Authored By: Motshegetsi Zawadi Kekana
University of South Africa
- Case title & Citation
Bhe and others v Magistrate, Khayelitsha and others (2004) ZACC 17; 2005(1) SA 580 (CC).
- Court Name & Bench
Court name: Constitutional court of South Africa
Bench: Full bench, constitutional bench Langa DCJ, Chaskalson CJ, Madala J, Mokgoro J, Moseneke J, O’Regan J, Sachs J, Skweyiya J, Van der Westhuizen J, Yacoob J and Ngcobo J.
- Date of Judgement
15 October 2004
- Parties involved
In the Bhe v Khayelitsha case, the parties involved are the applicants : Nontupheko Maretha Bhe who appeared in court on behalf of her two minor children, Anelisa Bhe and Nonkululeko based on the issues of the females being the descendants of those who died intestate, and women’s legal Centre trust is one of the applicants in this case as well.
Another applicant case is from the Shiba case, Charlotte Shibi is the applicant who appeared n court for herself regarding her late brother who died intestate, not married, without parents and children.
From the third case is an application made by the South African Human rights commission who came in their own name on behalf of public interest to protect the rights of women and female children in terms of inheritance in Africans who died intestate. They want to challenge section 23 of the black administration act 38 of 1927, which has a rule of male primogeniture excluding female heirs and declare it unconstitutional and invalid as it violates the right to equality in the Constitution of South Africa.
Respondents
The respondents included, Magistrate Khayelitsha, Maboyisi Nelson Mgolombane, The president of South Africa, Minister of Justice and constitutional development, commissioner for gender equality, Mantabeni Freddy Sithole, and Jerry Sithole( the cousins of the late Daniel Solomon Sithole in the Shibi case).
- Facts of the Case
The cases include of three related matters which turn on whether certain statutes and customary rules governing intestate succession for deceased black African persons, especially the rule of male primogeniture, are compatible with the Constitution.
Chronological background and relevant facts:
The deceased, in the Bhe case died intestate (no will) and, under the provisions of the Black Administration Act 38 of 1927, and regulations promulgated under it, the estate of a “black” person as defined under apartheid era laws, deceased without a will would devolve according to “Black law and custom”. Section 23 of that Act and the accompanying regulations provided for distribution of such estates, applying customary law rules such as male primogeniture basically all estates are passed to male heirs, typically the eldest male descendant rather than the general intestate succession statute of which female heirs aren’t allowed to inherit the estates.
In Bhe, Nontupheko Maretha, the mother of the two minor daughters of the deceased raised a challenge because, under the statutory/customary regime, they were excluded from inheriting their father’s estate, instead the deceased’s father (their grandfather), Mr Maboyisi Nelson Mgolombane was appointed heir/administrator. Therefore, there was an issue on whether the deceased children are extra-marital children since there was no legal marriage between the mother and the deceased.
In Shibi, the deceased brother died intestate, and though his sister (Ms Charlotte Shibi) was next of kin, because he was not married or had a life partner, nor did he have children and he was not survived by his parents or grandparents, under the Act and customary law the estate devolved to male cousins (male relatives) instead of her. She challenged the estate administration in the High Court.
The SAHRC matter sought direct access to the Constitutional Court on a broader public interest basis: essentially challenging the statutory regime (the Black
Administration Act’s section 23, its regulations, and the exclusion in the Intestate Succession Act 81 of 1987 s 1(4)(b) (which excluded estates falling under the Black Administration Act from the general intestate regime) as inconsistent with the Constitution’s equality and dignity provisions.
The applicants contended that the combined eƯect of the statute and customary rule (male primogeniture) discriminated unfairly on the grounds of gender (women and girls excluded) and birth (extra-marital children) and compounded historical racial discrimination because the separate regime applied only to black Africans. They argued that the estate administration rules left women and children vulnerable – for instance, with property transferred to male relatives who might not attend to the ongoing support of dependants.
The High Courts (Cape High Court in Bhe, Pretoria High Court in Shibi) found certain provisions unconstitutional and invalid, and the matter was brought to the Constitutional Court for confirmation of invalidity orders and resolution of the broader constitutional issues.
- Issues raised
The constitutional court raised legal questions regarding intestate succession.
Whether section 23 of the Black Administration Act (and its subordinate regulations, which prescribe distribution of deceased estates of black Africans according to customary law (including male primogeniture) are inconsistent with the Constitution, specifically the rights to equality (section 9) and human dignity (section 10) of the Constitution of South Africa, 1996.
