Bhe v Magistrate of Khayelitsha

1. CASE TITLE AND CITATION

• 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)

Court name and bench

• Constitutional Court
• 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

Date of judgment

• 15 October 2004

Parties involved

• First Applicant: NONKULULEKO LETTA BHE (deceased (minor) firstborn daughter)
• Second Applicant: ANELISA BHE (deceased (minor) second-born daughter)
• Third Applicant: NONTUPHEKO MARETHA BHE (mother of minor daughters)
• Fourth Applicant: WOMEN’S LEGAL CENTRE TRUST
• First Respondent: MAGISTRATE, KHAYELITSHA
• Second Respondent: MABOYISI NELSON MGOLOMBANE (deceased father)
• Third Respondent: PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA
• Fourth Respondent: MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT

2. INTRODUCTION

Bhe v Magistrate of Khayelitsha is a South African case law that addressed a conflict between the customary law principle of primogeniture and constitutional values namely the rights to equality and dignity. Under the principle of primogeniture, only the eldest son in the absence of the eldest son, the second son becomes heir; if he is dead leaving no male issue, the third son succeeds and so on through the sons of the family head.  Where the family head dies, leaving no male issue, his father succeeds or another male relative could inherit the estate of a deceased person. In contrast, the Constitution guarantees equality before the law for all individuals, regardless of gender, sex, or age. In this case, the deceased was survived by his father, his partner (who was also the mother of his children), and two young daughters. Applying the primogeniture rule along with section 23 of the Black Administration Act and Regulation 2(e) of the Administration and Distribution of the Estates of Deceased Blacks, the only person entitled to inherit was the deceased’s father. However, the mother, acting on behalf of her daughters, argued that the customary rule, the statutory provision, and the regulation were discriminatory on the grounds of both gender and age.

3. FACTS OF THE CASE

• The third applicant, Ms Bhe, was in a relationship with Mr Vuyo Elius Mgolombane (deceased), but not married. They had two minor daughters, Nonkululeko Bhe and Anelisa Bhe, and were living together. The deceased was a carpenter and Ms. Bhe was a domestic worker. They were destitute and lived in a temporary, informal shelter in Khayelitsha, Cape Town.
• The deceased subsequently obtained state housing subsidies which he used to purchase the property on which they lived and to keep building material for a house. He, however, died before the house could be built. Before the deceased’s death, the youngest daughter Anelisa lived with him and Ms. Bhe in the temporary informal shelter. Nonkululeko was staying temporarily at deceased father’s home.
• The deceased supported Ms. Bhe and their daughters as they were dependent on him.
• The deceased estate comprised  the informal shelter and the property on which it stood, and miscellaneous items of movable property that Ms Bhe and the deceased had acquired jointly over the years, including building materials for the house they intended to build.
• After the death of the deceased, the relationship between Ms Bhe and the father of the deceased became increasingly bad.
• The Magistrate appointed the deceased father as the sole heir to deceased’s estate in accordance with section 23 of the Black Administration Act 38 of 1927 and regulation 2(e). However, he resided in Berlin in the Eastern Cape and was nowhere near Cape Town.
• Section 23 and 2(e), disqualified the two minor daughters from being the heirs to their father’s estate(deceased). According to these provisions, the deceased estates fell to be distributed in terms of “Black law and custom”.
• The deceased’s father made it clear that he intended to sell the immovable property to cover funeral expenses. There was no indication that the deceased’s father gave any thought to the consequences that would follow the sale of the immovable property to the deceased dependants (partner and his daughters).
• Fearing that Ms Bhe and the two minor children were to be homeless, the applicants took the matter to the Cape Town High Court. They obtained two interdicts to prevent deceased father from selling the immovable property and to stop harassing Ms Bhe.
• The applicants challenged the appointment of the deceased’s father as heir to his estate in the High Court. Deceased father opposed the application, Magistrate and the Minister did not oppose.

4. LEGAL ISSUES

• Whether section 23 of Black Administration Act 38 of 1927 and Regulations of the Administration and Distribution of the Estates of Deceased Blacks 2(e) were constitutionally valid?
• Was the customary law principle of primogeniture constitutionally valid?

5. ARGUMENTS OF PARTIES

APPLICANT

The applicant argued that the African succession principle of primogeniture, read with section 23 of the Black Administration Act and regulation 2(e), were unreasonable and unjustifiable discriminatory against her daughters based on age, extra marital children and gender. Section 23 and the regulations unfairly disqualified females, daughters, younger children and extramarital children from being successors to the estates of deceased under black customs. The applicant further argued that the provision and the regulation infringed their constitutional rights under section 9 (right to equality) and 10 (right to dignity) of the constitution. Moreover, she argued that the principle was unreasonable and unjustified under section 36 (limitation clause) of the constitution since it solely permitted the elder son to be heir.

