Brief Summary

Succession — Intestate succession — Rights of female heirs under African Customary Law — Applicants, daughters of deceased who died intestate, sought to establish their right to inherit despite their parents' unmarried status — Respondent claimed entitlement to inheritance based on African Customary Law, which traditionally favored male heirs — Court held that the exclusion of female heirs from intestate succession under African Customary Law is unconstitutional and discriminatory, affirming the applicants' right to inherit.

Comprehensive Summary

Summary of Judgment

1. Introduction

This matter was an application in the High Court (Cape of Good Hope Provincial Division) raising a constitutional challenge to the operation of the customary-law principle of primogeniture, as incorporated and applied through provisions of the Black Administration Act 38 of 1927 and regulations made under it, and as reinforced by an exclusionary provision in the Intestate Succession Act.

The applicants were two minor daughters of the deceased (the first and second applicants), assisted by their mother (the third applicant), together with the Women’s Legal Centre Trust (the fourth applicant), which participated as an interested party acting in the public interest. The application was brought essentially against the second respondent, who was the deceased’s father and the minor children’s grandfather, and who claimed to be the deceased’s intestate heir under customary law. The Magistrate, Khayelitsha, the President of the Republic of South Africa, and the Minister of Justice and Constitutional Development were cited as respondents as interested parties, and filed notices to abide.

The procedural history included the granting of an interdict pendente lite restraining the second respondent from alienating or encumbering the deceased’s property, after he indicated an intention to sell the property to defray funeral expenses. The substantive dispute concerned whether the deceased’s minor female children could inherit ab intestato from their father, or whether the deceased’s father inherited in terms of customary-law primogeniture as given effect to under the statutory scheme.

2. Material Facts

The material facts were largely common cause, save for a peripheral factual dispute concerning the payment of lobolo and the consequent legitimacy of the children under Xhosa custom.

The undisputed facts were that the deceased and the third applicant lived together as husband and wife for approximately twelve years, and the deceased died on 9 October 2002. Two minor children were born from the relationship, namely the first applicant (born 18 May 1994) and the second applicant (born 3 August 2001). The applicants were African and of Xhosa extraction. The third applicant brought the application in her capacity as mother assisting the minor children and did not seek relief for herself.

During the deceased’s lifetime, the deceased and the third applicant acquired an immovable property, Erf No 39678, Khayelitsha, situated at 35 Jula Street, Makaza (City of Tygerberg, Western Cape). The deceased obtained a state housing subsidy and intended to improve the house but died before doing so. The deceased and the third applicant, together with the children, occupied the property until his death, after which the applicants continued to reside there.

After the death, the second respondent (who lived in Berlin, Eastern Cape) claimed that, under African customary law, he was the deceased’s intestate heir and therefore entitled to inherit the property. He also asserted entitlement to the guardianship of the minor children, but the judgment records that custody and guardianship were not issues for determination and that the second respondent appeared to have conceded those to the third applicant.

The disputed issue on the papers was whether the deceased had paid lobolo for the third applicant, with the third applicant alleging he could not pay lobolo and hence they did not marry, and the second respondent asserting that lobolo was paid. The court held that this dispute had to be resolved in favour of the second respondent on the motion papers applying the Plascon-Evans approach, with the consequence (for purposes of the judgment) that the children were treated as legitimate. The court nevertheless considered that, on the case as framed, the children’s legitimacy did not alter the decisive constitutional consequences of the rule being challenged, because under primogeniture they remained female and therefore excluded from inheritance in any event.

3. Legal Issues

The central legal questions were whether the customary-law principle of primogeniture, as it operated in intestate succession for Africans through section 23 of the Black Administration Act and regulations made under it, could withstand constitutional scrutiny, and whether a female African descendant could be excluded from inheriting ab intestato in favour of a male relative solely by reason of gender (and, in the statutory setting, race).

Closely connected to this was whether the statutory scheme (including the exclusionary operation of section 1(4)(b) of the Intestate Succession Act, insofar as it withheld the benefit of the Intestate Succession Act where section 23 of the Black Administration Act applied) resulted in unconstitutional discrimination contrary to the Constitution’s equality provisions.

The dispute was primarily one of law and the application of constitutional norms to established facts, namely whether the relevant customary-law rule (and its legislative recognition) and the related statutory exclusions were inconsistent with section 9 of the Constitution, and what remedy was appropriate if invalidity were found.

