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[2000] ZASCA 181
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Mthembu v Letsela and Another (71/98) [2000] ZASCA 181; [2000] 3 All SA 219 (A); 2000 (3) SA 867 (SCA) (30 May 2000)
Reportable
THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
Case
No: 71/98
In
the matter between
MILDRED
HLEZIPHI MTHEMBU
Appellant
and
HENRY
K LETSELA
1
st
Respondent
The
MAGISTRATE, Boksburg
2
nd
Respondent
Coram:
Smalberger,
Marais, Zulman JJA, Mpati and Mthiyane AJJA
DATE
HEARD
: 4 May 2000
DATE
DELIVERED
: 30 May 2000
---------------------------------------------------------------------------------------------------
JUDGMENT
---------------------------------------------------------------------------------------------------
Mpati
AJA
[1] This is an
appeal against a judgment of Mynhardt J in the Transvaal Provincial
Division, which is reported as
Mthembu v
Letsela and Another
1998 (2) SA 675
(T)
(the 1998 judgment).
[2] Tebalo Watson
Letsela (the deceased) died on 13 August 1993, gunned down by an
unknown person or persons. At the time of
his death he was the
holder of a 99 year leasehold title in respect of a fixed property
known as Erf 822 Vosloorus Extension
2 Township, Registration
Division I.R.,Transvaal, situate at 822 Ditopi Street, Vosloorus,
Boksburg (the property). He lived
on the property with the
appellant and her two minor daughters, one of whom, Tembi Mthembu
(Tembi), was born of an intimate
relationship between the appellant
and the deceased. Tembi was born on 7 April 1988. The deceased, a
South Sotho, had no other
issue, but is also survived by his father,
the first respondent in this matter, mother and three sisters. He
died intestate.
His parents, together with one of their daughters
and her children, share the same house on the property with the
appellant
and her two daughters.
[3] The
magistrate, Boksburg (the second respondent), appointed the
appellant, in terms of regulation 4(1) of the regulations
made in
terms of the Black Administration Act 38 of 1927 (the Act) and
published under Government Notice R200 of 6 February
1987, to
administer the estate of the deceased. He indicated in a letter to
the appellant’s legal representatives that
the deceased’s
estate was to devolve in terms of Black law and custom . The
first respondent claims that the property
has devolved upon him by
virtue of the operation of the customary law rule of succession.
[4] The
appellant brought an application in the Transvaal Provincial
Division for an order,
inter alia,
declaring:
1 the customary law
rule of primogeniture, which generally excludes African women from
intestate succession; and
2 regulation 2 of
the Regulations for the Administration and Distribution of the
Estates of Deceased Blacks, made in term
of s 23(10) of the Act
and promulgated under Government Notice R200 of 6 February 1987,
(the Regulations),
to be invalid on
grounds of being inconsistent with the Constitution of the Republic
of South Africa, Act 200 of 1993 (interim
Constitution).
Mynhardt
J dismissed the application with costs, but granted the appellant
leave to appeal to this Court.
[5] In her
founding affidavit the appellant alleges that on 14 June 1992 she
and the deceased entered into a customary union
at Brakpan. In
support of this allegation she has annexed to her founding affidavit
a copy of an acknowledgment of receipt of
the first instalment of
R900,00 towards her
lobola
of R2 000,00, signed by her brother, Richard Mtembu. The balance
was to be paid soon thereafter. The deceased, however,
died
before it was paid. The appellant accordingly claims, on the
strength of the affidavits filed in the papers, to be the
deceased’s widow.
[6] That an
amount of R900,00 was paid towards the appellant’s
lobola
is not in dispute, but the first respondent denies that a customary
union was ever entered into as alleged and states that certain
essentials of a customary union were not satisfied.
[7] The matter
first came before le Roux J, who was unable to resolve the factual
dispute relating to the existence or otherwise
of a customary union
between the appellant and the deceased. The learned judge referred
that issue for oral evidence. The
matter was accordingly postponed
sine die
. The
judgment of Le Roux J is reported
as
Mthembu v Letsela and Another
1997 (2) SA 936
(T) (the 1997 judgment).
When the case came before Mynhardt J,
however , no evidence was led and counsel were
ad
idem
that the matter “stands to be
determined on the facts that are common cause”. Counsel for
the appellant (before
Mynhardt J) went further and said that
“because no evidence has been tendered from either side the
[appellant] accepts
that the matter is to be decided on the basis
that there was indeed no such marriage between the parties”.
