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Agenda
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Harmonising cultural and equality rights under customary lawsome reflections on Shilubana & Others v Nwamitwa 2009 (2) SA 66 (CC)
Devina N. Perumal
a b a b

Faculty of Law, University of KwaZulu-Natal, Durban High Court of South Africa, E-mail: perumald4@ukzn.ac.za

Available online: 03 May 2011

To cite this article: Devina N. Perumal (2010): Harmonising cultural and equality rights under customary lawsome reflections on Shilubana & Others v Nwamitwa 2009 (2) SA 66 (CC), Agenda, 24:84, 101-110 To link to this article: http://dx.doi.org/10.1080/10130950.2010.9676313

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Harmonising cultural and equality rights under customary law - some reflections on Shilubana & Others v Nwamitwa 2009 (2) SA 66 ( C C ~
Devina N. Perumal

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abstract
The equal recognition of the right to gender equality and the right to culture has created tensions between the application of customary law values and the constitutional agenda for the reallsation of gender equality In South Africa. Thls tension has resulted In customary laws being viewed as a source of potential confllct and as perpetuating Inequalities and prejudices against women. The recognition of traditional leadership and its institutions, including the right to cultural practices, therefore, The constitutional has created a new challenge relating to their role in the development of customary law values and princ~ples. status of customary law has fuelled debates on its recognition and created the need for a delicate balance In court challenges In the area of gender equality. Many of these court challenges have focused on the rule of male primogeniture in respect of inheritance and successlon to property within the framework of famlly law relationships. One area of conflict that has not recelved attention trom the courts, until the Const~tut~onal Court was called upon to consider the conflict In Shilubana & Others v Nwamitwa 2009 (2) SA 66 (CC), 1 women's successlon to traditional leadersh~p s and publ~c status. The Constitutional Court. in a ground-breaking judgment, concluded that the customary law principle of male prlmogenlture In the context of successlon to ch~eftaincy does indeed constitute an infr~ngement the right to gender equality. of

keywords
customary law, const~tutionalism,culture, gender equality, traditional leadership

Introduction
In South Africa, African customary law - a system of law characterised by an entrenched patriarchal system - underpins much of the customary law, particularly in the areas of marriage, property, succession, and access to political power, where women are frequently prohibited from owning or

inheriting property and are barred from holding traditional leadership positions. Marginalised and suppressed by the dominant [male] interpretation of the traditions and customs, viz. that laws of succession to chieftainship are inextricably linked with the African concept of family and kinship, rural women are rendered ineligible to be

Harmonislng cult~!ral equality rights under customaiy law - some reflecttons on Sh~li~bana Others v Nivam~twa and & 2009 121 SA 66 ICCI

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traditional leaders of their tribes or communities on the basis of their gender. Succession to chieftaincy or traditional leadershrp is commonly characterised by a struggle against paternalism in most African cultural traditions, because it is governed by the customary rule of male primogeniture. The thrust of the rule is that only males (not females) can be heirs. In practice this means that it is either the eldest male child or nearest male relative (father, male cousins and uncles) of the deceased who are entitled to become heirs. The male primogeniture rule, like many customary rules and traditions, is infused with gender inequality and as such has been the subject of constitutional challenge because arguably, it has contributed substantially to the current failure to realise gender equality in a democratic state founded on the values of nonracialism and non-sexism. In a country committed to both diversity and equality, this 'clash' between cultural autonomy and gender equality poses an obvious and inevitable challenge.

concern in its attempt to ease the strain between cultural and equality rights that claims of cultural recognition present to the achievement of women's equality in the context of chieftainship succession.

