Bhe and Others v Magistrate Khayelitsha and Others (Commission for GenderEquality as Amicus Curiae)

Case Name: Bhe and Others v Magistrate, Khayelitsha, and Others (Commission for Gender Equality as Amicus Curiae); Shibi v Sithole and Others; South African Human Rights Commission and Another v President of the Republic of South Africa and Another.

Judges:Chaskalson CJ, Langa DCJ, Madala J, Mokgoro J, Moseneke J, Ngcobo J, O’Regan J, Sachs J, Skweyiya J, Van Der Westhuizen J and Yacoob J

Parties involved:

Nonkululeko Letta Bhe (First Applicant) and Anelisa Bhe (Second Applicant) are the minor daughters of Nontupheko Maretha Bhe (Third Applicant) who acted on behalf of the minor daughters. The Women’s Legal Centre Trust (Fourth Applicant) acted in the public interest.

The Magistrate, Khayelitsha (First Respondent) is the official who was responsible for applying the discriminatory law in the case.  Maboyisi Nelson Mgolombane (Second Respondent) as a sole heir and representative of the estate.

President of the Republic of South Africa (Third Respondent) represented the state’s involvement in the case.

Minister for Justice and Constitutional Development (Fourth Respondent) acted as a party with interest in this case and filed a notice to abide.

Court: Constitutional Court

Date decided: 15 October 2004

Citation: 2005 (1) SA 580 (CC)

Summary:

The Constitutional Court case of Bhe and Others v Magistrate, Khayelitsha and Others was a landmark case which declared Section 23 of the Black Administration Act and the rule of male primogeniture in African Customary law unconstitutional. The final judgement of the case was handed down by the Constitutional Court of the Republic of South Africa on 15 October 2004. The applicants, two minor daughters of Ms Bhe and the late Mr Mgolombane appealed on the laws that favoured male primogeniture under customary law. They legally challenged the discriminatory nature of these provisions and law which excluded them from inheriting their deceased father’s estate. The Constitutional Court upheld the challenges and addressed the unconstitutionality of male primogeniture in terms of intestate succession for Black Estates. The laws were found unconstitutional under the section 9 titled equality and section 10 titled human dignity in the Constitution of the Republic of South Africa. The Constitutional Court eliminated the discriminatory statutory provisions of the Black Administration Act. It established that both the customary law and statutory law must be consistent with the rights enshrined in the Bill of Rights in the Constitution of South Africa. The case further promoted equality and emphasized that a person’s gender, race or even birth status should not prevent anyone from inheriting under the intestate succession. As a result, the Constitutional Court created an interim regime in which the intestate estates would be governed and administered under the Intestate Succession Act in order to align customary law with constitutional principles.

Prior the Bhe v Magistrate, Khayelitsha and Others case, the law of intestate succession for the Black South Africans was administered and governed by Section 23 of the Black Administration Act 38 of 1927. The system was racially discriminatory on Black individuals as it only applied on Black people. The Intestate Succession Act 81 of 1987 administered and governed according to Roman-Dutch law on other races intestate estates except Blacks. The customary law system applied male primogeniture. This rule prevented individuals from inheriting based on their gender, race or even birth status. It dictated that the eldest male heir should inherit the estate of the deceased excluding women and extramarital children from inheriting. It promoted inequality and discrimination. However, with the challenge brought by the Bhe v Magistrate, Khayelitsha and Others case, the supremacy of the Constitution was upheld thereby bringing to an end the discriminatory system. The interim solution was a temporary measure until the legislature could correct the legal system defects.

Facts:

Nontupheko Maretha Bhe known as Ms. Bhe, brought forth an application to Constitutional Court on behalf of her two minor daughters namely Nonkululeko Bhe and Anelisa Bhe. Nonkululeko was born in 1994 and Anelisa was born in 2001. Both of the daughters are extra-marital daughters of Ms Bhe and Mr Vuyo Elius Mgolombane who passed away intestate in October 2002. The father of the deceased, Mr Maboyisi Nelson Mgolombane was appointed as the sole heir and representative of the estate by Magistrate, Khayelitsha under the Black Administration Act and customary law. The daughters were denied the right to inherit the intestate estate of their deceased father. The applicants argued that the provisions in Black Administration, Intestate Succession Act and customary law along with the rule of male primogeniture constituted to unfair discrimination  against the daughters by preventing them from  inheriting their deceased father’s estate.