The matter
was accordingly decided on the basis that Tembi is the
deceased’s illegitimate child. Counsel for the appellant,
however,
submitted
in
the court
a quo
that
on the facts which were common cause Tembi is the only heir to the
estate of the deceased. That argument was persisted
in before us by
Mr Gauntlett, who, together with Mr Chaskalson, appeared for the
appellant.
[8] The customary
law of succession in Southern Africa is based on the principle of
male primogeniture. In monogamous families
the eldest son of the
family head is his heir, failing him the eldest son’s eldest
male descendant. Where the eldest
son has predeceased the family
head without leaving male issue the second son becomes heir; if he
be dead leaving no male issue
the third son succeeds and so on
through the sons of the family head. Where the family head dies
leaving no male issue his father
succeeds. Bekker:
Seymour’s
Customary Law in Southern Africa,
5 ed, p
274
;
Bennett:
A
Sourcebook of African Customary Law for Southern Africa,
1
ed (1991) p 399-400. See also Kerr:
The
Customary Law of Immovable Property and of Succession,
3
ed, p 99. It follows that in terms of this system of succession,
whether or not Tembi is the deceased’s legitimate child,
being
female, she does not qualify as heir to the deceased’s
estate. Women generally do not inherit in customary law.
When the
head of the family dies his heir takes his position as head of the
family and becomes owner of all the deceased’s
property,
movable and immovable; he becomes liable for the debts of the
deceased and assumes the deceased’s position as
guardian of
the women and minor sons in the family. He is obliged to support
and maintain them, if necessary from his own resources,
and not to
expel them from his home. Kerr,
op cit
at 100-108.
[9] The customary
law of succession, i.e. the principle of primogeniture, also enjoys
legislative recognition. It is embodied,
for example, in
regulation 2 of the Regulations, which reads as follows:
“
2 If a Black
dies leaving no valid will, so much of his property, including
immovable property, as does not fall within the purview
of
subsection (1) or subsection (2) of section 23 of the Act shall
be distributed in the manner following:
(a) ....
(b) ....
(c) ....
(d) ....
(e) If the
deceased does not fall into any of the classes described in
paragraph (a), (b), (c) and (d)
the property
shall be distributed according to Black law and custom
.”
(My underlining)
It is not in
dispute that
in casu
regulation 2(e), if valid, applies, i.e. the deceased’s
estate falls to be distributed according to Black law and custom.
[10] Both before
Le Roux J and Mynhardt J, as well as before this Court, it was
argued that the rule of customary law of succession,
i.e. the
principle of primogeniture (the rule) is grossly discriminatory;
that it discriminates against all Black women and
girls and all
Black children who are not eldest children by excluding them from
participation in intestate succession, while
it does not visit the
same disability upon eldest sons or anybody who is not Black.
[11] In dealing
with an argument that the rule is obviously unconstitutional on the
basis that it contravenes ss 8(1), 8(2) and
14 of the interim
Constitution as it discriminates between persons on the grounds
of sex or gender, Le Roux J said the following
in the 1997 judgment
(at 945H-946C):
“
If one
accepts the duty to provide sustenance, maintenance and shelter as a
necessary corollary of the system of primogeniture
(a feature which
has been called ‘one of the most hallowed principles of
customary law - see T W Bennett
A Source
Book of African Customary Law for Southern Africa
(Juta,
1991) at 400), I find it difficult to equate this form of
differentiation between men and women with the concept of ‘unfair
discrimination’ as used in s 8 of the Constitution. ... In
view of the manifest acknowledgment of customary law as a
system
existing parallel to common law by the Constitution (
vide
ss 33(3) and 181 (1)) and the freedom
granted to persons to choose this system as governing their
relationships (as implied in
s 31), I cannot accept the submission
that the succession rule is necessarily in conflict with s 8. There
are other instances
where a rule differentiates between men and
women, but which no right- minded person considers to be unfairly
discriminatory.
... It follows that even if this rule is
prima
facie
discriminatory on grounds of sex or
gender and the presumption contained in s 8(4) comes into operation,
this presumption has
been refuted by the concomitant duty of
support.”
