Shibi v Sithole and Others (CCT 50/03, CCT 69/03, CCT 49/03) [2004] ZACC 18; 2005 (1) SA 580 (CC); 2005 (1) BCLR 1 (CC) (15 October 2004)

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Shibi v Sithole and Others (CCT 50/03, CCT 69/03, CCT 49/03) [2004] ZACC 18; 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                                                                     Â
First
Applicant
ANELISA BHE                                                                                            Â
Second
Applicant
NONTUPHEKO MARETHA BHE                                                                Â
Third
Applicant
WOMEN’S LEGAL CENTRE TRUST                                                       Â
Fourth
Applicant
versus
MAGISTRATE, KHAYELITSHA                                                                Â
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                                                 Â
Amicus
Curiae
_____________________________
Case
CCT 69/03
CHARLOTTE SHIBI                                                                                                 Â
Applicant
versus
MANTABENI FREDDY SITHOLE                                                            Â
First
Respondent
JERRY SITHOLE                                                                                    Â
Second
Respondent
MINISTER FOR JUSTICE AND
CONSTITUTIONAL DEVELOPMENT                                                    Â
Third
Respondent
_____________________________
Case
CCT 50/03
SOUTH AFRICAN HUMAN RIGHTS COMMISSION                                  First
Applicant
WOMEN’S LEGAL CENTRE TRUST                                                      Â
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.
href="#_ftn3" name="_ftnref3" title="">
class=MsoFootnoteReference>
[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]
Â
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]
Â
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.Â
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.Â
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.Â
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.Â
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.Â

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.Â
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.Â
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]
Â
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.Â
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.Â
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]
Â
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]
Â
The Women’s Legal Centre Trust was also acting in the interest of a group or a
class of people.
[30]
Â
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.Â
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.Â
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.Â
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.Â
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]
Â
That approach also led in part to the fossilisation
and codification of customary law which in turn led to its marginalisation.Â

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]
Â
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]
Â
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.Â
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]
Â
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]
Â
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]
Â
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]
Â
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]
Â
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]
Â
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]
Â
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.Â

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.Â
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]
Â
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.Â
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.Â
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.Â
This provision is to be found in the regulations, not in the
statute itself.Â
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.Â
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]
Â
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.Â
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.Â
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]
Â
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]
Â
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.Â
By its very
nature it evolves as the people who live by its norms change their
patterns of life.”
[99]
Â
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]
Â
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.Â
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”.
[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.Â
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 suspensionÂ
[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]
Â
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]
Â
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
lang=EN-ZA>[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
href="#_ftn140" name="_ftnref140" title="">
class=MsoFootnoteReference
>
[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]
Â
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]
Â
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.Â
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.Â
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.Â
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.Â
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]
Â
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]
Â
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)
[1]
read together with the Regulations for the Administration and Distribution of
Estates of Deceased Blacks (the regulations)
[2]
framed under the Act and read further with
section 1(4)(b)
of the
Intestate
Succession Act
81 of 1987
.
[3]
  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.Â
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.Â
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
lang=EN-ZA>[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.”
[4]
[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.Â
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.
lang=EN-ZA>[143
]
The unconstitutionality of section 23 of the Act can hardly be
disputed.  The Act is manifestly racist in its purpose and effect.Â
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).
[5]
  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.Â
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.
[6]
Â
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.”
[7]
Â
Like all laws, indigenous law now derives its force from the Constitution.
[8]
  Its validity must now be
determined by reference not to common law but to the Constitution.
[9]
[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.Â
Section 1(1)
of the
Law of Evidence Amendment Act 45 of 1988
says so.
[10]
  Where it cannot be readily
ascertained, expert evidence may be adduced to establish it.
[11]
  Finally, a court may consult
text books and case law.
[12]
[151]
Caution, however, must be exercised in relying on case law and text
books.
[13]
Â
In
Alexkor
[14]
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.Â
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.”
[15]
[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.
[16]
  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.Â
And it will continue to evolve
within the context of its values and norms consistently with the Constitution.”
