Customary Law and Intestate Succession in South Africa: Substantive Equality Living Customary Law and the Ambitions of Transformative Constitutionalism

Abstract

This article aims to explore the constitutional transformation of the traditional intestate succession regime, particularly the abolition of the traditional male primogeniture, as well as the broader implications thereof on substantive equality. Under the traditional customary law, the eldest male heir inherited the property, thereby automatically excluding women and certain categories of children from inheriting the property independently. Although this traditional law is rooted in communal governance, it is no longer compatible with the principles of equality, dignity, and the rights of the child enunciated in the Constitution of the Republic of South Africa, 1996.

This is because the Constitutional Court, in the landmark judgment of Bhe v. Magistrate, Khayelitsha, declared the traditional male primogeniture unconstitutional, thereby extending the statutory intestate law to cover properties that were previously governed by the traditional law. Furthermore, the Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009 formally abolished the traditional law, thereby entrenching the principle of equality between the sexes. Although the traditional law on intestate succession has been formally abolished, this article argues that substantive equality is yet to be achieved. It is argued that the legislative reform, coupled with the Constitutional Court’s judgment, is not enough to achieve substantive equality. This is because, despite the legislative reform, the traditional law is yet to be fully abandoned, particularly the socio-cultural inequalities that are embedded in the traditional law on intestate succession. It is argued that the reform of the traditional law on intestate succession is a classic example of the transformative potential as well as the inherent limitation of the Constitutional Court’s judgments on substantive equality.

Introduction

The law of intestate succession provides a critical arena in which constitutional principles intersect with historically entrenched systems of authority. Within the South African context, customary succession long prioritised male dominance through the doctrine of primogeniture, embedding gender and birth-based exclusion into the regulation of family property. While traditionally justified as necessary for preserving lineage cohesion and fulfilling communal obligations, the rule became increasingly incompatible with the normative commitments of South Africa’s post-apartheid constitutional dispensation.

The Constitution of the Republic of South Africa, 1996 entrenches equality, dignity, and the protection of children as foundational constitutional values.¹ Simultaneously, it recognises customary law as a legitimate component of the legal system, albeit one subordinate to constitutional supremacy.² This dual framework requires a careful balancing of cultural pluralism with the imperative of non-discrimination.

The Constitutional Court confronted this constitutional tension directly in Bhe v Magistrate, Khayelitsha, concluding that male primogeniture was inconsistent with the guarantees of equality and dignity.³ In response, Parliament enacted the Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009, thereby formally abolishing the discriminatory regime.⁴

This article contends that although these judicial and legislative developments secured formal legal parity, the broader objective of substantive equality has yet to be fully realised. By situating South Africa’s reform within comparative constitutional jurisprudence and engaging academic discourse on living customary law, the analysis demonstrates that transformative constitutionalism demands structural, institutional, and social transformation that extends beyond the invalidation of discriminatory rules.

Customary Succession and Judicial Deference Before Bhe

Male primogeniture meant that the estate passed to the eldest male, who took on all responsibilities. Despite being seen as a communal, not individualistic, culture, it effectively built in a broad exclusion of women and other children. 

In Mthembu v Letsela, the Supreme Court of Appeal declined to set aside the principle, emphasizing judicial restraint. There was a perceived need for legislative action.⁵ There was concern over judicial intervention in a multicultural environment. 

Criticism has been leveled at this, arguing it was at odds with constitutional supremacy.⁶ There was hesitation in intervening, highlighting the conflict between culture and rights, which would later be seen in Bhe.

Bhe and the Constitutional Transformation of Customary Law

In the case of Bhe, the Constitutional Court declared the traditional law of male primogeniture unconstitutional. The court argued that this traditional law discriminated unfairly based on sex and birth and thus violated section 9 of the Constitution. The court also emphasized that dignity, as enshrined in section 10 of the Constitution, is central to being free from exclusion, and denying an individual an opportunity to inherit is an act of subordination. The court also argued that the rights of children as provided in section 28 of the Constitution were violated when children born out of wedlock were denied an opportunity to inherit.

It is important to note that the Constitutional Court did not pretend that customary law is static and that its development is frozen in time. The court acknowledged that customary law is dynamic and that its development is informed by how we live today. However, the court argued that by allowing customary law in modern times, patriarchy was being sustained rather than development being achieved, as provided in section 211 of the Constitution.

The solution that was provided by the court was as radical as its analysis of traditional law. The court struck down traditional law and adopted the Intestate Succession Act as an interim solution. The solution provided by the Constitutional Court was thus as radical as its analysis of traditional law.

It is argued that the case of Bhe is one of the landmark cases of transformative constitutionalism, as discussed by scholars. However, others argue that by adopting statutory law, customary law is being relegated to the back burner and not allowed to mature naturally.

III. Legislative Reform and Its Jurisprudential Implications

The Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009 formalized the Court’s stance.¹⁷ The legislation abolished primogeniture, as well as harmonizing customary law principles on intestate succession with those applicable in civil law cases.

