No judgement yet in chieftaincy tussle

Two cousins took their battle for chieftaincy of the Valoyi tribe to the Constitutional Court on Tuesday, in a case that challenges customary law in their tribe that says only men may be chiefs.

Tinyiko Shilubana and Sidwell Nwamitwa each insist that they are the rightful head of the Valoyi tribe in a dispute sparked by the death of Shilubana’s father, Hosi Fofozwa, in 1968.

Fofozwa did not have a male heir, so his title was passed to his brother Richard Nwamitwa, and his son Sidwell had expected to take over from him when he died.

However, in later years, while Nwamitwa was still alive, the tribe decided that it was unconstitutional to exclude women from succession and agreed that Shilubana should become chief and that the Fofozwa line be reinstated.

The Pretoria High Court and the Supreme Court of Appeal later found in favour of Nwamitwa, so Shilubana took the matter to the Constitutional Court on a point of gender equality.

The Commission for Gender Equality, the National Movement of Rural Women and, at the last minute, the Congress of Traditional Leaders of South Africa were appointed friends of the court in the matter.

Women and men in bright traditional Shangaan attire filled the court on Tuesday, spilling over into the press gallery to participate in the proceedings.

“I have been following this on the radio, but today I have come to hear it with my own two ears,” said Shadrack Ntimbani, wearing a T-shirt saying “Bayethe Ndhabezitha [We salute the chief]—his royal highness Ndhabezitha Nwamitwa”. T-shirts in support of Shilubana were twinned with skirts and head-dresses made from swathes of fluorescent pink, violet and green patterned cloth.

Shilubana and Nwamitwa sat in the front row, he in a sober dark suit, she in a black intricately beaded traditional dress and head-dress, and listened carefully to the questioning from the semicircle of judges before them.

Shilubana’s lawyer, Ishmael Semenya, said the Constitution, which does not allow gender discrimination, is the highest authority in this matter.
He rejected Nwamitwa’s claim that chieftaincy was determined at the time he was born, before the Constitution was in place.

“When she was born, her father was chief,” he said. At the time of Sidwell Nwamitwa’s birth, his father was not a chief.

The Commission for Gender Equality told the court that to accommodate a female chief in accordance with customary rules on heirs, Shilubana, who is married with children, would have a “candle wife” who would bear the next heir to the throne for her with the help of a man selected for this purpose.

Geoff Budlender, appearing for the Rural Women’s Association, said that the tribe had decided to align itself with the Constitution.

Customary law did allow for making choices and for changing circumstances, and in this case the principle of constitutionality was the circumstance. “The principal of equality is a part of our life. It is a part of our nation, it is a part of our community,” he said.

Advocate McCaps Motimele, appearing for Nwamitwa, said his client’s case was not about gender equality, but about the fact that in 1968 custom decided that the chief would be the eldest son. “Those rights were vested at the moment he was born. The rights were passed on then ... Everybody was happy.”

He urged the court not to redress an injustice with an injustice.

Motimele said that, going forward, chieftaincy should be placed in the Nwamitwa house, and his children, regardless of their gender would become eligible for future succession.

If Shilubana’s argument were to be applied, the position of Fofozwa’s sister, who was also overlooked at the time of succession, would have to be reviewed.

After judgement was reserved, a group of women accompanied Shilubana down the court steps, singing “She has done nothing wrong, she must take his place,” before settling under the court’s thorn trees for a packed lunch.—Sapa

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