Authored By: Tholithemba Mazibuko
University of South Africa
Case Name:
The evolution of Law of Succession policies within modern South African governance
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)
The Constitutional Court of South Africa
Bhe and Others v The Magistrate, Khayelitsha and Others Case CCT 49/03
First Applicant: Nonkululeko Letta Bhe
Second Applicant: Anelisa Bhe
Third Applicant: Nontupheko Maretha Bhe
Fourth Applicant: Women’s Legal Centre trust
Versus
First respondent: Magistrate, Khayelitsha
Second respondent: Maboyisi Nelson Mgolombane
Third respondent: President of The Republic of South Africa
Fourth respondent: Minister for Justice and
Constitutional development
Together with
Amicus Curiae: Commission for Gender equality
Shibi v Sithole and Others Case CCT 69/03
Applicant: Charlotte Shibi
Versus
First respondent: Mantabeni Freddy Sithole
Second respondent: Jerry Sithole
Third respondent: Minister for Justice and Constitutional Development
South African Human Rights Commission and Another v President of the Republic of South Africa and Another Case CCT 50/03
First Applicant: South African Human rights commission
Second Applicant: Women’s Legal Centre trust
Judges:
Langa DCJ
Ngcobo J
Date of hearing: 2-3 March 2004
Decided on: 15 October 2004
Modern South African law is described as a mixed legal system due to the state’s colourful and intrinsically culturally diverse history and people. On one hand, South African law is an amalgamation of Roman-Dutch Law influenced by English law (common law). On the other hand, it is a mix of indigenous laws, referred to as “customary law”. Due to the country’s history of cultural atrocities, racial discrimination and Apartheid, its laws and principles of democracy are still evolving. Modern South African law attempts to implement new policies and amend preciously racially discriminatory policies so as to align with the modern citizens of the state as well as modern desires of its nationals.
One such branch of governing that has been addressed through the tireless efforts of the state’s indigenous people is the Law of Succession. Prior to 1994, English law and customary law were strictly separated due to stringent and unyielding racial segregation. During the time of Apartheid, each racial group was deliberately separated and isolated, each with its own ranking of class, rights and perceived value to the state. The very state that belonged to the indigenous people was captured and its people governed by inhumane laws. One of these laws imposed on the indigenous people of South Africa was the Black Administration Act 38 of 1927 which promulgated and headed the segregationist regime; it established a separate legal system under the regime of the Governor- general (at the time, a British-government appointed leaders to govern the African people). Amongst other forms of control, the Act was implemented to regulate tribal control, indigenous laws as well as land ownership and inheritance under customary law. Section 23 of the Black Administration Act[1] prohibited black persons from disposing of certain property (movable house property and quitrent land) by means of a will. The only property that black persons could dispose of by means of a will was family property and other immovable property not qualifying as house property[2]. As for intestate succession, the Intestate Succession Act[3] expressly laid down that estates subject to section 23 of the Black Administration Act fell outside the provisions of the Act.
This proved to be a fundamental legislative issue to be addressed in the newly developing democratic South Africa.
The three cases mentioned proved to be landmark events that challenged the constitutionality of these rigorous and racially discriminative policies regarding laws of succession, there proved to be a gap in the Constitution of South Africa of 1996, particularly the acknowledgement of indigenous laws as well as the lack of integration of such laws into the state’s legislature.
Issues
These three cases, altogether, address the rule of male primogeniture as it applies to African customary law.
They also address the unjust and discriminatory provisions of section 23 of the Black Administration Act 38 of 1927
These three cases also assessed the historically oppressive regulations of the Intestate Succession Act 81 of 1987
The Constitutional court’s legal obligation to uphold the provisions of equality, right to freedom of expression and religion was challenged in these three cases, symbolising the fundamental purpose for a free and democratic state, mitigated by the Constitutional court.
Arguments
The first two cases, herein out referred to as (the Bhe and Shibi cases), were applications made by the Cape Town High Court and Pretoria High Court confirming the unconstitutionality of section 23 of the Black Administration Act 38 of 1927 regulating the distribution and regulation of Estastes of deceased Black South Africans. Section 1(4)(b) of the Intestate Succession Act was also declared to be unconstitutional[4]
The (Bhe) case was addresses by two daughters of Ms Nontupheko Bhe and her deceased partner. It was declared that there was a discriminatory discretion for male primogeniture which disabled the two daughters from inheriting the estate pf their late father. In African culture, one the chief or head of a household passes, the first son immediately inherits his estate, if not the first son, then the second, if not the second son, then the brother pf the late father. The two daughters of the Bhe family challenged this practice. Similarly, in the Shibi case, the daughter was prohibited from inheriting her late brother’s estate.
