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LCP4804
Advanced Indigenous Law
PORTFOLIO MEMO
SEMESTER 1 - 2023
UNIQUE NUMBER: -
Due Date: - 29th MAY 2023
Includes Footnotes and/or Bibliography
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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 principle of male primogeniture. [20]
“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 the family head” (from
the minority judgment of Ngcobo J in Bhe v Magistrate Khayelisha BCLR (1) (CC).1
The cases concerned a constitutional challenge to the rule of male primogeniture as it
applies in the African customary law of succession, as well as constitutional challenges
to section 23 of the Black Administration Act, 38 of 1927, regulations promulgated in terms
of that section and s. 1(4)(b) of the Intestate Succession Act, 81 of 1987.2
The application in Bhe was made on behalf of the two minor daughters of Ms Nontupheko
Bhe and her deceased partner. The applicants submitted that the impugned provisions
and the customary law rule of male primogeniture unfairly discriminated against the two
children in that they prevented the children from inheriting the estate of their late father.
In the Shibi case for similar reasons, Ms Shibi was prevented from inheriting the estate
of her deceased brother.3
The South African Human Rights Commission and the Women’s Legal Trust intervened
in South African Human Rights Commission and another v President of the Republic of
South Africa and another which was brought in the public interest 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. 4
1 Bhe v Magistrate, Khayelitsha 2004 2 SA 544 (C).
2 Bhe v Magistrate, Khayelitsha 2004 2 SA 544 (C).
3 Bhe v Magistrate, Khayelitsha 2004 2 SA 544 (C).
4 Bhe v Magistrate, Khayelitsha 2004 2 SA 544 (C).
