Bhe and Others v The Magistrate, Khayelitsha and Others

Three related cases concerning intestate succession under customary law. In the Bhe case, a deceased African man left two minor daughters. His father was appointed heir in terms of customary law male primogeniture, leaving the daughters and their mother potentially homeless. In the Shibi case, a deceased African man's cousin was appointed heir despite the deceased's sister being alive. The South African Human Rights Commission and Women's Legal Centre Trust brought a direct access application challenging the legislative framework governing African intestate succession, comprising section 23 of the Black Administration Act 38 of 1927 and related regulations, as well as the customary law principle of male primogeniture.

• Whether section 23 of the Black Administration Act 38 of 1927 and related regulations are unconstitutional on grounds of unfair racial discrimination
• Whether the customary law principle of male primogeniture is inconsistent with the Constitution's equality and dignity provisions
• Whether the rule of primogeniture can be developed to comply with the Constitution or must be struck down
• What remedy is appropriate to address the unconstitutionality while respecting customary law
• Whether the courts should develop customary law or defer to the legislature

Section 23 of the Black Administration Act 38 of 1927 and the related regulations were declared invalid. The customary law rule of male primogeniture was declared unconstitutional insofar as it excludes women and extra-marital children from inheriting. Section 1(4)(b) of the Intestate Succession Act was declared invalid. Section 1 of the Intestate Succession Act (modified to accommodate multiple spouses in polygynous unions) was ordered to apply to intestate estates formerly governed by section 23. The orders of invalidity were made retrospective to 27 April 1994 but did not apply to completed transfers where the transferee had no notice of legal challenge. In the Bhe case, the two minor daughters were declared sole heirs. In the Shibi case, the sister was declared sole heir and the cousins were ordered to pay her the amounts they had received.

Section 23 of the Black Administration Act and related regulations are unconstitutional because they discriminate unfairly on grounds of race by creating a parallel succession system applying only to African people. The customary law rule of male primogeniture violates sections 9 (equality) and 10 (dignity) of the Constitution insofar as it excludes women and extra-marital children from intestate succession. This discrimination cannot be justified under section 36. Customary law is subject to the Constitution and courts have an obligation under section 39(2) to develop it to promote the spirit, purport and objects of the Bill of Rights. Where the common law or legislation can provide an interim solution pending legislative reform, courts may substitute constitutional provisions for unconstitutional ones. The best interests of children must be paramount in succession matters affecting them.

Langa DCJ observed that customary law has been distorted and fossilized through colonialism and apartheid, which emphasized its patriarchal features while minimizing communitarian ones. He noted that official customary law as captured in statutes and textbooks often does not reflect "living customary law" actually practiced by communities. He emphasized that customary law must be interpreted in its own setting, not through the lens of common law. Ngcobo J (minority) provided extensive analysis of the nature and purpose of succession in customary law, emphasizing that succession involves succession to status and family responsibilities, not merely inheritance of property. He noted that the principle of ubuntu and reciprocal family obligations are central to customary law. He cautioned against the obliteration of customary law and advocated for a flexible approach that applies either customary or common law depending on what is fair, just and equitable in each case, with particular regard to the interests of minor children and dependants. The judgment did not address the constitutionality of male primogeniture in other customary law contexts such as traditional leadership.

This is a landmark case that struck down key remnants of apartheid legislation and transformed the law of succession for African people in South Africa. It affirmed that customary law is subject to the Constitution and must be interpreted to promote the Bill of Rights. The judgment grapples with the tension between respecting cultural diversity and protecting fundamental rights, particularly for vulnerable groups like women and children. It demonstrates different approaches to developing customary law: the majority favoured legislative intervention while the minority advocated judicial development. The case advanced gender equality and children's rights in the context of customary law, while recognizing that customary law is dynamic and must evolve with society. It remains highly influential in constitutional jurisprudence concerning the status of customary law, the development of law by courts, and appropriate remedies where legislation is unconstitutional.