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NAME : KOKETSO SILAS LEPAAKU
SIGNATURE : K LEPAAKU
STUDENT NO : 59523336
DATE : 22 February 2022
,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.
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). When taking the
concerned section into consideration, it becomes evident that males used to be
preferred over females in relation to succession. This past practice of customary law,
or to put it directly official customary law, only allowed males to inherit the estates and
assets of the deceased father to the exclusion of females. Indeed, this is what our
constitution of 1996 frown upon. Something which our democratic courts transformed
while taking the provisions of the bill of rights into account such as right not to be
discriminated against on the grounds of sex, rights to equality etc.
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.
The following are some examples of case which indicates how the practice based on
this rule was dealt with in order to align it with provisions of the constitutional
democratic South Africa:
Mthembu v Letsela and Another 1997 (2) SA 936 (T) and 1998 (2) SA
675 (T) and 2000 (3) SA 867 (SCA):
Facts of the case:
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
was an adult woman of Zulu origin who alleged 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
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