Whether the rule of male primogeniture inherent in customary law of succession (the rule by which only male heirs of a deceased under customary law can inherit) is itself unconstitutional when applied in the context of intestate succession.
Whether section 1(4)(b) of the Intestate Succession Act, which excludes estates falling under the Black Administration Act from the application of the general intestate regime, is unconstitutional.
Whether the regulations promulgated under section 23 (are unconstitutional. The appropriate remedy for this case was still decided and there were options like whether to remove the invalid provisions and leave it to the legislation to deal with it, suspending the declaration of invalidity temporarily, or developing rules that align with the values of the bill of rights.
- Arguments of the parties
Appellants/Applicants
The applicants in this case argued that that the customary rule of male primogeniture, in conjunction with the statutory regime embodied in Black Administration Act 38 of 1927 (“the Act”), specifically section 23 and the regulations made under it, unfairly discriminated against women, children born outside of a marriage or customary union, and female descendants in general. They claimed that this regime had the eƯect of excluding some heirs from the estates of deceased Africans due to their gender (female), birth status (children born outside of marriage), or fact that they were not the eldest male heirs. For instance, the Act required the estate to devolve in accordance with “Black law and custom,” which the applicants claimed favoured male heirs, preventing the daughters of the deceased father from inheriting in the Bhe case. They argued that such exclusion violated the rights to human dignity under section 10 and equality under section 9 of the Republic of South Africa’s 1996 Constitution. More generally, the applicants argued that the Act did not reflect the constitutional values of a non-racial, equal society and instead perpetuated inherited inequalities from the apartheid era by separating the intestate succession of deceased African persons into a separate statutory/customary regime. They contended that the limitation clause (section 36) of the Constitution could not be used to justify the male primogeniture rule, which distributes the estate to a male heir, frequently at the expense of sisters or daughters, because it was neither appropriately fitted to serve justifiable goals in line with democratic values nor a minimal impairment of rights.
Respondents
The respondents argued that the provision in the black administration act should be followed and respected as they were also recognized provisions. They stated that the reforms are required to be led by legislature and development through customary organizations not by courts or by the fact that the male primogeniture originates from certain communities in terms of their traditions. The respondents stated that the limitation clause might be allowed because the aim is to preserve the family lineage, respect and maintaining traditions in the community therefore this legal system should have any interference.
- Judgement/final decision
The majority judgement by Langa DCJ held that:
- Section 23 of the black administration act was considered invalid and inconsistent with the constitution including its provisions. This was declared by the court.
- In the black administration act, section 1(4)(b) of the intestate succession act was also declared invalid because it did not include properties that were regulated by the act.
- The principle of male primogeniture was declared unconstitutional because it denied women and children the right to inherit estates. o To protect legitimate third-party transfers that took place prior to the order and without notice of challenge, the Court mandated that the declaration of invalidity be retroactive to April 27, 1994, the date on which the new Constitution went into full eƯect.
- Legal reasoning/ratio decidendi
The court found that the rule of male primogeniture is discriminatory towards females and children, also the provisions of the black administration act are unconstitutional.
Customary is essential in court decisions, however, the court decided that it must align with the constitutional values, specifically equality.
The court implemented ways to protect women and children from decisions that violate their rights. It was guaranteed that the estates will be devolved in ways that are within the constitutional values meaning even females have the right to inherit.
The court held that they have the power to declare provisions unconstitutional and decide on interim provisions until a legislative reform occurred.
- Conclusion
In conclusion, the judgements in the Bhe case, Shiba case and others marks a fundamental shift in the legal sector, moving from the apartheid principles and gender inequality to law that consists of equality and non-discrimination. The court declared the provisions of the black administration act unconstitutional and therefore ensured that there is a shift towards the previous intestate provisions, declaring every citizen the right to inherit, regardless of gender. The old system is no longer in authority. Customary law is still recognized however it is required to align with the constitutional values.
This case is an epitome of change in law. The exact law that facilitated excluding individuals from inheriting estates has now implemented reforms that emphasize equality and dignity, indicating that no area of the law is immune from being influenced by our core principles.
REFERENCE(S):
Bhe and Others v Khayelitsha Magistrate and Others (CCT 49/03) [2004] ZACC 17; 2005 (1) SA 580 (CC); 2005 (1) BCLR 1 (CC) (15 October 2004)
Black administration act 38 of 1927
Shibi v Sithole and others Case CCT 69/03
South African Human Rights Commission and another v President of the Republic of South Africa and another Case CCT 50/03
the Intestate Succession Act 81 of 1987
Constitution of the South Africa Act 108 of 1996
