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| Title: | Succession of women to traditional leadership: is the judgment in Shilubana v Nwamitwa based on sound legal principles? |
| Authors: | Bekker, J.C. Boonzaaier, C.C. |
| Year: | 2008 |
| Periodical: | The Comparative and International Law Journal of Southern Africa |
| Volume: | 41 |
| Issue: | 3 |
| Pages: | 449-462 |
| Language: | English |
| Geographic term: | South Africa |
| Subjects: | chieftaincy customary law succession gender discrimination judgments |
| Abstract: | Succession disputes form an integral part of the history of traditional leadership in South Africa. The frequency of these disputes and deviations from what is generally presented as the customary law of succession, raises the question of whether or not these rules are the sole criteria for determining succession. This article comments on the judgment of the Constitutional Court in the case of Shilubana v Nwamitwa 2008 (9) BCLR 914 (CC). The Constitutional Court was called upon to decide whether the Valoyi community had the authority to restore the position of traditional leadership to the house from which it had been removed by reason of gender discrimination, even if this removal occurred prior to the coming into operation of the 1996 Constitution. While the authors are in general agreement that women should not be excluded entirely from the office of traditional leadership, they submit that women's inclusion should be achieved by an evolutionary process rather than by rigid judicial or legislative decree. Succession by women can in fact take place within the ambit of current customary usage and law. Ref., sum. [Journal abstract, edited] |