[17]
(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
[18]
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.
[19]
Â
In
Alexkor
, this Court approved the following passage by the Privy
Council in
Amodu Tijani v The Secretary, Southern Nigeria
:
[20]
“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.Â
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.Â
Abstract principles fashioned a priori are
of but little assistance, and are as
often as not misleading.”
[21]
[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.Â
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.”
[22]
[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.Â
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.Â
Otherwise, the right of inheritance belongs to a much wider group entitled to
inherit from the deceased
according to the operative system of kinship.”
[23]
(footnotes omitted)
[160]
Inheritance of property is not always linked to
succession to status.
[24]
Â
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.Â
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.
[25]
[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.Â
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.
[26]
  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.
[27]
Â
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.Â
This is
manifest in the concept of
ubuntu
—
umuntu ngumuntu ngabantu
[28]
— 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”.
[29]
  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.Â
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.Â
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.”
[30]
(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”.Â
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.
[31]
Â
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.
Â
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.
[32]
[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.Â
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.
[33]
Â
This descendant is
referred to as
indlalifa
or
successor
.
[34]
Â
It is this male descendant who is equated with the heir under common law.
[35]
Â
But there are important differences between the two.Â
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.
[36]
Â
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.
[37]
Â
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.Â
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.
[38]
Â
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.Â
Indlalifa
steps into the shoes of the deceased.
[39]
Â
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.
[40]
Â
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.
[41]
[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.
[42]
Â
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.Â
Indlalifa
acquires the duty to maintain and support the
widow and minor children.
[43]
Â
In dealing with family property,
indlalifa
has to consult the widow who
had the right to restrain him from dissipating family assets.
[44]
  When there are insufficient
assets to maintain the family,
indlalifa
had to use his own resources to
provide maintenance.
[45]
[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.
[46]
Â
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.Â
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.”
[47]
[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.Â
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.”
[48]
[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.
[49]
Â
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
.
[50]
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
:
[51]
“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.”
[52]
[177]
Whether this passage reflects the indigenous law of succession
actually lived by the people is doubtful.
[53]
Â
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.Â
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.Â
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.Â
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.
[54]
Â
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).Â
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.
[55]
Â
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.Â
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.Â
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.Â
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.”
[56]
(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.
[57]
  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.
[58]
Â
It ranges from the rule of primogeniture to the rule of ultimogeniture
(according to which inheritance is exclusively by the
youngest son).
[59]
  The major ethnic groups in
Nigeria include Igbo and Yoruba.
[60]
Â
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.Â
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.Â
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,
[61]
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.Â
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.”
[62]
Zimbabwe
[195]
In Zimbabwe, the courts initially used the Legal Majority Act
[63]
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,
[64]
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.”
[65]
  In
Jenah v Nyemba,
[66]
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.”
[67]
[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
,
[68]
a case in which the deceased was survived by two daughters, his wife by whom he
had no children, his father and four brothers.Â
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.”
[69]
[198]
However, in a later case,
Murisa NO v Murisa,
[70]
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.”
[71]
Â
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”.
[72]
[199]
Murisa’
s case has been criticized for
excluding widows from inheriting from their husbands.
[73]
  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,
[74]
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.
[75]
Â
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.Â
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.
[76]
Tanzania
[201]
In Tanzania, three systems of law govern succession, namely, the
Indian Succession Act 1865, Islamic law and indigenous law.
[77]
  Each system differs in the
rights it accords to women.  The Local Customary Law (Declaration)
[78]
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.
[79]
Ghana
[203]
In
Akrofi v Akrofi
,
[80]
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”.
[81]
Â
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.”
[82]
[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.”
[83]
[206]
In re Kofi Antubam (Decd): Quaico v Fosu and Another
,
[84]
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.Â
“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.”
[85]
[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.”
[86]
And then added:
“Ghana is a developing state with
remarkable social and economic transformations which render some of our
customary rules antediluvian.Â
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.”
[87]
[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),
[88]
the African (Banjul) Charter
on Human and Peoples’ Rights,
[89]
and the International Covenant on Civil and Political Rights.
