Bhe and Others v Khayelitsha Magistrate and Others (CCT 49/03) [2004] ZACC 17; 2005 (1) SA 580 (CC); 2005 (1) BCLR 1 (CC) (15 October 2004)

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Bhe and Others v Khayelitsha Magistrate and Others (CCT 49/03) [2004] ZACC 17; 2005 (1) SA 580 (CC); 2005 (1) BCLR 1 (CC) (15 October 2004)

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CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 49/03
NONKULULEKO
LETTA
BHE

First Applicant
ANELISA
BHE

Second Applicant
NONTUPHEKO
MARETHA
BHE

Third Applicant
WOMEN’S
LEGAL CENTRE
TRUST

Fourth Applicant
versus
MAGISTRATE,
KHAYELITSHA

First Respondent
MABOYISI
NELSON MGOLOMBANE

Second Respondent
PRESIDENT
OF THE REPUBLIC OF SOUTH AFRICA

Third Respondent
MINISTER
FOR JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT

Fourth Respondent
Together
with
COMMISSION
FOR GENDER EQUALITY

Amicus Curiae
Case
CCT 69/03
CHARLOTTE
SHIBI

Applicant
versus
MANTABENI
FREDDY
SITHOLE

First Respondent
JERRY
SITHOLE

Second Respondent
MINISTER
FOR JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT

Third Respondent
Case
CCT 50/03
SOUTH
AFRICAN HUMAN RIGHTS COMMISSION

First Applicant
WOMEN’S
LEGAL CENTRE
TRUST

Second Applicant
versus
PRESIDENT
OF THE REPUBLIC OF SOUTH AFRICA

First Respondent
MINISTER
FOR JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT

Second Respondent
Heard
on : 2-3 March 2004
Decided
on : 15 October 2004
JUDGMENT
LANGA
DCJ:
Introduction
[1]
Two
statutes govern intestate succession in South Africa.  They are
the
Intestate Succession Act 81 of 1987
and the Black Administration
Act 38 of 1927 (the Act).  Section 23 of the Act
[1]
read with regulations framed in terms of section 23(10)
contains
provisions that deal exclusively with intestate deceased estates of
Africans.
[2]
Estates
governed by section 23 are specifically excluded from the application
of the
Intestate Succession Act.
[3
]
The regulations were published in a Government Gazette
[4]
under the title “Regulations for the Administration and
Distribution of the Estates of Deceased Blacks” (the
regulations).
[2]
The parallel system of intestate succession set up by
section 23
and
the regulations purports to give effect to the customary law of
succession.  It prescribes which estates must devolve
in terms
of what the Act describes as “Black law and custom” and
details the steps that must be taken in the administration
of those
estates.
[3]
Central to
the customary law of succession is the principle of male
primogeniture.
[5]
There
are two main issues in the cases before this Court.  The first
is the question of the constitutional validity
of section 23 of the
Act.  The second concerns the constitutional validity of the
principle of primogeniture in the context
of the customary law of
succession.
[4]
Because of
the nature of the issues to be canvassed, the Chief Justice directed
the registrar of this Court to deliver copies of
the directions and
the two applications for confirmation
[6]
to the Chairperson of the National House of Traditional Leaders.
[7]
The provisions of rule 9 of the Rules of the Constitutional Court
that were in force at the time
[8]
were also drawn to his attention.  No submissions were, however,
received from the House of Traditional Leaders.
[5]
There are three cases before the Court.  They were heard
together, by direction of the Chief Justice, since they are all

concerned with intestate succession in the context of customary law.
[6]
The first
case,
Bhe
and Others v The Magistrate, Khayelitsha and Others
,
(the
Bhe
case)
[9]
followed a decision by the Magistrate of Khayelitsha and, on appeal,
that of the Cape High Court.  The second,
Charlotte
Shibi v Mantabeni Freddy Sithole and Others
(the
Shibi
case),
[10]
concerned a
decision of the Magistrate of Wonderboom which was successfully
challenged in the Pretoria High Court.  In both
cases, the
respective Magistrates made decisions on the basis of the relevant
provisions of the legislation governing intestate
succession.
[7]
The third
case is an application for direct access to this Court brought
jointly by the South African Human Rights Commission and
the Women’s
Legal Centre Trust, respectively the first and second applicants.
They had initially applied to the Pretoria
High Court for relief
which included the constitutional invalidation of the whole of
section 23 of the Act.  Before argument
was heard in the High
Court, the order in the
Bhe
case
[11]
was referred to this
Court for confirmation.  Rather than proceed in the Pretoria
High Court, the two applicants then applied
for direct access to this
Court for the relief which they had initially sought in the High
Court.  The application for direct
access was granted by this
Court on 3 November 2003 and the reasons for that decision are set
out below.
[12]
[8]
I proceed to set out the background in respect to each of the matters
before us.
(1)
The Bhe case
[9]
This case comes before us as an application for confirmation of an
order of the Cape High Court.  It is brought jointly
by
Nontupheko Maretha Bhe (Ms Bhe), who is the third applicant in this
matter, and the Women’s Legal Centre Trust, the fourth

applicant.
[10]
Ms Bhe
seeks no relief for herself but brings the application in the
following capacities: (a) on behalf of her two minor daughters,

namely Nonkululeko Bhe, born in 1994 and Anelisa Bhe, born in
2001;
[13]
(b) in the public
interest,
[14]
and (c) in the
interest of the female descendants, descendants other than eldest
descendants and extra-marital children
[15]
who are descendants of people who die intestate.
[16]
Nonkululeko and Anelisa are the first and second applicants
respectively and are the children of Ms Bhe and Mr Vuyo Elius

Mgolombane (the deceased) who died intestate in October 2002.  The
Women’s Legal Centre Trust acted in this application
“in
the public interest”.
[17]
[11]
In this
Court, the first respondent is the Magistrate of Khayelitsha, who
appointed the father of the deceased, Mr Maboyisi Nelson
Mgolombane
(the second respondent) as representative of the estate.  The
President of the Republic of South Africa (the President)
and the
Minister for Justice and Constitutional Development (the Minister)
are cited as the third and fourth respondents respectively.
The
Commission for Gender Equality, a state institution established under
section 187 of the Constitution,
[18]
was admitted as amicus curiae and presented helpful written and oral
submissions to the Court.
[12]
There was
only one potentially material factual dispute before the Cape High
Court, and that is whether Nonkululeko and Anelisa
Bhe are
extra-marital children.  Both Ms Bhe and the deceased’s
father were agreed that no marriage or customary union
had taken
place between Ms Bhe and the deceased.  The deceased’s
father however insisted that the deceased had paid
lobolo, an
assertion which Ms Bhe denied.  Relying on the rule in
Plascon-Evans
,
[19]
however, the High Court approached the issue on the basis that lobolo
had been paid and that Ms Bhe’s daughters were accordingly
not
extra-marital children.
[13]
Since the
question whether or not the two minor daughters of Ms Bhe are
extra-marital children bears on their status, reliance on
the rule in
Plascon-Evans
was, in my view, inappropriate.  I consider that the evidence
produced is not sufficient to resolve the issue one way or another.

It will accordingly be necessary, for purposes of this
judgment, to deal with the effects of extra-marital birth on
intestate
succession, from the perspective of the rule of
primogeniture and that of section 23 of the Act and the regulations.
I return
to this issue in due course.
[20]
[14]
It was not in dispute that from 1990 the deceased had a relationship
with Ms Bhe and they lived together.  He was a carpenter
and she
a domestic worker.  They were poor and lived in a temporary
informal shelter in Khayelitsha, Cape Town.  The
deceased
subsequently obtained state housing subsidies which he used to
purchase the property on which they lived as well as building

materials in order to build a house.  He however died before the
house could be built.  Until his death, the youngest
of the two
minor children lived with him and Ms Bhe in the temporary informal
shelter.  Nonkululeko was staying temporarily
at the home of the
deceased’s father.  The deceased supported Ms Bhe and the
two children and they were dependent on
him.  The estate
comprises the temporary informal shelter and the property on which it
stands, and miscellaneous items of
movable property that Ms Bhe and
the deceased had acquired jointly over the years, including building
materials for the house they
intended to build.
[15]
After the death of the deceased, the relationship between Ms Bhe and
the father of the deceased deteriorated to the point of
acrimony.
In spite of the fact that he resided in Berlin in the Eastern Cape
and nowhere near Cape Town, he was appointed
representative and sole
heir of the deceased estate by the Magistrate in accordance with
section 23 of the Act and the regulations.
[16]
Under the system of intestate succession flowing from section 23 and
the regulations, in particular regulation 2(e), the two
minor
children did not qualify to be the heirs in the intestate estate of
their deceased father.  According to these provisions,
the
estate of the deceased fell to be distributed according to “Black
law and custom”.
[17]
The deceased’s father made it clear that he intended to sell
the immovable property to defray expenses incurred in connection
with
the funeral of the deceased.  There is no indication that the
deceased’s father gave any thought to the dire consequences

which would follow the sale of the immovable property.  Fearing
that Ms Bhe and the two minor children would be rendered homeless,

the applicants approached the Cape High Court and obtained two
interdicts pendente lite to prevent (a) the selling of the immovable

property for the purposes of off-setting funeral expenses; and (b)
further harassment of Ms Bhe by the father of the deceased.
[18]
The applicants challenged the appointment of the deceased’s
father as heir and representative of the estate in the High
Court.
He opposed the application.  The Magistrate and the Minister,
cited as respondents, did not oppose and chose
to abide the decision
of the High Court.
[19]
The High Court concluded that the legislative provisions that had
been challenged and on which the father of the deceased relied,
were
inconsistent with the Constitution and were therefore invalid.
The order of the High Court, in relevant part, reads
as follows:
“
1. It is declared
that s 23(10)(a), (c) and (e) of the Black Administration Act are
unconstitutional and invalid and that reg 2(e)
of the Regulations of
the Administration and Distribution of the Estates of Deceased
Blacks, published under Government Gazette
10601 dated 6 February
1987 is consequently also invalid.
2. It is declared that
s
1(4)(b)
of the
Intestate Succession Act 81 of 1987
is
unconstitutional and invalid insofar as it excludes from the
application of
s 1
any estate or part of any estate in respect of
which s 23 of the Black Administration Act 38 of 1927 applies.
3. It is declared that
until the aforegoing defects are corrected by competent Legislature,
the distribution of intestate black
estates is governed by
s 1
of the
Intestate Succession Act 81 of 1987
.
4. It is declared that
the first and second applicants are the only heirs in the estate of
the late Vuyu Elius Mgolombane, registered
at Khayelitsha
magistrate’s court under reference No 7/1/2-484/2004.”
[21]
[20]
In this Court no submissions were received from the deceased’s
father.  Helpful submissions were however received
from the
Minister, who supported the application for confirmation of the
orders of the High Court and the amicus curiae, the Commission
for
Gender Equality.
(2)
The Shibi case
[21]
The second matter is an application for the confirmation of the order
of the Pretoria High Court.  The applicant is Charlotte
Shibi
(Ms Shibi) whose brother, Daniel Solomon Sithole (the deceased), died
intestate in Pretoria in 1995.  The deceased was
not married nor
was he a partner to a customary union.  He had no children and,
when he died, was not survived by a parent
or grandparent.  His
nearest male relatives were his two cousins Mantabeni Sithole and
Jerry Sithole, the first and second
respondents respectively.
[22]
Since the
deceased was an African, his intestate estate fell to be administered
under the provisions of section 23(10) of the Act.
The
Magistrate of Wonderboom decided to institute an inquiry in terms of
regulation 3(2) in order to determine the person or persons
entitled
to succeed to the property of the deceased.  She did not
complete the inquiry, however, deciding to await the conclusion
of a
case which was then before the Pretoria High Court and which was
later reported as
Mthembu
v Letsela and Another
.
[22]
This High Court case concerned a challenge to the constitutional
validity of the customary law rule of primogeniture and
of section 23
of the Act.
[23]
When the
application in
Mthembu
[23]
was dismissed by the High Court, however, the Magistrate abandoned
the inquiry and, without further notice to Ms Shibi, appointed

Mantabeni Sithole as representative of the deceased estate.  Mr
Sithole was not required to provide security because of the
size of
the estate and the fact that he did not have the means to do so.
[24]
The appointment of Mr Sithole was not a happy one.  There were
complaints by his relatives, including his mother, that
he was
misappropriating the estate funds.  The appointment was
withdrawn by the Magistrate who then appointed an attorney,
Mr Nkuna,
to administer the estate and to distribute the assets according to
customary law.  In terms of the liquidation and
distribution
account the remaining asset in the deceased estate, an amount of
R11,468.02, was awarded to Mr Jerry Sithole, the
second respondent,
as the only heir to the estate.  The estate was wound up and
finalised and Mr Nkuna was duly discharged
as its representative.
[25]
In terms of
the system flowing from the provisions of section 23 of the Act and
the regulations framed under it, in particular regulation
2(e),
[24]
the estate of the deceased fell to be distributed according to
custom.  Ms Shibi was, in terms of that system, precluded from

being the heir to the intestate estate of her deceased brother.
[26]
In the High Court Ms Shibi challenged the decision of the Magistrate
and the manner in which the estate had been administered.
She
sought an order declaring her to be the sole heir in the estate of
the deceased.  She also claimed damages and other related
relief
against the first and second respondents as well as against the
Minister.
[27]
The High
Court set aside the decision of the Magistrate and declared Ms Shibi
to be the sole heir.  It then issued an order
similar to that
given by the Cape High Court in the
Bhe
case,
[25]
and, in addition, awarded damages against the deceased’s two
cousins, that is, first and second respondents in this case.
[28]
In this
Court no submissions were received from the first and second
respondents.  The Minister supported the application for

confirmation of the orders of the Pretoria High Court as he had done
in respect of the decision of the Cape High Court in the
Bhe
case
.
[26]
(3)
The South African Human Rights Commission and Another v President of
the Republic of South Africa and Another
[29]
The South
African Human Rights Commission is a state institution supporting
democracy under Chapter 9 of the Constitution.
Its mandate is,
among other things, to “promote respect for human rights and a
culture of human rights . . . [and] to take
steps to secure
appropriate redress where human rights have been violated”.
[27]
The Women’s Legal Centre Trust is a non-governmental
organisation whose stated core objective “is to advance
and
protect the human rights of all women in South Africa, particularly
black women who suffer many intersecting forms of disadvantage.”

To this end, it has established the Women’s Legal Centre,
in order to conduct public interest litigation including

constitutional litigation to advance the human rights of women.
[30]
In bringing
the application for direct access, both the South African Human
Rights Commission and the Women’s Legal Centre
Trust were
acting in their own interest
[28]
as well as in the public interest.
[29]
The Women’s Legal Centre Trust was also acting in the interest
of a group or a class of people.
[30]
The respondents are the President and the Minister, first and second
respondents respectively.  It was not disputed
by the
respondents that both the South African Human Rights Commission and
the Women’s Legal Centre Trust have standing in
these
proceedings.
[31]
The relief
that the applicants sought is wider than that in the
Bhe
and
Shibi
cases above.  Apart from the provisions declared invalid by the
Cape and Pretoria High Courts, the applicants in this matter
claim
that the whole of section 23 of the Act, alternatively subsections
(1), (2) and (6) of section 23, should be declared unconstitutional

and invalid because of their inconsistency with the Constitution’s
equality provisions (section 9),
[31]
the right to human dignity (section 10)
[32]
and the rights of children under section 28 of the Constitution.
[33]
Direct
access
[32]
This Court
will grant direct access in exceptional circumstances only.
[34]
In this case, the Court had regard to the considerations set out
herein.  In the first place, the challenged provisions
govern
the administration and distribution of all intestate estates of
deceased Africans.  The impact of the provisions falls
mainly on
African women and children, regarded as arguably the most vulnerable
groups in our society.  The provisions also
affect male persons
who, in terms of the customary law rule of primogeniture, are not
heirs to the intestate estates of deceased
Africans.  Many
people are therefore affected by these provisions and it is desirable
that clarity as to their constitutional
validity be established as
soon as possible.
[33]
The submissions sought to be made by the applicants relate to
substantive issues that were already before the Court.
The
direct access application, however, quite helpfully broadens the
scope of the constitutional investigation, given the need
to deal
effectively with the unwelcome consequences of the Act in the
shortest possible time.  The application further adds
fresh
insights on difficult issues, including the question of the
appropriate remedy.
[34]
From the description of the two applicants, it is clear that they are
both eminently qualified to be part of the debate on
the issues
before the Court.  By reason of the above considerations, this
Court concluded that it was in the interests of
justice that the
application for direct access should be granted.
The
legislative framework
[35]
For a proper understanding of the issues, it is necessary to set out
in full the legislative provisions which are the subject
of the
constitutional challenge.  Section 23 of the Act provides as
follows:
“
(1) All movable
property belonging to a Black and allotted by him or accruing under
Black law or custom to any woman with whom he
lived in a customary
union, or to any house, shall upon his death devolve and be
administered under Black law and custom.
(2) All land in a tribal
settlement held in individual tenure upon quitrent conditions by a
Black shall devolve upon his death upon
one male person, to be
determined in accordance with tables of succession to be prescribed
under subsection (10).
(3) All other property of
whatsoever kind belonging to a Black shall be capable of being
devised by will.
(4) . . .
(5) Any claim or dispute
in regard to the administration or distribution of any estate of a
deceased Black shall be decided in a
court of competent jurisdiction.
(6) In connection with
any such claim or dispute, the heir, or in case of minority his
guardian, according to Black law, if no executor
has been appointed
by a Master of the Supreme Court shall be regarded as the executor in
the estate as if he had been duly appointed
as such according to the
law governing the appointment of executors.
(7) Letters of
administration from the Master of the Supreme Court shall not be
necessary in, nor shall the Master or any executor
appointed by the
Master have any powers in connection with, the administration and
distribution of–
(a)
. . .
(b)
any portion of the estate of a deceased Black which falls under
subsection (1) or (2).
(8) A Master of the
Supreme Court may revoke letters of administration issued by him in
respect of any Black estate.
(9) Whenever a Black has
died leaving a valid will which disposes of any portion of his
estate, Black law and custom shall not apply
to the administration or
distribution of so much of his estate as does not fall under
subsection (1) or (2) and such administration
and distribution shall
in all respects be in accordance with the Administration of Estates
Act, 1913 (Act No. 24 of 1913).
(10) The Governor-General
may make regulations not inconsistent with this Act–
(a)
prescribing the manner in which the estates of deceased Blacks shall
be administered and distributed;
(b)
defining the rights of widows or surviving partners in regard to the
use and occupation of the quitrent land of deceased Blacks;
(c)
dealing with the disherison of Blacks;
(d)
. . .
(e)
prescribing tables of succession in regard to Blacks; and
(f)
generally for the better carrying out of the provisions of this
section.
(11) Any Black estate
which has, prior to the commencement of this Act, been reported to a
Master of the Supreme Court shall be
administered as if this Act had
not been passed, and the provisions of this Act shall apply in
respect of every Black estate which
has not been so reported.”
[35]
[36]
For purposes of this discussion, it is necessary to draw attention to
regulations 2, 3 and 4 only.  Regulation 2 provides
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) If the deceased was
at the time of his death the holder of a letter of exemption issued
under the provisions of section 31 of
the Act, exempting him from the
operation of the Code of Zulu Law, the property shall devolve as if
he had been a European.
(c) If the deceased, at
the time of his death was —
(i)
a partner in a marriage in community of property or under antenuptual
contract; or
(ii)
a widower, widow or divorcee, as the case may be, of a marriage in
community of property or under antenuptual contract and
was not
survived by a partner to a customary union entered into subsequent to
the dissolution of such marriage,
the
property shall devolve as if the deceased had been a European.
(d) When any deceased
Black is survived by any partner—
(i)
with whom he had contracted a marriage which, in terms of subsection
(6) of section 22 of the Act, had not produced the legal
consequences
of a marriage in community of property; or
(ii)
with whom he had entered into a customary union; or
(iii)
who was at the time of his death living with him as his putative
spouse;
or by any issue of
himself and any such partner, and the circumstances are such as in
the opinion of the Minister to render the
application of Black law
and custom to the devolution of the whole, or some part, of his
property inequitable or inappropriate,
the Minister may direct that
the said property or the said part thereof, as the case may be, shall
devolve as if the said Black
and the said partner had been lawfully
married out of community of property, whether or not such was in fact
the case, and as if
the said Black had been a European.
(e) If the deceased does
not fall into any of the classes described in paragraphs (b), (c) and
(d), the property shall be distributed
according to Black law and
custom.”
[36]
[37]
In terms of regulation 3, a magistrate in whose jurisdiction the
deceased resided may hold an inquiry to determine the identity
of the
person or people entitled to succeed to the deceased’s
property.  For that purpose, the magistrate may summon
anyone
able to supply the information necessary to make that decision.
[38]
Regulation 4 provides for the appointment of a representative of the
estate who may be required to provide security for the
due and proper
administration of the estate.  Once appointed, the
representative has an obligation to render “a just,
true and
exact account of his administration of the estate.”
[39]
The above provisions should be read with
section 1(4)(b)
of the
Intestate Succession Act which
provides as follows:
“
Intestate estate”
includes any part of an estate … in respect of which section
23 of the Black Administration Act,
1927 (Act No 38 of 1927), does
not apply.”
[37]
The
approach to customary law
[40]
The system that flows from the above legislative framework purports
to give effect to customary law.  It is a parallel
system,
different in concept and in effect, to that which flows from the
Intestate Succession Act, which
is designed to apply to all intestate
estates other than those governed by section 23 of the Act.
[41]
It is
important to appreciate the distinction between the legal framework
based on section 23 of the Act and the place occupied
by customary
law in our constitutional system.  Quite clearly the
Constitution itself envisages a place for customary law
in our legal
system.  Certain provisions of the Constitution put it beyond
doubt that our basic law specifically requires
that customary law
should be accommodated, not merely tolerated, as part of South
African law, provided the particular rules or
provisions are not in
conflict with the Constitution.  Sections 30
[38]
and 31
[39]
of the Constitution
entrench respect for cultural diversity.  Further, section 39(2)
specifically requires a court interpreting
customary law to promote
the spirit, purport and objects of the Bill of Rights.  In
similar vein, section 39(3)
[40]
states that the Bill of Rights does not deny the existence of any
other rights or freedoms that are recognised or conferred by

customary law as long as they are consistent with the Bill of Rights.
Finally, section 211
[41]
protects those institutions that are unique to customary law.
It follows from this that customary law must be interpreted
by the
courts, as first and foremost answering to the contents of the
Constitution.  It is protected by and subject to the

Constitution in its own right.
[42]
It is for this reason that an approach that condemns rules or
provisions of customary law merely on the basis that they are

different to those of the common law or legislation, such as the
Intestate Succession Act, would
be incorrect.  At the level of
constitutional validity, the question in this case is not whether a
rule or provision of customary
law offers similar remedies to the
Intestate Succession Act.  The
issue is whether such rules or
provisions are consistent with the Constitution.
[43]
This status of customary law has been acknowledged and endorsed by
this Court.  In
Alexkor Ltd and Another v Richtersveld
Community and Others,
the following was stated:
“
While in the past
indigenous law was seen through the common law lens, it must now be
seen as an integral part of our law.
Like all law it depends
for its ultimate force and validity on the Constitution.  Its
validity must now be determined by reference
not to common-law, but
to the Constitution.” (footnotes omitted)
[42]
This approach avoids the
mistakes which were committed in the past and which were partly the
result of the failure to interpret
customary law in its own setting
but rather attempting to see it through the prism of the common law
or other systems of law.
[43]
That approach also led in part to the fossilisation and codification
of customary law which in turn led to its marginalisation.
This
consequently denied it of its opportunity to grow in its own right
and to adapt itself to changing circumstances.  This
no doubt
contributed to a situation where, in the words of Mokgoro J,
“[c]ustomary law was lamentably marginalised and allowed
to
degenerate into a vitrified set of norms alienated from its roots in
the community”.
[44]
[44]
It should
however not be inferred from the above that customary law can never
change and that it cannot be amended or adjusted by
legislation.  In
the first place, customary law is subject to the Constitution.
[45]
Adjustments and development to bring its provisions in line with the
Constitution or to accord with the “spirit, purport
and objects
of the Bill of Rights” are mandated.
[46]
Secondly, the legislative authority of the Republic vests in
Parliament.
[47]
Thirdly,
the Constitution envisages a role for national legislation in the
operation, implementation and/or changes effected
to customary
law.
[48]
[45]
The
positive aspects of customary law have long been neglected.  The
inherent flexibility of the system is but one of its constructive

facets.  Customary law places much store in consensus-seeking
and naturally provides for family and clan meetings which offer

excellent opportunities for the prevention and resolution of disputes
and disagreements.  Nor are these aspects useful only
in the
area of disputes.  They provide a setting which contributes to
the unity of family structures and the fostering of
co-operation, a
sense of responsibility in and of belonging to its members, as well
as the nurturing of healthy communitarian traditions
such as
ubuntu
.
[49]
These valuable aspects of customary law more than justify its
protection by the Constitution.
[46]
It bears repeating, however, that as with all law, the constitutional
validity of rules and principles of customary law depend
on their
consistency with the Constitution and the Bill of Rights.
The
constitutional rights implicated
[47]
In both written and oral submissions before the Court, it was argued
that the impugned provisions seriously violate various
constitutional
rights, primarily, rights to human dignity (section 10 of the
Constitution), and to equality (section 9 of the Constitution),
as
well as the rights of children (section 28 of the Constitution).
(1)
Human dignity (section 10 of the Constitution)
[48]
Section 10
of the Constitution provides that “[e]veryone has inherent
dignity and the right to have their dignity respected
and
protected.”  This Court has repeatedly emphasised the
importance of human dignity in our constitutional order.
In
S
v Makwanyane
[50]
Chaskalson P stated that the right to human dignity was, together
with the right to life, the source of all other rights.