Issue:

Whether the application of male primogeniture which excluded women and extra-marital children was constitutional and consistent with the Bill of Rights.

The applicants lawfully challenged the statutory provisions which violated the constitutional rights of the applicants.

Rule:

The Constitutional Court applied the constitutional provisions which were:

• Section 9: “Everyone is equal before the law and has the right to equal protection and benefit of the law”.
• Section 10: “Everyone has inherent dignity and the right to have their dignity respected and protected”.
• Section 28 of the Children’s Act which protects and states that the child’s best interest are of the paramount importance in every matter concerning the child.
• Section 39 (2) of the Constitution of the Republic of South Africa requires the courts, tribunals and forums to interpret legislation or customary law in a way that promotes the spirit, purport and objects of the Bill of Rights.

Application:

The right to equality:

 The Constitutional Court applied the right to equality which prohibits inequality and unfair discrimination. The right guarantees the equality and prohibits unfair discrimination. The Court found the Black Administration Act and the rule of male primogeniture discriminative. The provisions were unfairly discriminating against women and children. The Court applied section 9 to invalidate the Black Administration Act and the male primogeniture in customary law as it was unconstitutional.

The right to human dignity:

The Constitutional Court applied the right to human dignity as it ensures everyone is treated with respect and dignity. The male primogeniture practice was violating against the constitutional rights of both women and children by denying them their right to claim from inheritance. This devalued the dignity of women and children. The Constitutional Court highlighted how this rule was stripping women off their dignity by denying them the rightful ownership. The Constitutional Court declared it as unconstitutional.

The Children’s Act:

The Constitutional Court applied section 28 of the Children’s Act 38 of 2005 which protects the child’s best interests. The Court applied this section to affirm that it is important to consider the best interest of the child. The minor daughters were denied their right to inherit their inheritance of their deceased father. The Court found that the  male primogeniture is directly conflicting on the children’s best interests. It was inconsistent with the Constitution as it was violating its mandate to protect children’s best interests.

Interpretation of Law: Section 39 (2)

The Constitutional Court applied section 39 (2) of the Constitution of the Republic of South Africa to interpret the legislation and develop the customary law. As much has customary law form as part of the South African law when it is applied it has to promote spirit, purport and objects of the Bill of Rights.  The Constitutional Court had to make legal adjustments and developments in order to make the provisions align with the Constitution and be in accord to promote spirit, purport and objects of the Bill of Rights. The Court’s measure to judicial development was through the interim solution until the legislature could enact permanent legislation which will align with the Constitution.

Obiter Dictum

Deputy Chief Justice Langa stated that customary law rule of male primogeniture was being discriminative against women an children  and was therefore inconsistent with the Constitution of the Republic of South Africa. He stated that the customary law could have been developed in order to be in line with the Constitution of the Republic of South Africa.

Conclusion:

In this land marking case, the Constitutional Court of the Republic of South Africa declared that the rule of male primogeniture along with section 23 of the Black Administration Act was inconsistent with the Constitution. Therefore, it was declared invalid. The court further rules that the Intestate Succession Act must apply to all individuals equally without discrimination. Moreover, the court upheld the right to equality (section 9), the right to dignity (section 10) and section 28 of the Children’s Act 38 of 2005. The final judgement was delivered by the Constitutional Court Deputy Chief Justice Langa DCJ. In conclusion, the Bhe case established a fair and legal constitutional standard that brought equality and dignity to all individuals in South Africa without discrimination.

Bibliography:

Bhe and Others v Magistrate, Khayelitsha, and Others (Commission for Gender Equality as Amicus Curiae); Shibi v Sithole and Others; South African Human Rights Commission and Another v President of the Republic of South Africa and Another.

Children’s Act 38 of 2005

Constitution of the Republic of South Africa, 1996