Due to the involvement of the South African Human Rights Commission and the Women’s Legal Trust, they directed these pertinent issues to the Constitutional court for hearing. The third case, South African Human Rights Commission and Another v President of the Republic of South Africa and Another was subsequently brought to the attention of the public and class action for women and children was ultimately brought to light; an on-going and strife fight faced in traditionalist African communities. This action was specifically focused on the prejudice right of only male primogeniture to inherit the estate of their late fathers and not their daughters, nieces or any female members of their tribes/families.
Judge Langa agreed with majority of the court stating that, despite the fact that history and context are paramount for consideration, section 23 of the Black Administration Act is an archaic Act, promoting the disenfranchisement of women, the loss of their rights as well as their liberation in a modern South Africa which strives to empower all voices. The judge stated that this piece of out-dated legislation would not only be a draw-back of what the modern South African Constitution embodies, but would also be in violation of the rights of all black African persons. He stated that this particular law in Customary law caused “egregious violations” to the wishes of all South African Black peoples. He further stated that this section formed a sort of parallel to the oppressive system of previous oppressors.
“Section 23 and its regulations are manifestly discriminatory and in breach of the rights to equality in section 9(3) and dignity in section 10 of our Constitution, and therefore must be struck down.” [5]
Decisions
In the (Bhe v Magistrate, Khayelitsha) case, the Constitutional Court made fundamentally inclusionary changes to the choice of law rules to be applied to the intestate estates of persons who adhered to customary law. The Court declared section 1(4)(b) of the Intestate Succession Act, section 23 of the Black Administration Act and the regulations produced under this section unconstitutional and invalid. Consequently, the Court ordered that, as from 15 October 2004, the Intestate Succession Act had to be applied to all intestate estates, irrespective of the cultural affiliation of the deceased. This was revolutionary for the indigenous people of the state as it became the pivotal point of acknowledgment of customary law as well as respect towards the multitude of cultures which created the state. The customary law of succession can now only be applied if chosen by means of freedom of testation, in other words, by means of a clause in a will. This also formed an element of liberation for the indigenous people of South Africa, to have a choice of how they wish to honour their deceased family members as well as honour their generational traditions.
Despite these traditions being seemingly outdated due to the prevalence of primogeniture and polygyny, they are still the traditions of the people of the land and deserve to be preserved.
Subsequently, after the developments of the (Bhe v Magistrate, Khayelitsha) case, the Reform of Customary Law of Succession Act was introduced into legislation. The Act was assented by the then president on 19 April 2009 and was in full operation on 20 September 2010.
This Act symbolises the choice of law rule, that the indigenous peoples are no longer oppressed by Western practices, that they are free to choose how the estates of their loved ones are handled, rather than governed. This also protects indigenous peoples who do not have established a will; their intestate affairs are no longer only subject to customary law, but must devolve according to the newly amended Intestate Succession Act.
From the 15th of October 2004, the Constitutional Court determined in the (Bhe v Magistrate, Khayelitsha) case that there was to be an amendment on the previous legal position stating that all individuals adhering to customary law should only be legally allowed to adhere to customary decisions regarding laws of succession when managing the estates of their loved ones. The Court ordered that all new deceased estates were to be administered under the Master’s supervision according to the Administration of Estates Act.
Bibliography
Legislation
Intestate Succession Act 81 of 1987
Black Administration Act 38 of 1927
Internet sources
South African Legal information Institute <IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA> Accessed 8 February 2026
Books
Jamneck, J et al, The Law of Succession in South Africa (4th edn, Oxford University Press Southern Africa, 2023)
[1] Black Administration Act 38 of 1927
[2] Jamneck, J et al, The Law of Succession in South Africa (4th edn, Oxford University Press Southern Africa, 2023)
[3] Intestate Succession Act 81 of 1987
[4] South African Legal information Institute <IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA> Accessed 8 February 2026
[5] South African Legal information Institute <IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA> Accessed 8 February 2026
