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[2008] ZACC 9
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Shilubana and Others v Nwamitwa (CCT 03/07) [2008] ZACC 9; 2008 (9) BCLR 914 (CC); 2009 (2) SA 66 (CC) (4 June 2008)

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CONSTITUTIONAL COURT OF SOUTH AFRICA
                                           Case CCT
03/07
[2008] ZACC 9
TINYIKO
LWANDHLAMUNI PHILLA
NWAMITWA SHILUBANA                                                                           Â
First
Applicant
WALTER MBIZANA
MBHALATI                                                            Â
Second
Applicant
DISTRICT CONTROL
OFFICER                                                                  Â
Third
Applicant
THE PREMIER: LIMPOPO PROVINCE                                                   Â
Fourth Applicant
MEC FOR LOCAL
GOVERNMENT AND HOUSING, LIMPOPO             Fifth Applicant
HOUSE FOR
TRADITIONAL LEADERS                                                    Â
Sixth
Applicant
CHRISTINA SOMISA
NWAMITWA                                                       Â
Seventh
Applicant
MATHEWS T N NWAMITWA                                                                   Â
Eighth
Applicant
BEN SHIPALANA                                                                                         Â
Ninth
Applicant
ERNEST RISABA                                                                                           Â
Tenth
Applicant
STONE NGOBENI                                                                                    Â
Eleventh
Applicant
                                                                                                                                                    Â
versus
SIDWELL NWAMITWA                                                                                     Â
Respondent
together with
COMMISSION FOR GENDER
EQUALITY                                          First Amicus Curiae
NATIONAL MOVEMENT OF
RURAL WOMEN                            Second Amicus Curiae
THE CONGRESS OF
TRADITIONAL LEADERS
OF SOUTH AFRICA                                                                              Â
Third
Amicus CuriaeÂ
Heard on                  :    27
November 2007
Decided on              :    4
June 2008
JUDGMENT
VAN DER WESTHUIZEN
J:
Introduction
[1]
This is an application for leave to appeal
against a decision of the Supreme Court of Appeal,
[1]
substantially confirming a
decision of the Pretoria High Court.
[2]
Â
It raises issues about a traditional community’s authority to develop their
customs and traditions so as to promote gender equality
in the succession of
traditional leadership, in accordance with the Constitution.  A woman was
appointed to a chieftainship position
for which she was previously disqualified
by virtue of her gender.  This Court is called on to decide whether the
community has
the authority to restore the position of traditional leadership
to the house from which it was removed by reason of gender discrimination,
even
if this discrimination occurred prior to the coming into operation of the
Constitution.
[2]
The matter also raises issues regarding the
relationship between traditional community structures and courts of law
envisaged by our
constitutional democracy.  This Court has to consider how
courts of law are to apply customary law as required by the Constitution,
while
acknowledging and preserving the institution and role of traditional leadership
and the functioning of a traditional authority
that observes customary law.
[3]
Background
[3]
This is a dispute about the right to succeed as
Hosi (Chief) of the Valoyi traditional community in Limpopo.  The dispute is
between
Ms Shilubana, the first applicant,
[4]
daughter of Hosi Fofoza Nwamitwa (Hosi Fofoza), and Mr Nwamitwa, the
respondent, son of Hosi Malathini Richard Nwamitwa (Hosi Richard).Â
On 24
February 1968 Hosi Fofoza died without a male heir.  At that time, succession
to Hosi was governed by the principle of male
primogeniture.  Hosi Fofoza
succeeded his father only because his elder sister was ineligible to be Hosi.Â
Therefore, Ms Shilubana,
Hosi Fofoza’s 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.  The current dispute
between Ms Shilubana and Mr Nwamitwa arose following
the death of Hosi Richard
on 1 October 2001.
[5]
[4]
On 22 December 1996, during the reign and with
the participation of Hosi Richard, the Royal Family of the Valoyi met and
unanimously
resolved to confer chieftainship on Ms Shilubana.  The resolution
notes:
“[T]hough in the past it was not
permissible by the Valoyis that a female child be heir, in terms of democracy
and the new Republic
of South African Constitution it is now permissible that a
female child be heir since she is also equal to a male child.
 . . . .
The matter of Chieftainship and regency
would be conducted according to the Constitution of the Republic of South Africa”.
[5]
Ms Shilubana did not want Hosi Richard replaced
and as a result the Royal Council resolved that Hosi Richard would continue in
his
position for an unspecified period of time.  The High Court held that this
was presumably until Ms Shilubana returned from her service
as a member of
Parliament.  On 17 July 1997, in the presence of the Chief Magistrate and 26
witnesses, Hosi Richard acknowledged
that Ms Shilubana was the heiress to the
Valoyi chieftainship.  The Valoyi Tribal Authority sent a letter to the
Commission for
Traditional Leaders of the Northern Province (Limpopo),
explaining that the Royal Family had selected Ms Shilubana as Hosi.  On
5
August 1997 the Royal Council accepted and confirmed that Hosi Richard would
transfer his powers to Ms Shilubana.  On the same
day, a “duly constituted
meeting of the Valoyi tribe” under Hosi Richard resolved that “in accordance
with the usages and customs
of the tribe” Ms Shilubana would be appointed Hosi.
[6]
On 25 February 1999 Hosi Richard wrote a letter
which, though not unequivocal, was accepted by the High Court and the Supreme
Court
of Appeal as a withdrawal of his support for Ms Shilubana’s
chieftainship.  The Royal Family met again on 4 November 2001, after
Hosi
Richard had died, and confirmed that Ms Shilubana would become Hosi.  On 25
November 2001, at a meeting of the Royal Family,
Tribal Council,
representatives of local government, civic structures and stakeholders of
various organisations, Ms Shilubana was
again pronounced Hosi.  However, groups
of community members at meetings in November and December 2001 and January 2002
voiced support
for Mr Nwamitwa to succeed as Hosi.
[6]
  On 3 July 2002 the Provincial
Executive Council wrote a letter approving Ms Shilubana’s appointment as Hosi,
effective 22 May
2002.  A Royal Council meeting for the election and
installation of the Hosi was scheduled for 13 April 2002, but does not appear
to have taken place.
[7]
Â
An inauguration ceremony scheduled for Ms Shilubana by the provincial
Department of Local Government and Housing on 29 November
2002 was interdicted
by Mr Nwamitwa.
[8]
[7]
On 16 September 2002 Mr Nwamitwa instituted
proceedings in the Pretoria High Court seeking a declarator that he, and not Ms
Shilubana,
is heir to the chieftainship of the Valoyi and thus entitled to
succeed Hosi Richard.  He also sought an order that the third to
sixth
applicants withdraw the letters of appointment regarding Ms Shilubana, and
issue letters of appointment to himself.  The High
Court and thereafter the
Supreme Court of Appeal held in Mr Nwamitwa’s favour.  Both courts reasoned
that even if the traditions
and customary law of the Valoyi currently permit
women to succeed as Hosi, Mr Nwamitwa, as the eldest child of Hosi Richard, is
entitled
to succeed him. Ms Shilubana applied to this Court for leave to appeal
against the decision of the Supreme Court of Appeal.
Preliminary and Procedural
Issues
[8]
The applicants request condonation for the
filing of their application for leave to appeal more than a month later than it
was due
in terms of the Rules of this Court.  This matter raises fundamental
questions regarding the interplay between customary law and
the Constitution.Â
How these questions are resolved might be of paramount importance not only to
the immediate parties, but to the
community of which they are a part, as well
as the nation.  Accordingly, the applicants’ request for condonation must be
granted.
[9]
Mr Nwamitwa filed both his answering affidavit
and written submissions late.
[9]
Â
The answering affidavit was in fact filed some two-and-a-half months late.  For
the above reasons, this late filing has also to
be condoned.  This Court
however expresses its displeasure at the failure of the applicants and the
respondent to adhere to its
Rules and the Directions of the Chief Justice.
[10]
On 28 February 2007 the application for leave to
appeal was set down for hearing in this Court on 17 May 2007.
[10]
  Submissions were filed on
behalf of the parties.  On 16 May 2007 Mr Nwamitwa filed an “Application [for]
Postponement and Leave
to Dispute the Authority of Legal Practitioners to Act
on Behalf of the applicants in Terms of Rule 32 and Rule 9”.  On 17 May
2007
counsel for the applicants indicated that the application was opposed,
whereafter oral submissions on the postponement application
were heard by this
Court.
