In a judgment that has been hailed as a victory for gender equality and recognition of women in traditional leadership, a Limpopo woman has won the right to succeed her late father as Hosi (chief).
The position was held by her cousin Sidwell Nwamitwa.
The Constitutional Court yesterday ruled that Tinyiko Nwamitwa-Shilubana's appointment to succeed her father as Hosi of the Valoyi tribe near Tzaneen is legal.
Her father, Hosi Fofoza Nwamitwa, died in 1968 without a male heir. At the time, Nwamitwa-Shilubana could not succeed her father because the customary law did not permit a woman to become a Hosi.
Instead, her place was taken by her uncle, the late chief's brother, Richard Nwamitwa.
Between 1996 and 1997, the tribe reversed the arrangement and passed progressive resolutions to restore the chieftaincy to Hosi Fofoza Nwamitwa's house and decided that Nwamitwa-Shilubana should take over from Richard.
The succession was approved by the Limpopo provincial government. But matters came to a head when Hosi Richard Nwamitwa died in 2001.
His son, Sidwell Nwamitwa, successfully sought an interdict to stop Nwamitwa-Shilubana from being installed as Richard's successor.
Nwamitwa claimed that the tribal authorities had acted unlawfully because he was entitled to be successor as the eldest son of the late Richard.
He went further and challenged this in the Pretoria high court which, together with the Appeal Court, ruled in his favour.
In a ground-breaking decision, Judge Johann van der Westhuizen said both the high and Appeal courts failed to acknowledge the power of the traditional authorities to develop customary law.
Van der Westhuizen said the Constitution required courts to respect this. The courts must balance the need for flexibility and the imperative to facilitate development against the value of legal certainty and respect for vested rights.
He found that the succession to the Valoyi leadership was in the past based on the principle of male primogeniture or first-born inheritance.
The judge highlighted the role the community had played in developing its customary law in accordance with the constitutional right to equality.
In upholding the appeal, Van der Westhuizen said as the traditional authorities had the authority to develop their customary law under the Constitution, Nwamitwa did not have the right to be declared a Hosi.
Speaking after the court decision, Nwamitwa, through his adviser Ishmael Risiva, described the judgment as a disaster to African culture and traditions.
"If every aspect of our culture is being trampled like this, God knows. We accept it because we have no choice.
"It means we will have to vote for a Hosi. We don't know how this will be done - whether traditionally or democratically."
Nwamitwa-Shilubana was not in court to hear the judgment. Her application was supported amicus curiae (friends of the court) by the Commission for Gender Equality and the National Movement of Rural Women, while Contralesa supported Sidwell Nwamitwa.