4. Court’s Reasoning

The court located the dispute within the constitutional position of customary law, emphasising that the Constitution is supreme and that all law and conduct inconsistent with it is invalid. It endorsed the approach that customary law is not to be treated as “foreign law” but must be assessed against constitutional standards in the same manner as common law and legislation. In this regard, the court associated itself with observations in Mabuza v Mbatha concerning the constitutional testing of customary law, rather than relying on the earlier “repugnancy to public policy or natural justice” framework that historically qualified the application of customary law under the Black Administration Act.

In setting out the relevant customary-law context, the court described intestate succession in customary law as generally based on male primogeniture, under which only a male relative connected through the male line qualifies as heir, and where, absent a male descendant, the deceased’s father may succeed. The court noted the gendered and patriarchal foundation of the customary-law system of succession, including its linkage with concepts of family headship and communal property, while also acknowledging the risks of abuse when customary-law rules are applied to urban, privately owned (freehold) property where communal accountability mechanisms are weaker.

The court then addressed the motion-proceedings dispute about lobolo and legitimacy. Applying Plascon-Evans Paints v Van Riebeeck Paints, it resolved the dispute in favour of the second respondent, resulting in the conclusion that the minor children were legitimate. The court further corrected a misconception in the third applicant’s affidavit, explaining that payment of lobolo is not a prerequisite to the consummation of a customary marriage; what is required is agreement about lobolo, which may be deferred. The court nonetheless considered that the legitimacy issue did not determine the inheritance question before it, since the operative exclusion flowed from the children’s gender under primogeniture.

Turning to the constitutional challenge, the court evaluated the effect of the statutory scheme. It reasoned that the continued operation of section 23 of the Black Administration Act and the regulations made under it had the practical effect, on the facts of the case, that the deceased’s female children could not inherit, and that the deceased’s father claimed to inherit instead by virtue of customary-law primogeniture. The court contrasted this with the position under the Intestate Succession Act, which (as described in the judgment) provides that where a person dies intestate and is survived by a descendant but no spouse, that descendant inherits, with “descendant” not depending on race, gender, or status.

However, the court held that the applicants could not invoke the Intestate Succession Act due to the operation of section 1(4)(b), which excluded estates or parts of estates to which section 23 of the Black Administration Act applied. In the court’s view, this meant that the reason the minor children were excluded was effectively that they were Black and female, making the differential treatment discrimination on grounds of race and gender.

Applying section 9 of the Constitution, the court held that this differentiation amounted to prima facie unfair discrimination, offending sections 9(1) and 9(3). It further noted the broader constitutional critique of the Black Administration Act, referencing the Constitutional Court’s description (as quoted) of the Act as an “egregious apartheid law” that systematised a racially subordinating form of administration. The court reasoned that a legal regime preferring male heirs over female heirs in intestate succession could no longer survive constitutional scrutiny. It concluded that African women, regardless of age or social status, are entitled to inherit from their parents’ intestate estates in the same way as male persons, while acknowledging that there may be instances where gender differentiation could be justified for certain rituals provided it does not amount to disinheritance or prejudice.

As to remedy, the court considered that the constitutional imperative to develop customary law could not be realised “on the face of” provisions in the Black Administration Act, given their underlying premises. While it stated that it was not called upon to revise the entire Act, it concluded that specific provisions and regulations had to be declared invalid. It further held that, pending legislative correction, intestate Black estates should be distributed under section 1 of the Intestate Succession Act, thereby extending the Act’s distribution scheme to those previously excluded by the section 23 framework.

5. Outcome and Relief

The court declared invalid and unconstitutional section 23(10)(a), (c) and (e) of the Black Administration Act 38 of 1927 and, consequentially, regulation 2(e) of the regulations concerning the administration and distribution of estates of deceased Blacks published in the Government Gazette referred to in the judgment.

The court also declared section 1(4)(b) of the Intestate Succession Act unconstitutional and invalid insofar as it excluded from the operation of section 1 any estate or part of an estate to which section 23 of the Black Administration Act applied. It declared that, until the defects were corrected by competent legislation, the distribution of intestate Black estates would be governed by section 1 of the Intestate Succession Act 81 of 1987 (as stated in the order).

