Ernest Mabuza
5 June 2008
Johannesburg — THE Constitutional Court yesterday recognised the right of a 66-year-old woman to become chief of her Limpopo tribe.
The court upheld an appeal by the woman, Tinyiko Nwamitwa-Shilubana, whose chieftainship of the Valoyi tribe, near Tzaneen, was taken away from her in 1968 on the basis that she was female.
The court ruled that the Pretoria High Court and the Supreme Court of Appeal (SCA) failed to acknowledge the power of traditional authorities to develop customary law.
The chairman of the tribe's royal council, Ben Shipalana, said yesterday the council would organise the inauguration of the first woman chief of the tribe .
This brings to an end the dispute between two cousins that began in 2001 over who should become the chief of the tribe . One of the cousins, Nwamitwa-Shilubana -- an African National Congress MP -- was appointed to a chieftainship position in 2001 for which she was previously disqualified by virtue of her gender.
When Shilubana's father, Chief Fofoza Nwamitwa, died in 1968, his daughter was not considered for the position and Fofoza's younger brother, Richard, succeeded him.
In December 1997, the Valoyi Royal Council, with the participation of Richard, unanimously resolved to confer chieftainship on Shilubana. However, Chief Richard wrote a letter in 1999 withdrawing his support for Shilubana's chieftainship.
When Richard died in 2001, his son, Sidwell Nwamitwa, went to court to interdict the installation of Shilubana as chief.
Writing for a unanimous court, Judge Johann van der Westhuizen said the status of customary law was constitutionally entrenched.
"Like any other law, customary law has a status that requires respect. It is a body of law by which millions of South Africans regulate their lives and must be treated accordingly."
Van der Westhuizen said it was important for the right of communities that observed systems of customary law to develop their law.
In its judgment, the SCA had said the royal council had no power to depart from the customs and traditions of the tribe in choosing a new chief.
"The right of communities ... 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 ," Van der Westhuizen said.
In deciding as they did, the Valoyi authorities had restored the chieftainship to a woman who would have been appointed chief in 1968 were it not for the fact that she was a woman, Van der Westhuizen said.
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