'Women can become chiefs'

Eric Naki

Eric Naki

In a judgment 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, 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 Nwamitwa-Shilubana should take over from Richard.

The succession was approved by the Limpopo provincial government. But matters came to a head when he died in 2001.

His son, Sidwell Nwamitwa, successfully sought an interdict to stop Nwamitwa-Shilubana being installed successor. The Pretoria high court, 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. They must balance the need for flexibility against the value of legal certainty and respect for vested rights.

The judge highlighted the role the community had played in developing its customary law in accordance with the constitutional right to equality.

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.