[12] The learned
judge found that the rule is not inconsistent with “the
fundamental rights contained in chap 3 [of the
interim Constitution]
and the injunction found in s 33 (3) can accordingly be
implemented, namely to construe the chapter
in such a way as not to
negate” the rights conferred by the rule (at 946 C-D). For
convenience I quote s 33 (3) of the
interim Constitution. It
reads:
“
The
entrenchment of the rights in terms of this Chapter [Chapter 3]
shall not be construed as denying the existence of any other
rights
or freedoms recognised or conferred by common law, customary law or
legislation to the extent that they are not inconsistent
with this
Chapter.”
[13] In this Court
(and before Mynhardt J) four grounds of attack were advanced against
the operation of the rule. These are:
1 The regulation
(regulation 2(e) of the Regulations) is
ultra
vires
at common law; it constitutes
delegated legislation which may not be partial and unequal in its
operation unless specifically
authorized by the enabling Act.
2 The regulation
has been impliedly repealed by s 1(1) read with 1 (4) (b) of the
Intestate Succession Act 81 of 1987
.
The rule is to be
developed in terms of
section 35
(3) of the interim Constitution
with due regard to the fundamental value of equality, to avoid
discrimination between children
of a deceased.
4 If not so
developed the rule would be repugnant to the “principles of
public policy or natural justice” within
the meaning of
s 1
of
the
Law of Evidence Amendment Act 45 of 1988
, and the courts will
accordingly not apply it.
Mynhardt J
dismissed all four grounds of attack.
[14] In their
supplementary heads of argument counsel for the appellant (who are
not the counsel who represented the appellant
before Le Roux and
Mynhardt JJ and who drafted the main heads of argument) state that
the appellant “will not advance oral
argument relating to the
principal submissions” under the first and second grounds of
attack. Mr Gauntlett stressed,
however, that this did not mean that
they were abandoning the said two grounds, but that their argument
would focus on the following
propositions:
1 Tembi would have
succeeded by intestate succession at customary law to her deceased
father’s estate but for the fact that
she is female.
2 The customary law
rule of primogeniture is offensive to public policy or natural
justice (within the meaning of
s 1(1)
of the
Law of Evidence
Amendment Act
, 1988) because it is incompatible with the value of
equality which is a fundamental element of public policy in this
country
and this Court accordingly may not give effect to it.
3
Section 35(3)
of
the interim Constitution applies to this case, but even if it did
not the argument in 2 above would hold true.
[15] Before I
consider these submissions, it will be convenient to deal first with
a preliminary issue raised before us. The
court
a quo
held that Tembi was not a victim of
gender discrimination because any illegitimate child of the deceased
would have been disinherited.
The learned judge expressed himself
thus (at 686E-G):
“
In the
present case the applicant was not married to the deceased. Her
child, Tembi, is therefore an illegitimate child
vis
- a - vis
the deceased and his family.
Tembi has no right to inherit intestate from the deceased. That is
so simply because she is not
the legitimate child of the deceased.
It matters not that Tembi is a girl. Even an illegitimate son would
have had no right to
inherit intestate from the deceased. The
disqualification of Tembi ... flows, therefore, from her status as
an illegitimate
child and not from the fact that she is a girl and
that the system of primogeniture is applied in customary law.”
[16] Mr Gauntlett
submitted that this reasoning by Mynhardt J is flawed. First, it
was argued that because there had been an
agreement between the
appellant and the deceased to marry and bridewealth had been paid in
part, Tembi was, at customary law,
the deceased’s legitimate
daughter. Mr Gauntlett sought support for this proposition from an
article by Sandra Burman:
Illegitimacy and
the African Family in a Changing South Africa,
1991 Acta Juridica, 36
, where the learned writer says the following
at p 41:
“
In customary
law a child born within a customary union is presumed to be
legitimate and thus part of its father’s family.
However, as
outlined above, the crucial element
in the
marriage
which transfers the child into the
father’s family is not the ceremony, as in civil law, but the
payment of bridewealth,
at least in part.” (My underlining)
[17] In my view,
counsel’s interpretation of this passage is incorrect. The
learned writer speaks of the crucial element
“ in the
marriage” which transfers the child into the father’s
family as being payment of bridewealth or part
of it. There must
thus be a marriage (customary union) and not merely payment of
bridewealth or part of it for the child to
be “transferred”
into its father’s family. The position with regard to an
illegitimate child is that he or
she is legitimized by subsequent
payment of dowry or bridewealth
and
marriage of the parents. Warner:
A Digest
of South African Native Civil Case law
1894-1957,
60 para 720 and the cases there cited; Bekker,
op
cit
, 232. The position is the same in
Sotho custom. Bekker,
op cit
,
233.
