Authored By: Motshegetsi Zawadi Kekana
University of South Africa
Introduction
This rule of male primogeniture occurs when the male heir mostly the elder, inherits the deceased estate, which prohibits female children from inheriting as this only applies to males. This principle has been in power for the longest duration and in African customary succession law systems. Male primogeniture became an official law under the Black administration Act of 1927 including its regulations, in terms of handling properties of black people who are deceased according to customary law. 1During the times of the amendment of the constitution which includes the Constitution of the republic of South Africa Act, 1996, the clauses in this act mainly section 9 which talks about the right to equality and section 10 which is about the right to dignity made a transformative change in customary law. 2Through landmark judgments such as Bhe and Others v Magistrate, Khayelitsha and Others [2005] (1) SA 580 (CC) 3and subsequent legislation such as the RCLSRM Act4, South African succession law has undergone a transformation away from male primogeniture towards equality in inheritance rights. This article analyses how the male primogeniture has affected the south African law including this principle being annulled and what occurred after that as well as what could be done to make inheritance rights more equal and fairer to everyone regardless of gender.
- Theoretical Underpinnings of Male Primogeniture
Male primogeniture stems from the notion that lineage, property and social status should pass through the male line, often prioritising eldest sons.5In customary systems the heir inherits not only property but also status, responsibilities towards dependants and ancestors, and continuity of the family headship. The rule has often been justified by reference to the heir’s duty to maintain dependants, obligations of ritual and burial, and preservation of the family unit. However, critics argue that the rule entrenches patriarchy, excludes female descendants and children born outside recognised unions, and thus conflicts with modern human‐rights norms of equality and non‐discrimination. 6The theoretical tension lies in the recognition of plural legal orders under section 211 of the Constitution, which simultaneously protects customary law and demands conformity with the Bill of Rights (section 39(2)). 7The result is that customary rules such as male primogeniture must be evaluated not only as traditions but against constitutional norms.
2. Practical Application in South African Succession Law
Under the Black administration act, section 23 provided that the estates of deceased “Black” persons dying intestate were to be administered in terms of “Black law and custom”.8 Regulation 2(e) (Government Notice R200) operationalised this by applying customary succession, including male primogeniture.9In practice, this meant that daughters, extramarital children or younger sons were frequently excluded from inheritance, instead, property devolved to the father, eldest son or nearest male relative
in the male line. By contrast, the Intestate Succession Act 81 of 1987 (ISA) provided for broader heir-order: spouse, descendants, parents, siblings and so forth.10 Until reform, persons whose estates fell under the BAA regime were excluded from the ISA’s more generous ordering of heirs. For example, in Mthembu v Letsela and Another 1997 (2) SA 936 (T), the Transvaal Division upheld a customary rule of male primogeniture for a black deceased estate, emphasising the heir’s duty to support dependants as justification for differentiation. 11This illustrates how the rule functioned in practice and how it shaped real inheritance outcomes.
- Constitutional Challenge and Judicial Reform
The turning point in South African law came with Bhe, where the Constitutional Court held that section 23 of the BAA and the regulation 2(e) were inconsistent with the Constitution because they discriminated unfairly on the grounds of gender, birth and dignity. The Court acknowledged the importance of customary law but emphasised that it must conform with constitutional norms. In Bhe the Court ordered that intestate estates governed by the old regime must henceforth devolve under the ISA (until further legislation) and declared the old provisions invalid from 27 April 1994, subject to bona fide third-party protections. The Court found that the rule of male primogeniture excluded women and children and was not justified under the limitation clause (section 36). This decision signalled that the rule of male primogeniture could no longer be applied in its old form. This act was amended in the intestate succession act regarding excluded estates.