The legislation, on the face of it, establishes formal equality. However, as noted, “while formal equality may be achieved through the law, substantive equality is not automatically achieved.”¹⁸ As noted by Albertyn and Goldblatt, substantive equality demands that “disadvantage be overcome, as well as the social norms that sustain disadvantage.”¹⁹

The continued existence of social pressure, lack of access to legal remedies, and administrative challenges underscores the fact that the law, on its own, cannot eradicate patriarchal social structures.

Comparative Constitutional Context

South Africa’s approach to the constitutional regulation of customary succession must thus be viewed in the context of the broader framework of legal pluralism, which operates under a supreme constitutional framework.

In the context of India, the approach to constitutional adjudication and the regulation of religious and personal law has increasingly been subject to the scrutiny of equality provisions, particularly with respect to issues of inheritance and gender status. Although the constitutional framework differs from South Africa’s in several significant respects, it is notable that the structural tension between the regulation of religious or cultural autonomy and the regulation of gender equality is a significant feature of the Indian framework, just as it is in South Africa.

Another jurisdiction, Canada, shares some similarities with the South African approach, yet differs in significant respects. In the Canadian context, indigenous law is recognized in the Constitution Act, 1982, s 35. However, where indigenous law interacts with the actions of the state, the principles of the Charter impose significant constitutional restrictions. In this respect, the Canadian approach mirrors the South African approach in the tension between the recognition of legal pluralism and the overarching role of the Constitution.

What distinguishes the South African approach from the Canadian approach, and indeed from the Indian approach, is the emphasis on transformative constitutionalism, where the approach of the South African courts is not limited to a restrained or minimalist approach, but rather to the reconfiguration of the entrenched system of inequality, as was demonstrated in the Bhe decision, where the Court did not simply engage in the declaratory invalidation of the law, but reconfigured the legal framework.

Nevertheless, the comparative approach serves to reinforce the point that the judicial approach, however successful it may be in the context of the Constitution, ultimately does not address the issue of equality in practice and serves to reinforce the point made above, that equality will not be achieved through the judicial approach, but must be addressed at an institutional and social level.

Substantive Equality and the Future of Customary Succession

In other words, substantive equality goes beyond the simple deletion of discriminatory provisions. It involves creating a framework wherein rights can be effectively claimed and enforced.

In practice, women in rural or traditional settings may face cultural pressures not to assert their rights to inheritance. Lack of knowledge of statutory provisions adds to their disadvantage, as do administrative inefficiencies in estate management. These are just some of the ways there is a disconnect between constitutional ideals and reality.

Himonga’s argument is compelling when he argues that true change in customary law cannot simply be brought about by replacing it with statute. He argues that change needs to address the dynamic nature of customary law, engaging with communities and fostering a dialogue between constitutional law and customary law.

Conclusion

The formal abolition of male primogeniture thus signifies an important landmark in the development of South African constitutional law on the principle of equality. In this regard, the Constitutional Court and Parliament, with the legislative intervention of the Bhe case, effectively abolished the system, which entrenched systemic discrimination in the law of customary succession.

However, the broader objective of substantive equality is not yet fully attained. In this respect, comparative analysis of South African and foreign constitutional law discloses the fact that the difficulty of balancing cultural recognition with gender equality is an inherent feature of the legal system, regardless of its diversity.

Consequently, the reform of the law of customary succession must thus not be viewed in isolation from the broader context of the South African constitutional dispensation, which, in its transformative approach, provides the legal system with powerful tools for reforming the law, yet its full attainment depends on the institutional capacity and social evolution of the South African people.

Bluebook Reference(S):

1. S. Afr. Const., 1996 §§ 9, 10, 28.
2. S. Afr. Const., 1996 § 211.
3. Bhe v. Magistrate, Khayelitsha 2005 (1) SA 580 (CC) ¶¶ 91–97 (S. Afr.).
4. Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009 (S. Afr.).
5. Mthembu v. Letsela 2000 (3) SA 867 (SCA) (S. Afr.).
6. See, e.g., T.W. Bennett, The Equality Clause and Customary Law, 20 S. AFR. J. ON HUM. RTS. 122, 130–35 (2004).
7. Bhe 2005 (1) SA 580 (CC) ¶ 94 (S. Afr.).
8. Id. ¶¶ 91–97.
9. Id. ¶ 93.
10. Id. ¶¶ 53–59.
11. Id. ¶ 45.
12. Id. ¶¶ 89–90.
13. Id. ¶ 44.
14. Id. ¶¶ 123–129.
15. Karl E. Klare, Legal Culture and Transformative Constitutionalism, 14 S. AFR. J. ON HUM. RTS. 146, 150–56 (1998).
16. Shilubana v. Nwamitwa 2009 (2) SA 66 (CC) ¶¶ 43–49 (S. Afr.).
17. Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009 (S. Afr.).
18. Cathi Albertyn & Beth Goldblatt, Facing the Challenge of Transformation: Difficulties in the Development of an Indigenous Jurisprudence of Equality, 14 S. AFR. J. ON HUM. RTS. 248, 251–60 (1998).
19. See generally Githa Hariharan v. Reserve Bank of India, (1999) 2 S.C.C. 228 (India).
20. Klare, supra note 15, at 150–56.
21. Chuma Himonga, The Future of Living Customary Law in African Legal Systems, 26 S. AFR. J. ON HUM. RTS. 465, 470–78 (2010).