[11]
The application was granted and the hearing was
postponed to 4 September 2007.  Reasons for that decision were furnished and
criticism
of the conduct of Mr Nwamitwa’s counsel expressed by this Court in a
judgment handed down on 8 June 2007.
[11]
[12]
On 19 June 2007 Mr Nwamitwa filed a notice in
terms of Rule 9 of this Court’s Rules disputing the authority of the State
Attorney
to represent all save the fourth and fifth applicants (the Premier of
Limpopo and the Member of the Executive Council responsible
for traditional
affairs in Limpopo).  Mr Nwamitwa objected to private parties being represented
by the State Attorney at the expense
of the tax-payer in a private dispute.Â
Rule 9 required the applicants to respond to this notice within 21 days.
[12]
  They failed to do so.
[13]
On 4 September 2007, the day of the hearing, Mr
Nwamitwa’s counsel objected to the proceedings going ahead because of the State
Attorney’s failure to file a power of attorney.  Counsel for Ms Shilubana
argued that Rule 9(3) provided an exception when an
attorney was acting on
behalf of the state.
[13]
[14]
In addition to his concerns regarding the State
Attorney’s representation of a private litigant, Mr Nwamitwa also raised a
concern
about the incompleteness of the record and the applicants’ failure to
respond to this Court’s directions dated 28 February 2007.
[14]
  He complained that he had not
yet received a complete, properly indexed and paginated record in this matter.
[15]
The Court issued further directions on 4
September 2007.  The applicants were directed to file a complete, properly
indexed and paginated
record and to respond to Mr Nwamitwa’s notice in terms of
Rule 9 of the Rules or produce a power of attorney as required by Rule
9.  The
office of the State Attorney, Pretoria, was ordered to pay Mr Nwamitwa’s wasted
costs for the hearing held on 4 September
2007, including costs of two counsel,
as well as the out-of-pocket expenses of the amici related to that hearing.Â
The matter was
postponed to 27 November 2007.
[16]
The State Attorney subsequently withdrew as
attorneys of record for the first, second, seventh, eighth, ninth, tenth and
eleventh
applicants.
[15]
Â
The record was filed.
Amici Curiae
[17]
On 28 February 2007 the Chief Justice issued
directions notifying the Commission on Traditional Leadership Disputes and
Claims, the
Commission for Gender Equality, the Congress of Traditional Leaders
of South Africa (CONTRALESA) and the National House for Traditional
Leaders of
the upcoming hearing and indicating that any person or institution who wished
to be admitted as amicus curiae (friend
of the court) in this matter had to
apply for admission in terms of Constitutional Court Rule 10.
[18]
The Commission for Gender Equality and the
National Movement of Rural Women (Rural Women) complied with Rule 10 and were
admitted
as amici.  CONTRALESA did not initially apply.  On 27 November 2007,
at the hearing, a representative orally requested the Court
to admit CONTRALESA
as an amicus and to postpone the matter.  In spite of its non-compliance with
the Rules of this Court, CONTRALESA
was admitted as an amicus, because it was
deemed to be in the interests of justice to be informed of the organisation’s
views on
the issues raised in this matter.  The application for postponement
was refused. CONTRALESA was given the opportunity to file written
submissions,
which it later did.
[16]
High Court
[19]
In the High Court Swart J addressed four
questions on which oral evidence had been presented:
“1.1      Whether in terms of the customs and traditions of the
Tsonga/Shangaan tribe, more particularly the Valoyi tribe,
a female can be
appointed as Hosi of the Valoyi tribe?
 1.2       Whether [Hosi Richard] was appointed as Hosi or acting
Hosi since October 1968?
 1.3       Whether when appointing [Ms Shilubana] as a Hosi of the
Valoyi tribe the royal family acted in terms of the customs
and traditions of
the Valoyi tribe i.e. of the Tsonga/Shangaan nation?
 1.4       Whether decision No 32/2002 by the Executive Council of
Limpopo Provincial Government dated 22 May 2002 appointing
[Ms Shilubana] as chief
of the Valoyi tribe, is in accordance with the practices and customs of the
Valoyi tribe within the meaning
of the Constitution of the Republic of South
Africa Act 108 of 1996?”
[17]
[20]
The High Court answered each question in Mr
Nwamitwa’s favour.  It first found that, at least prior to the adoption of the
Interim
Constitution, a woman could not be appointed Hosi of the Valoyi.
[18]
[21]
Regarding the second question, the High Court
found that Hosi Richard was appointed Hosi.  This point was conceded by the
applicants.
[19]
[22]
As to the third issue, the High Court determined
that Ms Shilubana had not been appointed in accordance with custom, as the
Court
found no precedent in custom or tradition for the chieftainship to be
transferred from the line of a Hosi to another line, “particularly
by
appointing a female.”
[20]
Â
The community’s decision, the Court stated, “was probably a bout of
constitutional fervour.”
[21]
Â
The Court rejected any claim that the Royal Family had changed custom, as the
Royal Family is only authorised to recognise and
confirm a Hosi.  The
“election” of a Hosi was beyond the Royal Family’s authority.
[22]
  Without the benefit of a
“general poll”, the Court could not conclude that customary law had been
changed.
[23]
[23]
With respect to the fourth issue, the High Court
found that the Executive Council’s appointment was not in accordance with the
practice
and custom of the Valoyi.
[24]
Â
The Court was careful to note that reliance on tradition would not necessarily
prevent a woman from being selected as Hosi.  If
Ms Shilubana’s father had died
in 1994 when the interim Constitution came into effect, she may have been
entitled to be Hosi, rather
than her uncle (Hosi Richard).  The problem in this
case, according to the High Court, was the ultra vires shifting of family lines
while Hosi Richard had an eligible heir.  In other words, Ms Shilubana was not
ineligible to be Hosi on account of her gender; she
was ineligible because of
her lineage.  There was therefore no constitutional problem with Valoyi
customary law, the High Court
found.
[25]
Supreme Court of Appeal
[24]
The Supreme Court of Appeal, in a judgment by
Farlam JA joined by Mthiyane, Nugent, Mlambo and Maya JJA, addressed the same
four questions
and largely affirmed the High Court’s judgment.  The Court found
that, at least prior to 1994, a female could not be appointed
Hosi.
[26]
  The Supreme Court of Appeal
similarly agreed with the High Court that Hosi Richard served as a
fully-fledged Hosi from at least
24 October 1968.  The Court suggested that the
Valoyi were confused as to the status of their own Hosi.  The confusion
contributed
to the decision to select Ms Shilubana as Hosi.
[27]
[25]
With respect to the third issue, the Court
assumed without deciding that the effect of the Royal Family, Royal Council and
Tribal
Authority decisions, resolutions and statements was to alter the customs
and traditions of the Valoyi so as to eliminate gender-based
discrimination in
customary succession of leadership.
[28]
Â
Even so, as a result of gender discrimination that existed prior to the
Constitution, Hosi Richard was Hosi and, in terms of custom
and tradition,
succession should have proceeded down his family line.  Because the Royal
Family had no authority to “select”
the Hosi, the choice and subsequent
confirmation of Ms Shilubana as Hosi rather than Mr Nwamitwa was not in
accordance with the customs
and traditions of the Valoyi.  Any decision to try
to undo the effect of past discrimination could never go back far enough, would
always be ad hoc, and therefore would not comply with the customary law of succession.
[29]
  The Supreme Court of Appeal
agreed with the High Court that its finding was not gender-based.  The Court
concluded that the facts
of the case “do not bring [it] to the gender equality
claim which the [applicants seek] to vindicate.”
[30]
[26]
The Supreme Court of Appeal also agreed with the
High Court that with respect to the fourth question, the official appointment
of
Ms Shilubana was not in accordance with the customs and traditions of the
Valoyi, and that these customs were not constitutionally
problematic.
[31]
  The Court declined, however,
to require the third, fourth, fifth and sixth applicants to issue letters of
appointment to Mr Nwamitwa.Â
It did not find this case to constitute an
exceptional circumstance warranting a substitution of an administrative action,
pursuant
to
section 8(1)(c)(ii)
of the
Promotion of Administrative Justice Act
3 of 2000
.