Factual background of the case2

The background to the case concerns a dispute for the right to succeed as hosi of the Valoyi Tribe in Limpopo between two cousrns. Phyllia Shilubana, a woman, and Sidwell Nwamitwa, a man, whose fathers were both chiefs and brothers. M s Shrlubana's father, Hosi Fofoza, was chief of the Valoyi tribe. He succeeded his father only because his elder sister was ineligible to be hosi. Hosi Fofoza died in 1968 without a male heir. Ms Shilubana, his eldest daughter, was denied succession to chieftainship after his death, because the customary law rule of male prrmogeniture governed the succession order of the Valoyi. This had always been the practice for over five generations among the Valoyi's. It was therefore no surprise that Phyllia was overlooked for the position, because it was inconceivable that a woman could become a chref. Instead her uncle, her father's younger brother, Richard, succeeded her father as hosi of the Valoyi tribe in Limpopo. In 1996 the royal family of the Valoyi, together with the participation of Hosi Richard, met and unanimously resolved to appoint Ms Shilubana as his (Hosi Richard's) successor, based on the following: Though in the past it was not permissible by the Valoyi's that a female child be heir, in terms of democracy and the new RSA Constitution it is now permissiblethat 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 South A f r i ~ a . ~ In 1997, in the presence of the chief magistrate and 26 witnesses, Hosi Richard acknowledged that Ms Shilubana was the heiress to the Valoyi

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Succession t o chieftaincy or traditional leadership is commonly characterised by a struggle against paternalism in most African cultural traditions
This article analyses the decision in Shilubana

& Others v Nwamitwa 2009 (2) SA 66 (CC) (hereafter referred to as Ms Shilubana), where the Constitutional Court was invited to deliberate on whether a woman can succeed her late father and become a traditional leader of a tribal community. in circumstances where a male heir was available to succeed the traditional leader or hosi (chief). The underlying gender issue being addressed, was whether the Valoyi tribe could continue to observe the male primogeniture rule (seemingly cardinal to customary law, but plainly discriminatory) in a constitutional democracy which prohibits discrimination on the grounds of gender. The aim of this article is to critically examine how the Constitutional Court addressed this

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Ms Shiiubana during her ground-breakmg struggle to attain ch~eftaincy her tribe of

Chieftamship. The Royal Council accepted and confirmed that Hosi Richard would transfer his powers to Ms Shilubana. This resolution clearly old custom struck a blow to the five-generat~ons
entrenching patrilineal succession to chieftainship,

The history behind the current dispute started

following the death of Hosi Richard in 2001, when

the royal family, Tribal Council, representatives of local government, clvic structures and stakeholders of various organisations met and confirmed that Ms Shilubana would become hosi. However, groups of community members voiced support for Mr Nwamitwa to succeed his father as hosi Hosi Richard himself had, in 1999, withdrawn his support for Ms Shilubana's appointment as his successor. In 2002 the Provincial Executive Council approved Ms Shilubana's appointment as

to do away with discrimination based on gender. What makes this case especially intriguing is that the leaders of the Valoyi community themselves figured that the customary rule of male primogeniture ought to yield, because it violated a central value of the new constitutional order, namely the principle of equal dignity for women. After all, the only reason M s Shilubana was denied the office in 1968 was because she was a woman.

hosi An inauguration ceremony was scheduled for Ms Shilubana. However, Mr Nwamitwa interdicted it and instituted proceedings in the Pretoria High

Harmonis~ngcultural and equality righrs under customary law - soiiie reflections on Shilubana & Others v Nwarn~twa 2009 (21 SA 66 K C )

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Court seeking a declaratory order that he, and not Ms Shilubana, was entitled to succeed Hosi Richard, because he as heir was the rightful successor to the chieftainship of the Valoyi.

hosi to another line, "particularly by appointing a female".' It followed, as the eldest son of Hosi Richard, that Mr Nwamitwa was therefore the rightful heir to be Hosiof the Valoyi tribe. On the basis of this argument Ms Shilubana's appointment as Chief was therefore not in accordance with the Valoyi customs, because no provision is made - nor was there precedence for -the appointment of a woman as Hosi, even if she was the first born. The community's decision, the Court stated, "was probably a bout of constitutional fer~our".~ The High Court further maintained that Ms Shilubana's appointment as hosi had no force and effect because the traditional authorities had no legal authority to appoint her. The High Court pointed out that in so far as the chieftainship succession process is concerned, the royal family plays a formal role; it does not elect a chief, it merely recognises and confirms one.' Accordingly, the actions of the royal family could not and did not amount to a change of the custom of chieftainship succession. With regard to the fourth question, the High Court found that the Executive Council's appointment of Ms Shilubana as hosi was not in accordance with the practices and customs of the Valoyi tribe within the meaning of the Constitution. The problem for the H ~ g hCourt was the royal fam~ly's act of exceeding their
authority in appointing M s Shilubana as hosi.