[90]
  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.
[91]
  As we observed in
S v
Baloyi (Minister of Justice and Another Intervening)
:
[92]
“[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.Â
Similarly the African Charter on Human and Peoples’ Rights obliges signatory
States to ensure the elimination
of discrimination against women.”
[93]
(footnotes omitted)
[210]
This rule might have been justified by the traditional social
economic structure in which it developed.  It has outlived its usefulness.Â
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?Â
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.Â
In
Carmichele v Minister of
Safety and Security and Another
,
[94]
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.”
[95]
[213]
The rationale for this obligation was outlined as follows:
“[t]he Constitution is the supreme law.Â
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.Â
Section 8(1) of the
Constitution makes the Bill of Rights binding on the Judiciary as well as on
the Legislature and Executive.Â
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.”
[96]
(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.Â
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.”
[97]
[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 a
re 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.
[98]
Â
An illustration of this is to be found in the case of
Mabena.
[99]
[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.Â
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.
[100]
  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.”
[101]
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.Â
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.”
[102]
Â
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.Â
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.Â
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.Â
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.Â
There will be circumstances where its application may result in an injustice.Â
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.Â
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.
[103]
Â
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.Â
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.
[104]
  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.”
[105]
Â
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.
[106]
  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.Â

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.Â
If the property concerned
should devolve in terms of common law, the family
members concerned will be left without a home and livelihood.
[107]
[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.
[108]
  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.
[109]
[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.
[110]
  The obligation is to
administer the estate of the deceased on behalf of and for the benefit of the
dependants of the deceased.Â
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.Â
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.Â
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
,
[11]
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.Â
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.Â
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.”
[112]
(footnotes omitted)
[236]
It seems to me therefore that the answer lies
somewhere other than in the application of the
Intestate Succession Act only
.Â
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.Â
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.”
[113]
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.”
[114]
[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.Â
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.Â
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.
class=MsoFootnoteReference>
lang=EN-ZA style='font-size:10.0pt;font-family:"Times New Roman"'>[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.Â
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).Â
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.Â
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.Â
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:Â
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.Â
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.
[1]
Act 38 of 1927.
[2]
Government Gazette 10601 GN R200, 6 February 1987 as amended by
Government Gazette 24120, GN R1501, 3 December 2002.
[3]
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”.
[4]
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.
[5]
See para 36 of the main judgment.
[6]
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.”
Â
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.
[7]
Alexkor Ltd and Another v Richterveld Community and Others
2003 (12) BCLR 1301
(CC) at para 56.
[8]
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.
[9]
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.
[10]
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.
[11]
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.
[12]
Above n 7at para 54; and
Mabuza
id at 448D-F.
[13]
Alexkor
id.
[14]
Id
[15]
Id at para 52 n 51.
[16]
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.
[17]
Above n 7 at para 53.
[18]
2000 (3) SA 867
(SCA);
[2000] 3 All SA 319
(A) at para 8.
[19]
Alexkor
above n 7 at para 56.
[20]
[1921] 2 AC 399.
[21]
Id at 402-404.
[22]
Bennett
“A Sourcebook of African Customary law for Southern
Africa”
(Juta, Cape Town 1991) at 383.
[23]
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.
[24]
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.
[25]
Ndulo “Widows under Zambian customary law and the response of the
court” (1995)
Comparative and International Law Journal of Southern Africa
90 at 92.
[26]
Magaya v Magaya
1999 (1) ZLR 100
(S) at 108E-G.
[27]
Bennet
Human Rights and African Customary Law under the South
African Constitution
(Juta, Cape Town 1995) at 5; and id.
[28]
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.Â
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.
[29]
Id at para 224.
[30]
Above n 25 at 99.
[31]
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.
[32]
Bennett
above n 22 at 383.
[33]
Ndulo
above n 25 at 100.
[34]
Maithufi above n 24 at 147.
[35]
In this
judgment the term
indlalifa
will be used as it is more appropriate in
the context of succession in indigenous law.
[36]
Bekker and
De Kock above n 24 at 368; and Maithufi above n 24 at 147.