[32]
Â
The Court deemed it inappropriate to order the appointment of Mr Nwamitwa as
Hosi without the prior ceremonial function performed
by the Royal Family.
[33]
Submissions of the Parties
[27]
The applicants argue that customary law is
dynamic and adaptable; the only constraints are those imposed by the
Constitution and applicable
legislation in terms of section 211(2) of the
Constitution.
[34]
Â
The Valoyi were acting well within their power, under customary law, to amend
their customs and traditions to reflect changed circumstances.
[28]
The applicants note that this Court in
Bhe v
Magistrate, Khayelitsha
left open the question of the constitutionality of
male primogeniture in contexts such as traditional leadership and status.
[35]
  Looking to foreign
jurisdictions, the applicants argue that other communities have adapted their
succession laws to move away from
male primogeniture.
[29]
The process used in appointing Ms Shilubana as Hosi
was consistent with the rules and procedures of the community, according to the
applicants.  The Royal Family, including the Hosi, initiated the change and
submitted the decision to the Royal Council, which approved
it.  The Tribal
Council also considered the decision.  The applicants contend that there was no
evidence that this procedure was
not in accordance with custom or that it was
deficient in any way.  All structures of the community participated in the
decision.
[30]
On behalf of Mr Nwamitwa it is argued that the
question before the Court is not only one of gender, but also of lineage.  In
addition
to the fact that it is not the custom that a woman may be a Hosi, it
was not permissible to “elect” Ms Shilubana to the chieftainship,
ignoring the
traditional family line.
[31]
Moreover, any discrimination that may exist in
male primogeniture relating to succession is “very fair”, since allowing Ms
Shilubana
to succeed as Hosi would result in the next Hosi not being fathered
by a Hosi, which would lead to confusion and chaos in the community.Â
Ms
Shilubana was not disqualified from being Hosi simply because she was a woman.Â
Therefore the lower courts’ judgments cannot
be attacked on the basis of gender
discrimination.
[36]
Â
In the alternative, Mr Nwamitwa argues that any discrimination against Ms
Shilubana would not be unconstitutional, being based
on a reason that is
acceptable, fair, reasonable and justifiable.
[32]
Mr Nwamitwa argues further that the Royal Family
does not have the authority to develop the customs and traditions of the Valoyi
so
as to outlaw gender discrimination as it relates to Hosi succession.  The
Royal Family’s role is only to recognise and confirm
a Hosi.
[37]
  Similarly, he argues that the
Royal Family does not have the authority to restore the position of traditional
leadership to the
house from which it was removed by reason of
pre-constitutional gender discrimination.
[33]
As the first amicus, the Commission for Gender
Equality argues that, where a traditional community has on its own accord
developed
its customary law to reflect the spirit and purport of the
Constitution, courts must as far as possible recognise the development.Â
The
evidence demonstrates that the Valoyi developed their rules regarding
chieftainship to allow women to inherit and to restore
the chieftainship to
Hosi Fofoza’s house.  The community thus sought to bring its customs and
traditions in line with the new
constitutional order.  The decision was not ad
hoc, as labelled by the Supreme Court of Appeal, because it was simply the application
of a developed rule or custom.
[38]
Â
The Commission emphasises that customary law should not be assessed through the
lens of common law principles.
[34]
On behalf of the second amicus, the Rural Women,
it is argued that the actions of the Valoyi (as expressed through the Royal
Family,
Royal Council and traditional community and endorsed by the relevant
government authorities) were well within their powers and reflect
the spirit
and purpose of the Constitution.
[35]
 The Rural Women emphasise that customary law is
a flexible, living system of law, which develops over time to meet the changing
needs of the community.  It is not rigidly rule-based, and courts must exercise
caution in ascertaining the content of customary
law from the written records
of apartheid-era administrators, legislators and courts.  Accordingly, the
choice of Ms Shilubana as
Hosi should not be viewed as a “development” of
customary law, as customary law is necessarily flexible.
[36]
They furthermore argue that the customary law of
succession has always been complex, with competing rules that may become more
or
less important at a given time depending on the needs of the community.  The
Rural Women claim that the inheritance of the chieftainship
was not automatic
and prescribed: it involved a process and was dependent upon the support of the
councillors and the army whose
backing was, in turn, influenced by the power
and popularity of the individual competitors for office.
[39]
  They conclude that no change
in rule or practice was necessary in order to appoint Ms Shilubana as Hosi.
[37]
Alternatively, if the choice of Ms Shilubana as
Hosi is viewed as a development of customary law, they argue that it is one
that should
be encouraged, regardless of whether there is a constitutional
imperative that traditional communities abolish male primogeniture
in
succession decisions.  The authority for traditional communities to bring their
own customs in line with the Constitution includes
the ability for such
communities to remedy previous discrimination.
[38]
The Rural Women contend under this alternative
argument that, following the test set out by this Court in
Minister of
Finance v Van Heerden
,
[40]
the actions of the Valoyi
qualify as a measure taken under section 9(2) of the Constitution.
[41]
  Section 9(2) is designed to
protect or advance persons or categories of persons disadvantaged by unfair
discrimination.  The remedial
decision to install Ms Shilubana as Hosi cannot
be negated by an otherwise applicable rule that a Hosi has to be the child of
an
immediately preceding Hosi.
[39]
CONTRALESA argues that the Constitution and the
new legislation on traditional leadership
[42]
were not in force when the Royal Family first “purported to outlaw gender
discrimination and harangue traditional structures to
support its view”.  A
customary leader is there to uphold the people’s norms and values and if
customs are to be changed, which
they can be, it must be done by the whole
community.  They contend that the “Valoyi Traditional Community” never met to
discuss
the issue.  All discussions were limited to a privileged few, as the
attendance numbers reveal.
[43]
[40]
CONTRALESA also contends that, while gender
discrimination is an essential part of the institution of traditional
leadership, it is
not unfair discrimination.  The relevant rules do not only
discriminate against women, but also deny younger sons and sons born
out of
wedlock the right to succeed.  Some communities are matrilineal and, there too,
younger daughters and daughters born out
of wedlock are usually barred.
The Issues
[41]
The starting point has to be the proceedings
before the High Court, where Mr Nwamitwa sought a declaration of his right to
succeed
his father as Chief of the Valoyi.  In order to evaluate this claim, a
preliminary question not considered by the High Court or
the Supreme Court of
Appeal has to be addressed: what is the proper approach to adopt when seeking
to determine a rule of customary
law?  Thereafter I examine, in light of the
past and present practice of the Valoyi community, the arguments relating to
the existence
of the right Mr Nwamitwa claims to have.
Determining customary law
[42]
The status of customary law in South Africa is constitutionally entrenched.  Section 211 of the Constitution provides that
the institution,
status and role of traditional leadership are recognised
subject to the Constitution.
[44]
Â
It further states that a traditional authority that observes a system of
customary law may function subject to applicable legislation
and customs,
including amendments to or repeal of that legislation and those customs, and
that courts must apply customary law where
it is applicable, subject to the
Constitution and relevant legislation.
[43]
The import of this section, in the words of
Langa DCJ in
Bhe
,
is that customary law “is protected by and
subject to the Constitution in its own right.”
[45]
Â
Customary law, like any other law, must accord with the Constitution.  Like any
other law, customary law has a status that requires
respect.  As this Court
held in
Alexkor v Richtersveld Community
,
customary law must be
recognised as “an integral part of our law” and “an independent source of norms
within the legal system.”
[46]
Â
It is a body of law by which millions of South Africans regulate their lives
and must be treated accordingly.
[44]
As a result, the process of determining the content
of a particular customary law norm must be one informed by several factors.Â
First, it will be necessary to consider the traditions of the community
concerned.  Customary law is a body of rules and norms that
has developed over
the centuries.
[47]
Â
An enquiry into the position under customary law will therefore invariably
involve a consideration of the past practice of the
community.  Such a
consideration also focuses the enquiry on customary law in its own setting
rather than in terms of the common
law paradigm, in line with the approach set
out in
Bhe
.
[48]
Â
Equally, as this Court noted in
Richtersveld
, courts embarking on this
leg of the enquiry must be cautious of historical records, because of the
distorting tendency of older
authorities to view customary law through legal
conceptions foreign to it.