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Analysis of the High Court decision4

In seeking a declaration as to who the rightful successor to Hosi Richard was, Mr Nwamitwa invited the High Court to address four questions:

(i) Whether, according to the customs and

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traditions of the Valoyi tribe, a female could be appointed as hosi. (ii) Whether Hosi Richard was appointed as hosi or acting hosi when he succeeded Hosi Fofoza. (iii) Whether the royal family acted in terms of the customs and traditions of the Valoyi tribe when they appointed Ms Shilubana as hosi of the Valoyi tribe. (iv) Whether the decision of the Executive Council of Limpopo Provincial Government, appointing M s Shilubana as hosi of the Valoyi tribe, was in accordance with the traditions and customs of the Valoyi tribe within the meaning of the Constitution (Republic of South Africa, 1996). The High Court answered each of these questions favour. in Mr Nwam~twa's With regard to the first two questtons, the High Court reasoned that, at least prior to the adoption of the Interim Constitution, a woman and could not be appointed hosi of the Valoy~,~ that Hosi Richard was appointed hosi when he succeeded Hosi Fofoza. With regard to the third question, the High Court concluded that Ms Shilubana had not been appointed in accordance with the custom and practices of the Valoyi tribe. The High Court reasoned that spanning five generations, traditional chieftaincy was retained only along the male succession line. Chieftainship succession should therefore proceed down Hosi Richard's family line, and not from the line of a

Hosi Rlchard had an eligible heir, so it was not necessary to shift the family lines in the face of a cardlnal rule of customary succession to
chieftainship. Accordingly, the High Court held,

the issue was one of lineage, and not gender. Therefore there was no constitutional problem with Valoyi customary law in this instance.''

The Supreme Court of Appeal decision1'

The Supreme Court of Appeal was called upon to address the same four questions, and largely affirmed the Hlgh Court's judgment. The Supreme Court of Appeal ultimately agreed with the High

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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".12 Clearly, for the High Court and the Supreme Court of Appeal, upholding the customary rule of male primogeniture. rather than gender equality, was more applicable to the resolution of this succession dispute. In so doing, both the Courts failed to acknowledge that male primogeniture, as applied in this case, embodies the blatant injustice arising from the obvious fact that had the applicant been a man, s/he would have succeeded her father as chief of the Valoyi tribe. In this respect, the High Court and the Supreme Court of Appeal reinforced the notion that official customary law is fossilised and immutable to change, thus claiming immunity from gender equality, and in so doing provides "an uncritical superficial approach of the courts to customary law ... has a serious bearing on the extent to which women living under customary law may enjoy human rights under the Constitution and the International Human Rights instruments that SA has ratified" (Himonga, 2005: 107). Lehnert (2005: 264) s~rnilarlycriticises this kind of disingenuous judicial approach to customary law, and observes that this shortcoming may be due to the "limited understanding of customary law concepts" among judges, which results in the rigid and mechanical "application of the principle of male primogeniture without even considering the changed practices in the living [customary] law". Clearly, the judicial approach adopted above reinforces the idea that women who press for change within traditional communities threaten the values that sustain those communities. The lesson from this judicial approach is that gender equality is a value alien to traditional communities, one that does not emerge from women's experience of subordination within them but is imposed by external forces. In other words, the message conveyed is that culture is often portrayed as essentially host~le

to women's equality

that cultural and equality

rights are irreconcilable, and in the end the one must be sacrificed in favour of the other. The writer argues that this notion of irreconcilability of gender equality and the principles of customary law flies in the face of the constitutional call for substantive equality in its transformative agenda for our society.

Analysis of the Constitutional Court decision

An attempt to reconcile and thereby ease the tension between cultural rights and gender equality was demonstrated in the judicial approach adopted in the Const~tutionalCourt, where Ms Shilubana appealed the decision of the Supreme Court of Appeal on the grounds that she had been prevented from being appointed as hosi on the basis of her gender - the obvious fact being that had she been a man, she would have succeeded her father as hosiof the Valoyi tribe.

