ConCourt rules customary inheritance laws unconstitutional

The Constitutional Court has declared laws governing primogeniture – which allows complete inheritance by the eldest male descendant –to be unconstitutional and invalid.

In a landmark ruling the Constitutional Court has confirmed that the SA customary law rules relating to intestate succession are unconstitutional and discriminatory. The court also confirmed that the entire statutory scheme governing deceased estates of black persons is unconstitutional and discriminates on the basis of race, birth and gender. Michelle O’Sullivan, director of the Women’s Legal Centre, who acted for applicants, Nontupheko Bhe and her two children, Nonkululeko and Anelisa, says: ‘The Constitutional Court ruling strikes down the racist apartheid statutory scheme for deceased estates of black person, as well as the African customary law rule of primogeniture, to the extent that it excludes or hinders women or extra-marital children from inheriting property. A News24 report says the ruling follows a ruling by the High Court in the Cape and Transvaal Provincial Divisions that the pre-1994 Black Administration Act, laws on the administration of black deceased estates, and a provision of the Intestate Succession Act are unconstitutional. 

Concourt rules African customary law of inheritance unconstitutional and discriminatory

Published in: Legalbrief Today
Date: Sun 17 October 2004
Category: Human Rights
Issue No: 1197

On Friday 15 October 2004, the Constitutional Court confirmed that the South African customary law rules relating to intestate succession are unconstitutional and discriminatory. The Court also confirmed that the entire statutory scheme governing deceased estates of black persons is unconstitutional and discriminates on the basis of race, birth and gender.

Michelle O’Sullivan, director of the Women’s Legal Centre, who acted for applicants, Nontupheko Bhe and her two children Nonkululeko and Anelisa, says, “The Constitutional Court ruling strikes down the racist apartheid statutory scheme for deceased estates of black person, as well as the African customary law rule of primogeniture, to the extent that it excludes or hinders women or extra marital children from inheriting property. The rule of primogeniture dictates that only a male who is related to the deceased through a male can qualify as intestate heir and looks to the eldest male descendant of the deceased first.”

“In practice,” says O’Sullivan, “this decision means that that women and girl children, illegitimate children, and children other than the eldest male can inherit from their parents’ estates – regardless of the nature of their parents’ relationship. It also brings an end to discrimination against these groups on the basis of race, sex, gender, social origin and birth and will respect and protect their rights to equality and dignity.”

The Court stated that:

“In argument, section 23 was correctly described as a racist provision which is fundamentally incompatible with the Constitution. It was submitted that the section is inconsistent with sections 9 and 10 of the Constitution because of its blatant discrimination on grounds of race, colour and ethnic origin and its harmful effects on the dignity of persons affected by it. This Court has often expressed its abhorrence of discriminatory legislation and practices which were a feature of our hurtful and racist past and which are fundamentally inconsistent with the constitutional guarantee of equality.”

“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.”

O’Sullivan said the Court ruled that a modified form of the Intestate Succession Act will apply to all such deceased estates in the future. “The Court also made provision for cases where a deceased is survived by more than one spouse in a polygynous customary union.

The Court order is retrospective in that it applies to all deceased estates where the deceased died after 27 April 1994, with the exception that it does not invalidate the transfer of ownership prior to the date of the court’s order 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.

The judgment was handed down in three cases:
The BHE case concerned two girls – aged nine and two – from Khayelitsha who challenged the rule that in the absence of a will stipulating the girls inherit their deceased father’s estate, they could not inherit the property on the grounds that they are female.

The estate in question was the girls’ home in Khayelitsha where the girls had been living with their parents until their father died in 2002. Since their parents were never married, even though they had been cohabiting for twelve years, the mother had no legal claims to the house. Under African customary law the house was therefore deemed to be the property of the eldest male relative of the father’s children. The house thus fell to the father’s father, who planned to sell it.

The second case was brought jointly by the South African Human Rights Commission and the Women’s Legal Centre Trust in the public interest and as a class action on behalf of all women and children prevented from inheriting by reason of the impugned provisions and the rule of male primogeniture.

The second case concerned Charlotte Shibi.

The ORDER IN THE COURT:

The Order

The following order is accordingly made:
(ii) The orders of:

(iii) the Cape High Court in the matter of Bhe and Others v The Magistrate, Khayelitsha and Others, and

(iv) the Pretoria High Court in the matter of Charlotte Shibi v Mantabeni Freddy Sithole and Others

are hereby set aside.

(v) Section 23 of the Black Administration Act 38 of 1927 is declared to be inconsistent with the Constitution and invalid.

(vi) 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.

(vii) 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.

(viii) Section 1(4)(b) of the Intestate Succession Act 81 of 1987 is declared to be inconsistent with the Constitution and invalid.

(ix) 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.

(x) 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:

(xi) 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;

(xii) 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

(xiii) 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.

(xiv) 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.

(xv) 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.

(xvi) Any interested person may approach this Court for a variation of this order in the event of serious administrative or practical problems being experienced.

(xvii) (a) In the matter of Bhe and Others v The Magistrate, Khayelitsha and Others:

(xviii) 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;

(xix) 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;

(xx) The Magistrate, Khayelitsha, is ordered to do everything required to give effect to the provisions of this judgment.

(xxi) In the matter of Charlotte Shibi v Mantabeni Freddy Sithole and Others:

(xxii) it is declared that Charlotte Shibi is the sole heir of the deceased estate of Daniel Solomon Sithole registered atPretoria North Magistrate District of Wonderboom under the reference no 7/1/2-410/95;

(xxiii) Mantabeni Freddy Sithole is ordered to pay Charlotte Shibi the sum of R11,505.50;

(xxiv) 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.

The Women’s Legal Centre is a not-for-profit donor funded law centre established in 1999. The Centre, based in Cape Town, aims to protect and advance women’s legal equality, particularly the rights of socially and economically disadvantaged women.

Press release prepared by Beachhead Media and Investor Relations on behalf of The Women’s Legal Centre Trust

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