Mthembu v Letsela and Another

The deceased, Tebalo Watson Letsela, died intestate in 1993 holding a 99‑year leasehold over immovable property in Vosloorus. He lived on the property with the appellant, Mildred Mthembu, and her two minor daughters, one of whom (Tembi) was his biological child. No valid customary marriage existed between the appellant and the deceased, although part of lobola had been paid. The deceased was also survived by his father (the first respondent), mother and siblings. The magistrate appointed the appellant as administratrix but indicated that the estate devolved according to Black law and custom. The first respondent claimed the property as heir under the customary law rule of primogeniture. The appellant challenged the constitutionality and validity of the customary law rule of succession and regulation 2(e) of the Regulations under the Black Administration Act.

The appeal was dismissed, and the judgment of the Transvaal Provincial Division upholding the application of the customary law rule of primogeniture and regulation 2(e) was confirmed.

This case affirmed the continued application of customary law primogeniture in intestate succession prior to constitutional reform and clarified that constitutional equality provisions do not apply retrospectively to vested succession rights. It highlighted the limits of constitutional development of customary law where the Constitution was not yet in force, setting the stage for later Constitutional Court decisions that would reform customary succession.