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LCP4804 - Advanced Indigenous Law Summary Notes Cases
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Bhe v Magistrate Khayelisha and Others 2005 (1) BCLR (1) (CC)Ngwenyama v Mayelane 2012(10) BCLR 1071 (SCA)
Mayelane v Ngwenyama and Another 2013 (8) BCLR 918 (CC)
Fanti v Boto and Others 2008 (5) SA 405 (C)
Mabuza v Mbatha 2003 (7) BCLR 43 (C)
Mabena v Letsoalo 1998 (2) SA 1068 (T)
Shilubana v Nwamitwa 2008 (9) BCLR 914 (CC)
Mthembu v Letsela and Another 1997 (2) SA 936 (T)
Mthembu v Letsela and Another 1998 (2) SA 675 (T)
Mthembu v Letsela and Another 2000 (3) SA 867 (SCA)
Bhe v Magistrate Khayelisha and Others 2005 (1) BCLR (1) (CC)
Shilubana v Nwamitwa 2008 (9) BCLR 914 (CC)
Nwamitwa v Philia and Others 2005 (3) SA 536 (T)
Shilubana and Others v Nwamitwa 2007 (2) SA 432 (SCA)
Shilubana v Nwamitwa 2008 (9) BCLR 914 (CC)
Nwamitwa v Philia and Others 2005 (3) SA 536 (T)
Shilubana and Others v Nwamitwa 2007 (2) SA 432 (SCA)
Pilane and Another v Pilane and Others 2013 (4) BCLR 431 (CC)
,A.THE CONSTITUTION
Sections 9(equality), 30/31 (culture), 39 (legal development) and 211 (recognition of
customary law and its institutions) deal directly with the constitutional application
of customary law.
Which one of the above sections did the Constitutional Court apply in the
Nwamitwa v Shilubana judgment to indicate that traditional authorities are
authorised to change their customary laws to align them with the Constitution?
How did the Constitutional Court then apply any or all these sections in normalising
the selection of traditional leaders and empowering traditional communities to
review their customs.
Section 9(1) of the Constitution guarantees equality of treatment before the law. It states
ignity and the right to have
as practices that may be found to conflict with one or more of these rights include
lobolo, polygamy, ukuthwala, the principle of male primogeniture and succession to
traditional status or office.
The courts have dealt with some of these issues. For example, in Bhe, the
Constitutional Court invalidated the principle of male primogeniture on the ground that it
discriminated against women with regard to inheritance. In Shilubana, the Court
endorsed a rule of customary law in the form of a royal resolution which allowed a
woman to succeed to the position of hosi as this rule promoted gender equality. The
Court thereby implicitly prohibited any principle of succession that countenances
discrimination. Furthermore, section 39(2) of the Constitution provides an important
mechanism for dealing with customary law conflicts with the Bill of Rights. This section
,To be certified by the Constitutional Court, the final Constitution had to comply with
Constitutional Principles XI and XIII mentioned above. Therefore, the final Constitution
of 1996 included the following provisions:
on the protection of equality includes among its listed grounds ethnic or
store of knowledge and artefacts, especially the languages, systems of belief,
and laws, that give social groups their unique Therefore, this section gives
people the right to be governed by the law applying to their particular cultural group.
expands on section 14 of the interim Constitution, declaring that nothing
in the section prevents legislative recognition of marriages concluded under any
tradition or religious, personal or family law systems.
te in a culture of his or her
choice and section 31
their choosing. Distinguishing these two provisions from all others in the Bill of
Rights, the Constitution specifically qualifies these provisions by stating that neither the
rights in section 30 nor 31 can be exercised in a way contrary to the
provisions of the Bill of Rights.
treats customary law and its development as equal to the common law.
Section 39(2) n interpreting any legislation and when developing
the common law or customary law, every court, tribunal or forum must promote the
Section 39(3) Bill of Rights does not deny the existence of any other
rights or freedoms that are recognised or conferred by common law, customary law or
legislation, to the
provides for a role for traditional leaders both locally and nationally,
subject to the customs and usages of their communities, legislation and the
Constitution. In Chapter 12, section 211(3) must
apply customary law when that law is applicable, subject to the Constitution and any
legisl
articulates the right to self-determination of any community sharing a
common cultural and linguistic heritage, and provides a foundation on which the
state may legislate for cultural and linguistic communities to express this
international law right.
a) Nwamitwa v Philia and Others 2005 (3) SA 536 (T); Shilubana cases (Shilubana
and Others v Nwamitwa 2007 (2) SA 432 (SCA) and Shilubana and Others v
Nwamitwa 2008 (9) BCLR 914 (CC).
The legal question that was answered by the court
Philia Shilubana, of the Valoyi traditional community, in the Limpopo Province of South
Africa, was not appointed as a traditional leader (hosi) of her people when her father
died in 1968. As a woman she could not be appointed due to the laws of unfair
discrimination at the r, Richard Nwamitwa, was
appointed as the traditional leader (hosi). When the latter died in 2001, the Valoyi
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Traditional Authority took a resolution to appoint Philia Shilubana as the traditional
leader (hosi) relying on the constitutional provision for gender equality which motivated
the community to adapt its rules. This resolution amended the past practice of the
community which indicated the eldest son of the previous hosi as the successor to his
father as the new traditional leader (hosi). Sidwell Nwamitwa,
sought to dispute Philia Shilubana's appointment, relying on past practice based on his
purported right as the eldest son of the previous hosi.
The decision of the court
The matter was decided in favour of Sidwell Nwamitwa in both the
Shilubana v Nwamitwa 2008 (9) BCLR 914 (CC)
The legal question that was answered by the court
The case was eventually taken on appeal to the Constitutional Court.
.
The decision of the court and reasons for judgment
In a unanimous judgment, the Court decided that Ms Shilubana was
legally appointed as the legitimate traditional leader (hosi) of the Valoyi people. The
Court emphasised the fact that customary law is a living system of law. As such it was
not bound by historical precedent. Its flexibility allowed it to evolve as its community
changed. Once it was clear that the contemporary practices of the community have
replaced its past practices, the latter no longer applied.
Because of this, the Constitutional Court deviated from prior decisions that had served
as a test for determining the content of customary law even though they indicated long-
standing and historical practices. Instead the Court redefined customary law as a
system that reflected the current practices of the particular community. Living customary
law came to be defined with reference to the constantly evolving practices that indicate
the current system of norms by which that community has chosen to live.
The Constitutional Court held that the customary law regarding the appointment of a
traditional leader (hosi) had legitimately evolved to allow for the appointment of a
woman as a traditional leader (hosi) and that this development was consistent with the
Constitution. After finding that Philia Shilubana had been validly appointed the
Constitutional Court upheld the appeal, thus confirming her appointment as a traditional
leader (hosi) of her Valoyi community.
Bear in mind that this was after this particular community (Valoyi community) had
decided to adapt its laws consistently with the Constitution. Other communities will be
judged according to their own contemporary practices.
Own comment on customary law values and the Constitution
to develop their law,
thus protecting their right to develop their culture. In doing so the court unfortunately
destroyed the rule regulating the customary law of succession from one generation to
another. The Constitutional Court ignored that according to customary law, lineage is
important and that the position of successor must be held by someone capable of
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