[49]
[45]
It is important to respect the right of
communities that observe systems of customary law to develop their law.  This
is the second
factor that courts must consider.  The right of communities under
section 211(2) includes the right of traditional authorities to
amend and
repeal their own customs.  As has been repeatedly emphasised by this and other
courts, customary law is by its nature
a constantly evolving system.  Under
pre-democratic colonial and apartheid regimes, this development was frustrated
and customary
law stagnated.  This stagnation should not continue, and the free
development by communities of their own laws to meet the needs
of a rapidly
changing society must be respected and facilitated.
[50]
[46]
It follows that the practice of a particular
community is relevant when determining the content of a customary law norm.  As
this
court held in
Richtersveld
,
[51]
the content of customary law must be determined with reference to both the
history and the usage of the community concerned.  “Living”
customary law is
not always easy to establish and it may sometimes not be possible to determine
a new position with clarity.  However,
where there is a dispute over the law of
a community, parties should strive to place evidence of the present practice of
that community
before the courts, and courts have a duty to examine the law in
the context of a community and to acknowledge developments if they
have
occurred.
[52]
[47]
Thirdly, courts must be cognisant of the fact
that customary law, like any other law, regulates the lives of people.  The
need for
flexibility and the imperative to facilitate development must be
balanced against the value of legal certainty, respect for vested
rights, and
the protection of constitutional rights.  In
Bhe
the majority of this
Court held that it could not leave the customary law of succession to develop
in a piecemeal and sometimes slow
fashion, since this would provide inadequate
protection to women and children.
[53]
Â
The possibility for parties to reach agreement on the devolution of an estate
was explicitly left open in order to facilitate the
development of customary
law so far as possible, consistent with protecting rights.
[54]
  The outcome of this balancing
act will depend on the facts of each case.  Relevant factors in this enquiry
will include, but are
not limited to, the nature of the law in question, in
particular the implications of change for constitutional and other legal
rights;
the process by which the alleged change has occurred or is occurring;
and the vulnerability of parties affected by the law.
[48]
Furthermore, while development of customary law
by the courts is distinct from its development by a customary community, a
court engaged
in the adjudication of a customary law matter must remain mindful
of its obligations under section 39(2) of the Constitution to promote
the
spirit, purport and objects of the Bill of Rights.
[55]
  This Court held in
Carmichele
v Minister of Safety and Security
that the section imposes an obligation
on courts to consider whether there is a need to develop the common law to
bring it into line
with the Constitution, and to develop it if so.
[56]
  The
same is true of customary law.
[57]
[49]
To sum up: w
here there is a dispute over
the legal position under customary law, a court must consider both the
traditions and the present practice
of the community.  If development happens
within the community, the court must strive to recognise and give effect to
that development,
to the extent consistent with adequately upholding the
protection of rights.  In addition, the imperative of section 39(2) must
be
acted on when necessary, and deference should be paid to the development by a
customary community of its own laws and customs
where this is possible,
consistent with the continuing effective operation of the law.  With that, I
turn to the enquiry into the
legal position in the present case.
Does Mr Nwamitwa have a right to
succeed under customary law?
[50]
In essence, Mr Nwamitwa makes two arguments in
support of his claim that customary law entitles him to succeed his father as
of right.Â
First, he is the eldest son of the previous Hosi, and according to
the laws of the Valoyi, the eldest son of the previous Hosi is
Chief.  That, on
his argument, is the end of the question.  Confirmation of his status by the
traditional authorities is simply
a formality.  Secondly, the actions taken by
the traditional authorities in purporting to install Ms Shilubana were grossly
irregular
and of no legal force and effect.  The traditional authorities had no
legal power to appoint someone other than the heir, and their
actions did not
amount to a change of the law entitling them to do so.
[51]
I begin with the first argument, namely that
there is a customary law rule in the Valoyi community that chieftainship is
passed down
to the eldest son of the previous Hosi, unless the Chief has no
sons.  The High Court found that this has been the practice of the
community
for at least five generations.
[58]
Â
The issue of whether the practice does indeed reflect the rule Mr Nwamitwa
contends it does was disputed before this Court, particularly
by the Rural
Women.  This issue is considered below.  First, I am concerned with the prior
question of whether, as this argument
assumes, reliance on past practice can
establish a customary rule with certainty.
[52]
The classical test for the existence of custom
as a source of law is that set out in
Van Breda v Jacobs
, in which it
was held that to be recognised as law, a practice must be certain, uniformly
observed for a long period of time and
reasonable.
[59]
  The requirement of
reasonableness would now, of course, be applied in a way compliant with the
Constitution.  The appropriateness
of this test to determine the existence of a
norm of indigenous customary law must be examined.  (The appropriateness of the
test
in other kinds of cases is not here at issue and no opinion is expressed
on it.)
[53]
The
Van Breda
test was applied by the
Supreme Court of Appeal in the
Richtersveld
case.
[60]
  In its decision in that case,
this Court noted that the
Van Breda
test might not be appropriate to
indigenous customary law, but did not decide the point.
[61]
  The argument raised in this
case that five generations of practice in the Valoyi community establish Mr
Nwamitwa’s right to succeed
requires decision on this point.
[54]
Van Breda
dealt
with proving custom as a source of law.  It envisaged custom as an immemorial
practice that could be regarded as filling in
normative gaps in the common
law.  In that sense, custom no longer serves as an original source of law
capable of independent development,
but survives merely as a useful accessory.Â
Its continued validity is rooted in and depends on its unbroken antiquity.  By
contrast,
customary law is an independent and original source of law.  Like the
common law it is adaptive by its very nature.  By definition,
then, while
change annihilates custom as a source of law, change is intrinsic to and can be
invigorating of customary law.
[55]
Customary law must be permitted to develop, and
the enquiry must be rooted in the contemporary practice of the community in
question.Â
Section 211(2) of the Constitution requires this.  The legal status
of customary law norms cannot depend simply on their having
been consistently
applied in the past, because that is a test which any new development must
necessarily fail.  Development implies
some departure from past practice.  A
rule that requires absolute consistency with past practice before a court will
recognise the
existence of a customary norm would therefore prevent the
recognition of new developments as customary law.  This would result in
the
courts applying laws which communities themselves no longer follow, and would
stifle the recognition of the new rules adopted
by the communities in response
to the changing face of South African society.  This result would be contrary
to the Constitution
and cannot be accepted.
[56]
It follows that the
Van Breda
test cannot
be applied to customary law, where the development of living law is at issue.Â
This is not to say that past practice
is not relevant.  Past practice and
tradition may well be of considerable importance in customary law, but as one
important factor
to be considered with other important factors.  It is also not
to say that customary law must in the ordinary course be proven before
a court
before it can be relied upon.  The time when customary law had to be proved as
foreign law in its own land is behind us.
[62]
Â
Where a norm appears from tradition, and there is no indication that a
contemporary development had occurred or is occurring, past
practice will be sufficient
to establish a rule.  But where the contemporary practice of the community
suggests that change has
occurred, past practice alone is not enough and does
not on its own establish a right with certainty, as the three-factor test set
out above makes clear.
[63]
Â
Past practice will also not be decisive where the Constitution requires the
development of the customary law in line with constitutional
values.
[57]
The past practice of the Valoyi is accordingly
important but not decisive in determining whether Mr Nwamitwa has the right he
claims.Â
The question of development, by the community or as mandated by the
Constitution, must also be addressed.  I therefore turn to consider
the past
and present practice of the community.
The actions of the Valoyi in this
case
[58]
It is alleged in the founding affidavit of the
applicants that the Royal Family, Royal Council and Tribal Council acted to
install
Ms Shilubana as Chief of the Valoyi and resolved that henceforth the
matter of chieftainship and regency would be conducted in accordance
with the
Constitution.  Mr Nwamitwa argues that these bodies had no power to act in this
way and that the meetings were accordingly
irregular and the resolutions void.
[59]
The High Court and the Supreme Court of Appeal
found that the traditional authorities had acted unlawfully.  The question of
whether
these findings were correct takes one to the first and second of the
four questions on which this Court directed that further argument
be presented.
