Shilubana v Nwamitwa

The Constitutional Court held that customary law is not frozen in time but develops organically. A traditional community's Royal Council could validly restore a woman to the position of Hosi (traditional leader) from which her gender had previously excluded her, thereby developing customary succession law in line with constitutional values of gender equality.

Ms Shilubana's grandfather was Hosi but she could not succeed him in 1968 because customary law then excluded women. A male relative, Mr Nwamitwa, was appointed instead. In 1996, the Royal Council resolved to restore the leadership to Ms Shilubana, recognizing changed customary law and constitutional values of gender equality. Mr Nwamitwa challenged the decision, claiming the earlier succession was final.

Whether a traditional community, through its recognized structures, has the authority to develop customary law of succession to reflect constitutional values and changed community norms.

The Royal Council had authority to develop customary law and appoint Ms Shilubana as Hosi. Customary law is living law that evolves within communities; it is not static or codified as at a particular historical date.

Customary law develops organically through the practice and recognition of traditional communities, and such development is valid where consistent with the Constitution and the principle that customary law is living law.

The Court emphasized that customary law must be understood as a living, evolving system shaped by the values and norms of the community that practices it. The Constitution recognizes customary law but requires it to develop consistently with the Bill of Rights, including gender equality. The Royal Council's decision was an authentic exercise in developing customary law to remedy past gender discrimination, and courts must recognize such internal development rather than impose a frozen or codified version of custom.

The Court acknowledged the tension between certainty in succession and the need for customary law to evolve, noting that legitimate expectations must be balanced against constitutional imperatives and community consensus.

This case is foundational for understanding that customary law is not fossilized at colonization or any fixed date, but evolves within communities subject to constitutional conformity. It is essential for teaching living customary law, the recognition of customary institutions' law-making authority, and the constitutional transformation of customary practices, particularly regarding gender equality.

Shilubana v Nwamitwa 2009 (2) SA 66 (CC) [2008] ZACC 9