[18]
In
casu
, it is common cause that no customary
union existed between the appellant and the deceased when Tembi was
born. It is also common
cause that no customary union was entered
into subsequent to her birth. It follows that although part of the
bridewealth was
paid, without a customary union between her
parents, Tembi was not legitimized. Mynhardt J was accordingly
correct in holding
that Tembi is illegitimate.
[19] Second, Mr
Gauntlett argued that if Tembi was the illegitimate daughter of the
deceased, she was still the victim of gender
discrimination because
in the absence of any legitimate sons of a deceased Black person,
customary law recognizes the right of
an illegitimate son, but not
an illegitimate daughter , to succeed to the intestate estate of the
deceased. The
causa causans
of the fact that she did not inherit was her gender, not her
illegitimacy, so it was argued. Her gender and her gender
discrimination
in the primogeniture rule are therefore
determinative of the result and not her illegitimate status. For
the proposition that
an illegitimate son of a deceased Black person
succeeds to his estate in the absence of a legitimate son, Mr
Gauntlett relied
on a passage in Bennett,
op
cit
, 372, where the learned author states
that:
“
Amongst the
Southern Nguni ... an illegitimate son may succeed to the head of a
household if there are no other male descendants.”
[20] I mean no
disrespect to counsel when I say that he misread this
passage, which is
immediately qualified by the following:
“
. . . (and
provided that he had not been repudiated by the deceased or that his
mother had not been driven away because of her
adultery).”
Clearly the learned
author refers to the illegitimate son of a married women, i.e. one
born during the subsistence of a customary
union between his mother
and the deceased.
Baatje v Mtuyedwa
1 NAC 110 (1906);
Ludidi v Msikelwa
5 NAC 28 (1926), referred to in Bennett,
op
cit
, 372 (footnote 158); also in Warner,
op
cit,
paras 3167 and 3172. Mr Gauntlett’s
second proposition is thus also without foundation.
[21] I now proceed
to consider the grounds of attack against the rule.
Regulation 2(e)
of the Regulations is
ultra vires
at common law.
[22] Section
23(10) of the Act empowers the State President to make regulations,
not inconsistent with the Act,
inter alia,
“prescribing tables of succession in regard to Blacks”
(s 23 (10) (e)) . The Regulations are, therefore, a form
of
delegated legislation. Joubert:
LAWSA,
Vol 25 at 197, para 264. As such they may be declared to be invalid
“on the ground of unreasonableness ... if they
are found to be
partial and unequal in their operation as between different classes,
unless of course the enabling Act specifically
authorizes such
partiality and inequality”.
R v
Abdurahman
1950 (3) SA 136
(A) 143 C-H, and
the cases there cited. The question then is whether regulation 2(e)
of the Regulations is unreasonable for
being partial and unequal.
Said regulation provides that if a Black person dies leaving no
valid will and without having lived
with someone as his putative
spouse, or a partner in a marriage or customary union, his estate
“shall be distributed
according to Black law and custom”.
It is submitted in the appellant’s main heads of argument
that the regulation
in issue gratuitously discriminates against
women and girls, children who are not eldest children and
illegitimate children.
The enabling provision in s 23 of the Act
does not permit such discrimination, so it was argued.
[23] What needs to
be stressed from the outset is that the regulation in issue did not
introduce something foreign to Black persons,
as was the case in
Machika en Andere v Staatspresident en Andere
1989 (4) SA 19
(T). It merely gave
legislative recognition to a principle or system which had been in
existence and followed, at least, for
decades. It is not
inconceivable that many Blacks, even to this day, would wish their
estates to devolve in terms of Black law
and custom. Section 23(3)
of the Act provides that: “All other property of whatsoever
kind [excluding property referred
to in ss (1) and (2)] belonging to
a Black shall be capable of being devised by will”. The
existing law therefore enables
Blacks to avoid the consequences of
the application of the customary law of succession if they so wish.
It is therefore within
the power of Blacks to choose how they wish
their estates to devolve. If they take no steps to alter the
devolution of their
estates (as is their right), the resulting
consequences cannot be assumed to be contrary to their wishes .