[64]
  The first issue concerned the
authority of the Royal Family to develop the laws of the Valoyi community to
outlaw gender discrimination
in the succession of traditional leadership.  The
second issue concerned the authority of the Royal Family, in so doing, to
restore
the chieftainship to the house from which it was removed for reason of
pre-constitutional gender discrimination.  It is convenient
to address these
two questions together.
[60]
Several possible interpretations of the actions
of the traditional authorities have been presented.  The first is that the
traditional
authorities are entitled, under customary law, to take the steps
they did.  The second is that, even if such action has not hitherto
been lawful
under customary law, the authorities effected a development to the law to bring
it in line with the Constitution.
[61]
Counsel for the Rural Women submit that it is
incorrect to think of the actions of the traditional authorities as amounting
to a change
or development of customary law.  Customary law as it stands is
inherently flexible.  Relying on academic authorities, they argue
that the
process of traditional succession has always been adaptable so as to enable the
appointment of a person who meets the needs
of a community at a particular
time.  Comaroff, in his 1978 study of the politics of succession in the Tshidi
chiefdom, states:
“The rules . . .  cannot be assumed to
determine the outcome of indigenous political processes.  If they are read
literally, and
examined in the context of the history of the office, 80 per
cent of all cases of accession to the chiefship represent ‘anomalies’.Â
Under
such circumstances, the jural determinist assumption simply cannot be
entertained: stated prescriptions do
not
, in general, decide who is to
succeed.  Hence it becomes necessary to make a rather different assumption
about the nature of Tshidi
rules and processes.  I shall argue, then, that the
transmission of office in this system is determined by factors
extrinsic
to
the stated prescription”.
[65]
[62]
The Rural Women also contend on the basis of
examples in academic writing that, while rare, there is precedent for the
appointment
of women in other Tsonga clans.  On this argument, the traditional
authorities did have the authority to install Ms Shilubana without
any change
to the customary law of succession being necessary.
[63]
Against this, as has been seen, Mr Nwamitwa
argues that the chieftainship in the Valoyi community is a matter of birth and
that the
role of traditional authorities is purely formal.  That these
arguments based on past practice have been held not to be decisive,
does not
mean that they are without weight and they stand to challenge the submissions
of the Rural Women.
[64]
The High Court accepted Mr Nwamitwa’s evidence
that the practice in the Valoyi community has for five generations been that “a
Hosi is born not democratically elected”.  The Court also held:
“I accept that the royal family plays an
important role.  I have not heard evidence as to its position generally.  As
far as the
successor to the Hosi is concerned it is the repository (and I say
this without disrespect), it really plays a formal role in that
it does not
elect a Hosi, it recognises and confirms a Hosi.  Where there is not a Hosi or
the candidate is not suitable, it may
play a more direct role (but that was not
the case here).”
[66]
[65]
The evidence and arguments presented by the
Rural Women are attractive and persuasive.  However, they were not before the
High Court
or the Supreme Court of Appeal.  Nor is the evidence before this
Court on this point clear.  The submission on behalf of Ms Shilubana
has indeed
been that the Valoyi
did
amend their customs and traditions to reflect
changed circumstances and to meet constitutional demands.  This was also the
view
of the Royal Council in its resolution on Ms Shilubana’s appointment.
[67]
[66]
I cannot conclude that the customary law of the
Valoyi community, without amendment, permitted the installation of Ms
Shilubana.Â
It is certainly possible that customary law permits this sort of
action by the Royal Family or other traditional authorities and
this judgment
in no way rules out this possibility.  However, it has not been established in
respect of the present community on
the evidence in this case.  The arguments
suggesting that the traditional authorities were acting in order to bring their
customary
law in line with the Constitution must therefore be addressed.
Did the traditional authorities
develop their law in terms of the Constitution?
[67]
As stated earlier, when the Royal Family
confirmed the appointment of Ms Shilubana as Hosi, its members noted that, in
view of the
new democratic dispensation under the Constitution, it is
permissible for a female child to become a Hosi “since she is also equal
to a
male child.”
[68]
Â
It must be emphasised that Hosi Richard agreed with and approved of this
decision.
[68]
The Valoyi authorities intended to bring an
important aspect of their customs and traditions into line with the values and
rights
of the Constitution.  Several provisions of the Constitution require the
application of the common law and customary law, as well
as the practice of
culture or religion, to comply with the Constitution.  Sections 1(c) and 2
establish the supremacy of the Constitution
over all law.
[69]
  Section 30 recognises the
right to participate in the cultural life of one’s choice, but only in a manner
consistent with the
Bill of Rights.
[70]
Â
Similarly, section 31 recognises the right of cultural and religious
communities to enjoy their culture and practice their religion
in a manner
consistent with the Bill of Rights.
[71]
Â
Section 39(2) has been mentioned above.  And last, but certainly not least in
this context, the above-mentioned section 211(3)
demands that courts apply
customary law where it is applicable, subject to the Constitution.
[72]
[69]
The importance of equality in our society has
been repeatedly emphasised by this Court.  The remarks of Ngcobo J in his
concurring
judgment in
Bato Star
[73]
sum up the position:
“South Africa is a country in transition.Â
It is a transition from a society based on inequality to one based on
equality.  This
transition was introduced by the Interim Constitution, which
was designed to ‘create a new order . . . in which there is equality
between
men and women and people of all races so that all citizens should be able to
enjoy and exercise their fundamental rights
and freedoms’.  This commitment to
the transformation of our society was affirmed and reinforced in 1997, when the
Constitution
came into force.  The Preamble to the Constitution ‘recognises the
injustices of our past’ and makes a commitment to establishing
‘a society based
on democratic values, social justice and fundamental human rights’.  This
society is to be built on the foundation
of the values entrenched in the very
first provision of the Constitution.  These values include human dignity, the
achievement of
equality and the advancement of human rights and freedoms.  The
achievement of equality is one of the fundamental goals that we
have fashioned
for ourselves in the Constitution.  Our constitutional order is committed to
the transformation of our society from
a grossly unequal society to one ‘in
which there is equality between men and women and people of all races’.”Â
(Footnotes
omitted.)
[74]
[70]
In deciding as they did, the Valoyi authorities
restored the chieftainship to a woman who would have been appointed Hosi in 1968,
were it not for the fact that she is a woman.  As far as lineage is relevant,
the chieftainship was also restored to the line of
Hosi Fofoza from which it
was taken away on the basis that he only had a female and not a male heir.
[71]
If that was what the authorities purported to
do, it must next be asked whether they had the authority to act as they did.Â
It was
held above that the evidence did not permit this Court to rule on the
question of whether traditional authorities have a broad discretion
in appointing
the Chief and are not bound simply to appoint the heir by birth.  Accordingly,
this Court has no basis on which to
overturn the High Court’s finding that, in
terms of the existing customary law, the role of the Royal Family is more than
formal
only where there is no candidate for the chieftainship or where the
candidate is not suitable, which is not alleged to be the case
in the present
matter.  However, even if the High Court was correct on this point, it must be
true that the traditional authorities
had the power to act as they did, for the
reasons that follow.
[72]
It must be noted that the traditional
authorities’ power is the high water mark of any power within the traditional
community on
matters of succession.  If the authorities have only the narrow
discretion the High Court found them to have had, it follows that
no other body
in the community has more power in this regard, since no other body has more
power here than those authorities.  This
would mean that no body in the
customary community would have the power to make constitutionally-driven
changes in traditional leadership.Â
This result can be seen if we consider what
would have happened, on the narrow view, if the traditional authorities in the
present
case had sought simply to install a woman as Hosi.  Even if she were
the eldest child of the previous Chief, it would follow on
the narrow view that
the traditional authorities would have no power to appoint her, unless there
was no other heir or the male heir
was unfit to rule.  It would be necessary,
on this view, to approach the courts before a woman could be installed as
Chief.
[73]
This is not only undesirable; it is contrary to
the Constitution.  Section 211(2) specifically provides for the right of
traditional
communities to function subject to their own system of customary
law, including amendment or repeal of laws.  A community must be
empowered to
itself act so as to bring its customs into line with the norms and values of
the Constitution.  Any other result would
be contrary to section 211(2) and
would be disrespectful of the close bonds between a customary community, its
leaders and its laws.
