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

Bibliographic Data

ID12330293
AuthorsDevina Nadarajan Perumal (0000-0002-2528-0331, Right to Care, corresponding author)
Year2010
Volume24
Issue84
Pages101-110
Publication date2010-01-01
Peer ReviewedYes
Open AccessNo
TypeARTICLE
VenueAgenda (JOURNAL)
Journal identifiersISSN: 1013-0950 • E-ISSN: 2158-978X
PublisherTaylor & Francis (PUBLISHER • GB)
DOI10.1080/10130950.2010.9676313
OpenAlexW1492520562
LanguageEN
Citations received1
References cited3

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

Constitution · Constitutional court · Context (archaeology · Family law · Geography · High Court · Inheritance (genetic algorithm · Political science · Sociology · Law · Law in Society and Culture · Legal Issues in South Africa · South African History and Culture

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  • The Role of the Courts in the Conflict Between African Customary Law and Human RightS

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Unique citing works1
Citations per year0,1
Citation span2016 - 2016 (1)
Citation velocityhistorical
Highly citedNo
Citation typesNeutral: 1

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