[24] As the wishes
of the deceased are still paramount in our law, it is difficult to
see how a regulation which respects that
right can be said to the
unreasonable and
ultra vires
at common law.
Regulation 2(e)
has been impliedly repealed.
[25] The
argument on behalf of the appellant is that there is an apparent
conflict between regulation 2 (e) of the Regulations
and section 1
of the Intestate Succession Act 81 of 1987 (the Intestate
Succession Act), and that being so the
Intestate Succession Act,
being
an act of Parliament, must prevail over the regulation, which
is subordinate legislation.
[26] The
Intestate
Succession Act came
into operation on 18 March 1988.
Section 1(1)
prescribes how the estate of a person who, after the commencement
of the said Act, dies intestate, either wholly or in part,
shall
devolve. Section 1(4) (b) is in the following terms:
“
(4) In the
application of this section [s 1] -
(a) ...
(b) “
intestate estate” includes any part of an estate which does
not devolve by virtue of a will or in respect
of which section 23 of
the Black Administration Act 1927 (Act No 38 of 1927) does not
apply;
(c) ....
(d) ....
(e) ...
(f) ...”
[27] Mynhardt J
agreed with counsel’s submission that
the word “or” in ss (4) (b) of s 1 means “and”.
He agreed
further that an “intestate estate” is thus an
estate which devolves neither under a will nor under s 23 of the
Act.
In my opinion, this interpretation is correct.
[28] A law (which
includes subordinate or delegated legislation) may be impliedly
repealed “by a later repugnant law of
the same or a superior
legislature”.
R v Sutherland
1961 (2) SA 806(A)
815 A;
New Modderfontein
Gold Mining Co v Transvaal Provincial Administration
1919 AD 367
at 397. If the later law “professes, or
manifestly intends, to regulate the whole subject to which it
relates, it necessarily
supersedes and repeals all former acts, so
far as it differs from them in its prescriptions”.
New
Modderfontein Gold Mining Co v Transvaal Provincial Administration
,
supra
, at 397. What
is necessary, then, is to ascertain the “true interpretation”
of the
Intestate Succession Act, so
as to establish its ambit.
[29]
Section 1(4)
(b) of the
Intestate Succession Act excludes
from its operation,
inter alia,
that part
of the estate of a deceased which falls under s 23 of the Act.
Section 23 (1) of the Act makes provision for the
devolution and
administration, by Black law and custom on the death of a deceased,
of property which, for present purposes, may
conveniently be termed
“house property” . Such property devolves according to
Black law and custom, i.e. in terms
of the rule, whether or not the
deceased dies intestate. If he dies intestate, house property will
not devolve in terms of the
Intestate Succession Act, but
in terms
of Black law and custom. That being the case it cannot be said, in
my view, that the
Intestate Succession Act “professes
or
manifestly intends to regulate the whole subject to which it
relates”, i.e. intestate succession. I am in any event
of
the view that the court
a quo
was correct in holding (at 683 J - 684 A of the 1998 judgment),
that once it is accepted , as it must be, that ss (10) of
s 23 of
the Act is included in the reference thereto in
s 1
(4) (b) of the
Intestate Succession Act, it
follows that the Regulations are also
included in that reference. By excluding s 23 of the Act from
the operation of the
Intestate Succession Act, the
legislature
clearly intended to preserve the rule.
[30] I am
accordingly satisfied that
regulation 2(e)
of the Regulations has
not been impliedly repealed by the
Intestate Succession Act.
Development
of
the rule in terms of
s 35
(3) of the interim Constitution.
[31] Section
35 (3) of the interim Constitution enjoins courts to develop the
common law and customary law. It reads:
“
In the
interpretation of any law and the application and development of the
common law and customary law, a court shall have due
regard to the
spirit, purport and objects of this Chapter”.
(See also s 39(2)
of the final Constitution, Act 108 of 1996).
[32] Mr Gauntlett
submitted that the rule is inconsistent with the value of equality
enshrined in s 8(1) of the interim Constitution.
Equality is one of
the core values embodied in the Constitution. (See
Fraser
v Children’s Court , Pretoria North
and Others
1997 (2)
SA 261
(CC) para 20;
President of the RSA
and Another v Hugo
1997 (4) SA 1
(CC) paras
41, 74 -76, 92;
Prinsloo v Van der Linde and
Others
1997 (3) SA 1012
(CC) para 31-33.