[74]
It follows that if the traditional authority has
only those powers accorded it by the narrow view, it would be contrary to the
Constitution
and frustrate the achievement of the values in the Bill of
Rights.  Section 39(2) of the Constitution obliges this Court to develop
the
customary law in accordance with the spirit, purport and aims of the Bill of
Rights.  This power should be exercised judiciously
and sensitively, in an
incremental fashion.
[75]
Â
As the Supreme Court of Canada has held in relation to the common law, “[t]he
judiciary should confine itself to those incremental
changes which are
necessary to keep the common law in step with the dynamic and evolving fabric
of our society.”
[76]
Â
The same remarks apply to customary law.  It is appropriate for the Court to
exercise its section 39(2) powers in a manner that
will empower the community
itself to continue the development.
[75]
Accordingly, if it is true that the authorities
presently have no power to bring the law and practice of customary leadership
into
line with the Constitution, their power must be expanded.  It must be held
that they have the authority to act on constitutional
considerations in fulfilling
their role in matters of traditional leadership.  Their actions, reflected in
the appointment of Ms
Shilubana, accordingly represent a development of
customary law.  The only remaining question is that posed by the third factor
of the test set out above: are there considerations which outweigh the
recognition of this development as determinative of the legal
position?
[77]
Should this contemporary
development be recognised as law?
[76]
As noted above, the importance of respecting
community-led change has to be balanced with the value of legal certainty and
the need
to protect rights.  In
Bhe
these considerations led this Court
to install interim measures pending legislation in order to protect vulnerable
parties affected
by intestate succession.Â
Bhe
concerned intestate
succession laws affecting the many families across South Africa whose estates
devolve according to customary law.Â
In that case certainty was vital and
leaving the matter for gradual community development would have resulted in
considerable uncertainty
and a resultant failure to protect rights.
[77]
The actions of the authorities of a single
traditional community in respect of their leadership do not in themselves raise
the concerns
present in
Bhe
.  The legal effects of the change – the
installation of a particular leader – are clear.  The change is not one that
must be
inferred from uneven changes in practice across the country, but
appears from written resolutions.
Â
Vulnerable persons are not denied the
protection of the law as a result of the measure.
[78]
A decision of this kind must also be weighed
against the possible violation of vested rights.  This might have been an issue
if the
decision affected the position of a reigning Hosi.  However, it is not
necessary to make a finding in this regard, because Mr Nwamitwa
is not a Hosi.Â
At most, he has an expectation to be appointed Hosi as a result of the 1968
decision and on the basis of past practice.Â
His expectation cannot override
the decision of the traditional authorities to adapt their customs in accordance
with the values
and rights of our democracy as embodied in the Constitution.
[79]
Mr Nwamitwa submits that the effect of upholding
the installation of Ms Shilubana would be chaos.  It is argued that if she is
recognised
as Chief, then in the next generation, for the first time, the
Valoyi will have a Hosi who is not fathered by a Chief.  This argument
is not
convincing.  It involves the same inappropriate reasoning as that underlying
the
Van Breda
test.
[78]
Â
If women are to be Chiefs, the practice that a Hosi always has to be fathered
by the previous Hosi must necessarily change.  The
actions of a traditional
authority cannot be illegitimate just because they involve a departure from
past practice.
[80]
It is also argued that, if the chieftainship is
restored to the previous line in this case, the same must be done in respect of
all
previous generations, with the result that the entire Nwamitwa
chieftainship will be “obliterated”.  It is not clear why this
should be
thought to follow.  The right to amend and repeal laws under section 211(2)
includes the right to decide how to do so.Â
The Valoyi authorities have chosen
to restore the line of Hosi Fofoza going back one generation.  The argument
that the entire family
line will be obliterated is not persuasive.
[81]
It is true that Ms Shilubana’s installation
leaves unanswered some questions relating to how the Valoyi succession will
operate
in the future.  However, customary law is living law and will in future
inevitably be interpreted, applied and, when necessary,
amended or developed by
the community itself or by the courts.  This will be done in view of existing
customs and traditions, previous
circumstances and practical needs, and of
course the demands of the Constitution as the supreme law.  It therefore suffices
to say
two things.
[82]
First, whereas the Valoyi people moved away from
any previously existing rule that a woman could never be appointed as a Hosi,
other
aspects of the customs and traditions governing chieftainship are not
necessarily affected.  For example, to the extent that the
principle that a
Hosi is born and not elected indeed exists, it is not necessarily changed by
this ruling.  Ms Shilubana was born
as the child of a Hosi.  She was not
elected from a number of candidates who campaigned for the position.  Her birth
was crucial
to the decision of the Royal Family.
[83]
Second, such additional developments of the law
as Ms Shilubana’s installation may necessitate are in the first instance a
matter
for the relevant traditional authorities, acting in accordance with
custom, practical needs and the Constitution.  These future
decisions are not
before this Court, and nothing further need be said about them.
[84]
The value of recognising the development by a
traditional community of its own law is not here outweighed by factors relating
to legal
certainty or the protection of rights.  The Royal Family intended to
act to affirm constitutional values in traditional leadership
in its
community.  It had the authority to do so.  A balancing of the effects of its
action reveals no consideration that should
prevent this Court from recognising
its actions as such.
[85]
The conclusions of the High Court and Supreme
Court of Appeal that the traditional authorities lacked the power to act as
they did
were incorrect.  They erred in that their focus was too narrow, tied
to the statement that a Hosi is never appointed, but born,
and unable to
countenance that the lineage would change from that of Hosi Richard to that of
Hosi Fofoza.  They gave insufficient
consideration to the historical and
constitutional context of the decision, more particularly the right of
traditional authorities
to develop their customary law.
[86]
Accordingly, Mr Nwamitwa has no vested right to
the chieftainship of the Valoyi.  He has, at most, an expectation that as the
eldest
son of Hosi Richard, he would have been heir.  However, the past
practice of the Valoyi community is not determinative and does
not itself
guarantee that Mr Nwamitwa’s possible expectation must be fulfilled.  The
contemporary practice of the Valoyi reflects
a valid legal change, resulting in
the succession of Ms Shilubana to the chieftainship.  Mr Nwamitwa does not have
a right to the
chieftainship under this altered position.  He cannot be
declared the Chief in terms of the current customary law of the Valoyi
traditional community.
[87]
It was argued on behalf of the Rural Women that
the decision should be seen as a step to address the consequences of past
discrimination
under section 9(2) of the Constitution.
[79]
  It was also suggested that
the traditional authorities had developed their law to permit both the
succession of women and the installation
of Ms Shilubana as a person of royal
blood but who is not the direct descendant of the previous Chief.  In view of
the conclusion
reached above, it is not necessary to rule on this submission.Â
It is also not necessary to consider the third and fourth questions
posed by
this Court in its Directions of 28 February 2007,
[80]
relating to the Traditional
Leadership and Governance Framework Act.
[81]
The argument that the applicants’
reliance on the Constitution is
inconsistent
[88]
It is necessary to briefly address one other
argument raised on behalf of Mr Nwamitwa.  This was that the applicants’ reliance
on the Constitution was misplaced on the grounds that their support for the
legal change here at issue shows that they themselves
support gender
discrimination.  Two points are advanced in support of this rather startling
claim.
[89]
The first is that the traditional authorities
seek to undo gender discrimination only as far back as 1968.  They do not wish
to undo
gender discrimination that may have led to other eldest daughters being
passed over for the chieftainship in cases before 1968.Â
However, if the
authorities are indeed empowered to take steps under section 211(2), then there
is nothing to prevent them from doing
so in a way of their own choosing.  Of
course, traditional authorities are not permitted to act contrary to the
Constitution, but
it is not argued that the particular measure adopted here is
unconstitutional.
[90]
The second point is that Ms Shilubana does not
apparently intend that her own daughter shall succeed her.  It has been
indicated
that a “sociological” child, born of the male Nwamitwa bloodline,
will succeed her instead.  If this will be the position, however,
it does not
amount to gender discrimination.  For one thing, it would
follow equally
from this decision that sons of Ms Shilubana would not succeed her either.  For
another, there is nothing to show
that Ms Shilubana could not be succeeded by a
woman, albeit not her own daughter.  That a decision might have
been
made to keep the chieftainship in a certain family line reflects, not gender
discrimination, but an attempt to combine the preservation
of royal
bloodlines
with measures designed to oppose gender discrimination.
