Succession of women to traditional leadership : is the judgment in Shilubana v Nwamitwa based on sound legal principles?

Abstract

This note is a lego-anthropological commentary on the Constitutional Court case Shilubana v Nwamitwa 2008 (9) BCLR 914 (CC). The authors assess the judgment in the light of the essential principles and practices governing succession to traditional leadership. While they are in general agreement that women should not be excluded entirely from the office of traditional leadership, they submit that women's inclusion should be achieved by an evolutionary process rather than by rigid judicial or legislative decree. Succession by women can in fact take place within the ambit of current customary usage and law.