Bhe and Others v Magistrate, Khayelitsha and Others; Shibi v Sithole and Others; South African Human Rights Commission and Another v President of the Republic of South Africa and Another

The Constitutional Court heard three consolidated matters concerning intestate succession under African customary law. In Bhe, two minor daughters of a deceased man were excluded from inheriting their father’s intestate estate because section 23 of the Black Administration Act 38 of 1927 and its regulations applied customary law of succession based on male primogeniture, resulting in the deceased’s father being appointed sole heir. In Shibi, a woman was excluded from inheriting her deceased brother’s intestate estate, which was instead awarded to a male cousin under the same system. In the third matter, the South African Human Rights Commission and the Women’s Legal Centre Trust sought direct access to challenge the constitutionality of section 23 of the Act as a whole. The challenged regime applied only to Africans and excluded estates governed by section 23 from the Intestate Succession Act 81 of 1987.

Section 23 of the Black Administration Act 38 of 1927 and its regulations were declared unconstitutional and invalid. Section 1(4)(b) of the Intestate Succession Act was declared invalid insofar as it excluded estates governed by section 23. Pending legislative reform, the Intestate Succession Act 81 of 1987 applies to all intestate estates. The minor daughters in Bhe and Ms Shibi were declared the rightful heirs in their respective estates.

This landmark judgment dismantled the racially discriminatory statutory scheme governing African intestate succession and abolished the automatic application of male primogeniture in customary-law intestate succession. It affirmed the supremacy of the Constitution over customary law and advanced substantive equality for women and children in South African succession law.