[91]
There is no merit in the submission that the
traditional authorities have acted unconstitutionally in this case.
Costs
[92]
This case raised constitutional issues of
considerable importance.  It was contested by two cousins, both leading figures
in the
Valoyi traditional community.  The case served to clarify several
important points of customary law in the interests of that community
and to its
ultimate benefit.  Furthermore, although Ms Shilubana has been substantially
successful before this Court, she was represented
by the State Attorney for
part of this litigation and her costs were borne in large measure by the
state.  Accordingly, it is appropriate
that no order be made as to costs before
this Court, save in respect of the interlocutory matters considered below.  For
similar
reasons the order of costs by the Supreme Court of Appeal must be
replaced by one making no order as to costs.  No order as to costs
was made by
the High Court and there is accordingly no need to make a further order in that
regard.
[93]
It remains to deal with the costs arising from
the postponements in this matter.  The first postponement, ordered on 17 May
2007,
was the subject of the previous judgment of this Court in this matter.Â
The order reserved the question of costs.
[82]
Â
The postponement was at the instance of Mr Nwamitwa and was substantially due
to the conduct of his legal representatives.  However,
in view of the state’s
assistance to Ms Shilubana – mentioned above – no costs order is made.  The
second postponement, ordered
on 4 September 2007, was a result of the conduct
of the applicant’s attorneys.  The State Attorney has already been ordered to
pay the costs of the respondent arising from that postponement, including the
costs of two counsel, as well as the out-of-pocket
expenses of the two amici at
that stage involved in the case.
[83]
Â
Finally, an application for a postponement was made on behalf of CONTRALESA on
27 November 2007.  The application was refused,
but CONTRALESA was invited to
file written argument.  CONTRALESA has already been ordered to pay any costs
arising out the order.
[84]
Order
[94]
The following order is made:
(1)
Condonation for the late filing of papers is granted.
(2)
The application for leave to appeal is granted.
(3)
The appeal against the decision of the Supreme Court of Appeal is
upheld.
(4)
The orders of the High Court and Supreme Court of Appeal are set
aside.
(5)
The application for a declarator is dismissed.
Moseneke DCJ, Madala J, Mpati AJ,
Ngcobo J, Nkabinde J, Sachs J, Skweyiya J and Yacoob J concur in the judgment
of Van der Westhuizen
J.
For the First, Second, Seventh,
Eighth,       Advocate IAM Semenya SC and Advocate
Ninth, Tenth, and Eleventh
Applicants:       SBS Dlwathi instructed by the State Attorney, Pretoria; subsequently Advocate
SBS Dlwathi instructed by VM Mashele Attorneys.
For the Third, Fourth, Fifth, Sixth,              Advocate
IAM Semenya SC and Advocate
Applicants:                                                     SBS Dlwathi
instructed by the State Attorney, Pretoria; subsequently Advocate IAM Semenya
instructed by the State Attorney, Pretoria.
For the Respondent:                                      Advocate
MC Motimele SC and Advocate
BLM Bokaba instructed by Mashobane Attorneys.
For the First Amicus
Curiae:                       Advocate K Pillay and Advocate A Govender
instructed
by the Legal Resources Centre.
For the Second Amicus Curiae:                  Advocate
G Budlender and Advocate
                                                                      Â
R Moultrie
instructed by the Legal Resources Centre.
For the Third Amicus
Curiae:                      Advocate Nkosi Mwelo Nonkonyana, General
Secretary, Congress
of Traditional Leaders of South Africa.
[1]
Shilubana and Others v Nwamitwa (Commission for Gender Equality
as
Amicus Curiae
)
2007 (2) SA 432
(SCA).
[2]
Nwamitwa v Phillia and Others
2005 (3) SA 536
(T).
[3]
Section 211 of the Constitution states:
“(1) The institution, status and role of traditional leadership,
according to customary law, are recognised, subject to the Constitution.
  (2)   A traditional authority that observes a system of customary
law may function subject to any applicable legislation and customs,
which
includes amendments to, or repeal of, that legislation or those customs.
  (3) The courts
must apply customary law when that law is applicable, subject to the
Constitution and any legislation that specifically
deals with customary law.”
[4]
The second applicant, Walter Mbizana Mbhalati, is presently the
Acting Hosi of the Valoyi.  The third applicant is the District
Control Officer
for Ritavi, Limpopo province, who acts as the liaison in the Department of
Local Government and Housing between Traditional
Authorities and the Limpopo
Provincial Government.  The fourth applicant is the Premier of the Limpopo province who issued letters
of appointment to Ms Shilubana as Hosi of the Valoy.Â
The fifth applicant is the MEC for Local Government and Housing, who is
responsible
for traditional affairs in the Limpopo province.  The sixth applicant
is the House for Traditional Leaders, the commission responsible
for
traditional affairs in the Limpopo province.  The seventh applicant is
Christina Somisa Nwamitwa, second wife to Hosi Richard.Â
The eighth to eleventh
applicants – Mathews TN Nwamitwa, Ben Shipalana, Ernest Risaba and Stone
Ngobeni – are members of the
committee co-ordinating the activities of the
Royal Council under the leadership of the Acting Hosi.
[5]
During this dispute, the second applicant has been serving as
Acting Hosi.
[6]
Whether those groups constituted specific traditional institutions
– such as the Royal Family and Royal Council – is contested.
[7]
Ms Shilubana stated in her founding affidavit before the High Court
that this meeting was “interdicted”, but no court order to
this effect appears
from the record.
[8]
Order of Botha J of 25 November 2002 in the Pretoria High Court.
[9]
The application for leave to appeal was filed on 30 January 2007,
giving the respondent 10 court days in which to deliver his notice
of intention
to oppose. The notice was therefore due on 13 February 2007.  It was never
filed.  Under Rule 3(a)(ii) of this Court’s
Rules, the respondent’s opposing
affidavit was due 15 days from this date, on 6 March 2007.  According to the
Directions of the
Chief Justice issued on 28 February 2007, the respondent’s
written argument was to be filed by 12 April 2007.
[10]
According to the Directions of the Chief Justice, the parties were
instructed to address the following issues:
“(a) Does the Royal Family have the authority to develop the customs
and traditions of the Valoyi community so as to outlaw gender
discrimination in
the succession to traditional leadership?
  (b) In the course of developing the customs and the traditions of
a community, does the Royal Family have the authority to restore
the position
of traditional leadership to the house from which it was removed by reason of
gender discrimination even if this discrimination
occurred prior to the coming
into operation of the Constitution?
  (c) Are the provisions of the
Traditional Leadership and
Governance Framework Act, 2003
applicable to these proceedings?
  (d) If the
provisions of the
Traditional Leadership and Governance Framework Act, 2003
are
applicable, is the dispute relating to the restoration of traditional leadership
the kind of dispute that ought to be dealt with
by the Commission as required
by
section 21(1)(b)
read with section [25(2)] of the
Traditional Leadership and
Governance Framework Act, 2003
?”
[11]
Shilubana and Others v Nwamitwa (National Movement of Rural
Women and Commission for Gender Equality as
Amici Curiae
)
[2007]
ZACC 14
;
2007 (5) SA 620
(CC);
2007 (9) BCLR 919
(CC).
[12]
Rule 9(1)
states:
“A power of attorney need not be
filed, but the authority of a legal practitioner to act on behalf of any party
may, within 21 days
after it has come to the notice of any party that the legal
practitioner is so acting, or with the leave of the Court on good cause
shown
at any time before judgment, be disputed by notice, whereafter the legal
practitioner may no longer so act, unless a power
of attorney is lodged with
the Registrar within 21 days of such notice.”
[13]
Rule 9(3)
states: “No power of attorney or authorisation to act
shall be required to be lodged by anyone acting on behalf of the State.”
[14]
The applicants were directed to—
“file the
record, properly indexed and paginated, on or before 15 March 2007.  The record
shall consist of the record lodged in
the Supreme Court of Appeal which should
contain the record of the proceedings in the High Court.”
[15]
Notice of Withdrawal dated 19 September 2007.
[16]
The Court on 27 November 2007 ordered as follows:
“(1) Congress of Traditional Leaders of South Africa (CONTRALESA) is
admitted as an Amicus Curiae in this matter.
