Harmonising cultural and equality rights under customary law—some reflections on Shilubana & Others v Nwamitwa 2009 (2) SA 66 (CC)

Abstract

abstract The equal recognition of the right to gender equality and the right to culture has created tensions between the application of customary law values and the constitutional agenda for the realisation of gender equality in South Africa. This tension has resulted in customary laws being viewed as a source of potential conflict and as perpetuating inequalities and prejudices against women. The recognition of traditional leadership and its institutions, including the right to cultural practices, therefore, has created a new challenge relating to their role in the development of customary law values and principles. The constitutional status of customary law has fuelled debates on its recognition and created the need for a delicate balance in court challenges in the area of gender equality. Many of these court challenges have focused on the rule of male primogeniture in respect of inheritance and succession to property within the framework of family law relationships. One area of conflict that has not received attention from the courts, until the Constitutional Court was called upon to consider the conflict in Shilubana & Others v Nwamitwa 2009 (2) SA 66 (CO, is women's succession to traditional leadership and public status. The Constitutional Court, in a ground-breaking judgment, concluded that the customary law principle of male primogeniture in the context of succession to chieftaincy does indeed constitute an infringement of the right to gender equality.