Shilubana and Others v Nwamitwa (011/05) [2006] ZASCA 146; 2007 (2) SA 432 (SCA) (1 December 2006)

Shilubana and Others v Nwamitwa (011/05) [2006] ZASCA 146; 2007 (2) SA 432 (SCA) (1 December 2006)

The Supreme Court of Appeal held that, under the customs and traditions of the Tsonga-Shangaan and Valoyi tribes, succession to the chieftainship followed male primogeniture, and a female could not be appointed Hosi prior to 1994. The Royal Family's decision to appoint the first appellant as Hosi was an ad hoc deviation from custom, not a valid adaptation, and did not comply with established succession rules. The respondent's father was lawfully appointed as Hosi, not merely acting, and the respondent, as the eldest son, was entitled to succeed. The Executive Council's appointment of the first appellant was not in accordance with custom or the Constitution. The court declined to...

Citation
[2006] ZASCA 146
Parties
Appellant: TLP Nwamitwa Shilubana; Appellant: WM Mbhalati; Appellant: District Control Officer; Appellant: Premier of Limpopo Province; Appellant: MEC for Local Government & Housing; Appellant: House of Traditional Leaders; Appellant: CS Nwamitwa; Appellant: MTN Nwamitwa; Appellant: B Shipalana; Appellant: E Risaba; Appellant: S Ngobeni; Respondent: Sidwell Nwamitwa
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
1 December 2006
Case Number
011/05
Procedural Posture
Civil Appeal / Appeal From Pretoria High Court Judgment
Outcome
Appeal dismissed with costs, save for deletion of reference to prayer 4 in the order of the court a quo.
Judges
Farlam, Mthiyane, Nugent, Mlambo, Maya
Legal Topics
Customary Succession, Gender Equality, Chieftainship, Bill of Rights Limitation, Promotion of Administrative Justice Act
Land and Property Constitutional Law Customary Succession Gender Equality Chieftainship Bill of Rights Limitation Promotion of Administrative Justice Act

Case Brief

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Parties

TLP Nwamitwa Shilubana

Appellant

WM Mbhalati

Appellant

District Control Officer

Appellant

Premier of Limpopo Province

Appellant

MEC for Local Government & Housing

Appellant

House of Traditional Leaders

Appellant

CS Nwamitwa

Appellant

MTN Nwamitwa

Appellant

B Shipalana

Appellant

E Risaba

Appellant

S Ngobeni

Appellant

Sidwell Nwamitwa

Respondent

Procedural Posture

Civil Appeal / Appeal From Pretoria High Court Judgment

Legal Issues

  1. 1 Whether, under Tsonga-Shangaan and Valoyi customary law, a female can be appointed as Hosi (chief).
  2. 2 Whether the respondent's father, Mahlathini Richard Nwamitwa, was appointed as Hosi or merely as acting Hosi.
  3. 3 Whether the Royal Family acted in accordance with the customs and traditions of the Valoyi tribe in appointing the first appellant as Hosi.

Ratio Decidendi

The Supreme Court of Appeal held that, under the customs and traditions of the Tsonga-Shangaan and Valoyi tribes, succession to the chieftainship followed male primogeniture, and a female could not be appointed Hosi prior to 1994. The Royal Family's decision to appoint the first appellant as Hosi was an ad hoc deviation from custom, not a valid adaptation, and did not comply with established succession rules. The respondent's father was lawfully appointed as Hosi, not merely acting, and the respondent, as the eldest son, was entitled to succeed. The Executive Council's appointment of the first appellant was not in accordance with custom or the Constitution. The court declined to...

Court Disposition

Appeal dismissed with costs, save for deletion of reference to prayer 4 in the order of the court a quo.

Orders

  • The appeal is dismissed with costs.
  • The reference to prayer 4 is deleted from paragraph 3 of the order made by the court a quo.