[37]
South
African Law Commission Project 90 above n 31 at 17; and
Magaya
above n 26
at 109E-G.
[38]
Chihowa
v Mangwende
1987 (1) ZLR 228
(SC) at 231H-232D; and
Magaya
above n 26
at 110B-E.
[39]
Mgoza
and Another v Mgoza
1967 (2) SA 36
(A) at 440E-G.
[40]
Above n
38.
[41]
Above n
26 at 109E-H.
[42]
Bekker and
De Kock above n 24 at 366 and 368.
[43]
Rautenbach “Law of succession and inheritance” in Bekker (ed)
Introduction
to Legal Pluralism in South Africa Part 1 Customary Law
109 at 110.
[44]
Bekker
Seymour’s
Customary Law in Southern Africa
5 ed. (Juta, Cape Town 1989) 298.
[45]
Above n
39 at 440E-F.
[46]
Mbatha
“Reforming the customary law of succession” (2002) 18
South Africa Journal
on Human Rights
259 at 260.
[47]
Id at
261.
[48]
Above n
26 at 109B-E.
[49]
Mabena
above n 16 at
1073J.
[50]
Above n
18.
[51]
Id
[52]
Id at para 8.
[53]
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.
[54]
Nhlapo “The African family and women’s rights: Friends or foes?”
(1991)
Acta Juridica
135
at 141-142.
[55]
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.
[56]
Above n 25 at 99-100.
[57]
Above n 49 at 1074F-G.
[58]
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.
[59]
Elias id at 216.
[60]
Ezeilo above n 58 at 11.
[61]
[1997] 7 NWLR 283.
[62]
Id at 305A-D.
[63]
Act 15 of 1982.
[64]
1984 (2) ZLR 112 (S).
[65]
Id at 117G-H.
[66]
1986 (1) ZLR 138 (SC).
[67]
Id at 143A.
[68]
Above n 38.
[69]
Id at 231E-F and at 232H-233A-B.
[70]
1992 (1) ZLR 167
(S).  This case was decided by a bench of three
judges.
[71]
Id at 169F-G.
[72]
Id at 170A-B.
[73]
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.
[74]
Above n 26.
[75]
Id at 111B.
[76]
Id at 105G-106B.
[77]
“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.
[78]
No 4 Order, 1963.
[79]
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”.
[80]
1965 G.L.R 13.
[81]
Id at 17.
[82]
Id at 16.
[83]
Id
[84]
1965 G.L.R 138.
[85]
Id at 148.
[86]
Id at 144.
[87]
Id
[88]
Articles 1, 2, and 5(a).  South Africa signed the Convention on 29
January 1993 and ratified it on 14 January 1996.
[89]
Article 18(3).  South Africa signed the Charter in 1995 and
ratified it in 1996.
[90]
Articles 2(1) and 26.  South Africa ratified the Covenant on 10
March 1999.
[91]
Articles 2 and 5 of the CEDAW.
[92]
2000 (2) SA 425 (CC); 2000 (1) BCLR 86 (CC).
[93]
Id at para 13.
[94]
Above n 6.
[95]
Id at para 33.
[96]
Id
[97]
Id at para 39.
[98]
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.
[99]
Above n 49.
[100]
Id at 1074F-G.
[101]
Daniels v Campbell NO and Others
[2004] ZACC 14
;
2004 (7) BCLR 735
(CC) at
para 56.
[102]
See para 108 of the main judgment.
[103]
Above n 46 at 285.
[104]
Ex Parte Chairperson of the Constitutional Assembly
above n 6
at para 202.
[105]
Id at para 197.
[106]
See para 107 of the main judgment.
[107]
South
African Law Commission Project 90 above n 31 at 83.
[108]
Id
[109]
Id at 86.
[110]
Above n 39.
[111]
[2000] ZACC 11
;
2000 (4) SA 757
(CC);
2000 (10) BCLR 1051
(CC).
[112
Id at para 24.
[113]
Above n 25 at 100.
[114]
Above n 23 at 165.