Elsewhere, Ackermann J stated that “the constitutional
protection of dignity requires us to acknowledge the value and worth

of all individuals as members of our society.”
[51]
As a value, Kriegler J referred to human dignity as one of three
“conjoined, reciprocal and covalent values”
which are
foundational to this country.
[52]
In
Dawood
and Another v Minister of Home Affairs and Others
,
the Court asserted:
“
The value of
dignity in our Constitutional framework cannot therefore be doubted.
The Constitution asserts dignity to contradict
our past in which
human dignity for black South Africans was routinely and cruelly
denied.  It asserts it too to inform the
future, to invest in
our democracy respect for the intrinsic worth of all human beings.
Human dignity therefore informs constitutional
adjudication and
interpretation at a range of levels.  It is a value that informs
the interpretation of many, possibly all,
other rights.  This
Court has already acknowledged the importance of the constitutional
value of dignity in interpreting rights
such as the right to
equality, the right not to be punished in a cruel, inhuman or
degrading way, and the right to life.
Human dignity is also a
constitutional value that is of central significance in the
limitations analysis.  Section 10, however,
makes it plain that
dignity is not only a
value
fundamental to our Constitution, it is a justiciable and enforceable
right
that must be respected and protected.” (footnotes omitted)
[53]
(2)
The right to equality and the prohibition of discrimination (section
9 of the Constitution)
[49]
The
importance of the right to equality
[54]
has frequently been emphasised in the judgments of this Court.
In
Fraser
v Children’s Court, Pretoria North, and Others
,
Mahomed DP had the following to say:
“
There can be no
doubt that the guarantee of equality lies at the very heart of the
Constitution.  It permeates and defines
the very ethos upon
which the Constitution is premised.  In the very first paragraph
of the preamble it is declared that there
is a ‘. . . need to
create a new order . . . in which there is equality between men and
women and people of all races so
that all citizens shall be able to
enjoy and exercise their fundamental rights and freedoms’.”
(footnotes omitted)
[55]
[50]
The
centrality of equality is underscored by references to it in various
provisions of the Constitution and in many judgments of
this
Court.
[56]
Not only is
the achievement of equality one of the founding values of the
Constitution, section 9 of the Constitution also
guarantees the
achievement of substantive equality to ensure that the opportunity to
enjoy the benefits of an egalitarian and non-sexist
society is
available to all, including those who have been subjected to unfair
discrimination in the past.  Thus section 9(3)
of the
Constitution prohibits unfair discrimination by the state “directly
or indirectly against anyone” on grounds
which include race,
gender and sex.
[51]
Nor is the
South African Constitution alone in the emphasis it places on the
right to equality.  The right is cherished in
the constitutions
and the jurisprudence of many open and democratic societies.  A
number of international instruments, to
which South Africa is
party,
[57]
also underscore the
need to protect the rights of women, and to abolish all laws that
discriminate against them
[58]
as well as to eliminate any racial discrimination in our society.
[59]
(3)
The rights of children
[52]
Section 28
of the Constitution provides specific protection for the rights of
children.
[60]
Our
constitutional obligations in relation to children are particularly
important for we vest in our children our hopes for
a better life for
all.
[61]
The inclusion
of this provision in the Constitution marks the constitutional
importance of protecting the rights of children,
not only those
rights expressly conferred by section 28 but also all the other
rights in the Constitution which, appropriately
construed, are also
conferred upon children.
[62]
Children, therefore, may not be subjected to unfair discrimination in
breach of section 9(3) just as adults may not be.
[53]
Two
prohibited grounds of discrimination are relevant in this case.
The first relates to sex, something that I need not discuss
further
here, except to remark that the importance of protecting children
from discrimination on the grounds of sex is acknowledged
in the
African Charter on the Rights of the Child.
[63]
[54]
The second relates to the prohibition of unfair discrimination on the
ground of “birth” in section 9(3).
To the extent
that one of the issues that arises in this case is the question of
whether the differential entitlements of children
born within a
marriage and those born extra-maritally constitutes unfair
discrimination, the meaning to be attributed to “birth”

in section 9(3) is important.
[55]
In
interpreting both section 28 and the other rights in the
Constitution, the provisions of international law must be
considered.
[64]
South
Africa is a party to a number of international multilateral
agreements
[65]
designed to
strengthen the protection of children.  The Convention on the
Rights of the Child asserts that children, by reason
of their
“physical and mental immaturity” need “special
safeguards and care”.
[66]
Article 2 of the Convention requires signatories to ensure that the
rights set forth in the Convention shall be enjoyed regardless
of
“race, colour, sex, language, religion, political or other
opinion, national, ethnic or social origin, property, disability,

birth or other status.”
[67]
Article 24(1) of the International Covenant on Civil and Political
Rights (1966), also provides expressly that:
“
Every child shall
have, without any discrimination as to race, colour, sex, language,
religion, national or social origin, property
or birth, the right to
such measures of protection as are required by his status as a minor,
on the part of his family, society
and the State.”
Similarly,
article 3 of the African Charter on the Rights and Welfare of the
Child provides that children are entitled to enjoy
the rights and
freedoms recognised and guaranteed in the Charter “irrespective
of the child’s or his/her parents’
or legal guardians’
race, ethnic group, colour, sex, . . . birth or other status.”
[56]
The
European Court on Human Rights has held that treating extra-marital
children differently to those born within a marriage constitutes
a
suspect ground of differentiation in terms of article 14 of the
Charter.
[68]
The United
States Supreme Court, too, has held that discriminating on the
grounds of “illegitimacy” is “illogical
and
unjust”.
[69]
[57]
Historically
in South Africa, children whose parents were not married at the time
they were conceived or born were discriminated
against in a range of
ways.  This was particularly true of children whose family lives
were governed by common law.
[70]
Much of the stigma that attached to extra-marital children was social
and religious in origin, rather than legal, but that
stigma was
deeply harmful.  The legal consequences of extra-marital birth
at common law flowed from the Dutch principle that
“een wijf
maakt geen bastaard”,
[71]
the implications of which were that the extra-marital child was not
recognised as having any legal relationship with his or her
father,
but only with his or her mother.  The child therefore took the
mother’s name, inherited only from his or her
mother, and the
father of the child had no parental obligations or rights vis-à-vis
the child.  The law and social
practice concerning extra-marital
children without doubt conferred a stigma upon them which was harmful
and degrading.
[58]
It is important, however, in assessing the discrimination and stigma
attached to extra-marital birth to distinguish between
common law and
customary law.  As Jones records:
“
The African means
of dealing with extramarital birth is essentially accommodative in
intent and character; it is oriented towards
social inclusivity.
The mechanism of maternal-filiation provides an extramarital child
with a father, with a male ritual
and social sponsor, with a place in
a conjugal unit, and it manufactures for the child a full lineal
identity.  Very importantly,
these attributes are socially
visible – they counter what would otherwise be clearly evident
deficits in an extramarital
child’s social make-up – and
are preserved and upheld by way of taboo against reference to the
child’s real paternity
or social position.  As far as is
possible within the bounds of cultural reason, the effect of the
African system is therefore
to ensure that an extramarital child’s
position is
not
compromised by the circumstances of his or her birth.”
[72]
Nevertheless,
extra-marital sons had reduced rights of inheritance under customary
law, as they would only inherit in the absence
of any other male
descendants.  Contemporary research suggests too that there is
social stigma attached to extra-marital children,
though the stigma
probably varies depending on the circumstances and community
concerned.
[73]
[59]
The prohibition of unfair discrimination on the ground of birth in
section 9(3) of our Constitution should be interpreted to
include a
prohibition of differentiating between children on the basis of
whether a child’s biological parents were married
either at the
time the child was conceived or when the child was born.  As I
have outlined, extra-marital children did, and
still do, suffer from
social stigma and impairment of dignity.  The prohibition of
unfair discrimination in our Constitution
is aimed at removing such
patterns of stigma from our society.  Thus, when section 9(3)
prohibits unfair discrimination on
the ground of “birth”,
it should be interpreted to include a prohibition of differentiation
between children on the
grounds of whether the children’s
parents were married at the time of conception or birth.  Where
differentiation is
made on such grounds, it will be assumed to be
unfair unless it is established that it is not.
Does
section 23 violate the rights contended for?
[60]
In argument, section 23 was correctly described as a racist provision
which is fundamentally incompatible with the Constitution.
It
was submitted that the section is inconsistent with sections 9 and 10
of the Constitution because of its blatant discrimination
on grounds
of race, colour and ethnic origin and its harmful effects on the
dignity of persons affected by it.  This Court
has often
expressed its abhorrence of discriminatory legislation and practices
which were a feature of our hurtful and racist past
and which are
fundamentally inconsistent with the constitutional guarantee of
equality.
[61]
Section 23
cannot escape the context in which it was conceived.  It is part
of an Act which was specifically crafted to fit
in with notions of
separation and exclusion of Africans from the people of “European”
descent.  The Act was part
of a comprehensive exclusionary
system of administration imposed on Africans, ostensibly to avoid
exposing them to a result which,
“to the Native mind”,
would be “both startling and unjust”.
[74]
What the Act in fact achieved was to become a cornerstone of racial
oppression, division and conflict in South Africa, the
legacy of
which will still take years to completely eradicate.  Proponents
of the policy of apartheid were able, with comparative
ease, to build
on the provisions of the Act and to perfect a system of racial
division and oppression that caused untold suffering
to millions of
South Africans.  Some parts of the Act have now been repealed
and modified; most of section 23 however remains
and still serves to
haunt many of those Africans subject to the parallel regime of
intestate succession which it creates.
[62]
The Act has earned deserved criticism which must be seen in the light
of the origins of its provisions. The remarks of McLoughlin,
made in
two of his judgments when he was President of the Native Appeal
Court, are instructive in this regard.  In
Ruth Matsheng v
Nicholas Dhlamini and John Mhaushan
, he stated:
“
The attitude of
the legislature towards natives and Native Law in the Transvaal is
clearly shown by the survey of the history of
legislation on the
subject since the early Republican days.  The natives were
placed in a category separate from the Europeans
and they were
permitted no equality either in the system of law applied to them nor
in regard to the courts to which they were
accorded access in civil
matters. . . .  It is the Shepstonian conception of legal
segregation successfully adopted in Natal
and imported into the
Transvaal on annexation in 1877.”
[75]
and
later in the same judgment, he remarked as follows:
“
The subjection by
native law of women to tutelage and the denial of
locus
standi in judicio
unaided is neither ‘inconsistent with the general principles of
civilisation recognised in the civil world’ nor is
the custom
one which occasions evident injustice or which is ‘in conflict
with the accepted principles of natural justice’,
for the
common law in this country still maintains a similar disability in
respect of women married in community of property.
Other
civilised nations extend the rule much further.”
[76]
Later
still, in
Dukuza
Kaula v John Mtimkulu and Madhlala Mtimkulu
,
[77]
writing on the subject of the exemption of Africans from the
operation of “Native law”, he stated:
“
The policy of
legal segregation dates back to the beginning of the legal history of
Natal.  To meet the case of Natives ‘not
so ignorant or so
unfitted by habit or otherwise as to render them incapable of
exercising and understanding the ordinary duties
of civilised life’
provision was made to exempt such persons from the operation of
Native law – or as stated in the
statute ‘taken out of
the operation of Native Law,’ – Natal law 28 of
1865.”
[78]
Quite
clearly the Act developed from these notions of separation and
inequality between Europeans and Africans, and its provisions
have
not moved much from the “Shepstonian conception of legal
segregation”.
[79]
[63]
In
DVB
Behuising
,
[80]
Madala J referred to the Act as “a piece of obnoxious
legislation not befitting a democratic society based on human
dignity,
equality and freedom”.
[81]
In the same case, Ngcobo J described the Act as “an egregious
apartheid law which anachronistically has survived our
transition to
a non-racial democracy”
[82]
and referred to proclamations made under it as part of a “demeaning
and racist” system.
[83]
Ngcobo J went on to comment:
“
The Native
Administration Act 38 of 1927 appointed the Governor-General (later
referred to as the State President) as ‘supreme
chief’ of
all Africans.  It gave him power to govern Africans by
proclamation.  The powers given to him were virtually
absolute.
He could order the removal of an entire African community from one
place to another.  The Native Administration
Act became the most
powerful tool in the implementation of forced removals of Africans
from the so-called ‘white areas’
into the areas reserved
for them.  These removals resulted in untold suffering.
This geographical plan of segregation
was described as forming part
of ‘a colossal social experiment and a long term policy’.”
(footnotes omitted)
[84]
[64]
More recently, in
Moseneke,
Sachs J, writing for a unanimous
Court, expressed himself as follows:
“
It is painful that
the Act still survives at all.  The concepts on which it was
based, the memories it evokes, the language
it continues to employ
and the division it still enforces are antithetical to the society
envisaged by the Constitution.
It is an affront to all of us
that people are still treated as ‘blacks’ rather than as
ordinary persons seeking to
wind up a deceased estate, and it is in
conflict with the establishment of a non-racial society where rights
and duties are no
longer determined by origin or skin colour.”
[85]
[65]
Sachs J
went on to discuss section 23(7) of the Act and regulation 3(1) of
the regulations.  He noted that the Minister and
the Master
suggested that the administration of deceased estates by magistrates
was often convenient and inexpensive, and responded
by commenting
that even if there are practical advantages for people in the system,
the fact remains that it is rooted in racial
discrimination.  He
held that, given our history of racial discrimination, the indignity
occasioned by treating people differently
as “blacks” is
not rendered fair by the factors identified by the Minister and the
Master.  He concluded that
no society based on equality, freedom
and dignity would tolerate differential treatment based on skin
colour, particularly where
the legislative provisions in question
formed part of a broader package of racially discriminatory
legislation that systematically
disadvantaged Africans.  Any
convenience the provisions might achieve could be accomplished
equally as well by a non-discriminatory
provision.
[86]
[66]
In the
Bhe
and
Shibi
cases,
the constitutional attack was directed at particular provisions of
subsection (10) of section 23 and the regulations.
It is quite
clear though that the subsections which constitute section 23, read
with the regulations, together constitute a scheme
of intestate
succession.  The subsections are interlinked and, in my view,
they all stand or fall together.  They provide
a scheme whereby
the legal system that governs intestate succession is determined
simply by reference to skin colour.  The
choice of law is thus
based on racial grounds without more.  In so doing, section 23
and its regulations impose a system on
all Africans irrespective of
their circumstances and inclinations.  What it says to Africans
is that if they wish to extricate
themselves from the regime it
creates, they must make a will.  Only those with sufficient
resources, knowledge, education
or opportunity to make an informed
choice will be able to benefit from that provision.  Moreover,
the section provides that
some categories of property are incapable
of being devised by will but must devolve according to the principles
of “Black
law and custom”.
[87]
[67]
The racist
provenance of the provision is illustrated in the reference in the
regulations to the distinction drawn between estates
that must
devolve in terms of “Black law and custom” and those that
devolve as though the deceased “had been
a European”.
[88]
The purported exemption of certain Africans – who qualify –
from the operation of “Black law and custom”
to the
status of a “European” is not only demeaning, it is
overtly racist.  This provision is to be found in the

regulations, not in the statute itself.  It nevertheless
provides a contextual indicator of the purpose and intent of the

overall scheme contemplated by section 23 and the regulations.
[68]
I conclude,
then, that construed in the light of its history and context, section
23 of the Act and its regulations are manifestly
discriminatory and
in breach of section 9(3) of our Constitution.  The
discrimination they perpetuate touches a raw nerve
in most South
Africans.  It is a relic of our racist and painful past.
This Court has, on a number of occasions, expressed
the need to purge
the statute book of such harmful and hurtful provisions.
[89]
The only question that remains to be considered is whether the
discrimination occasioned by section 23 and its regulations
is
capable of justification in terms of section 36 of our Constitution.
Justification
inquiry
[69]
Section 36 of the Constitution requires that a provision that limits
rights should be a law of general application and that
the limitation
should be reasonable and justifiable in an open and democratic
society based on human dignity, equality and freedom.
[70]
As was said in
S v Manamela and Another (Director-General of
Justice Intervening)
:
“
. . . [t]he Court
must engage in a balancing exercise and arrive at a global judgment
on proportionality . . . .  As a general
rule, the more serious
the impact of the measure on the right, the more persuasive or
compelling the justification must be.  Ultimately,
the question
is one of degree to be assessed in the concrete legislative and
social setting of the measure, paying due regard to
the means which
are realistically available in our country at this stage, but without
losing sight of the ultimate values to be
protected.”
[90]
[71]
The rights violated are important rights, particularly in the South
African context.  The rights to equality and dignity
are of the
most valuable of rights in any open and democratic state.  They
assume special importance in South Africa because
of our past history
of inequality and hurtful discrimination on grounds that include race
and gender.
[72]
It could be
argued that despite its racist and sexist nature, section 23 gives
recognition to customary law and acknowledges the
pluralist nature of
our society.
[91]
This is
however not its dominant purpose or effect.  Section 23 was
enacted as part of a racist programme intent on
entrenching division
and subordination.  Its effect has been to ossify customary law.
In the light of its destructive
purpose and effect, it could
not be justified in any open and democratic society.
[73]
It is clear
from what is stated above that the serious violation by the
provisions of section 23 of the rights to equality and human
dignity
cannot be justified in our new constitutional order.  In terms
of section 172(1)(a) of the Constitution,
[92]
section 23 must accordingly be struck down.
[74]
The effect of the invalidation of section 23 is that the rules of
customary law governing succession are applicable.  The

applicants in both the
Bhe
and
Shibi
cases, however,
launched an attack on the customary law rule of primogeniture.  It
is to that attack that I now turn.
The
customary law of succession
[75]
It is important to examine the context in which the rules of
customary law, particularly in relation to succession, operated
and
the kind of society served by them.  The rules did not operate
in isolation.  They were part of a system which fitted
in with
the community’s way of life.  The system had its own
safeguards to ensure fairness in the context of entitlements,
duties
and responsibilities.  It was designed to preserve the cohesion
and stability of the extended family unit and ultimately
the entire
community.  This served various purposes, not least of which was
the maintenance of discipline within the clan
or extended family.
Everyone, man, woman and child had a role and each role, directly or
indirectly, was designed to contribute
to the communal good and
welfare.
[76]
The heir
did not merely succeed to the assets of the deceased; succession was
not primarily concerned with the distribution of the
estate of the
deceased, but with the preservation and perpetuation of the family
unit.  Property was collectively owned and
the family head, who
was the nominal owner of the property, administered it for the
benefit of the family unit as a whole.
The heir stepped into
the shoes of the family head and acquired all the rights and became
subject to all the obligations of the
family head.  The members
of the family under the guardianship of the deceased fell under the
guardianship of his heir.
The latter, in turn, acquired the
duty to maintain and support all the members of the family who were
assured of his protection
and enjoyed the benefit of the heir’s
maintenance and support.  He inherited the property of the
deceased only in the
sense that he assumed control and administration
of the property subject to his rights and obligations as head of the
family unit.
The rules of the customary law of succession were
consequently mainly concerned with succession to the position and
status of the
deceased family head rather than the distribution of
his personal assets.
[93]
[77]
Central to
the customary law of succession is the rule of primogeniture, the
main features of which are well established.
[94]
The general rule is that only a male who is related to the deceased
qualifies as intestate heir.  Women do not participate
in the
intestate succession of deceased estates.  In a monogamous
family, the eldest son of the family head is his heir.
If the
deceased is not survived by any male descendants, his father succeeds
him.  If his father also does not survive him,
an heir is sought
among the father’s male descendants related to him through the
male line.
[95]
[78]
The exclusion of women from heirship and consequently from being able
to inherit property was in keeping with a system dominated
by a
deeply embedded patriarchy which reserved for women a position of
subservience and subordination and in which they were regarded
as
perpetual minors under the tutelage of the fathers, husbands, or the
head of the extended family.
The position of the
extra-marital child
[79]
Extra-marital
children are not entitled to succeed to their father’s estate
in customary law.
[96]
They however qualify for succession in their mother’s family,
but subject to the principle of primogeniture.
The eldest male
extra-marital child qualifies for succession only after all male
intra-marital children and other close male members
of the family.
The
effect of changing circumstances
[80]
The setting
has however changed.  Modern urban communities and families are
structured and organised differently and no longer
purely along
traditional lines.  The customary law rules of succession simply
determine succession to the deceased’s
estate without the
accompanying social implications which they traditionally had.
Nuclear families have largely replaced
traditional extended
families.  The heir does not necessarily live together with the
whole extended family which would include
the spouse of the deceased
as well as other dependants and descendants.  He often simply
acquires the estate without assuming,
or even being in a position to
assume, any of the deceased’s responsibilities.
[97]
In the changed circumstances, therefore, the succession of the heir
to the assets of the deceased does not necessarily correspond
in
practice with an enforceable responsibility to provide support and
maintenance to the family and dependants of the deceased.
Customary
law has not kept pace
[81]
In
Richtersveld
,
[98]
this Court noted that “indigenous law is not a fixed body of
formally classified and easily ascertainable rules.  By
its very
nature it evolves as the people who live by its norms change their
patterns of life.”
[99]
It has throughout history “evolved and developed to meet the
changing needs of the community.”
[100]
[82]
The rules of succession in customary law have not been given the
space to adapt and to keep pace with changing social conditions
and
values.  One reason for this is the fact that they were captured
in legislation, in text books, in the writings of experts
and in
court decisions without allowing for the dynamism of customary law in
the face of changing circumstances.  Instead,
they have over
time become increasingly out of step with the real values and
circumstances of the societies they are meant to serve
and
particularly the people who live in urban areas.
[83]
It is clear
that the application of the customary law rules of succession in
circumstances vastly different from their traditional
setting causes
much hardship.  This is described in the report of the South
African Law Reform Commission (the Law Reform
Commission)
[101]
which cites three reasons for the plight in which African widows find
themselves in the changed circumstances: (a) the fact that
social
conditions frequently do not make “living with the heir”
a realistic or even a tolerable proposition; (b) the
fact, frequently
pointed out by the courts, that the African woman “does not
have a right of ownership”; and (c) the
prerequisite of a “good
working relationship with the heir” for the effectiveness of
“the widow’s right
to maintenance”.  In this
regard, the report concludes that:
“
Unfortunately,
circumstances do not favour this relationship.  Widows are all
too often kept on at the deceased’s homestead
on sufferance or
they are simply evicted.  They then face the prospect of having
to rear their children with no support from
the deceased’s
family.”
[102]
[84]
Because of
this, the official rules of customary law of succession
[103]
are no longer universally observed.  In her affidavit, Likhapha
Mbatha, a researcher at the Gender Research Project at the
Centre for
Applied Legal Studies, observes that the formal rules of customary
law have failed to keep pace with changing social
conditions as a
result of which they are no longer universally observed.  These
changes have required of customary rules that
they adapt, and
therefore change.  Bennett also refers to trends that reflect a
basic social need to sustain the surviving
family unit rather than a
general adherence to male primogeniture.
[104]
[85]
The report
of the Law Reform Commission makes the point that the rule of
primogeniture is evolving to meet the needs of changing
social
patterns.  It states that the order of succession is the theory
and that in reality different rules may well be developing,
such as
the replacement of the eldest son with the youngest for purposes of
inheritance, and the fact that widows often take over
their husbands’
lands and other assets, especially when they have young children to
raise.
[105]
[86]
What needs to be emphasised is that, because of the dynamic nature of
society, official customary law as it exists in the text
books and in
the Act is generally a poor reflection, if not a distortion of the
true customary law.  True customary law will
be that which
recognises and acknowledges the changes which continually take
place.  In this respect, I agree with Bennett’s