  (2) CONTRALESA is directed to file and serve on all parties,
written argument not later than Tuesday, 4 December 2007.
  (3) All other parties are directed to file written arguments in
response, if they so choose, not later than Tuesday, 11 December
2007.
  (4) The Application by CONTRALESA for the postponement of the
hearing is refused.
  (5) Costs, if
any occasioned by this order, to be paid by CONTRALESA.”
[17]
Above n 2 at 539B-E.
[18]
Id at 539G-541B.
[19]
Id at 541B-E.
[20]
Id at 544E-546C.
[21]
Id at 544G.
[22]
Id at 545B-F.  Because the High Court found that the acts of the
Royal Family, Royal Council and Tribal Authority were beyond their
authority,
it did not have to grapple with questions regarding when these bodies are
properly constituted such that they can make
binding decisions.  Id at 541E-H.
[23]
Id at 545D.
[24]
Id at 546D-547D, 548E-H.
[25]
Id at 548E-H.
[26]
Above n 1 at para 46.
[27]
Id at para 47.
[28]
Id at para 49.
[29]
Id at paras 50-1.
[30]
Id at para 50.
[31]
Id at para 51.
[32]
Section 8(1)(c)(ii)
states:
“(1) The court or tribunal, in proceedings for judicial review in
terms of
section 6(1)
, may grant any order that is just and equitable,
including orders—
. . . .
(c)   setting
aside the administrative action and—
. . . .
(ii)   in exceptional cases—
(aa) substituting or varying the administrative action or correcting
a defect resulting from the administrative action; or
(bb) directing
the administrator or any other party to the proceedings to pay compensation”.
[33]
Above n 1 at paras 53-4.
[34]
Above n 3.
[35]
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 and
Another
[2004] ZACC 17
;
2005 (1) SA 580
(CC);
2005 (1) BCLR 1
(CC) (
Bhe
)
at paras 88-94.
[36]
Mr Nwamitwa also argues that the lower courts were “correct to hold
in favour of the Respondent, that [per] the customs and traditions
of the . . .
Valoyi tribe, a female cannot be appointed as Hosi”.
[37]
He submitted that where there is no Hosi, or where the Hosi-to-be
is not suitable, the Royal Family may play a more direct role,
but neither of
these situations arose here.
[38]
The Commission for Gender Equality also notes that, to the extent
that the decision to appoint Ms Shilubana as Hosi was “ad hoc”,
any decision to
appoint Mr Nwamitwa would similarly be ad hoc as Mr Nwamitwa was also not born
a Hosi.  Since Hosi Fofoza was still
Hosi when Mr Nwamitwa was born, and Hosi
Fofoza could have still sired a male heir, Mr Nwamitwa would have had to have
been appointed
Hosi by the Royal Family.
[39]
They quote Harries “Exclusion, Classification and Internal
Colonialism: The Emergence of Ethnicity Among the Tsonga-Speakers of
South Africa” in Vail
The Creation of Tribalism in Southern Africa
(James Currey
Ltd, London 1989) 83 at 91.
[40]
Minister of Finance and Another v Van Heerden
[2004] ZACC 3
;
2004 (6) SA 121
(CC);
2004 (11) BCLR 1125
(CC) (
Van Heerden
) at
paras 36-44.
[41]
Section 9(2)
states:
“Equality includes the full and
equal enjoyment of all rights and freedoms.  To promote the achievement of
equality, legislative
and other measures designed to protect or advance
persons, or categories of persons, disadvantaged by unfair discrimination may
be
taken.”
[42]
Traditional Leadership and Governance Framework Act 41 of 2003
.
[43]
CONTRALESA notes that only 15, 26, 20, 29, 89 and 47 people
respectively attended the various meetings.  They note that there was
therefore
no people’s assembly (“Dipitso/Imbizo”) to deliberate on the succession issue.
[44]
See above n 3.
[45]
Above n 35 at para 41.
[46]
Alexkor Ltd and Another v Richtersveld Community and Others
[2003] ZACC 18
;
2004 (5) SA 460
(CC);
2003 (12) BCLR 1301
(CC) (
Richtersveld
)
at para 51.
[47]
Id at para 53.
[48]
Above n 35 at para 43.
[49]
Above n 46 at para 54.
[50]
See
Bhe
above n 35 at 82-7, 90 (Langa DCJ) and 152-3 (Ngcobo
J, dissenting);
Richtersveld
above n 46 at paras 52-3;
Du Plessis and
Others v De Klerk and Another
[1996] ZACC 10
;
1996 (3) SA 850
(CC);
1996
(5) BCLR 658
(CC)
(
Du Plessis
) at para 172 (Mokgoro J,
concurring);
Mabuza v Mbatha
2003 (4) SA 218
(C);
2003 (7) BCLR 743
(C)
(
Mabuza
) at paras 26, 28;
Mabena v Letsoalo
1998 (2) SA 1068
(T)
at 1075B-C.
[51]
Above n 46 at paras 56-7, referring to
Amodu Tijani v The
Secretary, Southern Nigeria
[1921] 2 AC 399
(PC) at 404.
[52]
Bhe
above note 35 at paras 86, 107 (Langa DCJ) and paras
152-4 (Ngcobo J, dissenting).
[53]
Id at paras 110-3.
[54]
Id at para 130.
[55]
Section 39(2)
states: “When interpreting any legislation, and when
developing the common law or customary law, every court, tribunal or forum
must
promote the spirit, purport and objects of the Bill of Rights.”
[56]
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) (
Carmichele
) at paras 34-6.
[57]
See the dissenting judgment of Ngcobo J in
Bhe
above n 35 at
para 215 and also the majority judgment of Langa DCJ at para 44.
[58]
Above n 2 at 540F.
[59]
Van Breda and Others v Jacobs and Others
1921 AD 330
(
Van
Breda
) at 334.
[60]
Richtersveld Community and Others v Alexkor Ltd and Another
2003 (6) SA 104
(SCA);
2003 (6) BCLR 583
(SCA) at para 27.
[61]
Above n 46 at fn 56 and fn 65.
[62]
See
Mabuza
above n 50 at para 30.
[63]
See above [44]-[49].
[64]
See above n 10.
[65]
Comaroff “Rules and Rulers: Political Processes in a Tswana
Chiefdom” (1978) 13
MAN – The Journal of the Royal Anthropological Institute
1 at 2.
[66]
Above n 2 at 545D-E.
[67]
See above [4].
[68]
See above [4].
[69]
Section 1(c)
states: “The Republic of South Africa is one,
sovereign, democratic state founded on the following values: …. Supremacy of
the
constitution and the rule of law.”
Section 2
states: “This Constitution
is the supreme law of the Republic; law or conduct inconsistent with it is
invalid, and the obligations
imposed by it must be fulfilled.”
[70]
Section 30 states:
“Everyone has the right to use the
language and to participate in the cultural life of their choice, but no one
exercising these
rights may do so in a manner inconsistent with any provision
of the Bill of Rights.”
[71]
Section 31 states:
“(1) Persons belonging to a cultural, religious or linguistic
community may not be denied the right, with other members of that
community—
(a)
to enjoy their culture, practise their religion
and use their language; and
(b)
to form, join and maintain cultural, religious
and linguistic associations and other organs of civil society.
  (2) The rights
in subsection (1) may not be exercised in a manner inconsistent with any
provision of the Bill of Rights.”
[72]
See above n 3.
[73]
Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs
and Tourism
and Others
[2004] ZACC 15
;
2004 (4) SA 490
(CC);
2004
(7) BCLR 687
(CC).
[74]
Id at paras 73-4.
[75]
See the comments of Mokgoro J and Sachs J in
Du Plessis
above
n 50 at paras 167-74 and 189, respectively.
[76]
R v Salituro
(1992) 8 CRR (2d) 173 at 189.  This statement,
in the South African context, should not be seen to detract from the obligation
of
courts to uphold the dramatically new values with which our legal system has
been infused.  See above n 55 at para 36.
[77]
Above [47].
[78]
See above [52]-[56].
[79]
See above n 41.
[80]
Above n 10.
[81]
Above n 42.
[82]
See above n 11
at para 1 for the text of the order.
[83]
See above [15].
[84]
The order is reproduced above at n 16.