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the indigenous principles of primogeniture and of succession in the male line of descent have been recognised by legislation section 2310 of the black administration act 38 of 1927 read together wi
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
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