observation that:
“
[a] critical issue
in any constitutional litigation about customary law will therefore
be the question whether a particular rule
is a mythical stereotype,
which has become ossified in the official code, or whether it
continues to enjoy social currency.”
[106]
[87]
The official rules of customary law are sometimes contrasted with
what is referred to as “living customary law,”
which is
an acknowledgement of the rules that are adapted to fit in with
changed circumstances.  The problem with the adaptations
is that
they are ad hoc and not uniform.  However, magistrates and the
courts responsible for the administration of intestate
estates
continue to adhere to the rules of official customary law, with the
consequent anomalies and hardships as a result of changes
which have
occurred in society.  Examples of this are the manner in which
the
Bhe
and
Shibi
cases were dealt with by the
respective Magistrates.
The
problem with primogeniture
[88]
The basis
of the constitutional challenge to the official customary law of
succession is that the rule of primogeniture precludes
(a) widows
from inheriting as the intestate heirs of their late husbands;
[107]
(b) daughters from inheriting from their parents;
[108]
(c) younger sons from inheriting from their parents,
[109]
and (d) extra-marital children from inheriting from their
fathers.
[110]
It was
contended that these exclusions constitute unfair discrimination on
the basis of gender and birth and are part of
a scheme underpinned by
male domination.
[89]
Customary law has, in my view, been distorted in a manner that
emphasises its patriarchal features and minimises its communitarian

ones.  As Nhlapo indicates:
“
Although African
law and custom has always had [a] patriarchal bias, the colonial
period saw it exaggerated and entrenched through
a distortion of
custom and practice which, in many cases, had been either relatively
egalitarian or mitigated by checks and balances
in favour of women
and the young. . . .  Enthroning the male head of the household
as the only true person in law, sole holder
of family property and
civic status, rendered wives, children and unmarried sons and
daughters invisible in a social and legal
sense.
.
. .
The
identification of the male head of the household as the only person
with property-holding capacity, without acknowledging the
strong
rights of wives to security of tenure and use of land, for example,
was a major distortion.  Similarly, enacting the
so-called
perpetual minority of women as positive law when, in the pre-colonial
context, everybody under the household head was
a minor (including
unmarried sons and even married sons who had not yet established a
separate residence), had a profound and deleterious
effect on the
lives of African women.  They were deprived of the opportunity
to manipulate the rules to their advantage through
the subtle
interplay of social norms, and, at the same time, denied the
protections of the formal legal order.  Women became
‘outlaws’.”
[111]
Nhlapo
concludes that protecting people from distortions masquerading as
custom is imperative, especially for those they disadvantage
so
gravely, namely, women and children.
[90]
At a time
when the patriarchal features of Roman-Dutch law
[112]
were progressively being removed by legislation,
[113]
customary law was robbed of its inherent capacity to evolve in
keeping with the changing life of the people it served, particularly

of women.  Thus customary law as administered failed to respond
creatively to new kinds of economic activity by women, different

forms of property and household arrangements for women and men, and
changing values concerning gender roles in society.  The
outcome
has been formalisation and fossilisation of a system which by its
nature should function in an active and dynamic manner.
[91]
The
exclusion of women from inheritance on the grounds of gender is a
clear violation of section 9(3)
[114]
of the Constitution.  It is a form of discrimination that
entrenches past patterns of disadvantage among a vulnerable group,

exacerbated by old notions of patriarchy and male domination
incompatible with the guarantee of equality under this constitutional

order.
[92]
The principle of primogeniture also violates the right of women to
human dignity as guaranteed in section 10 of the Constitution as,

in one sense, it implies that women are not fit or competent to own
and administer property.  Its effect is also to subject
these
women to a status of perpetual minority, placing them automatically
under the control of male heirs, simply by virtue of
their sex and
gender.  Their dignity is further affronted by the fact that as
women, they are also excluded from intestate
succession and denied
the right, which other members of the population have, to be holders
of, and to control property.
[93]
To the
extent that the primogeniture rule prevents all female children and
significantly curtails the rights of male extra-marital
children from
inheriting, it discriminates against them too.  These are
particularly vulnerable groups in our society which
correctly places
much store in the well-being and protection of children who are
ordinarily not in a position to protect themselves.
[115]
In denying female and extra-marital children the ability and the
opportunity to inherit from their deceased fathers,
[116]
the application of the principle of primogeniture is also in
violation of section 9(3) of the Constitution.
[94]
In view of the conclusion reached later in this judgment, that it is
not possible to develop the rule of primogeniture as it
applies
within the customary law rules governing the inheritance of property,
it is not necessary or desirable in this case for
me to determine
whether the discrimination against children, who happen not to be the
eldest, necessarily constitutes unfair discrimination.
I
express no view on that question.  Nor, I emphasise again, does
this judgment consider at all the constitutionality of the
rule of
male primogeniture in other contexts within customary law, such as
the rules which govern status and traditional leaders.
Justification
inquiry: primogeniture
[95]
The primogeniture rule as applied to the customary law of succession
cannot be reconciled with the current notions of equality
and human
dignity as contained in the Bill of Rights.  As the centrepiece
of the customary law system of succession, the rule
violates the
equality rights of women and is an affront to their dignity.  In
denying extra-marital children the right to
inherit from their
deceased fathers, it also unfairly discriminates against them and
infringes their right to dignity as well.
The result is that
the limitation it imposes on the rights of those subject to it is not
reasonable and justifiable in an
open and democratic society founded
on the values of equality, human dignity and freedom.
[96]
I have
already observed that with the changing circumstances, the connection
between the rules of succession in customary law and
the heir’s
duty to support the dependants of the deceased is, at best, less than
satisfactory.
[117]
Compliance with the duty to support is frequently more apparent
than real.  There may well be dependants of the deceased
who
would lay claim to the heir’s duty to support them; they would
however be people who, in the vast majority, are so poor
that they
are not in a position to ensure that their rights are protected and
enforced.  The heir’s duty to support
cannot, in the
circumstances, constitute justification for the serious violation of
rights.
[97]
In conclusion, the official system of customary law of succession is
incompatible with the Bill of Rights.  It cannot,
in its present
form, survive constitutional scrutiny.
The
decisions in Mthembu v Letsela
[98]
The
relationship between customary law and the Constitution was
considered in the two
Mthembu
decisions, firstly in the Pretoria High Court and lastly in the
appeal heard by the Supreme Court of Appeal.
[118]
The appellants brought an application in the High Court for an order,
declaring the customary law rule of primogeniture and
regulation 2(e)
to be invalid on the grounds that they gratuitously discriminate
against women, children who are not the eldest
and extra-marital
children in a manner that offends the equality guarantee under
section 8 of the interim Constitution.  The
High Court dismissed
the application, holding that neither the rule nor the regulation was
inconsistent with the equality protection
under the interim
Constitution.  On appeal, the Supreme Court of Appeal was
invited to set aside the order of the High Court
and to develop, as
required by section 35(3) of the interim Constitution, the rule of
primogeniture in order to allow all descendants
to participate in
intestacy.  The Supreme Court of Appeal declined to decide the
constitutional challenge or to develop the
rule on the ground that
the interim Constitution does not operate retroactively.  It
reasoned that the rights of the heir
in the estate had vested on the
death of the deceased, which was on 13 August 1993 and before the
interim Constitution took effect.
[119]
[99]
In an
alternative argument, the Supreme Court of Appeal was urged to
conclude that the rule of primogeniture and regulation 2(e)
are bad
under the common law because they are offensive to public policy or
natural justice which are premised on the fundamental
value of
equality.  The Court rejected this contention and dismissed the
appeal.  It held that neither the rule nor the
regulation
offended the common law.  The regulation, it held, is neither
unreasonable nor “
ultra
vires
at common law.”
[120]
It merely gives legislative recognition to a well established
principle of male primogeniture according to which “many

blacks, even to this day, would wish their estates to devolve.”
[121]
[100]
I have held that section 23 is inconsistent with the Constitution and
invalid.  As a result, regulation 2(e) falls away.
I have
also found that the customary law rule of primogeniture, in its
application to intestate succession, is not consistent
with the
equality protection under the Constitution.  It follows
therefore that any finding in
Mthembu
which is at odds with
this judgment cannot stand.
Remedy
[101]
Perhaps the most difficult aspect of this composite case is the issue
of remedy.  It will be as well, though to keep
a few salutary
principles in mind.  In
S v
Bhulwana; S v Gwadiso
,
the Court expressed two important principles, namely that:
“
[c]entral to a
consideration of the interests of justice in a particular case is
that successful litigants should obtain the relief
they seek. . . .
In principle, too, the litigants before the Court should not be
singled out for the grant of relief, but relief
should be afforded to
all people who are in the same situation as the litigants”.
[122]
[102]
Factors
relevant to any order made by this Court include speed, practicality,
clarity and the mitigation of any potential damage
resulting from the
relief of a temporary nature which this Court may give.
Further, as was suggested in the second
National
Coalition
case,
[123]
the Court should
not shy away from forging innovative remedies should this be required
by the circumstances of the case.
[103]
In the
Bhe
case before the Cape High Court, paragraphs 1 and 2 of the order
given declared section 23(10)(a), (c) and (e) of the Act as
unconstitutional
and invalid, with the consequence that regulation
2(e) fell away.
Section 1(4)(b)
of the
Intestate Succession Act
was
also found to be unconstitutional and invalid in so far as it
excludes from the application of
section 1
, any estate or part of any
estate in respect of which section 23 of the Act applies.  The
order goes on to declare that “until
the aforegoing defects are
corrected by competent legislature, the distribution of intestate
Black estates is governed by [section]
1 of the
Intestate Succession
Act&rdquo
;.
[124]
The
corresponding part of the order in the
Shibi
application is to similar effect.
[125]
As pointed out earlier, the application by the South African Human
Rights Commission and the Women’s Legal Centre Trust
has
broadened the ambit of the inquiry considerably.
[126]
[104]
What needs
to be determined is the nature and form of the wider relief that
should be granted pursuant to the finding that section
23 of the Act
is unconstitutional and invalid in its entirety.  In terms of
section 172(1)(a)
[127]
of
the Constitution, such a finding by the Court must be followed by a
declaration of invalidity, to the extent of the inconsistency.

Thereafter, the Court “may make any order that is just and
equitable.”
[128]
[105]
In
considering an appropriate remedy in this case, various courses
present themselves.  They are: (a) whether the Court should

simply strike the impugned provisions down and leave it to the
legislature to deal with the gap that would result as it sees fit;

(b) whether to suspend the declaration of invalidity of the impugned
provisions for a specified period; (c) whether the customary
law
rules of succession should be developed in accordance with the
“spirit, purport and objects of the Bill of Rights”,
[129]
or (d) whether to replace the impugned provisions with a modified
section 1
of the
Intestate Succession Act or
with some other order.
[106]
The question of polygynous marriages and whether or not the order by
this Court should accommodate them must also be considered.
These
are complex issues and that is why it is regrettable that the
opportunity given to the Chairperson of the House of
Traditional
Leaders by the Chief Justice to provide their view did not receive a
positive response.
Declaration
of constitutional invalidity and suspension
[107]
In the circumstances of this case it will not suffice for the Court
to simply strike down the impugned provisions.  There
is a
substantial number of people whose lives are governed by customary
law and their affairs will need to be regulated in terms
of an
appropriate norm.  It will therefore be necessary to formulate
an order that incorporates appropriate measures to replace
the
impugned framework in order to avoid an unacceptable lacuna which
would be to the disadvantage of those subject to customary
law.
[108]
Nor can this Court afford to suspend the declaration of invalidity to
a future date and leave the current legal regime in
place pending
rectification by the legislature.  The rights implicated are
important; those subject to the impugned provisions
should not be
made to wait much longer to be relieved of the burden of inequality
and unfair discrimination that flows from
section 23
and its related
provisions.  That would mean that the benefits of the
Constitution would continue to be withheld from those
who have been
deprived of them for so long.
Development
of the customary law and the notion of the “living”
customary law
[109]
I have
found that the primogeniture rule as applied to inheritance in
customary law is inconsistent with the constitutional guarantee
of
equality.  The question whether the Court was in a position to
develop that rule in a manner which would “promote
the spirit,
purport and objects of the Bill of Rights”
[130]
evoked considerable discussion during argument.  In order to do
so, the Court would first have to determine the true content
of
customary law as it is today and to give effect to it in its order.
There is however insufficient evidence and material
to enable
the Court to do this.  The difficulty lies not so much in the
acceptance of the notion of “living” customary
law, as
distinct from official customary law, but in determining its content
and testing it, as the Court should, against the provisions
of the
Bill of Rights.
[131]
[110]
It was
suggested in argument that if the Court is not in a position to
develop the rules of customary law in this case, it should
allow for
flexibility in order to facilitate the development of the law.  The
import of this was that since customary law
is inherently flexible
with the ability to permit compromise settlements,
[132]
courts should introduce into the system those constitutional
principles that the official system of succession violates.  It

was suggested that this could be done by using the exceptions in the
implementation of the primogeniture rule which do occur in
the actual
administration of intestate succession as the applicable rule for
customary law succession in order to avoid unfair
discrimination and
the violation of the dignity of the individuals affected by it.
Those exceptions would, according to this
view, constitute the
“living” customary law which should be implemented
instead of official customary law.
[111]
There is
much to be said for the above approach.  I consider, however,
that it would be inappropriate to adopt it as the remedy
in this
case.  What it amounts to is advocacy for a case by case
development as the best option.  It is true that there
have been
signs of evolution in court decisions in recent times, where some
courts have shown a willingness to recognise changes
in customary
law.
[133]
In
Mabena
v Letsoalo
,
[134]
for instance, it was accepted that a principle of living, actually
observed law had to be recognised by the court as it would constitute

a development in accordance with the “spirit, purport and
objects” of the Bill of Rights contained in the interim
Constitution.
[135]
[112]
The problem
with development by the courts on a case by case basis is that
changes will be very slow; uncertainties regarding the
real rules of
customary law will be prolonged and there may well be different
solutions to similar problems.  The lack of
uniformity and the
uncertainties it causes is obvious if one has regard to the fact that
in some cases, courts have applied the
common law system of
devolution of intestate estates.
[136]
Magistrates and courts responsible for the administration of
intestate estates would also tend to adhere to formal rules
of
customary law as laid down in decisions such as
Mthembu
[137]
and its predecessors.
[113]
I accordingly have serious doubts that leaving the vexed position of
customary law of succession to the courts to develop
piecemeal would
be sufficient to guarantee the constitutional protection of the
rights of women and children in the devolution
of intestate estates.
What is required, in my view, is more direct action to safeguard the
important rights that have been
identified.
[114]
The Court was urged not to defer to the legislature to make the
necessary reforms because of the delays experienced so far
in
producing appropriate legislation.  This was an invitation to
the Court to make a definitive order that would solve the
problem
once and for all.  That there have been delays is true and that
is a concern this Court cannot ignore.  The first
proposal by
the Law Reform Commission for legislation in this field was made more
than six years ago.  According to the Minister,
the need for
broad consultation before any Bill was finalised has been the cause
of the delays.  Moreover, he was unable to
give any guarantee as
to when the Bill would become law.
[115]
I consider,
nevertheless, that the legislature is in the best position to deal
with the situation and to safeguard the rights that
have been
violated by the impugned provisions.  It is the appropriate
forum to make the adjustments needed to rectify the
defects
identified in the customary law of succession.
[138]
What should however be borne in mind is that the task of preventing
ongoing violations of human rights is urgent.  The
rights
involved are very important, implicating the foundational values of
our Constitution.  The victims of the delays in
rectifying the
defects in the legal system are those who are among the most
vulnerable of our society.
[116]
The Court’s
task is to facilitate the cleansing of the statute book of
legislation so deeply rooted in our unjust past,
[139]
while preventing undue hardship and dislocation.  The Court must
accordingly fashion an effective and comprehensive order
that will be
operative until appropriate legislation is put in place.  Any
order by this Court should be regarded by the legislature
as an
interim measure.  It would be undesirable if the order were to
be regarded as a permanent fixture of the customary law
of
succession.
The
appropriateness of substituting the
Intestate Succession Act
[117
]
The effect
of the High Court orders, in both the
Bhe
and
Shibi
cases is that a modified form of
section 1
of the
Intestate
Succession Act
[140]
should
be put in place as a substitute for the impugned legislative
framework pending appropriate legislation by Parliament.
Reservations
were however expressed in this Court about whether
the
Intestate Succession Act was
the correct mechanism for this
purpose.  It will be useful at this stage to give a broad
indication of the effect of the detailed
provisions of
section 1
of
the
Intestate Succession Act.  The
section provides for the
surviving spouse to inherit in the absence of descendants,
[141]
for descendants to inherit in the absence of a surviving spouse
[142]
and for the surviving spouse to inherit the share of a single child
(subject to a minimum if there is too little in the estate)
if the
deceased is survived by both the surviving spouse and
descendants.
[143]
Where the deceased is survived neither by descendants nor by a
surviving spouse, the parents of the deceased and, in some

circumstances, the parents’ descendants and blood relations
will benefit.  It must be noted that the
Intestate Succession
Act makes
provision for a single surviving spouse only and that
extra-marital children are included under the term
“descendants”.
[144]
[118]
The
objection against resorting to the
Intestate Succession Act was
that
its provisions would be inadequate to cater for the various factual
situations that arise in customary law succession as the
Intestate
Succession Act was
premised on the nuclear family model.  The
suggestion was that it would, for instance, not naturally accommodate
extended
families which are a feature of the customary environment,
nor would it have regard to polygynous unions.
[145]
It was contended that the provisions of the
Intestate
Succession Act would
also have a negative impact upon vulnerable
groups such as poor rural women.
[119]
A further concern was the fear that the utilisation of the
Intestate
Succession Act would
amount to an obliteration of the customary law
of succession, a development that would be undesirable, having regard
to the status
customary law enjoys under the Constitution.  In
considering the views above, I must also have regard to the proposals
contained
in the report of the Law Reform Commission which are set
out below.
The
proposals of the South African Law Reform Commission
[120]
The Law
Reform Commission’s proposals in this regard are based on the
assumption that the
Intestate Succession Act, suitably
adjusted,
[146]
is capable of accommodating much of the customary law of succession.
In addition, the proposals suggest changes to other
statutes, apart
from the Act and the
Intestate Succession Act, that
have an impact on
succession as a whole.
[147]
What the proposals amount to is that provisions of other legislation
should be taken into account, together with the
Intestate Succession
Act, in
fashioning appropriate legislation to replace the current
legislative framework.
[148]
The report recommends that the provisions should ensure that spouses
and children should enjoy preference over other dependants
of the
deceased.  It further recommends the extension of the
application of the
Intestate Succession Act to
enable it to
accommodate categories of Africans who are presently subject to the
customary law of succession.  This however
does not extend to
persons who are not subject to customary law, namely: (a) parties who
entered into a civil marriage; (b) those
persons who entered into a
customary union after the coming into operation of the Recognition of
Customary Marriages Act 120 of
1998 (the Recognition Act); and (c)
those who have changed their matrimonial property regime in terms of
section 7(4) of the Recognition
Act, and (d) persons who made a
will.
[149]
[121]
It should be noted that the recommendations of the Law Reform
Commission are meant for the consideration of the legislature.