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Did the royal family have the legal authority to develop the customs and practices of the Valoyi in line with the Constitutional objectives of {gender] equality?
In evaluating Mr Nwamitwa's claims that he and not Ms Shilubana was the eligible heir to succeed his father as hosi of the Valoyi, the Constitutional Court ultimately had to consider and decide whether the royal family had the authority to restore the position of traditional leadership to the house from which it was removed by reason of gender discrimination.13In other words, did the royal family have the legal authority to develop the customs and practices of the Valoyi in line with the Constitutional objectives of [gender] equality? In addition, the Constitutional Court equally needed to address the relationship between traditional community structures and courts of law as dernocracy,l4 and envisaged by our const~tutlonal how courts of law are to apply customary law as

Iising c u i t l i ~ a d i w equality rights under cusromaiy laiv - some reflections on Sliiiubarla & Otlwrs v Nwamitwa 2009 12) SA 66 i

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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.15 The Constitutional Court acknowledged that customary law, like any other law, must accord The Constitution also with the Constit~tion.'~ recognises and provides specifically for the protection of culture." However, it is important to note that the right to culture and the applied right to the application of customary law is not unlimited. Both sections 30 and 31 specifically provide that the exercise of the right to culture is subject to the other provisrons of the Bill of Rights. In other words, "customary law must be interpreted by the courts, as first and foremost answering '~ to the contents of the C ~ n s t i t u t i o n " . The aim of protecting and maintaining cultural diversity

ensure the advancement and development of customary law in line with the prescripts of the includes the ability for such Bill of Right~,~'which communities to remedy previous discrimination. In addition, Section 3 of the Traditional Leadership Act places a legal duty on traditional leaders not only to promote the right to gender equality but also to ensure that it is progressively vindicated from its institutionalised subordination within customary law.21 In determining the aforementioned issues, the Constitutional Court adopted a pragmatic approach by focus~ngthe enquiry on the customary law practices within in its own setting rather than in terms of the common-law paradigm, because of the distorting tendency of older authorities to view customary law through legal conceptions foreign The Constitutional Court stated: to it.22 customary law is by its nature a constantly evolving system. Under pre-democraticcolonial 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 fa~ilitated.'~ Furthermore, the Constitutional Court took the view that where there was a dispute over the legal position under customary law, both the traditions and the present practice of the community had to be considered. If development happened wrthin the community, the Court had to strive to give effect to that development insofar as it was consistent with the protection of constitutional rights.24Referring to s21 l ( 2 ) of the Constitution, the Constitutional Court provided that customary law had to be allowed to develop, and that the enquiry had to be rooted in the contemporary practice of the community in question. The Constitutional Court was quick to point out that the legal status of customary-law norms could not

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Where there was a dispute over the legal position under customary law, both the traditions and the present practice of the community had to be considered
is given further impetus by the Constitutional recognition of the role of traditronal leaders. Section 211(2) of the Constitution includes the right of traditional authorities to amend and repeal their own customs. The Traditional Leadership and Governance Framework Act 41 of 2003 (hereinafter Traditional Leadership Act) entrenches the powers of traditional leaders, and in particular, obliges traditional authorities to "progressively advance gender representation In the succession to traditional leadership position^".'^ In addition, the preamble of the Traditional Leadership Act unambiguously stipulates that the institution of traditional leadership must be transformed to be in harmony with the Constitution and the Bill of Rights so that "gender equality within the institution of traditional leadership may progressively be advanced". Clearly, the Traditional Leadership Act enhances the role of traditional leaders to

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depend simply on their having being cons~stently applied in the past, since that was a test that any new development would necessarily fail. Development therefore necessarily implied some departure from past practice.'= The Constitutional Court warned that courts should be wary of applying laws which communities themselves no longer follow, because this would prevent the recognition of new rules adopted by the communities in response to the changing face of South African society. The result would be contrary

law, which was an essential step in respecting community-led change which in its (the Court's) view was not outweighed by the requirements of legal certainty and the need to protect right^.^' In a welcome move, the Court recognised that traditional communities could alter their customary law simply by evolving and harmonising their actual practices with the basic values of the new constitutional order. In the Court's view, Mr Nwamitwa only had an expectation to be appointed hosi of the Valoyi tribe the Court held, could not override the decision of the traditional authorities to alter their customary law in accordance with the values and rights of our democracy as embodled in our Constituti~n.~~

