He combined indigenous customs with British legal procedures to create what was called "native customary law.
[12] The "Shepstone system" enforced a "patriarchal arrangement" of hierarchy and became the foundation of policy for dealing with indigenous peoples in South Africa for many decades afterwards.
[19] A supreme constitution would allow for judicial review of the actions of traditional leaders as well as for scrutiny and amendment of customary law more generally.
Constituencies of traditional leaders, who were represented at the Multi-Party Negotiating Forum, argued that customary law should be exempted from the application of the future Bill of Rights.
[nb 1] Much of the debate centred on the issue of gender equality, because certain tenets of customary law accord more rights and authority to men than they do women (see below).
In doing so, the CC has not only been faced with the challenge of elucidating the extent to which ACL is now recognised, but it has also had to address the issue of how to go about ascertaining what that law in fact is.
The Constitutional Court therefore had to examine whether or not the Community had rights in land in 1913 and, if so, whether or not it was subsequently dispossessed 'as a result of past racially discriminatory laws or practices.'
It was in answering the first of these questions that the Court made various authoritative comments regarding the extent to which ACL is now recognised.
Applying these principles, the Court found that the Community did indeed have (indigenous) rights in land in 1913, which were left unaltered by British annexation.
The resolution adopted in appointing her specifically referred to the constitutional provision for gender equality as part of the community's motivation in adapting its rules.
Mr Nwamitwa sought to dispute Ms Shilubana's appointment based on his purported right as the eldest son of the previous hosi.
The precedent of Shilubana stopped courts from avoiding the difficulties by devising a test that finally forced them to confront these challenges directly.
Woodman refers to the second option as "selective legal pluralism" and affords the state with the opportunity to consider the needs of justice in each case involving customary law.
[33] As a result, most strategies to secure women's land rights in rural South Africa have tended to avoid the customary law arena and instead favoured formal legal initiatives.
[34] However, Aninka Claassens and Sindiso Mnisi advocate that legal strategies to support women's rights cannot avoid the customary law arena and should, in fact, engage with it fully.
[34] This is because of the impact of ACL on power relations, which means that rural women have no option but to grapple with issues of rights and custom at the local level.
[36] The customary law of marriage and succession are the main areas in which the South African legislature and courts have attempted to advance women's rights.
In respect of the law of succession, the Constitutional Court held in Bhe v Magistrate, Khayelitsha that the customary rule of male primogeniture is unconstitutional.