However, in fashioning an appropriate order for this case, I
have had due regard to the objections against the replacement
of the
impugned provisions with the
Intestate Succession Act as
well as to
the Law Reform Commission’s proposals.
Polygynous
unions
[122]
In light of the wider relief requested by the South African Human
Rights Commission and the Women’s Legal Centre Trust,
the
relief given by the High Courts in both the
Bhe
and the
Shibi
cases falls to be reconsidered.  It is now necessary to deal
also with the applicability of the order by this Court to polygynous

marriages.
[123]
Although the Court must be circumspect in taking decisions on issues
when those affected have not been heard, the exclusion
of spouses in
polygynous unions from the order would prolong the inequalities
suffered by those subject to the customary law of
succession.  An
order that best fits the circumstances must accordingly be made to
protect rights.
[124]
An appropriate order will therefore be one that protects partners to
monogamous and polygynous customary marriages as well
as unmarried
women and their respective children.  This will ensure that
their interests are protected until Parliament enacts
a comprehensive
scheme that will reflect the necessary development of the customary
law of succession.  It must, however,
be clear that no
pronouncement is made in this judgment on the constitutional validity
of polygynous unions.  In order to
avoid possible inequality
between the houses in such unions, the estate should devolve in such
a way that persons in the same class
or category should receive an
equal share
[125]
The
advantage of using
section 1
of the
Intestate Succession Act as
the
basic mechanism for determining the content of the interim regime is
that extra-marital children, women who are survivors in
monogamous
unions, unmarried women and all children would not be discriminated
against.
[150]
However,
as has been pointed out, the section provides for only one surviving
spouse and would need to be tailored to accommodate
situations where
there is more than one surviving spouse because the deceased was
party to a polygynous union.  This can be
done by ensuring that
section 1(1)(c)(i)
[151]
and
section 1(4)(f)
[152]
of the
Intestate Succession Act which
are concerned with providing for a
child’s share of the single surviving spouse and its
calculation should apply with three
qualifications if the deceased is
survived by more than one spouse.  First, a child’s share
would be determined by having
regard to the fact that there is more
than one surviving spouse.  Second, provision should be made for
each surviving spouse
to inherit the minimum if there is not enough
in the estate.  Third, the order must take into account the
possibility that
the estate may not be enough to provide the
prescribed minimum to each of the surviving spouses.  In that
event, all the surviving
spouses should share what is in the estate
equally.  These considerations will be reflected in the order.
Retrospectivity
[126]
Section 172(1) of the Constitution empowers this Court, upon a
declaration of invalidity to make any order that is just and

equitable, including an order to limit the retrospective effect of
that invalidity.  The statutory provisions and customary
law
rules that have been found to be inconsistent with the Constitution
are so egregious that an order that renders the declaration
fully
prospective cannot be justified.  On the other hand, it seems to
me that unqualified retrospectivity would be unfair
because it could
result in all transfers of ownership that have taken place over a
considerably long time being reconsidered.
However, an order
which exempts all completed transfers from the provisions of the
Constitution would also not accord with justice
or equity.  It
would make it impossible to re-open a transaction even where the heir
who received transfer knew at the time
that the provisions which
purport to benefit him or her were to be challenged in a court.  That
was the position in the
Shibi
case.
[127]
To limit the order of retrospectivity to cases in which transfer of
ownership has not yet been completed would enable an heir
to avoid
the consequences of any declaration of invalidity by going ahead with
transfer as speedily as possible.  What will
accordingly be just
and equitable is to limit the retrospectivity of the order so that
the declaration of invalidity does not apply
to any completed
transfer to an heir who is bona fide in the sense of not being aware
that the constitutional validity of the provision
in question was
being challenged.  It is fair and just that all transfers of
ownership obtained by an heir who was on notice
ought not to be
exempted.
[128]
The next issue to be decided is whether it is just and equitable that
the order of invalidity should date back to 4 February
1997 when the
Constitution became operative.  The question is relevant because
the deceased in
Shibi
died during 1995, while the interim
Constitution was in force.  The impugned provisions in this case
became inconsistent with
the interim Constitution in 1994 when it
came into force.  It would accordingly be neither just nor
equitable for affected
women and extra-marital children to benefit
from a declaration of invalidity only if the deceased had died after
4 February 1997,
but not if the deceased had died after the interim
Constitution had come into force but before the final Constitution
was operative.
I am accordingly of the view that the
declaration of invalidity must be retrospective to 27 April 1994 in
order to avoid patent
injustice.
[129]
To sum up, the declaration of invalidity must be made retrospective
to 27 April 1994.  It must however not apply to any
completed
transfer of ownership to an heir who had no notice of a challenge to
the legal validity of the statutory provisions and
the customary law
rule in question.
Furthermore, anything done
pursuant to the winding up of an estate in terms of the Act, other
than the identification of heirs in
a manner inconsistent with this
judgment, shall not be invalidated by the order of invalidity in
respect of section 23 of the Act
and its regulations.
The
facilitation of agreements
[130]
The order made in this case must not be understood to mean that the
relevant provisions of the
Intestate Succession Act are
fixed rules
that must be applied regardless of any agreement by all interested
parties that the estate should devolve in a different
way.  The
spontaneous development of customary law could continue to be
hampered if this were to happen.  The
Intestate Succession Act
does
not preclude an estate devolving in accordance with an agreement
reached among all interested parties but in a way that is consistent

with its provisions.  There is, for example, nothing to prevent
an agreement being concluded between both surviving wives
to the
effect that one of them would inherit all the deceased’s
immovable property, provided that the children’s interests
are
not affected by the agreement.  Having regard to the vulnerable
position in which some of the surviving family members
may find
themselves, care must be taken that such agreements are genuine and
not the result of the exploitation of the weaker members
of the
family by the strong.  In this regard, a special duty rests on
the Master of the High Court, the magistrates and other
officials
responsible for the administration of estates to ensure that no one
is prejudiced in the discussions leading to the purported
agreements.
The
effect of this judgment
[131]
It needs to
be emphasised that this judgment is concerned with intestate deceased
estates which were governed by section 23 of the
Act only.  All
such estates will henceforth be administered in terms of this
judgment.  The question arises as to the
role of the Master of
the High Court, magistrates and other officials appointed by the
Master.  Section 4(1A) of the Administration
of Estates Act
[153]
provides that the Master shall not have jurisdiction over estates
that devolve in terms of customary law.
[154]
The effect of this judgment is to bring about a change in this
respect.  The Master is no longer precluded from dealing
with
intestate deceased estates that were formerly governed by section 23
of the Act since they will now fall under the terms of
this judgment
and not customary law.
[132]
The
procedure under the Administration of Estates Act is somewhat
different to the procedure under the Act and its regulations.

The Administration of Estates Act
was
recently amended to permit the Master to designate posts in the
Department of Justice to exercise the powers and perform the
duties
delegated to them on behalf of, and under the direction of the
Master.
[155]
The same
provision requires service points to be established where these
officials may exercise the powers referred to.  The
Court has
not been informed what steps have been taken by the Master in terms
of these provisions.  Section 18(3) of the Administration
of
Estates Act (somewhat similarly to section 23(6) of the Act) permits
the Master to dispense with the appointment of an executor
if the
estate does not exceed a stipulated amount (currently set at
R125,000).
[156]
Section 18(3) also permits the Master to “give directions as to
the manner in which any such estate shall be liquidated
and
distributed.”  The terms of this provision are broad
enough to permit the Master to hold an inquiry to facilitate
the
liquidation of the estate as is currently the practice under
regulation 3.  In the circumstances, I do not think it
inappropriate
to order that in future all new estates shall be wound
up in terms of the provisions of the Administration of Estates Act.

However, in case such an order causes dislocation or harm, I include
in the order a provision permitting any interested person
to approach
this Court on an urgent basis, in the event of serious administrative
or practical problems being experienced as a
result of this order.
[133]
It will be necessary, however, that estates that
are currently being wound up under section 23 of the Act and its
regulations, continue
to be so administered to avoid dislocation.
The order will accordingly provide that the provisions of the Act and
its regulations
shall continue to be applied to those estates in the
process of being wound up.  All estates that fall to be wound up
after
the date of this judgment shall be dealt with in terms of the
provisions of the Administration of Estates Act.
[134]
Finally, a word or two about the High Court
judgments in the
Bhe
and
Shibi
cases.  Both dealt extensively with the difficult issues which
were the subject of the two applications and were of great
assistance
to this Court.  It will however be necessary to set aside the
two High Court orders in order to accommodate the
broadened ambit of
the issues canvassed as a result of the application to this Court by
the South African Human Rights Commission
and the Women’s Legal
Centre Trust.
Costs
[135]
No costs have been asked for in this matter and there will
accordingly be no order for costs made.
The
Order
[136]
The following order is accordingly made:
1. The orders of:
(a)
the Cape High Court in the matter of
Bhe and Others v The
Magistrate, Khayelitsha and Others
, and
(b)
the Pretoria High Court in the matter of
Charlotte Shibi v
Mantabeni Freddy Sithole and Others
are hereby set aside.
2. Section 23 of the
Black Administration Act 38 of 1927 is declared to be inconsistent
with the Constitution and invalid.
3. The Regulations for
the Administration and Distribution of the Estates of Deceased Blacks
(R200)  published in Government
Gazette No. 10601 dated 6
February 1987, as amended, are declared to be invalid.
4. The rule of male
primogeniture as it applies in customary law to the inheritance of
property is declared to be inconsistent with
the Constitution and
invalid to the extent that it excludes or hinders women and
extra-marital children from inheriting property.
5.
Section 1(4)(b)
of the
Intestate Succession Act 81 of 1987
is declared to be inconsistent
with the Constitution and invalid.
6. Subject to paragraph 7
of this order,
section 1
of the
Intestate Succession Act 81 of 1987
applies to the intestate deceased estates that would formerly have
been governed by section 23 of the Black Administration Act
38 of
1927.
7. In the application of
sections 1(1)(c)(i)
and
1
(4)(f) of the
Intestate Succession Act 81 of
1987
to the estate of a deceased person who is survived by more than
one spouse:
(a)
A child’s share in relation to the intestate estate of the
deceased, shall be calculated by dividing the monetary value
of the
estate by a number equal to the number of the children of the
deceased who have either survived or predeceased such deceased
person
but are survived by their descendants, plus the number of spouses who
have survived such deceased;
(b)
Each surviving spouse shall inherit a child’s share of the
intestate estate or so much of the intestate estate as does
not
exceed in value the amount fixed from time to time by the Minister
for Justice and Constitutional Development by notice in
the Gazette,
whichever is the greater; and
(c)
Notwithstanding the provisions of sub-paragraph (b) above, where the
assets in the estate are not sufficient to provide each
spouse with
the amount fixed by the Minister, the estate shall be equally divided
between the surviving spouses.
8.
In terms of section 172(1)(b) of the
Constitution, the orders in paragraphs 2, 3, 4, 5 and 6 of this
order, shall not invalidate
the transfer of ownership prior to the
date of this order of any property pursuant to the distribution of an
estate in terms of
section 23 of the Black Administration Act 38 of
1927 and its regulations, unless it is established that when such
transfer was
taken, the transferee was on notice that the property in
question was subject to a legal challenge on the grounds upon which
the
applicants brought challenges in this case.
9.
In terms of section 172(1)(b) of the
Constitution, it is declared that any estate that is currently being
administered in terms
of section 23 of the Black Administration Act
38 of 1927 and its regulations shall continue to be so administered,
despite the
provisions of paragraphs 2 and 3 of this order, but
subject to paragraphs 4, 5 and 6 of this order, until it is finally
wound up.
10. Any interested person
may approach this Court for a variation of this order in the event of
serious administrative or practical
problems being experienced.
11. (a) In the matter of
Bhe and Others v The Magistrate, Khayelitsha and Others:
(i) it is declared that
Nonkululeko Bhe and Anelisa Bhe are the sole heirs of the deceased
estate of Vuyo Elius Mgolombane, registered
at Khayelitsha
Magistrates’ Court under reference no 7/1/2-484/2002;
(ii) Maboyisi Nelson
Mgolombane is ordered to sign all documents and to take all other
steps reasonably required of him to transfer
the entire residue of
the said estate to Nonkululeko Bhe and Anelisa Bhe in equal shares;
(iii) The Magistrate,
Khayelitsha, is ordered to do everything required to give effect to
the provisions of this judgment.
(b)
In the matter of
Charlotte Shibi v Mantabeni Freddy Sithole and
Others:
(i) it is declared that
Charlotte Shibi is the sole heir of the deceased estate of Daniel
Solomon Sithole registered at Pretoria
North Magistrate District of
Wonderboom under the reference no 7/1/2-410/95;
(ii) Mantabeni Freddy
Sithole is ordered to pay Charlotte Shibi the sum of R11,505.50;
(iii) Jerry Sithole is
ordered to pay Charlotte Shibi the sum of R11,468.02.
Chaskalson
CJ, Madala J, Mokgoro J, Moseneke J, O’Regan J, Sachs J,
Skweyiya J, Van der Westhuizen J and Yacoob J concur in
the judgment
of concur in the judgment of Langa DCJ.
NGCOBO
J:
Introduction
[137]
This
trilogy of cases raises two important questions concerning the
application of indigenous law of succession.  The first
question
relates to the constitutionality of section 23 of the Black
Administration Act of 1927 (the Act)
[157]
read together with the Regulations for the Administration and
Distribution of Estates of Deceased Blacks (the regulations)
[158]
framed under the Act and read further with
section 1(4)(b)
of the
Intestate Succession Act
81
of 1987
.
[159]
These enactments determine the circumstances under which indigenous
law of succession is applicable to African people.
The second
question concerns the constitutional validity of the indigenous law
principle of male primogeniture.
[138]
In substance, the impugned provisions put in place a succession
scheme that applies only to African people and determines
when
indigenous law of succession applies to them.  The scheme was
challenged on the grounds that it violates the right to
equality and
the right to human dignity.  The indigenous law of succession
which the scheme makes applicable involves the
principle of male
primogeniture.  In terms of this principle, the eldest of the
male issue succeeds to the deceased family
head.  This principle
was challenged on the grounds that it discriminates against women and
other children of the deceased.
[139]
I have read the judgment prepared by the Deputy Chief Justice.
Regrettably, I am unable to concur in that judgment.
He
concludes that (a) it is inappropriate to develop the rule of male
primogeniture; and (b) the
Intestate Succession Act should
, in the
interim, govern all the estates that were previously governed by
section 23 of the Act.  I do not agree.  In
my view, the
rule of male primogeniture should be developed in order to bring it
in line with the rights in the Bill of Rights.
Pending the
enactment of the legislation to determine when indigenous law is
applicable, both indigenous law of succession and
the
Intestate
Succession Act should
apply subject to the Constitution and the
requirements of fairness, justice and equity, bearing in mind the
interests of minor
children and other dependants of the deceased
family head.
[140]
The factual background relating to these cases has been set out in
the main judgment.  It need not be repeated here.
For the
purposes of this judgment, it is sufficient to say that these cases
concern the rights of daughters and sisters to a deceased
African
male to succeed such a deceased male person.  In the
Bhe
matter, the right is asserted by the two minor daughters of the
deceased.  In the
Shibi
matter, that right is asserted by
the sister of the deceased.  These cases therefore do not
concern the right of widows to
succeed to their deceased husbands.
The
constitutional validity of section 23 of the Act, regulations and
section 1(4)(b)
of the
Intestate Succession Act
[141
]
Section 23
must be understood in the context of the scheme of the Act.  As
its name suggests, the Act is aimed at regulating all aspects
of life
of African people.  The Act was one of the pillars of the
apartheid legal order, and together with other racially
based
statutes, it was part of the edifice of the apartheid legal order.
The Act has been described as “an egregious
apartheid law”
that “anachronistically has survived our transition to a
non-racial democracy.”
[160]
[142]
Section 23 deals with succession and inheritance to estates of
deceased African people.  It prescribes circumstances
under
which the property of deceased African people may devolve according
to “Black law and custom”.  In addition,
it makes
provision for the State President to make regulations dealing with
matters relating to inheritance and succession to estates
of deceased
African people.  It regulates the manner in which estates of
deceased African people may be administered and distributed;
defines
the rights of widows in regard to the use and occupation of certain
land; and prescribes tables of succession.  The
regulations were
in effect choice of law rules which determined when indigenous law
was applicable to estates of deceased African
people.  Section
1(4)(b) of
Intestate Succession Act excluded
estates of African
people that fall within the purview of section 23 of the Act from the
scope of the
Intestate Succession Act.
[143
]
The unconstitutionality of section 23 of the Act can hardly be
disputed.  The Act is manifestly racist in its purpose and

effect.  It discriminates on the grounds of race and colour.
Section 23 of the Act, the regulations and
section 1(4)(b)
of the
Intestate Succession Act are
interlinked.  They stand or fall
together.  Their combined effect is to put in place a succession
scheme which discriminates
on the basis of race and colour applying
only to African people.  The limitation that this scheme imposes
on the right of
African people to equality can hardly be said to be
reasonable and justifiable in an open and democratic society based on
human
dignity, equality and freedom.  The discrimination it
perpetrates is an affront to the dignity of those that it governs.
[144]
Section 23
is therefore inconsistent with the right to equality
guaranteed in
section 9(3)
as well as the right to dignity protected
by section 10 of the Constitution.  The regulations and
section
1(4)(b)
of the
Intestate Succession Act must
suffer the same fate.
[145]
The High Court only declared invalid section 23(10)(a), (c) and (e)
of the Act, regulation 2(e) and
section 1(4)(b)
of the
Intestate
Succession Act.  In
my view, the whole of
section 23
must go.
The same goes for the regulations.  To this extent, I concur in
the judgment of the Deputy Chief Justice.
[146]
It will be
recalled that in terms of the regulations, in particular,
regulation
2(e)
, indigenous law of succession is made applicable to intestate
estates that do not fall under
regulation 2(b)
to (d).
[161]
And the central feature of indigenous law of succession is the
principle of male primogeniture.  This is a rule that
was
applied by the magistrates in the
Bhe
and
Shibi
matters.
The constitutionality of this rule was challenged too.  It will
therefore be convenient to consider the constitutional
validity of
the rule before considering the remedy that is appropriate in these
cases.
The
constitutional challenge to the principle of male primogeniture
[147]
This rule was challenged on the basis that it discriminates unfairly
on the grounds of gender, age and birth.  In order
to evaluate
the cogency of the challenge, it is necessary to understand the
nature of indigenous law and, in particular, the concept
of
succession in indigenous law.  All of this provides the context
in which the constitutional validity of the rule must be
determined.
But first, what is the place of indigenous law in our constitutional
democracy?
Place
of indigenous law in our democracy
[148]
Our
Constitution recognises indigenous law as part of our law.  Thus
section 211(3) enjoins courts to “apply customary
law when that
law is applicable, subject to the Constitution and any legislation
that specifically deals with customary law.”
The
Constitution accords it the same status that other laws enjoy under
it.  In addition, courts are required to develop indigenous
law
so as to bring it in line with the rights in the Bills of
Rights.
[162]
While in
the past indigenous law was seen through the common law lens, it must
now be seen as part of our law and must be
considered on its own
terms and “not through the prism of common law.”
[163]
Like all laws, indigenous law now derives its force from the
Constitution.
[164]
Its
validity must now be determined by reference not to common law but to
the Constitution.
[165]
[149]
But how do we ascertain the applicable rule of indigenous law?
How
to ascertain indigenous law?
[150]
There are
at least three ways in which indigenous law may be established.
In the first place, a court may take judicial notice
of it.
This can only happen where it can readily be ascertained with
sufficient certainty.
Section 1(1)
of the
Law of Evidence
Amendment Act 45 of 1988
says so.
[166]
Where it cannot be readily ascertained, expert evidence may be
adduced to establish it.
[167]
Finally, a court may consult text books and case law.
[168]
[151]
Caution,
however, must be exercised in relying on case law and text
books.
[169]
In
Alexkor
[170]
we emphasised the need for caution and said:
“
Although a number
of text books exist and there is a considerable body of precedent,
courts today have to bear in mind the extent
to which indigenous law
in the pre-democratic period was influenced by the political,
administrative and judicial context in which
it was applied.
Bennett points out that, although customary law is supposed to
develop spontaneously in a given jural community,
during the colonial
and apartheid era it became alienated from its community origins.
The result was that the term ‘customary
law’ emerged with
three quite different meanings: the official body of law employed in
the courts and by the administration
(which, he points out, diverges
most markedly from actual social practice); the law used by academics
for teaching purposes; and
the law actually lived by the
people.”
[171]
[152]
It is now
generally accepted that there are three forms of indigenous law: (a)
that practised in the community; (b) that found in
statutes, case law
or textbooks on indigenous law (official); and (c) academic law that
is used for teaching purposes.
[172]
All of them differ.  This makes it difficult to identify the
true indigenous law.  The evolving nature of indigenous
law only
compounds the difficulty of identifying indigenous law.
The
evolving nature of indigenous law
[153]
Indigenous law is a dynamic system of law which is continually
evolving to meet the changing circumstances of the community
in which
it operates.  It is not a fixed body of classified rules.
As we pointed out in
Alexkor
:
“
In applying
indigenous law, it is important to bear in mind that, unlike common
law, indigenous law is not written.  It is
a system of law that
was known to the community, practised and passed on from generation
to generation.  It is a system of
law that has its own values
and norms.  Throughout its history it has evolved and developed
to meet the changing needs of
the community.  And it will
continue to evolve within the context of its values and norms
consistently with the Constitution.”
[173]
(footnote omitted)
[154]
The evolving nature of indigenous law and the fact that it is
unwritten have resulted in the difficulty of ascertaining the
true
indigenous law as practised in the community.  This law is
sometimes referred to as living indigenous law.  Statutes,

textbooks and case law, as a result, may no longer reflect the living
law.  What is more, abuses of indigenous law are at
times
construed as a true reflection of indigenous law, and these abuses
tend to distort the law and undermine its value.
The difficulty
is one of identifying the living indigenous law and separating it
from its distorted version.\
[155]
In these
cases, no attempt was made to ascertain the living indigenous law of
succession.  These matters were approached on
the footing that
indigenous law of succession is that which is described in the
textbooks and case law.  Whether that is the
proper approach to
a system of law that is dynamic and evolving is not free from doubt.
However, in both the
Bhe
and
Shibi
matters,
the magistrates concerned applied the indigenous law of succession as
described in
Mthembu
v Letsela
[174]
and textbooks.  It is that law which we must evaluate in these
cases.  But first, it is necessary to understand the concept
of
succession in indigenous law.
The
concept of succession in indigenous law
[156]
The concept
of succession in indigenous law must be understood in the context of
indigenous law itself.  When dealing with
indigenous law every
attempt should be made to avoid the tendency of construing indigenous
law concepts in the light of common
law concepts or concepts foreign
to indigenous law.  There are obvious dangers in such an
approach.  These two systems
of law developed in two different
situations, under different cultures and in response to different
conditions.
[175]
In
Alexkor
,
this Court approved the following passage by the Privy Council in
Amodu
Tijani v The Secretary, Southern Nigeria
:
[176]
“
Their Lordships
make the preliminary observation that in interpreting the native
title to land, not only in Southern Nigeria, but
other parts of the
British Empire, much caution is essential.  There is a tendency,
operating at times unconsciously, to render
that title conceptually
in terms which are appropriate only to systems which have grown up
under English law.  But this tendency
has to be held in check
closely.  As a rule, in the various systems of native
jurisprudence throughout the Empire, there is
no such full division
between property and possession as English lawyers are familiar
with.  A very usual form of native title
is that of a
usufractuary right, which is a mere qualification of or burden on the
radical or final title of the Sovereign where
that exists . . . . In
India, as in Southern Nigeria, there is yet another feature of the
fundamental nature of the title to land
which must be borne in mind.
The title, such as it is, may not be that of the individual, as in
this country it nearly always
is in some form, but may be that of a
community.  Such a community may have the possessory title to
the common enjoyment of
a usufruct, with customs under which its
individual members are admitted to enjoyment, and even to a right of
transmitting the
individual enjoyment as members by assignment inter
vivos or by succession.  To ascertain how far this latter
development
of right has progressed involves the study of the history
of the particular community and its usages in each case.
Abstract
principles fashioned a priori are of but little assistance,
and are as often as not misleading.”
[177]
[157]
However, because of our legal background
and, in particular, the fact that indigenous law was previously not
allowed to develop
in the same way as other systems of law, the
tendency may at times be unavoidable.  But even then, common law
concepts should
be used with great caution in indigenous law.
[158]
In common law, concepts of “succession” and “inheritance”
are sometimes used interchangeably.
However, in the context of
indigenous law, it is necessary to distinguish these concepts.
As Bennett explains:
“
The words
‘succession’ and ‘inheritance’ are often used
as synonyms, but for analytical purposes they should
be
distinguished.  The latter denotes transmission of rights to
property only, and in those societies emphasizing material
wealth
(which will also have a highly evolved notion of property)
inheritance predominates.  Succession is more general; it

implies the transmission of all the rights, duties, powers, and
privileges associated with status.  So in the case of customary

law one should speak of a process of succession rather than
inheritance.”
[178
[159]
The significance of distinguishing between “succession”
and “inheritance” appears from the following
passage by
Himonga:
“
Succession refers
to the process of succeeding to the estate, office or status of the
deceased person, while inheritance refers
to the process of
inheriting the property of the deceased.  The person selected as
successor does not, in Zambian systems
of succession, as in many
other African systems, inherit all the property, although he may have
the power to administer the estate
and a right to the larger portion
of it.  Otherwise, the right of inheritance belongs to a much
wider group entitled to inherit
from the deceased according to the
operative system of kinship.”
[179]
(footnotes omitted)
[160]
Inheritance
of property is not always linked to succession to status.
[180]
The successor does not inherit the family property.  He steps
into the shoes of the deceased by taking over the control
of the
family property.  That is not to say that the concept of
inheritance was unknown.  It is not necessary in this
case to
determine the circumstances in which inheritance to property
occurred.  Indigenous law of succession is therefore
not solely
concerned with the transfer of rights in property.  The transfer
of status and roles traditionally form an essential
component of
succession.
[181]
[161]
It is in this context that the terms “succession” and
“inheritance” must be understood.  But
this must be
understood against the background of the origin, nature and purpose
of the indigenous law of succession.
The
social context in which the law developed
[162]
To
understand the concept of succession in indigenous law, it is
instructive to look at the social context in which it originated.

The rules of indigenous law, in particular, the rule of
primogeniture, have their origin in traditional society.  This
society
was based on a subsistence agricultural economy.  At the
heart of the African traditional structure was the family unit.

The family unit was the focus of social concern.  Individual
interests were submerged in the common weal.
[182]
The system emphasised duties and responsibilities as opposed to
rights.  At the head of the family there was a patriarch
or a
senior male who exercised control over the family property and
members of the family.
[183]
The family organization was self-sufficient.  Within this
system, the position of each member of the family was based
on an
equitable division of labour.
[163]
A sense of
community prevailed from which developed an elaborate system of
reciprocal duties and obligations among the family members.