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to the constitutional mandate of transf~rmation.'~ primarily on the basis of past practice. This expectation, The Constitutional Court accepted that the classic test (Van Breda Test)" for the existence of custom as a source of law could not be applied to customary law where the development of living law was at issue. In this regard, the Court took the view that although chieftainship succession among the Valoyi had operated in the past according to the principle of male primogeniture. the traditional authorities had a legal obligation to develop customary law, and they had done so in furtherance of the constitutional right to [gender] equality. In other words, past practice and tradition will not be decisive when the Constitution requires the development of the customary law to reflect the constitutional values. It would still be a factor to be considered together with other factors." It followed, therefore, that Mr Nwamitwa could not base his claim exclusively on past practice. In the Court's view, the Valoyi authorit~esintended to bring an important aspect of their customs and traditions in line with the values and rights of the Constitution. This they did in accordance with the right to function subject to their own system of customary law, including amendment or repeal of laws.zg The Constitutional Court opined that even if the royal family or traditional authorities had lacked customary authority to act as they did, they nevertheless had constitutional Constitutional Court found authority to do ~ o . ~ ' T h e that the appointment of M s Shilubana as a hosi thus represented a development of customary The Constitutional Court accordingly ruled that the High Court and the Supreme Court of Appeal decision was incorrect, because it failed to acknowledge that the decision to appoint M s Shilubana as Hosi was consistent with the statutory obligation of the traditional authorities to develop and reform customary law so as to comply with the Bill of Rights.

The Court recognised that traditional communities could alter their customary law simply by evolving and harmonising their actual practices with the basic values of the new constitutional order

Discussion of the Constitutional Court judgment

The judicial approach adopted by the Constitutional Court can be hailed as a pragmatic approach to cultural pluralism in the struggle to reconcile what is often perceived as the two irreconcilables: cultural rights versus equality rights. The Court's pragmatism lies In the fact that it did not assume an inherent conflict between customary/cultural rights and equality, simply one of pitting tradition against equality, but instead saw the customary dispute about gender equality as an intracultural conflict between two

Harnion~s~ig cultural ana equality rights under cus~oma~y - sonie reflecl~ons Shiiuhana & Olhers v Nwarn~twa law on 2009 12) SA 66 ICC)

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different interest groups battling to change the power relations within their very culture. The Court took a historical and time-honoured tradition spanning five generations, and examined it in its contemporary context to determine how the rules are actually applied in the 'living law' of a tribal community. The approach is anti-essentialist in that it emphasises consequences rather than concepts, and it justifies results contextually. The Court in so doing firmly set its face against forms of gender discrimination and patriarchy that

therefore resolved by the simple adding in of women into the equation. The Constitutional Court has in President of Republic of South Africa v Hugo," insisted that equality claims must be f~rmlysituated and understood in their social context. The Court in this regard did not heed this necessary call, in terms of the differentiation approach (equality test) authoritatively formulated in the Harksen v Lane No.34 The Harksen equality analysis is fortified by the approach adopted by Moseneke DCJ in Minister of Finance v Van Heerden.3"~ follows: It is ... incumbent on courts to scrutinize in each equality claim the situation of the complainants in society; their history, nature and purpose of the discriminatory practice and whether it ameliorates or adds to group disadvantage in real life context, in order to determine its fairness or otherwise in the light of the values of the constitution. The constitutional validity of the male

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stigmatise women as dependants, reliant on men for access to resources and deprived of individual agency. The message conveyed is clear: rules and practices that unfairly discriminate against women by relegating them to positions of subservience, dependence and lack of choice should/will not survive constitutional scrutiny.

