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QUESTION 1
With reference to the relevant African customary law authorities, and while providing
practical examples, critically discuss how South African courts have dealt with the
application of the divisive principle of male primogeniture. [25]
The indigenous principles of primogeniture and of succession in the male line of
descent have been recognised by legislation (section 23(10) of the Black
Administration Act 38 of 1927 read together with regulation 2 of the Regulations for
the Administration and Distribution of Estates of Deceased Blacks).
The question is whether this form of indigenous law of succession and inheritance is
reconcilable with provisions of the Constitution (s9, 30 and 31).
VIEWPOINTS THAT INDIGENOUS LAW OF INHERITANCE IS IN CONFLICT
WITH THE CONSTITUTION
The main points in this regard are the following:
The principle that only the eldest son can inherit, is an obvious form of
discrimination on the grounds of age and gender.
, The recognition of the indigenous law of inheritance constitutes discrimination
on the grounds of ethnic descent;
The fact that indigenous intestate estates are administered by the local
magistrate, constitutes unequal treatment by the law since all other intestate
estates are administered by the Master of the High Court.
Mthembu v Letsela and Another 1997 (2) SA 936 (T) and 1998 (2) SA
675 (T) and 2000 (3) SA 867 (SCA):
Facts – Application for an order declaring the rule of African customary law that
excludes African women from intestate succession (s23 of the Black Administration
Act) to be inconsistent with the provisions of chapter 3 of the Constitution (1993). The
applicant an adult woman of Zulu origin who alleges that she had entered into a
customary union with one Tebalo Watson, a South Sotho male, on 14 June 1992 at
Tsakane, Brakpan. Her husband was murdered on 13 August 1993. He died intestate
and applicant was appointed by the second respondent to administer and wind up the
estate of the deceased. Applicant and the deceased had a daughter, Tembi, who was
born on 7 April 1988 and lived with them at the house in Ditopi Street, Vosloorus
(erected on erf 822 Vosloorus Ext Township).
At the time of his death the deceased was the holder of the leasehold title, the
deceased held the full right, title and interest in the leasehold stand and it is stipulated
as a condition that the right of leasehold has been granted to him for residential
purposes for a period of 99 years after date of registration. First respondent (Father of
the deceased and only male who qualified under the rule) now claims that the house
has developed on him by virtue of the operation of the customary law rule of
succession which is recognised by s23 of the BAA and the regulations framed
thereunder (especially reg 2).
Parents of the deceased became sour and they demanded that the applicant vacate
the property with her daughter and hand over the deceased’s movable assets to the
first respondent. The first respondent furthermore refused to contribute to the
maintenance of herself or her daughter and does not regard himself as bound to
assume any responsibility for their support. In the first respondents answering affidavit
, he denies categorically that his deceased son ever married the applicant by customary
law or intended to do so, and he does not recognise her or her daughter as part of
their family. The applicant in her reply to the answering affidavit went into great detail
about the arrangements made for the marriage and cited a number of witnesses and
dates to indicate how the customary union was solemnised (R900 lobolo was paid, the
balance R1100 was payable in Oct 1993, unfortunately he died before).
Legal issue – Whether the rule under S23 of the BAA and the regulations framed
thereunder discriminates between persons on the ground of sex or gender and is in
conflict with the provisions of the Constitution.
Court Held - Transvaal Provincial Division: J Le Roux, 1997 – To bring the
applicant within the ambit of this rule it is essential to establish the jurisdictional
requirement, that she was married by customary law or at least was living with him as
his putative spouse (which was also denied by first respondent). The submission that
this rule of succession is in conflict with the provision of section 10 of the Constitution
(every person shall have the right to respect for and protection of his/her dignity) has
no application to this case. In its proper setting in a tribal community there can be no
question that the succession rule preserves rather than offends the dignity of the
persons affected. It is only in a case where the rule is applied in an urban community
that there is a possible argument in this direction. The application was postponed sine
die (no appointed date for resumption) as the court found that the rule did not constitute
unfair discrimination because of the heir’s concomitant duty of support under
indigenous law.
The matter was also referred for the hearing of oral evidence on whether there was a
valid customary marriage and whether a putative marriage under customary law
existed.
Transvaal Provincial Division: J Mynhardt, 1998 – The applicant was not married
to the deceased. Her child, Tembi, was therefore an illegitimate child of the deceased
and his family. Tembi has no right to inherit intestate from the deceased, it matters not
that she is a girl but because she is an illegitimate child. Even an illegitimate son would