This is manifest in the concept of
ubuntu
—
umuntu
ngumuntu ngabantu
[184]
— a dominant value in African traditional culture.  This
concept encapsulates communality and the inter-dependence of
the
members of a community.  As Langa DCJ put it, it is a culture
which “regulates the exercise of rights by the emphasis
it lays
on sharing and co-responsibility and the mutual enjoyment of
rights”.
[185]
It
is this system of reciprocal duties and obligations that ensured that
every family member had access to basic necessities
of life such as
food, clothing, shelter and healthcare.
[164]
As Ndulo explains:
“
Pre-colonial
African society in which these rules were developed, was based on an
agricultural subsistence economy characterised
by self-sufficient
joint family organisation.  In general a woman’s position
in traditional society was based on an
equitable division of labour.
Women were primarily responsible for planting, weeding and harvesting
while men performed certain
heavy tasks such as clearing the bush and
farming.  Most Africans were born, grew, married and died
without ever leaving the
region in which their tribe lived.  A
sense of community prevailed from which developed an elaborate
customary law system
of reciprocal obligations between family
members.  For example, in most polygamous marriages each wife
represented a separate
unit of production.  Her husband had a
responsibility to give her land and equipment with which to farm and
provide her with
adequate shelter.  She in turn was expected to
feed herself and her children and, along with her co-wives, to
provide food
for her husband.  African traditions and customary
law served the needs of the tribal communities from which they
developed
and together the traditional practices and customary rules,
ensured that all members of the community had access to food,
clothing
and shelter.”
[186]
(footnotes omitted)
[165]
It was in this social context that the rule of succession in
indigenous law, in particular, the principle of male primogeniture,

developed and operated.  The head of the family had the
responsibility to provide food, shelter, clothing and basic
healthcare
for his dependants.  And upon his death, someone had
to take over this responsibility.
[166]
The obligation to care for family members is a vital and fundamental
value in African social system.  This value is now
entrenched in
the African (Banjul) Charter on Human and Peoples’ Rights.
The Preamble to the Charter urges Member States
to take “into
consideration the virtues of their historical traditions and values
of African civilization which should inspire
and characterize their
reflection on the concept of human and peoples’ rights”.
Article 27(1) provides that “every
individual shall have duties
towards his family and society”.  Article 29(1) provides
that an individual shall . . .
have the duty: “to preserve the
harmonious development of the family and to work for the cohesion and
respect of the family;
to respect his parents at all times, to
maintain them in case of need”.
The
nature and purpose of the law of succession
[167]
The
main purpose of succession was to keep the family property in the
family.
[187]
This was
essential to the preservation of the family unit.  Land and
livestock were the most important property.
They provided the
whole family with a source of livelihood and a place to live.
They constituted family property and as such
belonged to the family.
The father was the head of the family and he held the property on
behalf of and for the benefit of
the family.  He was responsible
for the maintenance of the family from the property.  Upon his
death, two objectives
had to be achieved: the perpetuation of the
family; and getting someone to take over the powers and duties of the
deceased family
head.  This was achieved by providing rules for
the transmission of the deceased’s rights and obligations to
the eldest
son.
[188]
[168]
The indigenous law of succession was concerned
with two objectives: (a) the perpetuation and the preservation of the
family; and
(b) getting someone to take over the duties and
obligations of the deceased family head.  The preservation of
the family required
the preservation of family property.  Family
property consisted mainly of land and livestock.  These were the
primary
sources of livelihood.  And these were viewed as the
property of the family and not that of each individual.  The
father
was viewed as the caretaker and manager of the common property
and thus the family head.  He was responsible for the
maintenance
of the family from the family property.  To enable
the successor to carry out the duties and obligations of the
deceased,
family property had to be kept in the family.
[169]
Indigenous
law preserved the family unit and its continuity by transferring
responsibilities of the family head to his senior male

descendant.
[189]
This
descendant is referred to as
indlalifa
or
successor
.
[190]
It is this male descendant who is equated with the heir under common
law.
[191]
But there
are important differences between the two.
Indlalifa
takes over the powers and responsibilities of the deceased family
head.  The powers relate to the right to control and administer

the family property on behalf of and for the benefit of the family
members.  The responsibilities relate to the duty to support
and
maintain all the dependants of the deceased.  This process is
metaphorically expressed by the phrase “the
indlalifa
steps into the shoes of the deceased family head and takes over
control of the family property”.
[170]
As
pointed out earlier, inheritance of property is not always linked to
succession to status.
[192]
In the context of indigenous law of succession it is perhaps more
accurate to speak of
indlalifa
as succeeding to the status of the deceased.  The status of the
deceased includes both his rights and obligations.
[193]
By providing
indlalifa
with all the powers necessary to continue managing family property,
the indigenous law of succession was designed to ensure the
welfare
of the surviving family.  Because
indlalifa
takes over the control of the family assets he is said to “inherit”
the family assets.  This description of the
process has resulted
in the distortion of the role of
indlalifa
and to regard him as the owner of the family assets.  Yet he is
no more than a person who holds the property on behalf of
the family,
with powers to administer it on behalf of and for the benefit of the
family.
[194]
He may be
said to “inherit” the right to control the family
property.
[171]
Succession
in the context of indigenous law must therefore be understood to
refer to the process of succeeding to the status of
the deceased.
Indlalifa
steps
into the shoes of the deceased.
[195]
Under indigenous law, the
indlalifa
does not inherit the property.  He succeeds to the status and
position of the deceased and thus acquires the same rights and

obligations that the deceased had.  This includes the power to
administer the family assets.  He holds the family property
on
behalf of other family members.
[196]
Once it is accepted that
indlalifa
holds
the family property on behalf of and for the benefit of all family
members, it cannot be said that he is the owner of the
family
property or that he inherits it in the sense understood in common
law.
[197]
[172]
The
perpetuation and preservation of the family unit and succession to
the position and status of the deceased therefore lie at
the heart of
succession in indigenous law.
[198]
Like his predecessor,
indlalifa
becomes the nominal owner of the family property, and is required to
administer it on behalf of and for the benefit of the family.
Indlalifa
acquires
the duty to maintain and support the widow and minor children.
[199]
In dealing with family property,
indlalifa
has to
consult the widow who had the right to restrain him from dissipating
family assets.
[200]
When there are insufficient assets to maintain the family,
indlalifa
had to use his own resources to provide maintenance.
[201]
[173]
The
underlying purpose of indigenous law of succession is therefore to
protect the family and ensure that the dependants of the
deceased are
looked after.  This is achieved by entrusting the responsibility
of seeing to the welfare of the deceased’s
dependants to one
person in return for the right to control the family property.
[202]
This system ensures that the dependants of the deceased as well as
the members of the family always have a home and resources
for their
maintenance.  This prevents homelessness.  Those who cannot
support themselves such as minor children have
someone to maintain
and support them.  The right of
indlalifa
to control and administer family property therefore goes with the
responsibility to look after the dependants of the deceased.

Mbatha, however, observes that “poverty and unemployment,
together with the failure to look after the interests of the
deceased’s
dependants have distorted the customary law of
succession, undermined its protective value to other family members
and forced members
to assume the heir’s responsibilities for
looking after the needy, the sick and the aged.”
[203]
[174]
Succession was based on the principle of
male primogeniture.  This principle entailed that the eldest
male descendant of the
deceased succeeded the deceased.  Women
and other male children were excluded.  However, other male
children could be
considered if the eldest was not available or
willing to succeed.
Indlalifa
invariably remained in the common home
to enable him to carry out his responsibilities.  The rationale
for the exclusion of
women was the fact that:
“
[W]
omen
were always regarded as persons who would eventually leave their
original family on marriage, after the payment of roora/ lobola,
to
join the family of their husbands.  It was reasoned that in
their new situation – a member of the husband’s
family –
they could not be heads of their original families, as they were more
likely to subordinate the interests of the
original family to those
of their new family.  It was therefore reasoned that in their
new situation they would not be able
to look after the original
family.”
[204]
[175]
However,
as pointed out earlier, indigenous law is dynamic and it is evolving,
adapting itself to the ever-changing circumstance
of the communities
in which it operates.  There are indications that the rule of
primogeniture has developed to allow women
to be appointed as heads
of the families.
[205]
It may well be that it has also developed to allow a woman to succeed
to a deceased family head.  However, this aspect
need not be
investigated in these cases.  No evidence was presented in this
regard.  The indigenous law that is in issue
in this case is the
official version, in particular, that which was described by the
Supreme Court of Appeal (SCA) in the case
of
Mthembu
.
[206]
The
rule of male primogeniture
[176]
Central to
the indigenous law of succession, therefore, is the rule of male
primogeniture.  It was described as follows by
the SCA in the
judgment of
Mthembu
:
[207]
“
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 is 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. . . . 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.”
[208]
[177]
Whether
this passage reflects the indigenous law of succession actually lived
by the people is doubtful.
[209]
However, that is the law that was applied in these cases.  In
the
Bhe
matter,
the deceased left no son and therefore in accordance with the rule of
male primogeniture his father was declared the successor.

Similarly, in the
Shibi
matter,
the deceased left no male descendants and his cousin was therefore
appointed sole
indlalifa
.
It is this rule that came under constitutional challenge.  And,
as pointed out earlier, it is this version of the rule
that we must
evaluate.
[178]
It is against this background that the constitutional challenge to
the rule of male primogeniture must be evaluated.
First, I deal
with the challenge based on discrimination against younger children.
The
challenge based on age and birth discrimination
[179]
The rule of primogeniture was challenged on the basis that it
discriminates unfairly against younger children of the deceased.

It will be recalled that only the eldest male succeeds.  The
rule, no doubt, limits the right of the younger children to succeed

to the status of the deceased.  The question is whether such
limitation is reasonable and justifiable under section 36(1)
of the
Constitution.  It is to that question that I now turn.
[180]
The primary purpose of the rule is to preserve the family unit and
ensure that upon the death of the family head, someone
takes over the
responsibilities of family head.  These responsibilities include
looking after the dependants of the deceased
and administering the
family property on behalf of and for the benefit of the entire
family.  Successorship also carries with
it the obligation to
remain in the family home for the purposes of discharging the
responsibilities associated with heirship.
From the family of
the deceased, someone must be found to assume these
responsibilities.  There may be several conflicting
demands.
But there is a need for certainty in order to facilitate the transfer
of the rights and obligations of the deceased
without lengthy
deliberations that may be caused by rival claims.  The
determination of the eldest male as the successor was
intended to
ensure certainty.
[181]
Entrusting
these responsibilities to the eldest child is consistent with the
role of the eldest child in relation to his siblings.
The
eldest child has a responsibility to look after his or her siblings.
The rule simply recognises this responsibility.
Furthermore,
one of the cherished values in African culture is respect for
elders.  Respect is supposed to inculcate good
habits such as
humility and courtesy.
[210]
The old are required to give guidance to the young.  This is the
basis of mentorship.
[182]
Two points need to be stressed here.  First,
indlalifa
does not inherit as that term is understood in common law.  What
happens is best conveyed by the expression that “
indlalifa
steps into the shoes of the family head.”  Far from
getting any property benefit, the
indlalifa
assumes the
responsibilities of a family head.  He is required to administer
the family property for the benefit of the entire
family.  As
pointed out earlier, where there are insufficient assets in the
family,
indlalifa
must use his own resources.  Second,
the selection of the eldest child must also be seen against the
flexibility of the rule
and the fact that he may be removed from
office.  If the eldest child considers that he cannot perform
the responsibilities,
the next eldest takes over the responsibility.
What is more, the
indlalifa
may be held to account to the
family, if he does not perform his responsibilities.  The family
may, if he fails to perform
his duties, remove him.
[183]
Having regard to all these factors, I am satisfied that the
limitation imposed by entrusting the responsibilities of a deceased

family head to the eldest child is reasonable and justifiable under
section 36(1).  It follows therefore that the rule is
not
inconsistent with section 9(3) of the Constitution by reason of
discrimination based on age and birth.  It now remains
to
consider the challenge based on gender discrimination.
Gender
discrimination
[184]
Under the rule of male primogeniture, only men can succeed to the
deceased family head.  The eldest son succeeds, failing
which,
the son’s eldest male descendants succeed.  If the eldest
son has predeceased the father, leaving no descendants,
the second
son succeeds.  If he too predeceased the father, leaving no
sons, it goes to the next son.  Where there are
no male
descendants, the father of the deceased succeeds.  This is what
happened in the
Bhe
matter.  If the father predeceased
the deceased, it will go to his sons and their dependants in their
order of birth.
The process therefore excludes women.
[185]
That the rule of male primogeniture limits the rights of women to be
considered for succession to the position and status
of the deceased
family head cannot be gainsaid.  They are excluded regardless of
their availability and suitability to acquit
themselves in that
position.  They are overlooked in circumstances where they may
be the only child of the deceased.
Nor does it matter that they
may have contributed to the acquisition or preservation of the family
property.
[186]
The question is whether such limitation is reasonable and justifiable
under section 36(1) of the Constitution.
Justification
[187]
The
importance of the right to equality in our constitutional democracy
cannot be gainsaid.  This Court has in the past emphasised
the
importance of the right to equality.
[211]
The right to equality is related to the right to dignity.
Discrimination conveys to the person who is discriminated
against
that the person is not of equal worth.  The discrimination
against women conveys a message that women are not of equal
worth as
men.  Where women under indigenous law are already a vulnerable
group, this offends their dignity.
[188]
The rule of male primogeniture might have been justified by the
social and economic context in which it developed.  It
developed
in the context of a traditional society which was based on a
subsistence agricultural economy characterised by a self-sufficient

family organisation.  Within this system, an elaborate network
of reciprocal obligations between members of a family existed
which
ensured that the needs of every member for food, shelter and clothing
were provided for.  The roles that were assigned
to men and
women in traditional African society were based on the type of social
structure and economy that prevailed then.
[189]
But all of that has changed.  As Ndulo explains:
“
In the modern
economy women fend for themselves and help their husbands accumulate
property during the course of their marriage.
In essence, they
have outgrown the status assigned to them in traditional society.
Tribal law has lagged behind these economic
and social changes.
As more and more women begin working outside the home, earning money
and acquiring property, the gap
between their legal status under
customary law and their economic status in society widens . . . . But
as we have seen, the joint
family is in a state of decline and
Africans are now enmeshed in an exchange economy.  Development
and industrialisation have
caused an irreversible breakdown in the
traditional African social order.  The society is now highly
individualistic, competitive
and acquisitive.  Customary rules
do not operate to the benefit of the women in this type of society.
The joint families
that remain have lost their self-sufficiency.
Modernisation, therefore, has had a negative impact on women.
It has
caused the breakdown of the tribal community and has destroyed
the subsistence economy to such an extent that the protection women

enjoyed under customary law is rendered useless.  Today widows
must support themselves by their own efforts.  Application
of
the traditional concepts of customary law of succession to women in a
modern context is unjust and discriminatory – a
practice
outlawed by the Zambian constitution.  It also ignores the fact
that married women help their husbands accumulate
property during the
course of their marriage and should not, therefore, be denied an
absolute right in any portion of it.”
[212]
(footnotes
omitted)
[190]
The role
that women play in modern society and the transformation of the
traditional African communities into urban industrialised
communities
with all their trappings, make it quite clear that whatever role the
rule of male primogeniture may have played in
traditional society, it
can no longer be justified in the present day and age.  Indeed,
there are instances where in practice
women have assumed the role of
the head of the family.
[213]
This may be due to the fact that
indlalifa
is almost always away from the common home, or has decided to
establish his home outside the common family home.  The rule
has
therefore lost its vitality to a certain degree.
[191]
Jurisprudence from African courts, which have considered the position
of women in the context of succession, further demonstrates
that the
rule in its present form no longer has any place in modern times.
African
jurisprudence
Nigeria
[192]
Indigenous
law of succession in Nigeria varies from one ethnic group to
another.
[214]
It
ranges from the rule of primogeniture to the rule of ultimogeniture
(according to which inheritance is exclusively by
the youngest
son).
[215]
The major
ethnic groups in Nigeria include Igbo and Yoruba.
[216]
For the purposes of this comparison, I focus on the Igbo.
[193]
Within the Igbo community, succession is based on the principle of
male primogeniture.  Daughters and wives have no right
of
succession.  The only situation in which a daughter could
succeed the deceased is where, for example, she chooses to remain

unmarried in her father’s house with a view to raising children
there.  The situation occurs where the deceased leaves
a
substantial estate and without having a son or other male relative to
succeed him.  It is said that the purpose of this
practice is to
save the lineage from extinction.  The legal interest vests in
her until she gives birth to her own children.
If she bears
children, only sons, and not daughters, succeed to her.
[194]
In
Mojekwu
v Mojekwu,
[217]
the Igbo succession rule was challenged on the ground that it
discriminated against females.  The court of appeal held that

the rule of male primogeniture was unconstitutional and contrary to
democratic values.  Justice Tobi wrote:
“
All human beings -
male and female - are born into a free world and are expected to
participate freely, without any inhibition on
grounds of sex; and
that is constitutional.  Any form of societal discrimination on
ground of sex, apart from being unconstitutional,
is antithesis to a
society built on the tenets of democracy which we have freely chosen
as a people . . . . Accordingly, for a
custom or customary law to
discriminate against a particular sex is to say the least an affront
on the Almighty God Himself.
Let nobody do such a thing.
On my part, I have no difficulty in holding that the ‘Oli-ekpe’
custom of Nnewi,
is repugnant to natural justice, equity and good
conscience.”
[218]
Zimbabwe
[195]
In
Zimbabwe, the courts initially used the Legal Majority Act
[219]
to improve the position of women.  But this trend was later
reversed by the Supreme Court.  It is instructive to look
at
those cases that advance the position of women.  In
Katekwe
v Muchabaiwa,
[220]
the Supreme Court of Zimbabwe had occasion to consider the effect of
the Legal Majority Act.  It held that “parliament’s

intention was to create equal status between men and women and, more
importantly, to remove the legal disabilities suffered by
African
women because of the application of customary law.”
[221]
In
Jenah
v Nyemba,
[222]
the court held that protection given by the statute is not restricted
to single persons but it extended to married African women
aged 18
years or over, who primarily were perpetual minors.  In coming
to this conclusion, the court relied on subsection
3(3) which
provides that the statute “shall apply for the purposes of any
law including customary law.”
[223]
[196]
Then in
1987, the Supreme Court confronted head-on the question whether
subsection 3(3) of this statute supersedes African law and
custom in
matters of succession and allows a woman to succeed as intestate
heir.  This was in
Chihowa
v Mangwende
,
[224]
a case in which the deceased was survived by two daughters, his wife
by whom he had no children, his father and four brothers.
The
community court appointed the eldest daughter as the intestate
heiress to the deceased’s estate.  An appeal by the

deceased’s father to the provincial magistrate failed.
Hence the appeal to the Supreme Court.
[197]
Confining itself to the question of entitlement to inherit the estate
of an African male who dies intestate, a bench of three
judges of the
Supreme Court held:
“
The Legislature,
by enacting the Legal Age of Majority Act, made women who in African
law and custom were perpetual minors majors
and therefore equal to
men who are majors.  By virtue of the provisions of s 3 of the
Act women who attain or attained the
age of 18 years before the Act
came into effect acquired capacity.  That capacity entitles them
to be appointed intestate
heiresses . . . Now the eldest daughter of
a father who dies intestate can take the lot but not for herself only
but for herself
and her late father’s dependants . . . There is
nothing in the wording of subs (3) of s 3 of Act 15 of 1982 which
remotely
suggests that for the purposes of inheritance a women can
still be regarded as a minor.”
[225]
[198]
However, in
a later case,
Murisa
NO v Murisa,
[226]
the Supreme Court held that the ruling in
Chihowa
’s
case “did not go so far as to say that a widow could be
appointed heir
ab
intestatio
to
her deceased husband’s estate.”
[227]
In reaching its decision, the Supreme Court relied amongst other
things, upon the fact that:
“
Customary law does
not recognise a widow’s right to inherit in a direct fashion
from her deceased husband’s estate.
She may be entitled
to support from the estate but not to a share therein.  In this
context the Legal Age of Majority Act
cannot be used to grant her a
share in the estate”.
[228]
[199]
Murisa’
s
case has been criticized for excluding widows from inheriting from
their husbands.
[229]
It is indeed difficult to reconcile this decision with the
Chihowa
and
Jenah
cases.  These two cases held that the purpose of the statute was
to confer majority status on African women.  The effect
of the
statute was to give them “the same rights of succession as
men.”  And in
Jenah
,
the court held that the protection afforded by the statute is not
restricted to single persons but extends to married African
women who
were perpetual minors.  The
Murisa
decision can only be explained on the basis that the absence of blood
relation between her and the husband constituted a bar.
[200]
In
Magaya
v Magaya,
[230]
the Supreme Court, in a bench of five judges, overruled its earlier
decisions in
Katekwe
and
Chihowa
including
Murisa
,
holding that these cases were decided wrongly.
[231]
The court considered two questions, first, whether customary law of
succession was exempt from the anti-discrimination provisions
of the
Constitution; and second, whether the Legal Age of Majority Act
conferred substantive rights upon women.  In relation
to the
first question, it found that anti-discrimination provisions of the
Constitution do not forbid discrimination based on sex.
It
further held that “even if they did on account of Zimbabwe’s
adherence to gender equality enshrined in international
human rights
instruments”, subsections 3(a) and 3(b) of section 23 of the
Constitution exempt customary law from the provisions
forbidding
discrimination.
[232]
Tanzania
[201]
In
Tanzania, three systems of law govern succession, namely, the Indian
Succession Act 1865, Islamic law and indigenous law.
[233]
Each system differs in the rights it accords to women.  The
Local Customary Law (Declaration)
[234]
contains rules that regulate intestate succession among patrilineal
communities of Tanzania.  A distinction is made between

self-acquired land and family and clan land.  The deceased’s
children can inherit self-acquired land in diminishing
progression as
determined by their sexes.  Widows are excluded.
[202]
Although
daughters are entitled to inherit family land, unlike men, they may
not dispose of the land.  In
Ibernados
Ephraim v Holaria d/o Pastory and Gervazi Keizilege
,
in the High Court of Civil Appeal 70/89, this rule came under
challenge.  The High Court found that this rule is
discriminatory
and inconsistent with article 13(4) of the
Constitution of Tanzania which forbids discrimination against any
person.
[235]
Ghana
[203]
In
Akrofi
v Akrofi
,
[236]
the younger brother of the deceased was appointed
indlalifa
to succeed.  The family property consisted of, amongst other
things, three farms.  The appointment followed a custom
in terms
of which women were not allowed to succeed to their deceased fathers’
estates.  A daughter of the deceased
challenged the appointment,
claiming that she was entitled to succeed her father.
[204]
The High
Court issued a declarator to the effect that the daughter was “within
the range of persons . . . entitled to succeed
to her father’s
estate”.
[237]
The court issued the declarator because under the Ghanaian custom in
issue the
indlalifa
was determined at a meeting of family members.  The ruling of
the court brought the daughter within the range of persons who
could
be considered for appointment.  In rejecting the reasons given
by the paramount chief why a woman cannot succeed, the
court said:
“
I consider also
the reason given by the paramount chief why a woman cannot succeed to
her father’s property unsound, because
a successor does not
acquire an absolute title which will pass to his or her issues.
The successor’s title at its best
is a determinable life
interest, that is to say, if he died still possessed of family
property, the same will go to the person
appointed by the family.
The danger envisaged by the paramount chief will not arise.
Further in many states in Ghana,
women do succeed to family
properties but no one will say by reason of their succession and
their possible marriage into other
families the properties they
inherit or succeed to stand in jeopardy of being lost to their
families.  Again the paramount
chief was pressed as to a
settlement of the case of Mamasie Ofei and his sister Felipina Adjei
which he conducted, when he and
the members of the arbitration had to
divide the inheritance of a brother and a sister and to give the
sister a share in her late
father’s estate.”
[238]
[205]
Although the court did not find that a custom which excludes women
exists, the court nevertheless said:
“
I am of the view
that if there be such a custom and I do not so find, whereby a person
is discriminated against solely upon the
ground of sex that custom
has out-lived its usefulness and is at present not in conformity with
public policy.  Our customs
if they are to survive the test of
time must change with the times.”
[239]
[206]
In re
Kofi Antubam (Decd): Quaico v Fosu and Another
,
[240]
the High Court was concerned, amongst other things, with whether the
widows and the children of the deceased had any interest in
the
estate of the deceased, and if they did, the nature and extent of
such interest under Akan customary law.  The court found
that
widows and children have an interest not only in the immovable
property but have to be maintained from the whole estate.