The decision to appoint Shilubana as Hosi was consistent with the statutory obligation of the traditional authorities to develop and reform customary law so as to comply with the Bill of Rights
Although the Constitutional Court concluded in its final analysis that when the royal family confirmed M s Shilubana's appointment as hosi of the Valoyi tribe, it was influenced by the new democratic dispensation under the Constitution, and in particular the need to make sure that the right to gender equality was respected. However, in so doing the Constitutional Court only paid lip service to the vindication of gender equality because it failed to show how the Valoyi leaders' appointment of M s Shilubana altered community traditions and practices in the service of the constitutional command to dismantle gender inequality. The Court perceived the appointment of women as chiefs as a straightforward violation of formal equality: men can be chiefs, woman cannot. The tension between gender equality and customary law in the Court's analysis was

primogeniture rule has been subject to the rigour of the differentiation approach encapsulated in the equality analysis of this Court in previous cases,36 because it discriminates most conspicuously on the grounds of gender. Had the Court followed suit and engaged in an equality analysis it would have been able to make a contextual assessment of the impact of the male primogeniture rule with specific emphasis and reference to the impact and degree of disadvantage suffered by Ms Shilubana and other women in her position. In addition, the purpose of the male primogeniture rule and the extent to which it impaired her constitutionally guaranteed rights would also have been considered, within an overall assessment of whether the complainant has been treated with dignity (equal concern and respect) as a consequence of the application of the rule. The Constitutional Court's failure to engage in such an analysis was a missed opportunity to ease the tension between cultural and [gender]

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equality rights in the context of deeply rooted customary practices, leaving the door open to a future constitutional challenge to the practice of male primogeniture in the context of traditional leadership and status. This analysis is not suggesting that the lack of constitutional analysis necessarily has led the courts to reach a constitutionally unacceptable result. On the contrary, by ignoring an important equality analysis the Court avoided a direct answer to the question of gender discrimination, by finding

is tantamount to imposing Western values and norms on customary law. It is therefore no surprise that arguments relating to women's rights and customary law have arisen in the context of women as members of cultural communities. The accommodation of the claims of traditional leadership in the guise of a claim for cultural recognition is of particular concern for the declared equal rights of rural women, because traditional leaders view themselves as the authoritative voice in determining the content of customary rules and practices. This is especially true where, in the case of African women's rights, culture is often portrayed as essentially hostile to women's equality (Ndashe, 2005: 36). Endeavours by traditionalists to maintain their patriarchal hold over women, under the guise of a central, but discriminatory cultural practice, cannot be exercised in a manner inconsistent with the Constitution. Ndashe (2005: 37) puts it succinctly: The internal limitation contained in the right to participate in, and belong to, a cultural group means that if a custom was inconsistent with another right in the Bill of Rights, the customary law rule has to yield in order to allow the right to prevail. Courts are called upon to adjudicate and support women's claims to equal concern and respect and the right to participate fully in public life. Any other contention "destroys the coherence of a democratic state . . . In such cases it is misguided to see a judicial decision to remove a women's legal disabilities as an attack on her culture" (Bronstein, 1998: 404). Bronstein correctly points out that the judicial decision does not destroy any person's cultural context, nor is it anticultural in its sentiment (Bronstein, 1998: 404). with the nature of living law. Reform must be thought of as the pursuit of a society in which all people, including women, are It simply enhances culture as an evolving entity in keeping

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that the appointment of a woman chief was a development of customary law that answered to and complied with the text, spirit and purport of the Constitution. Perhaps this was a case of 'strategic pragmatism', avoid~ng a contentious issue while not fully compromising on principle (woman can be traditional leaders). However, the issue of gender equality and public traditional power as a result remains partly unresolved.

Conclusion
The judgment is significant in its recognition of customary law and the women's equal status with~n communities it regulates. It represents a significant step towards the conclusion that male primogeniture as the determinant of accession to chieftainship violates the constitutional guarantee of gender equality. Although the case does not directly assert the unconstitutionalityof male succession, it affirmed that some traditional communities are already reforming a central customary institution (male primogeniture succession) as a part of a broader effort to harmonise their practices with our democracy's foundational commitments. In not squarely confronting the unconstitutionality of male succession as a violation of gender equality, the Court left open the question of whether this is fair discrimination. Traditional leaders argue that because culture is protected by the Constitution, it has to be protected at all costs. A variation of this interpretation is that a failure to recognise customary law on its own terms and simply applying the Constitution

Harnio~itsng c~11tu:alar7d ?qijdl~ty r,g/iis under cilstoniary law - sonic! 1eflec:1011s11 Sli~iiihriqa& O r h e ~ s N w a n ~ ~ t w a (2) SA 66 ICCI 0 v 2009

