The World’s Legal Systems – Lecture 2
Legal Pluralism
Today we are going to talk about legal pluralism. In the first half of this class the teacher is going to
look at the case in detail, in particular we are going to look at the acrobatics that the judges perform
in trying to dissolve a dispute. In the second half of class we will look at the theory of legal pluralism,
and in particular we are going to look at four different authors that are discussed in the course material
for today’s class. As we look into these authors, the teacher will pull some examples from the case to
help us show why this case is so illustrative for legal pluralism.
Dissecting a case of legal pluralism
Shilubana vs. Nwamitwa CCT 03/07 [2008] ZACC 9
Inheritance dispute within leadership of Valoyi Tribe
Hosi Fofoza (? – 1968)
Hosi Richard, Fofoza’s brother (1968 – 2001)
1996 – Constitution enters into effect
1996 – changes to chieftainship laws
1999 – Hosi Richard retracts support
– Division among Valoyi tribe
The case that we are going to talk about is essentially an inheritance dispute between the descendants
of two different chiefs of a local tribe in Eastern South-Africa (the Valoyi tribe). The brief history of the
situation is that there was a Hosi (= chief), Fofoza, who held this chieftainship until 1968, the year that
he passed away. When he passed away, he passed on the chieftainship to his brother (Richard). This is
following generations of practice in their tribe, that chieftainship is passed on either to the oldest male,
the descendant of the current chief, or the nearest male relative of the current chief.
The situation became more complicated when Richard and the rest of the Valoyi community decided
that upon the end of Richard’s chieftainship (when Richard passed away) the chieftainship was going
to be given to Shilubana (the appellant in this case), marking the first time in history for the Valoyi
tribe, that the chieftainship can be held by a woman. This was done in 1996. Shilubana’s family and
some other political organizations / leaders of the tribe came together and said ‘’we want to end this
this practice of passing on chieftainship to male descendants and as a gesture of that, we want to give
the chieftainship to Shilubana (who was the daughter of Fofoza, the previous chief who passed away)’’.
It is a little bit more complex than that, because Shilubana was politically active. She was a member of
the South-African parliament and she was held in high esteem by her community as a political leader,
as someone who was well educated and quite intelligent and as someone who would probably be able
to bring some sense of prominence and respect to the Valoyi tribe. Shilubana was Fofoza’s daughter,
so she was also quite competent in what she was doing. She was a political leader already.
This was in 1996, which was immediately after the Constitution entered into effect in South-Africa. The
Constitution of 1996 marked the end of the Apartheid. It was the first post-Apartheid constitution. It
was a fundamental new set of constitutional values that were meant to push South-Africa beyond its
Apartheid history. One of the values was the prohibition of discrimination on the basis of gender.
Legal Pluralism
Today we are going to talk about legal pluralism. In the first half of this class the teacher is going to
look at the case in detail, in particular we are going to look at the acrobatics that the judges perform
in trying to dissolve a dispute. In the second half of class we will look at the theory of legal pluralism,
and in particular we are going to look at four different authors that are discussed in the course material
for today’s class. As we look into these authors, the teacher will pull some examples from the case to
help us show why this case is so illustrative for legal pluralism.
Dissecting a case of legal pluralism
Shilubana vs. Nwamitwa CCT 03/07 [2008] ZACC 9
Inheritance dispute within leadership of Valoyi Tribe
Hosi Fofoza (? – 1968)
Hosi Richard, Fofoza’s brother (1968 – 2001)
1996 – Constitution enters into effect
1996 – changes to chieftainship laws
1999 – Hosi Richard retracts support
– Division among Valoyi tribe
The case that we are going to talk about is essentially an inheritance dispute between the descendants
of two different chiefs of a local tribe in Eastern South-Africa (the Valoyi tribe). The brief history of the
situation is that there was a Hosi (= chief), Fofoza, who held this chieftainship until 1968, the year that
he passed away. When he passed away, he passed on the chieftainship to his brother (Richard). This is
following generations of practice in their tribe, that chieftainship is passed on either to the oldest male,
the descendant of the current chief, or the nearest male relative of the current chief.
The situation became more complicated when Richard and the rest of the Valoyi community decided
that upon the end of Richard’s chieftainship (when Richard passed away) the chieftainship was going
to be given to Shilubana (the appellant in this case), marking the first time in history for the Valoyi
tribe, that the chieftainship can be held by a woman. This was done in 1996. Shilubana’s family and
some other political organizations / leaders of the tribe came together and said ‘’we want to end this
this practice of passing on chieftainship to male descendants and as a gesture of that, we want to give
the chieftainship to Shilubana (who was the daughter of Fofoza, the previous chief who passed away)’’.
It is a little bit more complex than that, because Shilubana was politically active. She was a member of
the South-African parliament and she was held in high esteem by her community as a political leader,
as someone who was well educated and quite intelligent and as someone who would probably be able
to bring some sense of prominence and respect to the Valoyi tribe. Shilubana was Fofoza’s daughter,
so she was also quite competent in what she was doing. She was a political leader already.
This was in 1996, which was immediately after the Constitution entered into effect in South-Africa. The
Constitution of 1996 marked the end of the Apartheid. It was the first post-Apartheid constitution. It
was a fundamental new set of constitutional values that were meant to push South-Africa beyond its
Apartheid history. One of the values was the prohibition of discrimination on the basis of gender.
