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 customary law. In Bhe, two minor daughters of a deceased African 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 the customary law principle of male primogeniture, resulting in the deceased’s father being appointed sole heir. In Shibi, a sister was excluded from inheriting her deceased brother’s estate, which was awarded to male cousins under the same regime. 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 Black Administration Act as a whole. The impugned legislative framework established a parallel system of intestate succession applicable only to Africans, systematically disadvantaging women and extra-marital children.

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 was ordered to apply to all intestate estates. In Bhe and Shibi, the female descendants were recognised as heirs.

This landmark judgment dismantled the racially discriminatory and patriarchal system of intestate succession under apartheid-era legislation. It affirmed that customary law must comply with constitutional values of equality, dignity, and children’s rights, and it significantly advanced the inheritance rights of women and children under customary law in South Africa.