- Legislative reform: Reform of customary law of succession Act
Shortly after the Bhe case, the parliament introduced a law/provision called Reform of Customary law of succession Act (RCLSRM Act) to amend the inheritance rules in customary law.12 They wanted to remove the rules that only males get to have inheritance rights while ignoring females. This legal reform made sure all children regardless of gender have the right to inheritance. This act came to power in December 2010, therefore, equality became mandatory in the South African law. Women and children now have the full rights to inherit estates of the deceased which portrays equality in customary law of succession.
- Application in Practice and Unresolved Issues
Although a legal reform has been introduced, there are still some ongoing challenges which abiding to these new principles, basically the practical implications. There has been some reports and studies that male primogeniture hasn’t completely died down in certain communities, leading to a discrepancy between formal statutory regulation and actual practice. For instance, the article “Effects of the eradication of the rule of male primogeniture” notes that although courts have struck down earlier rules, the lived practices in some communities persist and the gap between formal law and practice endures.13 Furthermore, customary institutions and legal literacy remain weak in many rural areas, meaning women and children may still face exclusion or pressure to accept traditional inheritance arrangements. From a practical estate-law perspective, administrators must now determine whether a deceased person’s estate falls under the old regime, the ISA, or the RCLSRM Act, and whether a customary union existed, lobolo was paid, or an antenuptial contract governs property regime. This entails complex procedural and substantive work.
- Forward-Looking Insights and Reform Suggestions
Although the reform has officially annulled this legal rule of male primogeniture, getting used to different principles will take a lot of time and effort especially for those who grew within the customary law rules. The first solution is that the government should implement educational systems mostly in rural areas so that the community can be informed that women and children now have inheritance rights in the customary law. Secondly, involving traditional councils and leaders will help them understand that this rule is no longer in operation so that they don’t implement it. Thirdly, when women and children are still affected by this rule, the court should invalidate those practises and ensures that they are protected by stating that they will inherit estates. These disputes should be solved in a way that protects women and children also giving full effect to the constitutional rights. Lastly, Courts should protect the vulnerable and make decisions that align with the constitutional values and not the cultural values.
Conclusion
South Africa changing from male primogeniture to equal inheritance marks a major transformation of the customary law of succession. The legal framework now recognises children and women within the inheritance rights which shows that this aligns with constitutional values of equality and dignity. This keeps the law intact without losing cultural identity. However, law on the books is only the start, of educational, constructive engagement with traditional authorities, careful consistency between laws, and consistent enforcement are all needed to turn legal reform into real change. With those measures, the rule of equal inheritance for all families can become a real thing rather than just a principle in a legal textbook.
Reference(S):
1 Black Administration Act 38 of 1927
2 Constitution of the Republic of South Africa Act 108 of 1996, s(9) and s (10)
3 Bhe and Others v Magistrate, Khayelitsha and Others [2005] (1) SA 580 (CC) para 77.
4 Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009
5 Tonye Sharon Miriki and Olatunji Kolapo, ‘A Comparative Analysis of the Principles of Primogeniture Rule and Its Position under International Human Rights Law: A Study of Nigeria, South Africa and United Kingdom’ (2022) 5506 Preprint https://preprints.apsanet.org/engage/api gateway/apsa/assets/orp/resource/item/6398f938b103af2abb18131d/original/a-comparative-analysis of-the-principles-of-primogeniture-rule-and-its-position-under-international-human-rights-law-a-study of-nigeria-south-africa-and-united-kingdom.pdf accessed 28 October 2025.
6 Schoeman Law, ‘Customary Law of Succession – Women’s rights to inherit property’ (2017) https://schoemanlaw.co.za/customary-law-of-succession-womens-rights-to-inherit-property/ accessed 28 October 2025.
7 Act 108 of 1996 s211 and s39(2)
8 Black Administration Act 38 of 1927 s 23.
9 Regulations for the Administration and Distribution of Estates of Deceased Blacks (GN R200) reg 2(e).
10 the Intestate Succession Act 81 of 1987
11 Mthembu v Letsela and Another 1997 (2) SA 936 (T)
12 Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009.
13Effects of the eradication of the rule of male primogeniture on the customary law of succession