“Their interests are inextricably mixed up in the indivisible
estate and accordingly they are entitled to share in the estate
if
ultimately the whole estate is converted into money or
partitioned.”
[241]
[207]
Concerning the development of customary law, the court remarked:
“
[i]n the last
quarter of the last century, customary law in Ghana has progressed
and developed in accordance with the tempo of social,
commercial and
industrial progress.  So far as land tenure is concerned,
farming rights have been converted into building
and residential
rights, customs which appear to be repugnant to natural justice,
equity and good conscience have been gradually
extinguished by
judicial decisions.  The then legislature played a less
effective role in these spontaneous developments engineered
by public
opinion.  The courts have embraced these developments without
adhering strictly to the original customary rigid
rules.”
[242]
And
then added:
“
Ghana is a
developing state with remarkable social and economic transformations
which render some of our customary rules antediluvian.
If the
customary law is to retain its place as the greatest adjunct to
statutory law and the common law, it cannot remain stagnant
whilst
other aspects of the law are in constant motion.”
[243]
[208]
What conclusion can be drawn from the above analysis?
[209]
Having
regard to these developments on the continent, the transformation of
African communities from rural communities into urban
and
industrialised communities, and the role that women now play in our
society, the exclusion of women from succeeding to the
family head
can no longer be justified.  These developments must also be
seen against the international instruments that protect
women against
discrimination, namely: the Convention on the Elimination of All
Forms of Discrimination Against Women (CEDAW),
[244]
the African (Banjul) Charter on Human and Peoples’ Rights,
[245]
and the International Covenant on Civil and Political Rights.
[246]
In particular, CEDAW requires South Africa to ensure, amongst other
things, the practical realization of the principle of
equality
between men and women and to take all appropriate measures to modify
or abolish existing laws, regulations, customs and
practices that
constitutes discrimination against women.
[247]
As we observed in
S
v Baloyi (Minister of Justice and Another Intervening)
:
[248]
“
[t]he Convention
on the Elimination of Discrimination Against Women imposes a positive
obligation on States to pursue policies of
eliminating discrimination
against women by, amongst other things, adopting legislative and
other measures which prohibit such
discrimination.  Similarly
the African Charter on Human and Peoples’ Rights obliges
signatory States to ensure the elimination
of discrimination against
women.”
[249]
(footnotes
omitted)
[210]
This rule might have been justified by the traditional social
economic structure in which it developed.  It has outlived
its
usefulness.  In the present day and age the limitation on the
right of women to succeed to the position and status of
the family
head, cannot be said to be reasonable and justifiable under section
36(1) of the Constitution.  It follows therefore
that the rule
of male primogeniture is inconsistent with section 9(3) of the
Constitution to the extent that it excludes women
from succeeding to
the family head.
[211]
But what should be done with the rule, in particular, should the rule
be developed so that it is brought into line with the
Constitution?
It is to this question that I now turn.
Should
the rule be developed in line with the Constitution?
[212]
We are
dealing here with indigenous law.  That law is part of our law.
Section 39(2) of the Constitution imposes an obligation
on courts to
develop indigenous law so as to bring it in line with the
Constitution, in particular, the rights in the Bill of Rights.

In
Carmichele
v Minister of Safety and Security and Another
,
[250]
this Court considered the obligation to develop the common law and
held that “where the common law deviates from the spirit,

purport and objects of the Bill of Right the courts have an
obligation to develop it by removing that deviation.”
[251]
[213]
The rationale for this obligation was outlined as follows:
“
[t]he Constitution
is the supreme law.  The Bill of Rights, under the IC, applied
to all law.  Item 2 of Schedule 6 to
the Constitution provides
that ‘all law’ that was in force when the Constitution
took effect, ‘continues in force
subject to . . . consistency
with the Constitution’.  Section 173 of the Constitution
gives to all higher Courts, including
this Court, the inherent power
to develop the common law, taking into account the interests of
justice.  In s 7 of the Constitution,
the Bill of Rights
enshrines the rights of all people in South Africa, and obliges the
State to respect, promote and fulfil these
rights.  Section 8(1)
of the Constitution makes the Bill of Rights binding on the Judiciary
as well as on the Legislature
and Executive.  Section 39(2) of
the Constitution provides that when developing the common law, every
court must promote the
spirit, purport and objects of the Bill of
Rights.  It follows implicitly that where the common law
deviates from the spirit,
purport and objects of the Bill of Rights
the courts have an obligation to develop it by removing that
deviation.”
[252]
(footnotes
omitted)
[214]
The Court stressed that:
“
the obligation of
Courts to develop the common law, in the context of the s 39(2)
objectives, is not purely discretionary.
On the contrary, it is
implicit in s 39(2) read with s 173 that where the common law as it
stands is deficient in promoting the
s 39(2) objectives, the Courts
are under a general obligation to develop it appropriately.  We
say a ‘general obligation’
because we do not mean to
suggest that a court must, in each and every case where the common
law is involved, embark on an independent
exercise as to whether the
common law is in need of development and, if so, how it is to be
developed under s 39(2).  At the
same time there might be
circumstances where a court is obliged to raise the matter on its own
and require full argument from the
parties.”
[253]
[215]
The
Carmichele
case applies equally to the development of
indigenous law.  Where a rule of indigenous law deviates from
the spirit, purport
and objects of the Bill of Rights, courts have an
obligation to develop it so as to remove such deviation.  This
obligation
is especially important in the context of indigenous law.
Once a rule of indigenous law is struck down, that is the end of
that
particular rule.  Yet there may be many people who observe that
rule, and who will continue to observe the rule.
And what is
more, the rule may already have been adapted to the ever-changing
circumstances in which it operates.  Furthermore,
the
Constitution guarantees the survival of the indigenous law.
These considerations require that, where possible, courts
should
develop rather than strike down a rule of indigenous law.
[216]
In view of
the decision of this Court in
Carmichele,
there are at least two instances in which the need to develop
indigenous law may arise.  In the first instance it may arise

where it is necessary to adapt indigenous law to the changed
circumstances.  Like the common law, the indigenous law must
be
adjusted to the ever-changing needs of the community in which it
operates.
[254]
An
illustration of this is to be found in the case of
Mabena.
[255]
[217]
Two issues
arose in the
Mabena
case.  The first one was whether failure by the groom’s
father to participate in marriage negotiations nullified the

marriage.  The court held that it did not.  It found that
in the past there was a need for parents to consent to children’s

marriages because they provided lobolo but since young men were now
in a position to provide for their own lobolo, parental consent
is no
longer required.  The second issue was whether a woman could
receive lobolo. The court accepted that there are instances
where a
woman may act as head of a family and can receive lobolo.
[256]
As a result, the court had in that case developed indigenous law by
incorporating the changing context in which the system
operated.
[218]
In the second instance, it may be necessary to develop indigenous law
in order to bring it in line with the rights in the
Bill of Rights.
This is the kind of development that is envisaged in
Carmichele
.
Where indigenous law is inconsistent with the rights in the Bill of
Rights, courts have an obligation to develop it so as
to bring it in
line with the rights in the Bill of Rights.  Here the Court
assesses the rule of indigenous law (the rule of
male primogeniture)
against the applicable provision in the Bill of Rights.  In this
instance, the Court is not primarily
concerned with the changing
social context in which indigenous law of succession operates or the
practice of the people.
The dearth of authority on what the
living indigenous law is, should not therefore preclude a court from
bringing a rule of indigenous
law in line with the rights in the Bill
of Rights.  After all:
“
[o]ur Constitution
contemplates that there will be a coherent system of law built on the
foundations of the Bill of Rights, in which
common law and indigenous
law should be developed and legislation should be interpreted so as
to be consistent with the Bill of
Rights and with our obligations
under international law.  In this sense the Constitution demands
a change in the legal norms
and the values of our society.”
[257]
And
indigenous law must reflect this change.
[219]
By contrast, the development of indigenous law in order to adapt it
to the changed circumstances requires the Court to have
regard to
what people are actually doing.  It is here where the living
indigenous law — law as actually lived by the
people —
becomes relevant.  It is here too where the problem of
identifying living indigenous law arises.  The
Court must have
regard to what people are actually doing in order to adapt the
indigenous law to the ever-changing circumstances.
That is not
to say that in this process courts should not have regard to the
Constitution.  Of course, in the process of developing

indigenous law and adapting it to the ever-changing circumstances,
courts are required by section 39(2) of the Constitution to
do so in
a manner that promotes the spirit, purport and objects of the Bill of
Rights.
[220]
In these cases we are concerned with the development of the rule of
male primogeniture so as to bring it in line with the
right to
equality.  We are not concerned with the law actually lived by
the people.  The problem of identifying living
indigenous law
therefore does not arise.  At issue here is the rule of male
primogeniture which was applied in the
Bhe
and
Shibi
matters.  It is that rule which must be tested against the right
to equality, and if found deficient, as I have found, it
must be
developed so as to remove such deficiency.
[221]
The rule of male primogeniture may have been
consistent with the structure and the functions of the traditional
family.  The
rule prevented the partitioning of the family
property and kept it intact for the support of the widow, unmarried
daughters and
younger sons.  However, the circumstances in which
the rule applies today are very different.  The cattle-based
economy
has largely been replaced by a cash-based economy.
Impoverishment, urbanization and the migrant labour system have
fundamentally
affected the traditional family structures.  The
role and status of women in modern urban, and even rural, areas
extend far
beyond that imposed on them by their status in traditional
society.  Many women are de facto heads of their families.

They support themselves and their children by their own efforts.
Many contribute to the acquisition of family assets.
The
official traditional version of indigenous law does not therefore
reflect nor accommodate this changed role and function.
[222]
The defect in the rule of male primogeniture is that it excludes
women from being considered for succession to the deceased
family
head.  In this regard it deviates from section 9(3) of the
Constitution.  It needs to be developed so as to bring
it in
line with our Bill of Rights.  This can be achieved by removing
the reference to a male so as to allow an eldest daughter
to succeed
to the deceased estate.
[223]
It is now convenient to consider the remedy for the infringement of
the right to equality by section 23, the regulations and
section
1(4)(b)
of the
Intestate Succession Act.
Remedy
[224]
Section 23
of the Act, the regulations and
section 1(4)(b)
of the
Intestate
Succession Act cannot
be allowed to remain on our statute books.
To allow them to remain would mean, as the Deputy Chief Justice put
it, “that
the benefits of the Constitution would continue to be
withheld from those who have been deprived of them for so
long.”
[258]
It
is true that the regulations in effect are a choice of law
mechanism.  They regulate the circumstances in which indigenous

law applies.  Stripped of their racist purpose and effect, some
of these provisions are of the kind found in choice of law
statutes.
However, to cure the constitutional defect in the regulations would
require this Court to engage in detailed legislation,
a task that
belongs to Parliament.  Section 23 and the regulations are, in
my view, incapable of being cured through the device
of “reading-in”
or severance.
[225]
The determination of the choice of law rule which regulates the
circumstances in which indigenous law is applicable involves
policy
decisions.  In particular, it involves a decision on the
criteria for determining when indigenous law is applicable.

There is a range of options in this regard.  The choice of law
may be based on, among other things, agreement, the lifestyle
of
individuals, the type of marriage, the nature of the property such as
family land, justice and equity, or a combination of all
these
factors.  The legislature is better equipped to make these
policy choices.
[226]
In all the circumstances, the appropriate remedy is one of striking
down with immediate effect.  But once section 23
and the
regulations are struck down, there will no longer be any legal
mechanism that regulates the circumstances in which indigenous
law of
succession is applicable.  Indigenous law is still widely
practised within African communities.  However, the

transformation of African communities from rural into urban
communities and the influence of other cultures may render indigenous

law of succession not particularly suitable in certain
circumstances.  Furthermore, there may be disputes as to whether
indigenous
law is applicable in a particular situation.  There
will be circumstances where its application may result in an
injustice.
In others it may not.  Until such time that the
legislature enacts the relevant legislation, disputes as to whether
indigenous
law should apply must be managed and regulated.
[227]
It now remains to consider the mechanism that can be put in place to
regulate the disputes involving the application of indigenous
law
pending the enactment of relevant legislation by Parliament.
[228]
One option is to direct, as the High Courts did and the main judgment
proposes, that all intestate estates shall be governed
by the
Intestate Succession Act in
its amended form.  This will bring
about uniformity in the administration of intestate estates for all
races.  No doubt,
this option recognises that African
communities have been transformed from their traditional settings in
which the indigenous law
developed into modern and urban
communities.  But that is not true of all communities.  And
even within this transformative
process, a majority of Africans have
not forsaken their traditional cultures.  These have been
adapted to meet the changing
circumstances.  The law must
recognise this.
[229]
In my view,
there are factors that militate against the application of the
Intestate Succession Act only
.  First, the
Intestate Succession
Act is
premised on a nuclear family system.  By contrast,
indigenous law is premised on the extended family system.  The
provisions
of this statute are therefore inadequate to cater for the
social setting that indigenous law of succession was designed to
cater
for.
[259]
For
example, it was not designed to cater for polygynous unions.
Second, as pointed out earlier, the primary objective
of indigenous
law of succession is the preservation and perpetuation of the family
unit and succession to the status and position
of the family head.
This system ensures the preservation of the family unity and that
there is always someone to assume the
obligation of the family head
to maintain and support the minor children and other dependants of
the deceased.  That is not
the object of the
Intestate
Succession Act.  Its
application may well lead to the
disintegration of the family unit that indigenous law seeks to
preserve and perpetrate.
[230]
Third, it
does not take sufficient account of indigenous law as part of our
law.
In
Ex
parte Chairperson of the Constitutional Assembly: In re Certification
of the Constitution of the Republic of South Africa,
1996
,
this Court cautioned that a destructive confrontation between the
Bill of Rights and legislation, on the one hand, and indigenous
law,
on the other, need not take place.
[260]
The application of common law and the
Intestate Succession Act only
,
may well lead to the obliteration of indigenous law.  Yet our
Constitution recognises its existence, and contemplates that
there
are situations where it will be applicable.  The Constitution
expressly guarantees “the survival of an evolving
customary
law.”
[261]
And,
as the Deputy Chief Justice acknowledges, there is a substantial
number of people whose lives are governed by indigenous
law and who
would wish to have their affairs to be governed by indigenous
law.
[262]
People who
live by indigenous law and custom are entitled to be governed by
indigenous law.  The Constitution accords
them that right.
[231]
There is a further consideration which, in my view, militates against
the interim application of the
Intestate Succession Act as
the
preferred option.  The application of this option may lead to an
injustice in certain circumstances.  Take the case
where both
parents die simultaneously leaving a number of children, including
minor children and other persons who were dependent
upon the deceased
for maintenance and support.  Let us assume that the major asset
in the estate is an immovable property
which is a family home.
Each child will be entitled to a share in the estate.  Let us
assume that one or two children
insist on getting their share and
they cannot be bought out.  This will require the family
property to be sold and the proceeds
to be divided equally amongst
the children.  Once the house is sold, there will be no shelter
for the minor children and other
dependants of the deceased.
There is no duty on any of the other heirs to provide such shelter.
Or take the case of
a deceased who is survived by dependants but
leaves nothing for the maintenance and support of the dependants.
Minor children
and other dependants of the deceased may be left
destitute with no one to assume responsibility for their maintenance
and support.
[232]
The
inappropriateness of the
Intestate Succession Act in
certain
circumstances is demonstrated by the report of the Law Commission on
customary law of succession.  In its report it
advanced several
reasons why the institution of family property should be preserved.
The rule of primogeniture is inextricably
linked to the
institution of a family home and its concomitant family property.
These reasons include: the fact that despite
westernization, the
typical African traditional family home still exists; in polygynous
unions, distribution of assets in an estate
is quite impractical; and
many family homes constitute the only means of livelihood and the
only homes for family members.
If the property concerned should
devolve in terms of common law, the family members concerned will be
left without a home and livelihood.
[263]
[233]
In my view,
the reasons advanced by the Law Commission demonstrate that the
application of the
Intestate Succession Act may
lead to unjust
results in certain situations and that indigenous law still has a
role to play.  They underscore the need to
have both indigenous
law and the
Intestate Succession Act apply
subject to the
requirements of fairness, justice and equity.  Indeed, the Law
Commission recommends that the institution of
family property should
be preserved.  It further recommends that the destination of
family property must be made the subject
of an enquiry in appropriate
circumstances.
[264]
The enquiry, which is to be conducted by the Magistrates’ Court
having jurisdiction, must have regard to: (a) the best
interest of
the family; and (b) the equality of spouses in customary and civil
marriages.
[265]
[234]
Indigenous
law imposes an obligation on
indlalifa
to maintain and support the minor children and other dependants of
the deceased.  This obligation attaches to the
indlalifa
regardless of whether the deceased left sufficient assets for
maintenance and support of the family.
[266]
The obligation is to administer the estate of the deceased on behalf
of and for the benefit of the dependants of the deceased.
This
ensures that there is always someone to look after the dependants of
the deceased.  Where there are minor children it
may therefore
be in their best interests, in certain circumstances, that indigenous
law be applied.  It may serve to prevent
the disintegration of
the family unit and prevent members of the family from being rendered
homeless or sent to an orphanage or
an old-age home.  Similarly,
where the deceased is survived by dependants but leaves no assets to
maintain and support his
minor children and other dependents, the
application of indigenous law may serve to protect the dependants.
[235]
Ours is not
the only country that has a pluralist legal system in the sense of
common, statutory and indigenous law.  Other
African countries
that face the same problem have opted not for replacing indigenous
law with common law or statutory laws.
Instead, they have
accepted that indigenous law is part of their laws and have sought to
regulate the circumstances where it is
applicable.  In my view
this approach reflects recognition of the constitutional right of
those communities that live by and
are governed by indigenous law.
It is a recognition of our diversity, which is an important feature
of our constitutional
democracy.  The importance of diversity in
our country was emphasised by this Court in
Christian
Education South Africa v Minister of Education
,
[267]
where the Court said:
“
[t]here are a
number of other provisions designed to protect the rights of members
of communities.  They underline the constitutional
value of
acknowledging diversity and pluralism in our society and give a
particular texture to the broadly phrased right to freedom
of
association contained in
s 18.
Taken together, they affirm the
right of people to be who they are without being forced to
subordinate themselves to the
cultural and religious norms of others,
and highlight the importance of individuals and communities being
able to enjoy what has
been called the ‘right to be
different’.  In each case, space has been found for
members of communities to depart
from a general norm.  These
provisions collectively and separately acknowledge the rich tapestry
constituted by civil society,
indicating in particular that language,
culture and religion constitute a strong weave in the overall
pattern.”
[268]
(footnotes omitted)
[236]
It seems to me therefore that the answer lies somewhere other than in
the application of the
Intestate Succession Act only
.  It lies
in flexibility and willingness to examine the applicability of
indigenous law in the concrete setting of social
conditions presented
by each particular case.  It lies in accommodating different
systems of law in order to ensure that the
most vulnerable are
treated fairly.  The choice of law mechanism must be informed by
the need to: (a) respect the right of
communities to observe cultures
and customs which they hold dear; (b) preserve indigenous law subject
to the Constitution; and
(c) protect vulnerable members of the
family.  Indigenous law is part of our law.  It must
therefore be respected and
accorded a place in our legal system.
It must not be allowed to stagnate as in the past or disappear.
[237]
What is equally important is the fact that the traditional social and
economic structures have, to a large extent,
been replaced by modern
social and economic structures.  Poverty and greed have
undermined the traditional responsibilities
of heirs.  These
days, spouses and children of deceased people are sometimes no longer
cared for. As Ndulo observes:
“
The joint family
is in a state of decline and Africans are now enmeshed in an exchange
economy.  Development and industrialisation
have caused an
irreversible breakdown in the traditional African social order.
The society is now highly individualistic,
competitive and
acquisitive.”
[269]
And
Himonga observes:
“
The disruption of
the traditional self-sufficient joint family organization poses the
problem of the expense and practicability
of maintaining extended
families.  This may in turn affect the extent to which the
kinship group is capable of absorbing spouses
and their children and
providing them with adequate material support after the dissolution
of the marriage by the death of one
of the spouses or by
divorce.”
[270]
[238]
There must be a balancing exercise.  The respect for our
diversity and the right of communities to live and be governed
by
indigenous law must be balanced against the need to protect the
vulnerable members of the family.  The overriding consideration

must be to do that which is fair, just and equitable.  And more
importantly, the interests of the minor children and other
dependants
of the deceased should be paramount.
[239]
In my view, the question whether indigenous law is applicable should
in the first place be determined by agreement.
After the
burial, it is common for the family to meet and decide what should
happen to the deceased’s estate.  If an
agreement can be
reached there seems to be no reason for any interference.  Any
dispute relating to the choice of law should
be resolved by the
Magistrates’ Court having jurisdiction.  In determining
such dispute a Magistrate must have regard
to what is fair, just and
equitable in the circumstances of the case.  And in determining
what is fair, just and equitable,
the Magistrate must have regard to,
amongst other things, the assets and liabilities of the estate, the
widow’s contribution
to the acquisition of assets, the
contribution of family members to such assets, and whether there are
minor children or other
dependants of the deceased who require
support and maintenance. Naturally, this list is not intended to be
exhaustive of all the
factors that are to be taken into
consideration, there may be others too. The ultimate consideration
must be to do that which is
fair, just and equitable in the
circumstances of each case.
Conclusion
[240]
To sum up therefore, pending the enactment of legislation by
Parliament to regulate when indigenous law is applicable, the

position should be as follows. Where parties agree that succession to
the deceased must be governed by indigenous law of succession,
that
is, the law that must govern the succession. Any dispute as to
whether indigenous law is applicable must be resolved by the

Magistrates’ Court having jurisdiction. The Magistrate must
enquire into the most appropriate system of law to be applied.
In
conducting such an enquiry, the Magistrate must have regard to what
is fair, just and equitable and must have particular regard
to the
interests of the minor children and any other dependant of the
deceased.
[241]
It is not necessary in this judgment to set out in any detail the
order I would have made. Such order is already foreshadowed
in the
discussion of the remedy. It is sufficient for the purposes of these
cases to say the following:
(a) In the
Bhe
matter, Nonkululeko Bhe and Anelisa Bhe are the only children of the
deceased. They are both minors. The deceased had no other
dependants.
In addition, the two minor children and their mother have been
occupying the property with the deceased until his death.
No useful
purpose will be served by referring this matter back to the
Magistrate. In all the circumstances, it would be just and
equitable
that the estates of the deceased devolve according to the
Intestate
Succession Act. Both
minors are to be declared the sole heirs.
Accordingly, I concur in paragraph 11(a) of the order of the main
judgment.
(b) In the
Shibi
matter, Ms Charlotte Shibi is the only sister to the deceased. The
latter had no parents or brothers or other sisters. Nor did
he have
any children. This matter has been going for sometime. It must now be
brought to finality. In this case too, it is not
necessary to refer
the matter back to the Magistrate. On the record, it is possible to
determine the relief. In all the circumstances
of this case, it is
just and equitable that the estates of the deceased devolve in
accordance with the
Intestate Succession Act. I
therefore concur in
paragraph 11(b) of the order of the main judgement.
(c)
In addition, I concur in paragraphs 1; 2; 3; and 5 of the order of
the main judgment.
Bhe and Others v The
Magistrate, Khayelitsha and Others:
For
the applicant: W. Trengove SC, R. Paschke and S. Cowen instructed by
the Women’s Legal Centre.
For
the fourth respondent: N. Cassim SC instructed by the State Attorney
(Johannesburg).
For
the amicus curiae: P. M. Mtshaulana and K. Pillay instructed by
Lawyers for Human Rights.
Charlotte
Shibi v Mantabeni Freddy Sithole and Others:
For
the applicant: V. Maleka SC and K. Pillay instructed by the Legal
Resources Centre.
South
African Human Rights Commission and Another v President of the
Republic of South Africa and Another:
For
the applicant: M. Chaskalson instructed by the Legal Resources Centre
and the Women’s Legal Centre and S. Cowen instructed
by the
Women’s Legal Centre.
For
the second respondent: N. Cassim SC and T.I. Bodiba instructed by the
State Attorney (Pretoria).
[1]
See para 35 below for the full text of the section.
[2]
See paras 36-8 below for the full text and description of the
regulations.  Please note that whereas the Black Administration

Act uses the term “Black” to describe a member of the
indigenous race in South Africa, the term “African”
has
been used in this judgment.  Its use should not be construed as
conferring legal or constitutional validity for its
exclusive use to
describe one race group, nor is it intended to exclude persons of
other race groups who are entitled to or describe
themselves as
“Africans”.
[3]
See n 37 below for the full text of
section 1(4)(b)
of the
Intestate
Succession Act.
[4
]
Government Gazette 10601 GN R200, 6 February 1987 as amended by
Government Gazette 24120 GN R1501, 3 December 2002.
[5]
See para 77 below for description of this principle.
[6]
See paras 9 and 21 below.
[7]
Section
212(2) of the Constitution provides that a house of traditional
leaders may be established by legislation.  The National
House
of Traditional Leaders was established under the National House of
Traditional Leaders Act 10 of 1997 as amended.
[8]
The rules were published in Government Gazette 18944 GN R757, 29 May
1998.  Rule 9 dealt with the admission and participation
of an
amicus curiae.
[9]
The case is reported as
Bhe
and Others v Magistrate, Khayelitsha, and Others
,
2004 (2) SA 544 (C); 2004 (1) BCLR 27 (C).
[10]
Case 7292/01, 19 November 2003, as yet unreported.
[11]
Above n 9.
[12]
See paras 32-34 below.
[13]
Section 38 of the Constitution provides that:
“
Anyone
listed in this section has the right to approach a competent court,
alleging that a right in the Bill of Rights has been
infringed or
threatened, and the court may grant appropriate relief, including a
declaration of rights.  The persons who
may approach a court
are—
(a)
anyone acting in their own interest;
(b)
anyone acting on behalf of another person who cannot act in their
own name;
(c)
anyone acting as a member of, or in the interest of, a group or
class of persons;
(d)
anyone acting in the public interest”.
[14]
Id section 38(d) of the Constitution.
[15]
The expression “illegitimate children” has been used by
lawyers in South Africa for many years, and was used by the
Cape
High Court in the
Bhe
case and by the lawyers in this case to describe children who are
conceived or born at a time when their biological parents are
not
lawfully married.  I choose not to use the term, however.
No child can in our constitutional order be considered

“illegitimate,” in the sense that the term is capable of
bearing, that they are “unlawful” or “improper”.