Mr Gauntlett contended that the rule is based on “inequality,
arbitrariness, intolerance and inequity”,
all of which are
repugnant to the new constitutional order. He urged us to develop
the rule, as we are enjoined to do by s 35
(3) of the interim
Constitution, so as to allow all descendants, whether male or
female, legitimate or illegitimate, to participate
in intestacy,
which will enable Tembi to inherit from the deceased’s
estate. It would be a great injustice, so the
argument continued,
if Tembi is disinherited and “thrown out of her home”
simply on the basis of her gender or
illegitimacy.
[33] As the court
a quo
held, Tembi, of
course, is excluded from inheriting because she is illegitimate.
The question of gender discrimination is
not reached in this case
and it is not desirable to address a question of such constitutional
importance in a case in which it
is academic. She would be in the
same position as, for example, illegitimate male children. What
requires consideration,
however, is whether the interim
Constitution applies in the present matter, since it only came into
operation on 27 April 1994,
which was after the death of the
deceased on 13 August 1993. Mr Tee, who, with Mr Carrington,
appeared for the first respondent,
submitted that the first
respondent has a vested right in the estate of the deceased, which
he acquired before the interim Constitution
came into effect.
[34] In intestate
succession the inheritance vests immediately upon the death of the
deceased. Corbett
et al
:
The Law of Succession in South Africa
(1980), at 134. The first respondent thus acquired a right to
claim ownership of the property upon the death of the deceased.
Tembi had no right to succeed the deceased as his heir. This is so
because as an illegitimate child in customary law she belongs
to her
mother’s family. Bekker,
op cit
,
233.
[35] The
Constitution (both interim and final) does not operate
retroactively.
Du Plessis and Others v De
Klerk and Another
[1996] ZACC 10
;
1996 (3) SA 850
(CC) para
13. At page 866 para 19 of that judgment Kentridge AJ said the
following:
“
... What is clear is that there is no warrant in the Constitution
for depriving a person of property which he lawfully
held before the
Constitution came into force by invoking against him a right which
did not exist at the time when the right of
property vested in him.”
In my view this
statement clearly applies to the present matter.
[36] Mr Gauntlett,
however, referred us to the following passage in the
Du
Plessis v De Klerk
judgment (para 20):
“
...we leave
open the possibility that there may be cases where the enforcement
of previously acquired rights would, in the light
of our present
constitutional values, be so grossly unjust and abhorrent that it
could not be countenanced, whether as being
contrary to public
policy or on some other basis.”
This appeal, so it
was argued, concerns such a case.
[37] I do not
agree. An illegitimate child in customary law “belongs”
to
the maternal
grandfather or his successor, who is obliged to provide for him or
her. Such child
may ultimately have rights of succession in the mother’s
family. Bekker,
op
cit
, 296. There can thus be no question of
Tembi being “
thrown out of her
home” ( and by implication virtually left destitute) simply
on
the basis of her
illegitimacy as was contended by Mr Gauntlett.
[38] We were
referred to the decision in
Amod v
Multilateral Motor Vehicle Accidents Fund
1999 (4) SA 1319
(SCA), where this Court , at para 30, left open
the question as to whether s 35(3) of the interim Constitution, or s
39 (2)
of the final Constitution “can properly be applied in
respect of a cause of action which arose before the commencement
of
the interim Constitution”. In that case the issue for
determination was whether the respondent was legally liable
to
compensate the appellant for loss of support of her deceased
husband to whom she was married by Islamic rites. Their marriage
was
potentially polygamous. The appellant’s husband had died in a
motor collision on 25 July 1993, i.e. before the coming
into
operation of the interim Constitution. The court below had answered
the question in the negative; this Court in the affirmative.
At
para 20 of the judgment the Chief Justice held that to deny the
appellant compensation only on the basis that the only duty
of
support which the law will protect is that flowing from a marriage
solemnized and recognized by one faith or philosophy,
to the
exclusion of others ,is an untenable basis for the determination of
the
boni mores
of
society. He further held that such basis for determination of
the
boni mores
of society “is inconsistent with the new ethos of tolerance,
pluralism and religious freedom which had consolidated itself
in the
community even before the formal adoption of the interim
Constitution on 22 December 1993". “ The new ethos”
, he said, “was firmly in place when the cause of action in
the present matter arose on 25 July 1993.”