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able to realise their dignity and self-worth to the fullest potential. The Constitutional Court therefore supported M s Shilubana's claim to full citizenship, enabling her to participate fully in public life. After all, in 1994 the Constitution recognised women as citizens of democracy, rather than subjects of traditional law. This means that women should not have to choose between culture and equality, "for otherwise both rights will be rendered nugatory" (Van der Meide, 1999: 111).

contatned in the Bill of r~ghts In the constitut~on, In pa'lcular b y (a) preventing unfair discrimination; (b) promoting equal~ty: and (c) seeking to progressively advance gender representation in the successton to traditional leadership posltlons." 22 Note 1 Para 44. 23 N~~~ Para 45, 24 Note 1 Para 49.
25 Para 55. 26 lbld. 27 Note 1 Para 53. 28 Note 1 Para 56.

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Footnotes
1 Also cited as Sh~lubana& Others v Nwamitwa 2008 (9) BCLR 914 (CC). 2 Sh~lubana Others v Nwamitwa 2009 (2) 66 at 70 -71. and 3 Ibid. [Para 4 at 701 4 Nwamitwa v Phill~a and Others 2005 (3) SA 536 (T). 5 Note 2 539B-E. 6 Note 2 539G-541 B. 7 Note 2 544E-546C. 8 Note 2 544G. 9 Note 2 545B-F. 10 Note 2 548E-H. 11 Sh~lubana Others v Nwam~twa and (Comm~ss~on Gender for 12 13 14 15 16 17 18 19 20 21 Equality as Amicus Cunae) 2007 (2) SA 432 (SCA). Note 1 Para 50. Note 1 Para 1. Note 1 Para 2. Note 1 Para 2. Section 21 l ( 3 ) and Section 39(3). Sections 30 and 31

29 30 31 32 33 34 35 36

Note 1 Para 73. Note 1 para 75. Note 1 Para 84. Note 1 Para 78 1997 (6) BCLR 708 Para 4. 1998 (1) SA 1300 (CC) Para 51 2004 11 BCLR 1125 (CC) Para 27. Mthembu v Letsela and another 2000 (3)SA 867 (SCA);Zondi v President of the RSA 2000(2) SA 49 (N); Bhe and Others v Magistrate Khayel~tsha Others 2005(1) SA 580 (CC). and

References

Bronstein V 11998) 'Reconceptual~sing the customary law debate In South Africa' in South Afr~can Journal of Human R~ghts,14. 389. Himonga C (2005) 'The advancement of African women's rights In the first decade of democracy in South Afr~ca: the reform of the customary law of marriage and success~on'in Acta Jundica, 82. 107. Lehnert W (2005) 'The role of the court's In the conflict Per Langa DCJ tn Bhe and Others v The Mag~strate, between African customary law and human rights' in Khayelitsha and Others 2005 (1) BCLR 1 (CC) Para 41. South African Journal of Human Rights, 21 : 241 Section 2(3)(c). Ndashe S (2005) 'Human r~ghts, gender and culture - a deltberate See s4 of ch 2, and ch 5 of the Trad~t~onal Leadersh~p and confus~on?' Agenda Specla1 F w s : Culture, 36. in Republic of South Africa. (1996) Constitut~on the Republic of Governance Framework Act 41 of 2003. "A trad~t~onal community must transform and adapt of South Afr~ca.Pretor~a: Government Pr~nter. customary law and customs relevant to the appl~cation Van der Meide W (1999) 'Gender equality versus the rlght to culture' in South African Law Journal, 116: 100. of this Act so as to comply with the relevant pr~nc~ples

DEVINA NADARAJAN PERUMAL is a Sentor lecturer in the Faculty of Law at the University of KwaZulu-Natal, Durban, and Advocate In the High Court of South Africa. Her research ~nterests include issues in const~tut~onal feminist legal law, theory, anttdiscrimination law, multiculturalism and equality rights, and she has published in these areas. She serves on the Board of the KwaZulu-Natal Network of Violence against Women and Children, and is also a Board member of Agenda Femin~st Media. Email: perumald40ukzn.ac.za

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AGENDA 84 2010