As this Court has said on many occasions, our Constitution values
all human beings equally, whatever their birth status, whatever

their background.  The term “illegitimate children”
may be construed as degrading of the status of children
to whom it
refers and I prefer to avoid it.  See, also the discussion in
the South African Law Reform Commission’s
report on the
Investigation
into the legal position of Illegitimate Children
Project
38 (October 1985) at paras 6.25–6.26.  Note also that
Parliament has used the phrase “extra-marital children”

recently on several occasions.  See section 3 of the Children’s
Status Act 82 of 1987.  On the other hand, see
the use of
“child born out of wedlock” in
section 1
of the
Child
Care Amendment Act 96 of 1996
;
section 1
of the
Births and Deaths
Registration Amendment Act 40 of 1996
; the Natural Fathers of
Children Born out of Wedlock Act 86 of 1997 and the
Adoption Matters
Amendment Act 56 of 1998
.
[16]
Section 38(c) of the Constitution above n 13.
[17]
Section 38(d) of the Constitution above n 13.
[18]
Section 187 of the Constitution provides that:
“
(1)
The Commission for Gender Equality must promote respect for gender
equality and the protection, development and attainment
of gender
equality.
(2)
The Commission for Gender Equality has the power, as regulated by
national legislation, necessary to perform its functions,
including
the power to monitor, investigate, research, educate, lobby, advise
and report on issues concerning gender equality.
(3)
The Commission for Gender Equality has the additional powers and
functions prescribed by national legislation.”
[19]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints
(Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) 634F-635C where the rule is formulated
as follows:
“
.
. .‘. . . where there is a dispute as to the facts a final
interdict should only be granted in notice of motion proceedings
if
the facts as stated by the respondents together with the admitted
facts in the applicant’s affidavits justify such an
order . .
. Where it is clear that facts, though not formally admitted, cannot
be denied, they must be regarded as admitted.’
. . .  In
certain instances the denial by respondent of a fact alleged by the
applicant may not be such as to raise a real,
genuine or
bona
fide
dispute of fact . . .  If in such a case the
respondent has not availed himself of his right to apply for the
deponents
concerned to be called for cross-examination . . . and the
Court is satisfied as to the inherent credibility of the applicant’s

factual averment, it may proceed on the basis of the correctness
thereof and include this fact among those upon which it determines

whether the applicant is entitled to the final relief which he seeks
. . .  [t]here may be exceptions to this general rule,
as, for
example, where the allegations or denials of the respondent are so
far-fetched or clearly untenable that the Court is
justified
in rejecting them merely on the papers”. (footnotes ommitted)
[20]
See para 79 below.
[21]
Bhe
above
n
9
SA
555C-I
; BCLR 37C-I.
[22]
1998 (2) SA 675
(T).  The decision of the Supreme Court of
Appeal is reported as
Mthembu
v Letsela and Another
2000 (3) SA 867 (SCA); [2000] 3 All SA 219 (A).
[23]
Id
[24]
See text of the regulation in para 36 below.
[25]
Above para 19.
[26]
Above n 9.
[27]
Section 184(1)(a) and (2)(b) of the Constitution.
[28]
Section 38(a) of the Constitution above n 13.
[29]
Section 38(d) of the Constitution above n 13.
[30]
Section 38(c) of the Constitution above n 13.
[31]
Section 9 provides that:
“
(1)
Everyone is equal before the law and has the right to equal
protection and benefit of the law.
(2)
Equality includes the full and equal enjoyment of all rights and
freedoms.  To promote the achievement of equality, legislative

and other measures designed to protect or advance persons, or
categories of persons, disadvantaged by unfair discrimination may
be
taken.
(3)
The state may not unfairly discriminate directly or indirectly
against anyone on one or more grounds, including race, gender,
sex,
pregnancy, marital status, ethnic or social origin, colour, sexual
orientation, age, disability, religion, conscience, belief,
culture,
language and birth.
(4)
No person may unfairly discriminate directly or indirectly against
anyone on one or more grounds in terms of subsection (3).

National legislation must be enacted to prevent or prohibit unfair
discrimination.
(5)
Discrimination on one or more of the grounds listed in subsection
(3) is unfair unless it is established that the discrimination
is
fair.”
[32]
Section 10 of the Constitution provides that:
“
Everyone
has inherent dignity and the right to have their dignity respected
and protected.”
[33]
Section 28 of the Constitution, in relevant part, provides that:
“
(1)
Every child has the right–
(a)
. . .
(b)
to family care or parental care, or to appropriate alternative care

when removed from the family environment;
(c)
. . .
(d)
to be protected from maltreatment, neglect, abuse or degradation;
. . .
(2)
A child's best interests are of paramount importance in every matter
concerning the child.”
[34]
S v
Zuma and Others
[1995] ZACC 1
;
1995 (2) SA 642
(CC);
1995 (4) BCLR 401
(CC) at para 11;
Brink
v Kitshoff NO
[1996] ZACC 9
;
1996
(4) SA 197
(CC);
1996 (6) BCLR 752
(CC) at para 3;
Minister
of Justice v Ntuli
[1997] ZACC 7
;
1997 (3) SA 772
(CC);
1997 (6) BCLR 677
(CC) at para 4;
Bruce
and Another v Fleecytex Johannesburg CC and Others
[1998] ZACC 3
;
1998 (2) SA 1143
(CC);
1998 (4) BCLR 415
(CC) at para 4;
Christian
Education South Africa v Minister of Education
1999 (2) SA 83
(CC);
1998 (12) BCLR 1449
(CC) at para 4;
Moseneke
and Others v The Master and Another
[2000] ZACC 27
;
2001 (2) SA 18
(CC);
2001 (2) BCLR 103
(CC) at para 19;
National
Gambling Board v Premier, Kwazulu-Natal and Others
[2001] ZACC 8
;
2002 (2) SA 715
(CC);
2002 (2) BCLR 156
(CC) at para 29;
Van
der Spuy v General Council of the Bar of South Africa (Minister of
Justice and Constitutional Development, Advocates for Transformation

and Law Society of South Africa Intervening)
[2002] ZACC 17
;
2002 (5) SA 392
(CC) at para 7;
2002 (10) BCLR 1092
(CC) at para 6;
Satchwell
v President of the Republic of South Africa and Another
[2003] ZACC 2
;
2003 (4) SA 266
(CC);
2004 (1) BCLR 1
(CC) at para 6.
[35]
Paragraphs not reproduced were deleted by subsequent legislation.
[36]
Paragraphs not reproduced were deleted by subsequent legislation.
[37]
Section 1 of the Intestate Succession Act provides:
“
(1)
If after the commencement of this Act a person (hereinafter referred
to as the “deceased”) dies intestate, either
wholly or
in part, and –
(a)
is survived by a spouse, but not by a descendant, such spouse shall
inherit the intestate estate;
(b)
is survived by a descendant, but not by a spouse, such descendant
shall inherit the intestate estate;
(c)
is survived by a spouse as well as a descendant –
(i)
such spouse shall inherit a child's share of the intestate estate or
so much of the intestate estate as does not exceed in
value the
amount fixed from time to time by the Minister of Justice by notice
in the
Gazette
, whichever is the greater; and
(ii)
such descendant shall inherit the residue (if any) of the intestate
estate;
(d)
is not survived by a spouse or descendant, but is survived –
(i)
by both his parents, his parents shall inherit the intestate estate
in equal shares; or
(ii)
by one of his parents, the surviving parent shall inherit one half
of the intestate estate and the descendants of the deceased
parent
the other half, and if there are no such descendants who have
survived the deceased, the surviving parent shall inherit
the
intestate estate; or
(e)
is not survived by a spouse or descendant or parent, but is
survived–
(i) by –
(aa)
descendants of his deceased mother who are related to the deceased
through
her only, as well as by descendants of his deceased father
who are related to the deceased through him only; or
(bb)
descendants of his deceased parents who are related to the deceased
through
both such parents; or
(cc)
any of the descendants mentioned in subparagraph (aa), as well as by
any
of the descendants mentioned in subparagraph (bb),
the
intestate estate shall be divided into two equal shares and the
descendants related to the deceased through the deceased mother

shall inherit one half of the estate and the descendants related to
the deceased through the deceased father shall inherit the
other
half of the estate; or
(ii)
only by descendants of one of the deceased parents of the deceased
who are related to the deceased through such parent alone,
such
descendants shall inherit the intestate estate;
(f)
is not survived by a spouse, descendant, parent, or a descendant of
a parent, the other blood relation or blood relations
of the
deceased who are related to him nearest in degree shall inherit the
intestate estate in equal shares.
(2)
Notwithstanding the provisions of any law or the common law, but
subject to the provisions of this Act and section 5(2) of
the
Children's Status Act, 1987, illegitimacy shall not affect the
capacity of one blood relation to inherit the intestate estate
of
another blood relation.
(3)
A notice mentioned in subsection (1)(c)(i) shall not apply in
respect of the intestate estate of a person who died before
the date
of that notice.
(4)
In the application of this section –
(a)
in relation to descendants of the deceased and descendants of a
parent of the deceased, division of the estate shall take
place
per
stirpes
, and representation shall be allowed;
(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)
the degree of relationship between blood relations of the deceased
and the deceased –
(i)
in the direct line, shall be equal to the number of generations
between the ancestor and the deceased or the descendant and
the
deceased (as the case may be);
(ii)
in the collateral line, shall be equal to the number of generations
between the blood relations and the nearest common ancestor,
plus
the number of generations between such ancestor and the deceased;
(e) an adopted child
shall be deemed –
(i) to be a descendant
of his adoptive parent or parents;
(ii)
not to be a descendant of his natural parent or parents, except in
the case of a natural parent who is also the adoptive
parent of that
child or was, at the time of the adoption, married to the adoptive
parent of the child; and
(f)
a child’s portion, in relation to the intestate estate of the
deceased, shall be calculated by dividing the monetary
value of the
estate by a number equal to the number of children of the deceased
who have either survived him or have died before
him but are
survived by their descendants, plus one.
(5)
If an adopted child in terms of subsection (4)(e) is deemed to be a
descendant of his adoptive parent, or is deemed not to
be a
descendant of his natural parent, the adoptive parent concerned
shall be deemed to be an ancestor of the child, or shall
be deemed
not to be an ancestor of the child, as the case may be.
(6)
If a descendant of a deceased, excluding a minor or mentally ill
descendant, who, together with the surviving spouse of the
deceased,
is entitled to a benefit from an intestate estate renounces his
right to receive such a benefit, such benefit shall
vest in the
surviving spouse.
(7)
If a person is disqualified from being an heir of the intestate
estate of the deceased, or renounces his right to be such
an heir,
any benefit which he would have received if he had not been so
disqualified or had not so renounced his right shall,
subject to the
provisions of subsection (6), devolve as if he had died immediately
before the death of the deceased and, if applicable,
as if he was
not so disqualified.”
[38]
Section 30 of the Constitution provides that:
“
Everyone
has the right to use the language and to participate in the cultural
life of their choice, but no one exercising these
rights may do so
in a manner inconsistent with any provision of the Bill of Rights.”
[39]
Section 31 of the Constitution provides that:
“
(1)
Persons belonging to a cultural, religious or linguistic community
may not be denied the right, with other members of that
community–
(a)
to enjoy their culture, practise their religion and use their
language; and
(b)
. . .
(2)
The rights in subsection (1) may not be exercised in a manner
inconsistent with any provision of the Bill of Rights.”
[40]
Section 39 of the Constitution provides that:
“
(1)
. . .
(2)
When interpreting any legislation, and when developing the common
law or customary law, every court, tribunal or forum must
promote
the spirit, purport and objects of the Bill of Rights.
(3)
The Bill of Rights does not deny the existence of any other rights
or freedoms that are recognised or conferred by common
law,
customary law or legislation, to the extent that they are consistent
with the Bill.”
[41]
Section 211 of the Constitution provides that:
“
(1)
The institution, status and role of traditional leadership,
according to customary law, are recognised, subject to the
Constitution.
(2)
A traditional authority that observes a system of customary law may
function subject to any applicable legislation and customs,
which
includes amendments to, or repeal of, that legislation or those
customs.
(3)
The courts must apply customary law when that law is applicable,
subject to the Constitution and any legislation that specifically

deals with customary law.”
[42]
2003 (12) BCLR 1301
(CC) at para 51.  See also
Pharmaceutical
Manufacturers Association of SA and Another: In re Ex Parte
President of the Republic of South Africa and Others
[2000] ZACC 1
;
2000
(2) SA 674
(CC);
2000 (3) BCLR 241
(CC)
at
para 44;
Mabuza
v Mbatha
2003
(4) SA 218
(C);
2003 (7) BCLR 743
(C)
at
para 32.
[43]
In Bennett
Human
Rights and African Customary Law under the South African
Constitution
(Juta
& Co., Ltd, Cape Town 1997) 63 the learned author states in this
respect –
“
[c]ustomary
rules were grouped into common-law categories, such as marriage,
succession, and property, and common-law concepts
were freely used
to describe customary institutions.  At the same time the
devices of precedent, codification, and restatement
were used to
impose western requirements of certainty and stability.”
(footnote omitted)
[44]
Du
Plessis and Others v De Klerk and Another
[1996] ZACC 10
;
1996
(3) SA 850
(CC);
1996 (5) BCLR 658
(CC) at para 172 (footnote
omitted).
[45]
Section 211(3) of the Constitution above n 41.
[46]
Section 39(2) of the Constitution above n 40.
[47]
Section 43(a) of the Constitution provides that:
“
In
the Republic, the legislative authority—
(a)
of the national sphere of government is vested in Parliament, as set
out in section 44”.
[48]
Section 211(3) of the Constitution above n 41.
[49]
See Mogkoro J in
S
v Makwanyane
and
Another
[1995] ZACC 3
;
1995
(3) SA 391
(CC);
1995 (2) SACR 1
(CC);
1995 (6) BCLR 665
(CC) at
paras 307-8.
[50]
Id at para 144.
[51]
National
Coalition for Gay and Lesbian Equality and Another v Minister of
Justice and Others
1999
(1) SA 6
(CC);
1998 (12) BCLR 1517
(CC) at para 28.
[52]
S v
Mamabolo
(E TV
and Others Intervening)
[2001] ZACC 17
;
2001
(3) SA 409
(CC);
2001 (5) BCLR 449
(CC) at para 41.
[53]
[2000] ZACC 8
;
2000 (3) SA 936
(CC);
2000 (8) BCLR 837
(CC) at para 35.
[54]
Above n 31.
[55]
1997 (2) SA 261
(CC);
1997 (2) BCLR 153
(CC) at para 20.  This
judgment dealt with section 8 of the interim Constitution but the
remarks remain apposite to section
9 of the final Constitution.
See also
Makwanyane
above
n 49 at paras 155-66 and 262;
Shabalala
and Others v Attorney-General of Transvaal, and Another
[1995] ZACC 12
;
1996
(1) SA 725
(CC);
1995 (12) BCLR 1593
(CC) at para 26;
Brink
above
n 34 at para 33;
Satchwell
v President of the Republic of South Africa and Another
[2002] ZACC 18
;
2002
(6) SA 1
(CC);
2002 (9) BCLR 986
at para 18.
[56]
Sections 1, 3, 7, 8, 9, 36 and 39 of the Constitution.  See
also
Prinsloo
v Van der Linde and Another
[1997] ZACC 5
;
1997
(3) SA 1012
(CC);
1997 (6) BCLR 759
(CC) at para 20;
Harksen
v Lane NO and Others
[1997] ZACC 12
;
1998
(1) SA 300
(CC);
1997 (11) BCLR 1489
(CC) at paras 41-53;
East
Zulu Motors (Pty) Ltd v Empangeni/Ngwelezane Transitional Local
Council and Others
[1997] ZACC 19
;
1998
(2) SA 61
(CC);
1998 (1) BCLR 1
(CC) at para 22;
National
Coalition
1999
above n 51 at para 17;
National
Coalition for Gay and Lesbian Equality and Others v Minister of Home
Affairs and Others
[1999] ZACC 17
;
2000 (2) SA 1
(CC);
2000 (1) BCLR 39
(CC) at para 32;
Hoffmann
v South African Airways
2001 (1) SA 1
(CC);
2000 (1) BCLR 1211
(CC) at para 27;
Satchwell
id at
para 21.
[57]
South Africa became party to the Convention on the Elimination of
All Forms of Discrimination against Women on 14 January 1996;
to the
International Convention on the Elimination of All Forms of Racial
Discrimination on 9 January 1999; to the African [Banjul]
Charter on
Human and Peoples’ Rights on 9 July 1996; and to the Protocol
to the African [Banjul] Charter on Human and Peoples’
Rights
on the Rights of Women in Africa on 16 March 2004.
[58]
Article 2(c) and (f) of the Convention on the Elimination of All
Forms of Discrimination against Women; article 18(3) of the
African
[Banjul] Charter on Human and Peoples’ Rights; articles
2(1)(a), 21 and 25 of the Protocol to the African [Banjul]
Charter
on Human and Peoples’ Rights on the Rights of Women in Africa.
[59]
Article 4 of the United Nations Declaration on the Elimination of
All Forms of Racial Discrimination.
[60]
Section 28 provides that:
“
(1)
Every child has the right—
(a)
to a name and a nationality from birth;
(b)
to family care or parental care, or to appropriate alternative care
when removed from the family environment;
(c)
to basic nutrition, shelter, basic health care services and social
services;
(d)
to be protected from maltreatment, neglect, abuse or degradation;
(e)
to be protected from exploitative labour practices;
(
f ) not to be required or permitted to perform work or provide
services that—
(i)
are inappropriate for a person of that child’s age; or
(ii)
place at risk the child’s well-being, education, physical or
mental health or spiritual, moral or social development;
(g)
not to be detained except as a measure of last resort, in which
case, in addition to the rights a child enjoys under sections
12 and
35, the child may be detained only for the shortest appropriate
period of time, and has the right to be—
(i)
kept separately from detained persons over the age of 18 years; and
(ii)
treated in a manner, and kept in conditions, that take account of
the child’s age;
(h)
to have a legal practitioner assigned to the child by the state, and
at state expense, in civil proceedings affecting the
child, if
substantial injustice would otherwise result; and
(i)
not to be used directly in armed conflict, and to be protected in
times of armed conflict.
(2)
A child’s best interests are of paramount importance in every
matter concerning the child.
(3)
In this section “child” means a person under the age of
18 years.”
[61]
See the Preamble to the Constitution
.
[62]
Most of the other rights in the Constitution vest in children.
Exceptions to this are the right to vote and the right to

stand for public office, both of which are conferred only on
adults.  See section 19(3) of the Constitution.
[63]
Article 21(1)(b) of the Charter provides that –
“
States
parties to the present Charter shall take all appropriate measures
to eliminate harmful social and cultural practices affecting
the
welfare, dignity, normal growth and development of the child and in
particular:
(a)
. . .
(b)
those customs and practices discriminatory to the child on the
grounds of sex or other status.”
[64]
Section 39(1) of the Constitution in relevant part provides –
“
When
interpreting the Bill of Rights, a court, tribunal or forum–
(a)
. . .
(b)
must consider international law”.
[65]
South Africa became a party to the United Nations Convention on the
Rights of the Child on 16 July 1995; the International Covenant
on
Civil and Political Rights on 10 March 1999; the African [Banjul]
Charter on Human and Peoples’ Rights on 9 July 1996;
and to
the African Charter on the Rights and Welfare of the Child on 7
January 2000.
[66]
See Preamble to the Convention which cites the Declaration of the
Rights of the Child which was adopted by the General Assembly
in
1959.
[67]
Article 2 of the UN Convention on the Rights of the Child.  See
also article 24 of the International Covenant on Civil and
Political
Rights; article 18(3) of the African [Banjul] Charter on Human and
Peoples’ Rights; articles 3 and 26(3) of the
African Charter
on the Rights and Welfare of the Child.
[68]
See
Marckx
v Belgium
[1979] ECHR 2
at paras 38-9;
Inze
v Austria
[1987] ECHR 28
at para 41.
[69]
See
Weber
v Aetna Casualty and Surety Co
[1972] USSC 91
;
406 US 164
(1972) 175.  See also
Levy
v Louisiana
391
US 68
(1968);
Glona
v American Guarantee and Liability Insurance Co
391 US 73
(1968) 76;
Trimble
v Gordon
[1977] USSC 65
;
430
US 762
(1977).
[70]
For a full account see Hughes “Law, religion and bastardy:
Comparative and historical perspectives” in Burman
and
Preston-Whyte (eds)
Questionable
Issue: Illegitimacy in South Africa
(Oxford University Press, Cape Town 1992) 1–20.
[71]
Green v
Fitzgerald and Others
1914
AD 88
at 99
.
See also the full discussion in Van Heerden et al (eds)
Boberg’s
Law of Persons and the Family
2 ed. (Juta & Co., Ltd, Kenwyn 1999) 390ff.
[72]
Jones “Children on the Move:  parenting, mobility, and
birth-status among migrants” in Burman and Preston-Whyte

(eds.)
Questionable
Issue: Illegitimacy in South Africa
(Oxford University Press, Cape Town 1992) 247, 251-2.  Jones
points to only two elements of customary law and practice which

disadvantaged the marital child: the first relates to inheritance
discussed in the text, and the second relates to clan identity.