On the facts of this case, the court declared that the first and second applicants were the only heirs in the estate of the late Vuyu Elius Mgolombane (as identified by the reference number in the Khayelitsha magistrate’s court). The second respondent was ordered to sign all documents and take all steps reasonably required to transfer the entire residue of the estate to the minor applicants in equal shares, failing which the Deputy Sheriff was authorised to do so in his stead.

The court declared that the applicants were exclusively entitled to reside at the property at 35 Jula Street, Makaza (Erf 39678, Khayelitsha) until distribution and transfer in accordance with the order. It further set aside any letters of appointment and administration issued to the second respondent in respect of the deceased’s estate.

There was no order as to costs.

Cases Cited

Mabuza v Mbatha 2003 (7) BCLR 743 (C)

Mosii v Motseoakhumo 1954 (3) SA 919 (A)

Ngcobo v Ngcobo 1929 AD 233

Meesedoosa v Links 1915 TPD 357

Zulu and Another v Minister of Justice and Another 1956 (2) SA 128 (N)

South African National Trust and Assurance Company Ltd v Fondo 1960 (2) SA 467 (A)

Dlikilili v Federated Insurance 1983 (2) SA 275 (C)

Du Plessis v De Klerk [1996] ZACC 10; 1996 (3) SA 850 (CC)

Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A)

Mthembu v Letsela and Another 1997 (2) SA 936 (T)

Mthembu v Letsela and Another 2000 (3) SA 867 (SCA)

Moseneke and Others v The Master and Another 2001 (2) SA 18 (CC)

DVB Behuising (Pty) Ltd v North West Provincial Government and Another 2001 (1) SA 500 (CC); 2000 (4) BCLR 347 (CC)

Legislation Cited

Constitution of the Republic of South Africa, 1996 (Act 108 of 1996)

Black Administration Act 38 of 1927

Intestate Succession Act 81 of 1987 (and, as referenced in the judgment in relation to section 1(4)(b), “Intestate Succession Act 91 of 1987”)

Regulations for the Administration and Distribution of the Estates of Deceased Blacks published in Government Gazette No 10601 (dated 6 July 1987, and also referred to in the order as 7 February 1987)

Rules of Court Cited

Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) was applied as the approach to resolving factual disputes on motion proceedings.

Held

The court held that the operation of intestate succession for Africans through the principle of primogeniture, as given legislative force through section 23 of the Black Administration Act and its regulations, resulted in the exclusion of the deceased’s female children from inheriting their father’s intestate estate, and that this exclusion constituted unfair discrimination inconsistent with section 9 of the Constitution.

It held further that section 1(4)(b) of the Intestate Succession Act, insofar as it excluded estates to which section 23 applied, contributed to an unconstitutional regime by denying African intestate estates the benefit of the generally applicable intestate succession framework. The court consequently extended the operation of section 1 of the Intestate Succession Act to govern intestate Black estates pending legislative correction, and declared the deceased’s two daughters to be the sole heirs in equal shares.

LEGAL PRINCIPLES

The Constitution is the supreme law, and all forms of law, including African customary law and legislation recognising customary law, must be tested against constitutional values and may not persist if inconsistent with constitutional rights, particularly the right to equality.

A customary-law rule or statutory scheme that prefers male heirs over female heirs in intestate succession, in a manner that results in disinheritance of female descendants, constitutes prima facie unfair discrimination on grounds including gender (and, in the statutory context discussed, race) and is inconsistent with section 9 of the Constitution.

Where factual disputes arise on motion proceedings, the Plascon-Evans approach applies, requiring that disputes be resolved on the version of the respondent (together with admitted facts) where disputes are not capable of resolution on the papers, as applied by the court in determining legitimacy for purposes of the judgment.

When unconstitutional exclusions prevent a generally applicable statute (here, the Intestate Succession Act’s intestate distribution scheme) from applying to a category of estates, a court may grant declaratory and consequential relief that ensures constitutional compliance pending legislative intervention, including declaring the offending provisions invalid and directing interim governance under the constitutionally compliant statutory framework.

Bhe and Others v Magistrate, Khayelitsha and Others (9489/02) [2003] ZAWCHC 49; 2004 (1) BCLR 27 (C); 2004 (2) SA 544 (C) (25 September 2003)