FORMAL NOTES | JUR 110 1 ___________________ ___________________ ___________________ ___________________ JUR 110 CASES 2017 | Semester 1 June Exam Supplementary Case Summaries 1 NICHOLAS HERD ___________________ ___________________ ___________________ ___________________ © N. Herd | 1st Year | 2017 | Semester 1 | June Exam Sup Case Summaries 1 Page of 1 7 DISCLAIMER Please take cognisance of the fact that these notes are not exhaustive of the material required to be covered for the module and contained in the prescribed syllabus. There may be errors or omissions; the notes may also be outdated. Use these notes at your discretion. Advice: Use the textbook and other officially prescribed/recommended materials in conjunction with this supplementary study material (these notes). Notes are not for sale, unless expressly and specifically authorised by the author. Do not reproduce and/ or distribute any part of these notes to anyone without express and specific permission from the author. Case summaries have been mostly reproduced and edited from the Media Summaries released by the Constitutional Court (may therefore be inaccurate).
FORMAL NOTES | JUR 110 2 © N. Herd | 1st Year | 2017 | Semester 1 | June Exam Sup Case Summaries 1 Page of 2 7 Shilubana and Others v Nwamitwa (CCT 03/07)  ZACC 9 1. Facts: (1) Dispute between Ms Shilubana and Mr Nwamitwa over the right to succeed Mr Nwamitwa’s father, Richard Nwamitwa, as Hosi (Chief) of the Valoyi traditional community in Limpopo. (2) In 1968 Ms Shilubana’s father, Hosi Fofoza Nwamitwa, died without a male heir -- customary law at the time -- male primogeniture -- Ms Shilubana did not succeed him as Hosi although she was his eldest child. (3) Hosi Fofoza was instead succeeded by his brother, Richard Nwamitwa (4) 1996 --1997 the traditional authorities of the Valoyi community passed resolutions deciding that Ms Shilubana would succeed Hosi Richard, since in the new constitutional era women were equal to men. (5) Her succession was approved by the provincial government. (6) However, following the death of Hosi Richard in 2001, Mr Nwamitwa interdicted Ms Shilubana’s installation and challenged her succession, claiming that the tribal authorities had acted unlawfully and that he, as Hosi Richard’s eldest son, was entitled to succeed his father. (7) Both the Pretoria High Court and the Supreme Court of Appeal ruled in favour of Mr Nwamitwa. 3. Ratio Decidendi: (1) Section 211(2) of the Constitution requires courts to respect the right of traditional communities to develop their own law. Courts, after receiving evidence from the parties of the present practice of traditional communities (judicial notice), must acknowledge developments if they have occurred; (2) Courts must balance the need for flexibility and the imperative to facilitate development against the value of legal certainty and respect for vested rights. Relevant factors for this balancing test include: (i) The nature of the law in question, in particular the implications of the change on constitutional and other legal rights; (ii) The process by which the alleged change occurred or is occurring; and (iii) The vulnerability of parties affected by the law.
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