[39] The
Amod
case was not about potentially competing rights. It does not assist
the appellant in this matter.
[40] In my
opinion, the present is not a case where the recognition and
respecting of previously acquired rights would be so
grossly unjust
and abhorrent, in the light of the present constitutional order,
that they cannot be countenanced; nor is this
an appropriate case,
on the facts, to entertain an invitation to develop the rule. In
any event, we would be ill-equipped to
develop the rule for lack of
relevant information. Any development of the rule would be better
left to the legislature after
a process of full investigation and
consultation, such as is currently being undertaken by the Law
Commission.
The
Law of
Evidence Amendment Act, 1988
.
[41]
Section 1(1)
of the
Law of Evidence Amendment Act provides
that any court may
take judicial notice of indigenous law in so far as it can
be ascertained readily and with sufficient
certainty, with the
proviso that such law shall not be opposed to the principles
of public policy or natural justice.
“Indigenous law”
means customary law as has been referred to throughout this judgment
(see
s 1(4)
of the
Law of Evidence Amendment Act).
[42] The argument
advanced under this ground of attack is that if the rule were
retained in its present form and not developed
to permit female
participation in intestacy, then it would be profoundly offensive to
public policy. Invoking a decision
of this Court in
Sasfin
(Pty) Ltd v Beukes
1989 (1) SA 1 (A)
13 J, Mr Gauntlett submitted that the rule, which he contended
has an arbitrary and unjust effect, is
clearly “unconscionable
and incompatible with the public interest”, and therefore
contrary to public policy.
[43] This Court
has held that the interests of the community or the public are of
paramount importance in relation to the concept
of public policy
(
Sasfin v Beukes
,
supra,
at 8C-D, and
that public policy “reflects the
mores
and fundamental assumptions of the
community”; it is “the general sense of justice of the
community, the
boni mores
manifested in public opinion”.
Longman
Distillers Ltd v Drop Inn Group of Liquor Supermarkets (Pty) Ltd
1990 (2) SA 906 (A) 913 G-H;
Schultz v Butt
1986 (3) SA 667 (A) 679 C-E.
[44] As was said
in
Schultz v Butt
,
supra,
at 679, questions of public policy
may be important in a particular case, e.g. in matters such as where
the validity of a contract
is in issue. In my view, the present
is not such a case. If , for example, the deceased had made a
will in which he bequeathed
the whole of his estate to his father,
the first respondent, such bequest could not have been challenged on
grounds of public
policy. The deceased would have been perfectly
entitled to bequeath his entire estate to his father. It cannot
now be said,
in my view, that the consequences of his dying without
a will are contrary to public policy. The deceased may well have
known
what such consequences were and have been content not to
alter them.
[45] Further, and
as has been mentioned above, the rule is embodied in statute (s 23
(1) of the Act and also regulation 2 (e)
of the Regulations). It
cannot successfully be argued, in my view, that a statute can be
struck down on grounds of public policy,
which would be the effect
if the rule were held to be invalid for being contrary to public
policy as that concept is understood
and applied in the common law.
[46] In the course
of his argument Mr Gauntlett referred us to a judgment of Levinsohn
J in
Zondi v President of the Republic of SA
and Others
2000 (2) SA 49 (N), where the
learned judge held certain provisions of regulation 2 of the
Regulations to be inconsistent with
the equality provision in the
Constitution and therefore invalid. In my opinion, the facts of
the present matter do not permit
of a consideration of the
correctness or otherwise of that decision.
[47] In
conclusion, a
caveat
from Mr Tee for the first respondent:
To strike down the
rule would be summarily to dismiss an African institution without
examining its essential purpose and content.
“Decisions like
these can seldom be taken on a mere handful of allegations in a
pleading which only reflects the facts
on which one of the
contending parties relies”, per Hefer JA in
Minister
of Law and Order v Kadir
1995 (1) SA 303
(A) 318 H.
[48] The
conclusion is that on all four grounds the appellant must fail.
[49] We were
informed by counsel that irrespective of the result, neither of the
parties would seek a costs order. Mr Tee also
placed on record that
the first respondent abandons the costs awarded in his favour in the
court
a quo.
[50] The appeal is
dismissed.
MPATI AJA