RESPONDENT

The defendant argued that section 23 of the Black Administration Act 38 of 1927 and regulation 2 (e) which provided that the family property should be devolved to the elder male relative of the deceased since the deceased had only daughters who were disqualified under to the customary law principle and the provisions. He further argued that the customary law principle of primogeniture served a social function by maintaining the family unit and ensuring that a successor would be responsible for the welfare of the deceased dependents.

6. Courts Legal Reasoning

The court held that section 23 was incompatible with the Constitutional provisions particularly section 9 (right to equality) and 10(right to dignity). The provision was held to be discriminatory on grounds of race, color and ethnic origin. The court further found that the Act was specifically crafted to fit in with notions of separation and exclusion of Africans from the people of “European” descent during apartheid. The court found the act to be discriminatory and considered whether the discrimination was justified under section 36 of the constitution. The court found that section 23 was enacted as part of a racist program intent on entrenching division and subordination. In light of that purpose and effect, it could not be justified in any open and democratic society, it was therefore found to violate right to equality and human dignity. The court ordered in terms of section 172(1)(a) of the Constitution that section 23 must accordingly be stricken down.

The court had to determine whether the rule discriminated on the grounds of age, birth and secondly, on the grounds of gender. First, it addressed challenges of discrimination against younger children. The challenge based on age and birth discrimination, the rule of primogeniture was challenged on the grounds that it unfairly discriminated against younger children of the deceased, as it permits only elder son to be heir to deceased’s estate. The court investigated the purpose of the principle which is to preserve the family unit and ensure that upon the death of the family head, someone takes over the responsibilities of family head. It further investigated two elements of the principle Firstly, the successor under the principle does not inherit as that term is understood in common law. The successor assumes of the head of the family.

He is required to administer the family property for the benefit of the entire family. In a case where deceased assets are insufficient to maintain family’s needs, the successor uses his personal resources so to ensure everything run smooth. Second, the court acknowledged that the selection of the eldest child was flexible for rule because if elders were not satisfied by his ruling could remove him from office, and the next eldest takes over the responsibility.

Having regarded all the above facts court was satisfied that the principle imposed by entrusting the responsibilities of a deceased family head to the eldest child is reasonable and justifiable under section 36(1). It, therefore, found the rule not being inconsistent with section 9(3) of the Constitution by reason of discrimination based on age and birth. It now remains to consider the challenge based on gender discrimination.

Under the rule of male primogeniture, only men can succeed to the deceased family head. The eldest son succeeds, failing which, the son’s eldest male descendants succeed. If the eldest son has predeceased the father, leaving no descendants, the second son succeeds. If he too predeceased the father, leaving no sons, it goes to the next son. Where there are no male descendants, the father of the deceased succeeds. If the father predeceased the deceased, it would go to his sons and their dependants in their order of birth. The process therefore excludes women. That the rule of male primogeniture limits the rights of women to be considered for succession to the position and status of the deceased family head cannot be gainsaid. They are excluded regardless of their availability and suitability to acquit themselves in that position. They are overlooked in circumstances where they may be the only child of the deceased. Nor does it matter that they may have contributed to the acquisition or preservation of the family property.

Thecourt found that the principle unreasonable and unjustified discriminated women.

7. Final Decision

• The court declared that Nonkululeko Bhe and Anelisa Bhe are the sole heirs of the deceased estate of Vuyo Elius Mgolombane.
• The father of the deceased (Maboyisi Nelson Mgolombane) is ordered to sign all documents and to transfer the entire residue of the said estate to Nonkululeko Bhe and Anelisa Bhe in equal shares
• The Magistrate, Khayelitsha, is ordered to do everything required to give effect to the provisions of this judgment.

8. Critical Analyses

The rule of primogeniture is not in dispute that it discriminates against extra marital children, younger children, daughters and females. However, the court has constitutional obligation under section 39(2) of the constitution, which mandates the court to develop the customary law to be inlign with the constitutional values. The court instead of developing the rule by removing the part which solely permitted son’s to be heir and be replace with first born (regardless of gender). The court stricken down the entire principle, the principle purpose which is to preserve the family unit and ensure that upon the death of the family head, someone takes over the responsibilities of family head. This system ensured that the dependants of the deceased as well as the members of the family always have a home and resources for their maintenance. Currently, indigenous people are obliged to apply common law or statutory law in their customarily wealth. The judgment sends an unspoken message that Africa customs are not worth legal protection.

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.

Republic of South Africa, 1996 Constitution.

Regulations of the Administration and Distribution of the Estates of Deceased Blacks.