See also Jones 252-3.
[73]
See Burman “The Category of the illegitimate in South Africa”
in Burman and Preston Whyte (eds.), id 21, 31-2.
[74]
See Whitfield
South
African Native Law
2
ed. (Cape Town, Juta & Co., Ltd 1948) 314. The passage in
question reads:
“
The
extension of Europeans westward and northward carried with it the
application to the Bantu of Roman-Dutch law, but the unsuitability

of this system to many of the conditions of Native life was not long
in making itself felt.  In general it allowed no recognition
of
the marriage union celebrated after annexation by other than the
prescribed formalities; but a marriage, entered into with
all the
ceremonies essential to its recognition in the Native mind as a
solemn and binding contract, could not, without injustice,
be
rigidly regarded as an agreement for illicit intercourse, allowing
no rights to the issue against the deceased father’s
estate.
Nor could it be expected that in cases where there was no
legal celebration of a marriage between Natives the consequent

substitution for Native methods of the  inheritance of the
Roman-Dutch system, with its community of property between husband

and wife, a result, to the Native mind, both startling and unjust,
would find voluntary acceptance.  Consequently, the legislature

has from time to time conceded, at first a partial, and ultimately a
complete recognition of the Native system.”
[75]
1937 N.A.C. (N. & T.) 89, 91.
[76]
Id 92.
[77]
1938 N.A.C. (N. & T.) 68.
[78]
Id 70.
[79]
See above n 75.
[80]
Western
Cape Provincial Government and Others: In re DVB Behuising (Pty) Ltd
v North West Provincial Government and Another
2001 (1) SA 500 (CC); 2000 (4) BCLR 347 (CC).
[81]
Id at para 93.
[82]
Id at para 1.
[83]
Id at para 2.
[84]
Id at para 41.
[85]
Moseneke
above n 34 at para 21.
[86]
Id at paras 22-3.
[87]
Section 23(1) and (2) of the Act above at para 35.
[88]
Section 23(10) of the Act above at para 35; regulation 2(b) above at
para 36.
[89]
DVB
Behuising
above
n 80 at para 2.  See also
Moseneke
above
n 34 at para 23.
[90]
[2000] ZACC 5
;
2000 (3) SA 1
(CC);
2000 (5) BCLR 491
(CC) at para 32.  See
also
Prince
v President, Cape Law Society, and Others
2001 (2) SA 388 (CC); 2001 (2) BCLR 133 (CC).
[91]
See section 15(3)(a)(ii) of the Constitution which recognises
“systems of personal and family law under any tradition,
or
adhered to by persons professing a particular religion.”  See
also section 30 of the Constitution above n 38, section
31 of the
Constitution above n 39 and section 211 of the Constitution above n
41.
[92]
Section 172(1) of the Constitution provides that:
“
(1)
When deciding a constitutional matter within its power, a court–
(a)
must declare that any law or conduct that is inconsistent with the
Constitution is invalid to the extent of its inconsistency;
and
(b)
may make any order that is just and equitable, including–
(i)
an order limiting the retrospective effect of the declaration of
invalidity; and
(ii)
an order suspending the declaration of invalidity for any period and
on any conditions, to allow the competent authority
to correct the
defect.”
[93]
Mthembu
(SCA)
above n 22 at para 8.
[94]
Id
[95]
Olivier et al
Indigenous
Law
(Butterworths, Durban 1995) 147 at para 142.
[96]
Mthembu
(SCA)
above n 22 at paras 19-20.
[97]
Chihowa
v Mangwende
1987 (1) ZLR 228
(SC) 233-4E.
[98]
Above n 42.
[99]
Id at para 52.
[100]
Id at para 53.
[101]
South African Law Reform Commission,
The
Harmonisation of the Common Law and the Indigenous Law:
Succession in Customary Law
,
Issue Paper 12, Project 90 (April 1998) 6-9.  For similar
views, see also Bennett above n 43, 126-7.
[102]
The
Harmonisation of the Common Law and the Indigenous Law
id 9.
[103]
For the purposes of this judgment, “official rules”
refers to the rules of customary law set in statute, case law
and
various writings.
[104]
Bennett above n 43, 140.
[105]
Above n 101, 4-5.
[106]
Bennett above n 43, 64.
[107]
Madolo
v Nomawu
(1896) 1 N.A.C. 12;
Makholiso
and Others v Makholiso
and
Others
1997
(4) SA 509
(TkS) 519E.  See also Kerr
The
Customary Law of Immovable Property and of Succession
2 ed (Grocott and Sherry, Grahamstown 1990) 99.
[108]
Makholiso
id;
Mthembu
(SCA)
above n 22, 876C.  See also Robinson “The minority and
subordinate status of women under customary law”
(1995) 11
SA
Journal on Human Rights
457-76.
[109]
Mthembu
id; Bekker
Seymour’s
Customary Law in Southern Africa
5 ed (Juta & Co., Ltd, Cape Town 1989), 274; Bennett
A
Sourcebook of African Customary law for Southern Africa
1
ed (Juta & Co., Ltd, Cape Town 1991) 399-400.
[110]
Mthembu
id;
Zondi v
President of RSA and Others
2000
(2) SA 49 (N); 1999 (11) BCLR 1313 (N).
[111]
Nhlapo “African customary law in the interim Constitution”
in Liebenberg (ed)
The
Constitution of South Africa from a Gender Perspective
(Community Law Centre, University of the Western Cape in association
with David Philip, Cape Town 1995) 162.
[112]
See Zaal “Origins of gender discrimination in SA Law”
in Liebenberg id 34, where he concludes that –
“
Roman-Dutch
law, like the Roman law upon which it was founded, was neither
humanitarian nor egalitarian.  In its gender bias,
it was
similar to other European systems of its time, and its effects on
both the South African legal system and South African
society have
been enormous.”
[113]
It was only as late as 1993 when the
General Law Fourth Amendment
Act 132 of 1993
came into operation that the marital power was
abolished from all existing marriages in which it was operating.
The same
Act substituted
section 13
of the
Matrimonial Property Act
88of 1984
which section was later repealed by section 4 of the
Guardianship Act 192 of 1993.  The effect of this was the
deletion
of the reference to the husband’s position as head of
the family.  As stated in Sinclair
The
Law of Marriage
vol
1 (Juta & Co., Ltd, Kenwyn 1996) 69:
“
the
unambiguous premise of the South African law was that the husband is
pre-eminent . . . .  After years of government obduracy
and
unsuccessful campaigning by champions of women’s rights, . . .
changes to these discriminatory rules were suddenly
effected to
produce conformity between the content of this branch of the private
law and the growing public demand for constitutional
guarantees of
equality between the sexes.”
[114]
Above n 31.
[115]
See generally
Fraser
above n 55;
Fraser
v Naude and Others
1999
(1) SA 1
(CC);
1998 (11) BCLR 1357
(CC);
Minister
of Welfare and Population Development v Fitzpatrick and Others
[2000] ZACC 6
;
2000
(3) SA 422
(CC);
2000 (7) BCLR 713
(CC);
Government
of the RSA and Others v Grootboom and Others
2001
(1) SA 46
(CC);
2000 (11) BCLR 1169
(CC);
Bannatyne
v Bannatyne (Commission for Gender Equality as Amicus Curiae)
2003
(2) SA 363 (CC); 2003 (2) BCLR 111 (CC).
[116]
Female children are denied the right to inherit altogether, while
only the eldest male descendant may inherit.  Male
extra-marital
children are not entitled to inherit if there is any
other male descendant, even if he is younger than the extra-marital
child.
[117]
Above para 80.
[118]
Above n 22.
[119]
Id
[120]
Id at para 24.
[121]
Id at para 23.
[122]
[1995] ZACC 11
;
1996 (1) SA 388
(CC);
1995 (12) BCLR 1579
(CC) at para 32.
[123]
National
Coalition
2000 above n 56 at para 65.
[124]
Bhe
above n 9 at para 3.
[125]
Shibi
above n 10 at para 3.
[126]
Above para 31.
[127]
Above n 92.
[128]
Section 172 (1)(b) above n 92.
[129]
Section 39(2) of the Constitution above n 40.
[130]
Section 39(2) of the Constitution above n 40.
[131]
In this regard Kerr asks (Kerr “Role of the courts in
developing customary law” 1999
Obiter
41, 49-50):
“
.
. . is there a sufficient basis for the declaration by a court of a
new legal rule to be applied in all future cases if a few
learned
authors state that a divergence from an existing rule has been
observed in a few instances in practice, and the only
evidence on
the point before the court is that of one of the parties to the case
who is, even though sincere and not dissembling
in any way, by
virtue of being a party to the case vitally interested in the
outcome?  With respect I suggest that it is
not sufficient.”
[132]
See Bennett above n 43, 61.
[133]
See for example
Mabuza
v Mbatha
2003
(4) SA 218 (C); 2003 (7) BCLR 743 (C).
[134]
1998 (2) SA 1068 (T).
[135]
Id, 1075B-C.
[136]
See for example
Makholiso
above
n 107.
[137]
Above n 22.
[138]
See Kerr “Inheritance in customary law under the interim
Constitution and under the present Constitution” 1998 (115)
SA
Law Journal
262, 270.
[139]
Moseneke
above
n 34
at
para 26.
[140]
Section 1
of the
Intestate Succession Act is
fully set out in n 37.
[141]
Section 1(1)(a).
[142]
Section 1(1)(b).
[143]
Section 1(1)(c)
, with the calculation to be made in accordance with
section 1(4)(f).
[144]
Above n 37.
[145]
See Mbatha “Reforming the customary law of succession”
2002 (18)
SA
Journal on Human Rights
259, 285.
[146]
An example would be to give the Master of the High Court powers to
resolve a dispute among parties (South African Law Commission

Project 90
Customary
Law of Succession
2004, 65).
[147]
Id 67-8 where it is suggested that the
Administration of Estates Act
66 of 1965
be amended as part of the repeal of all the regulations
regarding intestate succession by Africans.
[148]
In this respect, the South African Law Reform Commission refers to
the impact of the
Recognition of Customary Marriages Act 120 of
1998
,
section 7
of which provides for community of property in every
customary marriage.  It proposes that widows of such customary
unions
be treated as spouses of their late husbands and that
children born from such unions be regarded as dependants of the
deceased,
id 70.
[149]
Id 77.
[150]
The provisions are summarised at para 117 above.
[151]
Above n 37.
[152]
Above n 37.
[153]
Act
66 of 1965.
[154]
Section 4(1A) reads:
“
The
Master shall not have jurisdiction in respect of any property if the
devolution of the property is governed by the principles
of
customary law, or of the estate of a person if the devolution of all
the property of the person is governed by the principles
of
customary law, and no documents in respect of such property or
estate shall be lodged with the Master, except a will or a
document
purporting to be a will.”
[155]
Section 2A(1) and (2) introduced into the
Administration of Estates
Act by
Act 47 of 2002.
[156]
Government Gazette 25456 GN R1318, 19 September 2003.
[157]
Act 38 of 1927.
[158]
Government Gazette 10601 GN R200, 6 February 1987 as amended by
Government Gazette 24120, GN R1501, 3 December 2002.
[159]
Section 1(4)(b)
of the
Intestate Succession Act provides
that:
“‘
[I]ntestate
estate’ includes any part of an estate . . . in respect of
which section 23 of the Black Administration Act,
1927 (Act No. 38
of 1927), does not apply”.
[160]
Western
Cape Provincial Government and Others: In re DVB Behuising (Pty) Ltd
v North West Provincial Government and Another
[2000] ZACC 2
;
2001 (1) SA 500
(CC);
2000 (4) BCLR 347
(CC) at para 1.
[161]
See para 36 of the main judgment.
[162]
Section 39(2) of the Constitution provides that “. . . when
developing the common law or customary law, every court, tribunal
or
forum must promote the spirit, purport and objects of the Bill of
Rights.”  See also
Ex
Parte Chairperson of the Constitutional Assembly: In re
Certification of the Constitution of the Republic of South Africa,
[1996] ZACC 26
;
1996
1996
(4) SA 744
(CC);
1996 (10) BCLR 1253
(CC) at para 197.  Compare
Carmichele
v Minister of Safety and Security
[2001] ZACC 22
;
2001
(4) SA 938
(CC);
2001 (10) BCLR 995
(CC) at paras 37-40.
[163]
Alexkor
Ltd and Another v Richterveld Community and Others
2003 (12) BCLR 1301
(CC) at para 56.
[164]
Id at para 51.  Compare
Pharmaceutical
Manufacturers Association of South Africa and Another: In re Ex
Parte President of the Republic of South Africa
and Others
[2000] ZACC 1
;
2000 (2) SA 674
(CC);
2000 (3) BCLR 241
(CC) at para 44.
[165]
Section 2 of the Constitution states that, “[t]his
Constitution is the supreme law of the Republic; law or conduct
inconsistent
with it is invalid, and the obligations imposed by it
must be fulfilled.”  See also
Mabuza
v Mbatha
2003 (4) SA 218
(T);
2003 (7) BCLR 743
(T) at para 32.
[166]
Section 1(1) provides that “[a]ny court may take judicial
notice of the law of a foreign state and of indigenous law in
so far
as such law can be ascertained readily and with sufficient
certainty: Provided that indigenous law shall not be opposed
to the
principles of public policy and natural justice: Provided further
that it shall not be lawful for any court to declare
that the custom
of lobola or bogadi or other similar custom is repugnant to such
principles.”  In view of the constitutionalisation
of
indigenous law, there are substantial doubts as to whether the first
proviso still applies.  See also
Mabuza
id.
[167]
Above n 7 at para 52;
Masenya
v Seleka Tribal Authority & Another
1981
(1) SA 522
(T);
Hlophe
v Mahlalela & Another
1998 (1) SA 449
(T) at 457E-F; and
Mabuza
above n 9.
[168]
Above n 7at para 54; and
Mabuza
id at 448D-F.
[169]
Alexkor
id.
[170]
Id
[171]
Id at para 52 n 51.
[172]
Above n 7 at para 52;
Bekker
and De Kock “Male primogeniture in African customary law —
are some now more equal than others?” (1998)
23
Journal
for Juridical Science
99 at 112-113.  See also
Mabena
v
Letsoalo
1998 (2) SA 1068
(T) at 1074-1075B.
[173]
Above n 7 at para 53.
[174]
2000 (3) SA 867
(SCA);
[2000] 3 All SA 319
(A) at para 8.
[175]
Alexkor
above n 7 at para 56.
[176]
[1921] 2 AC 399.
[177]
Id at 402-404.
[178]
Bennett “
A
Sourcebook of African Customary law for Southern Africa”
(Juta, Cape Town 1991) at 383.
[179]
Himonga “The law of succession and inheritance in Zambia and
the proposed reform” (1989)
International
Journal of Law and the Family 3
160 at 161.
[180]
Bekker and De Kock “Adaptation of the customary law of
succession to changing needs” (1992) 25
Comparative
and International Law Journal of Southern
Africa
366 at 368; and Maithufi “The constitutionality of the rule of
primogeniture in customary law of intestate succession”
(1998)
Tydskrif
vir Hedendaagse Romeins-Hollandse Reg
142 at 147.
[181]
Ndulo “Widows under Zambian customary law and the response of
the court” (1995)
Comparative
and International Law Journal of Southern Africa
90 at 92.
[182]
Magaya
v Magaya
1999 (1) ZLR 100
(S) at 108E-G.
[183]
Bennet
Human
Rights and African Customary Law under the South African
Constitution
(Juta, Cape Town 1995) at 5; and id.
[184]
As Mokgoro J put it in
S
v Makwanyane and Another
[1995] ZACC 3
;
1995
(3) SA 391
(CC);
1995 (6) BCLR 665
(CC) at para 308, “
ubuntu
. . . metaphorically, it expresses itself in
umuntu
ngumuntu ngabantu
,
describing the significance of group solidarity on survival issues
so central to the survival of communities.  While it
envelops
the key values of group solidarity, compassion, respect, human
dignity, conformity to basic norms and collective unity,
in its
fundamental sense it denotes humanity and morality.  Its spirit
emphasises respect for human dignity, marking a shift
from
confrontation to conciliation.” (footnotes omitted)
Further, Mohamed J held in
Makwanyane
at
para 263 that “[t]he need for
ubuntu
expresses the ethos of an instinctive capacity for and enjoyment of
love towards our fellow men and women; the joy and the fulfilment

involved in recognizing their innate humanity; the reciprocity this
generates in interaction within the collective community;
the
richness of the creative emotions which it engenders and the moral
energies which it releases both in the givers and the
society which
they serve and are served by.”  See also
Makwanyane
at
para 237.
[185]
Id at para 224.
[186]
Above n 25 at 99.
[187]
South African Law Commission Project 90
Report
on Customary Law of Succession
,
2004 at 15; Bekker and De Kock above n 22 at 366; and Bennett above
n 25 at 382.
[188]
Bennett above n 22 at 383.
[189]
Ndulo above n 25 at 100.
[190]
Maithufi above n 24 at 147.
[191]
In this judgment the term
indlalifa
will
be used as it is more appropriate in the context of succession in
indigenous law.
[192]
Bekker and De Kock above n 24 at 368; and Maithufi above n 24 at
147.
[193]
South African Law Commission Project 90 above n 31 at 17; and
Magaya
above
n 26 at 109E-G.
[194]
Chihowa
v Mangwende
1987 (1) ZLR 228
(SC) at 231H-232D; and
Magaya
above
n 26 at 110B-E.
[195]
Mgoza
and Another v Mgoza
1967 (2) SA 36
(A) at 440E-G.
[196]
Above n 38.
[197]
Above n 26 at 109E-H.
[198]
Bekker and De Kock above n 24 at 366 and 368.
[199]
Rautenbach “Law of succession and inheritance” in Bekker
(ed)
Introduction
to Legal Pluralism in South Africa Part 1 Customary Law
109 at 110.
[200]
Bekker
Seymour’s
Customary Law in Southern Africa
5 ed. (Juta, Cape Town 1989) 298.
[201]
Above n 39 at 440E-F.
[202]
Mbatha “Reforming the customary law of succession”
(2002) 18
South
Africa Journal on Human Rights
259 at 260.
[203]
Id at 261.
[204]
Above n 26 at 109B-E.
[205]
Mabena
above
n 16 at 1073J.
[206]
Above n 18.
[207]
Id
[208]
Id at para 8.
[209]
Mabena
above
n 16 at 1074E-F, where the court found that female family heads were
on the increase.  See also paras 73-74 and 83
below.
[210]
Nhlapo “The African family and women’s rights: Friends
or foes?”
(1991)
Acta
Juridica
135
at 141-142.
[211]
S v
Makwanyane and Another
[1995] ZACC 3
;
1995 (3) SA 391
(CC);
1995 (6) BCLR 665
(CC) at paras 155-156;
Shabalala
and Others v Attorney-General, Transvaal, and Another
[1995] ZACC 12
;
1996 (1) SA 725
(CC);
1995 (12) BCLR 1593
(CC) at para 26;
Brink
v Kitshoff NO
[1996] ZACC 9
;
1996 (4) SA 197
(CC);
1996 (6) BCLR 752
(CC) at paras 33-40;
Fraser
v Children’s Court, Pretoria North, and Others
1997 (2) SA 261
(CC);
1997 (2) BCLR 153
(CC) at para 20;
National
Coalition for Gay and Lesbian Equality and Another v Minister of
Justice and Others
1999
(1) SA 6
(CC);
1998 (12) BCLR 1517
(CC) at paras 15-25;
National
Coalition for Gay and Lesbian Equality and Others v Minister of Home
Affairs and Others
[1999] ZACC 17
;
2000 (2) SA 1
(CC);
2000 (1) BCLR 39
(CC) at para 58;
Hoffmann
v South African Airways
2001 (1) SA 1
(CC);
2000 (11) BCLR 1211
(CC) at para 27
;
and
Satchwell
v President of the Republic of South Africa and Another
[2002] ZACC 18
;
2002 (6) SA 1
(CC);
2002 (9) BCLR 986
(CC) at paras 17-18.
[212]
Above n 25 at 99-100.
[213]
Above n 49 at 1074F-G.
[214]
Elias “
Nigerian
Land Law and Custom”
(Routledge and Kegan Paul Ltd, London 1951) at 216-235; Ezeilo:
“
Laws
and practices relating to women’s’ inheritance rights in
Nigeria: An overview”
available at
www.wacolnig.org/LawAndPracticesRetakingToWomensInheritNig.doc
accessed on 1 June 2004 at 11.
[215]
Elias id at 216.
[216]
Ezeilo above n 58 at 11.
[217]
[1997] 7 NWLR 283.
[218]
Id at 305A-D.
[219]
Act 15 of 1982.
[220]
1984 (2) ZLR 112 (S).
[221]
Id at 117G-H.
[222]
1986 (1) ZLR 138 (SC).
[223]
Id at 143A.
[224]
Above n 38.
[225]
Id at 231E-F and at 232H-233A-B.
[226]
1992 (1) ZLR 167
(S).  This case was decided by a bench of
three judges.
[227]
Id at 169F-G.
[228]
Id at 170A-B.
[229]
Stewart “Untying the Gordian knot! Murisa v Murisa S-41-92: A
little more than a case note” (1992) 4 No 3
Legal
Forum
at 8.
[230]
Above n 26.
[231]
Id at 111B.
[232]
Id at 105G-106B.
[233]
“Land and property rights of widows: A case study of
inheritance customary law in Tanzania” at 6 available at
www.widowsrights.org
accessed on 12 October 2004.
[234]
No 4 Order, 1963.
[235]
Article 13(4) of the Constitution of the United Republic of
Tanzania, 1977 provides that “no person shall be discriminated

against by any person or any authority acting under any law or in
the discharge of the functions or business of any state office”.
[236]
1965 G.L.R 13.
[237]
Id
at 17.
[238]
Id at 16.
[239]
Id
[240]
1965 G.L.R 138.
[241]
Id at 148.
[242]
Id at 144.
[243]
Id
[244]
Articles 1, 2, and 5(a).  South Africa signed the Convention on
29 January 1993 and ratified it on 14 January 1996.
[245]
Article 18(3).  South Africa signed the Charter in 1995 and
ratified it in 1996.
[246]
Articles 2(1) and 26.  South Africa ratified the Covenant on 10
March 1999.
[247]
Articles 2 and 5 of the CEDAW.
[248]
2000 (2) SA 425 (CC); 2000 (1) BCLR 86 (CC).
[249]
Id at para 13.
[250]
Above n 6.
[251]
Id at para 33.
[252]
Id
[253]
Id at para 39.
[254]
See the development of the common law relating to delictual
liability for an omission in cases such as Minister van Polisie v

Ewels
1975 (3) SA 590
(A); Administrateur, Natal v Trust Bank van
Afrika Bpk
1979 (3) SA 824
(A); and Schultz v Butt
1986 (3) SA 667
(A).  See generally Corbett “Aspects of the role of
policy in the evolution of our common law” (1987) 104 South

African Law Journal 52.
[255]
Above n 49.
[256]
Id at 1074F-G.
[257]
Daniels
v Campbell NO and Others
[2004] ZACC 14
;
2004
(7) BCLR 735
(CC) at para 56.
[258]
See para 108 of the main judgment.
[259]
Above n 46 at 285.
[260]
Ex
Parte Chairperson of the Constitutional Assembly
above n 6 at para 202.
[261]
Id at para 197.
[262]
See
para 107 of the main judgment.
[263]
South African Law Commission Project 90 above n 31 at 83.
[264]
Id
[265]
Id at 86.
[266]
Above n 39.
[267]
2000 (4) SA 757 (CC); 2000 (10) BCLR 1051 (CC).
[268]
Id at para 24.
[269]
Above n 25 at 100.
[270]
Above n 23 at 165.