenge of transformation:
difficulties in the development of an indigenous jurisprudence of equality"
South African Journal of Human Rights 248-276
Bennett 1994 SAJHR
Bennett "The equality clause and customary law" 1994 South African
Journal of Human Rights 123-130
Bennett Customary law
Bennett TW Customary Law in South Africa (Juta Cape Town 2004)
Heureux-Dube 1997 SAJHR
Heureux-Dube CL "Making a difference: the pursuit of equality and a compassionate justice" 1997 South African Journal of Human Rights 335353
Himonga and Bosch 2000 SALJ
Himonga C and Bosch C "The application of African customary law under the Constitution of South Africa: problems solved or just beginning?" 2000 South African Law Journal 307-341
Molefe 'Ruling clouds' City Press
Molefe R 'Ruling clouds Modjadji's reign' City Press Newspaper 8 June 2008 11
Molefe 'Judgment' City Press
Molefe R 'Judgment gives me the courage to fight on' City Press Newspaper 8 June 2008 11
Molefe 'Ruling' City Press
Molefe R 'Ruling on women traditional leader stokes tension' City Press
Newspaper 8 June 2008 11
Ntshabele "Reflections"
Ntshabele D "Reflections about gender equality in the institution of chieftainship" in Foundation of Tertiary Institutions of the Northern
Metropolis (FOTIM) International Conference Gender Studies Here and
Now 17-19 January 2006 CSIR Convention Centre, Pretoria
Olivier et al Indigenous law
Olivier NJJ et al Indigenous law (Butterworths Durban 1995)
Pieterse 2000 De Jure
Pieterse M "Killing it softly: customary law in the new constitutional order" 2000 De Jure 35-53
Rautenbach 2003 Stell LR
Rautenbach C "Some comments on the status of customary law in relation to the Bill of Rights" 2003 (1) Stellenbosch Law Review 107-114
Rautenbach and Du Plessis 2004 SAJHR
Rautenbach C and Du Plessis W "Evolution of customary succession laws in South Africa" 2004 South African Journal of Human Rights 1-27
SALC 'Harmonisation'
South African Law Commission 'Harmonisation of the common law and indigenous law: The application of customary law: conflict of personal laws' Issue Paper 4-Project 90 1996
Schoeman-Malan 2007 PER
Schoeman-Malan MC "Recent development regarding South Africa's common and customary law of succession" 2007 (1) PER Potchefstroom Electronic Law Journal 1-33
Van Rensburg 2001 Obiter
Van Rensburg AMJ "The judiciary and its constitutional mandates to develop and apply customary law" 2001 Obiter 217-227
Register of legislation
Constitution of the Republic of South Africa 1996
Constitution of the Republic of South Africa Act 103 of 1993
Constitution of the Republic of South Africa Act 200 of 1993
Promotion of Administrative Justice Act 3 of 2000
Traditional Leadership and Governance Framework Act 41 of 2003
Register of court cases
Bhe v Magistrate, Khayelitsha (Commission for Gender Equality as Amicus
Curiae); Shibi v Sithole and Others; South African Human Rights
Commission and Another v President of the Republic of South Africa 2004
ZACC 17; 2005 (1) SA 580 (CC); 2005 (1) BCLR 1 (CC)
Carmichele v Minister of Safety and Security and Another (Centre for Applied Legal Studies Intervening) 2001 ZACC 22; 2001 (4) SA 938 (CC); 2001
(10) BCLR 995 (CC)
Du Plessis and Others v De Klerk and Another 1996 ZACC 10; 1996 (3) SA
(CC); 1996 (5) BCLR 658 (CC)
Egan v Canada (AG) 1995 (2) SCR 513 (Canada)
Mabuza v Mbatha 2003 (4) SA 218 (C), 2003 (7) BCLR 743 (C)
Mthembu v Letsela 1997 (2) SA 936 (T); 1998 (2) SA 675; 2000 (3) SA 867 (SCA)
Nwamitwa v Phillia and Others 2005 (3) SA 536 (T)
R v Salituro 1992 8 CRR (2d) 173
S v Makwanyane 1995 (3) SA 391 (CC)
Shilubana and Others v Nwamitwa (Commission for Gender Equality as Amicus Curiae) 2007 (2) SA 432 (SCA)
Shilubana and Others v Nwamitwa 2008 (9) BCLR 914 (CC)
Shilubana and Others v Nwamitwa CCT3/07
Van Breda and Others v Jacobs and Others 1921 AD 330
Register of internet resources
BBC News 2008 news.bbc.co.uk
BBC News 2008 Botswana gets first female traditional leader news.bbc.co.uk [accessed on 13 June 2008]
CEDAW 2006 www.un.org/womenwatch/daw/cedaw/states.htm
Convention on the Elimination of all Forms of Discrimination against Women 2006 States Parties
www.un.org/womenwatch/daw/cedaw/states.htm [accessed on 10 June 2008]
De Vos 2008 constitutionallyspeaking.co.za
De Vos P 2008 Victory for woman in developing customary law constitutionallyspeaking.co.za [accessed 20 January 2009]
Gender Links [no date] www.genderlinks.org.za/
Gender Links [no date] Women in South Africa facts and figures www.genderlinks.org.za/docs/gelectionsdocs/WomenInSA.doc [accessed on 16 July 2008]
Mokotjo 2006 www.ufs.ac.za
Mokotjo LE 2006 Property grabbing – An experience of women in Africa: A case of customary and civil law in Lesotho Research project submitted in partial fulfilment of the requirement for the Masters in Development Studies degree in the Faculty of Economic and Management Sciences at the
University of Free State Bloemfontein www.ufs.ac.za [accessed on 26 May 2009]
SALC 1998 www.saflii.org/
South African Law Commission 1998 Succession to the head of a family www.saflii.org/za/other/zalc/ip/12/12-2.html [accessed on 16 July 2008] Tshehla 2005 www.iss.co.za
Tshehla B 2005 Administration of Justice in the traditional court: traditional justice in practice: a Limpopo case study www.iss.co.za [accessed on 16 July 2008]
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