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

The Constitutional Court heard three matters together concerning intestate succession under customary law. In Bhe, two minor daughters and their mother challenged the application of section 23 of the Black Administration Act 38 of 1927 and its regulations, under which the deceased father’s estate devolved to his father as sole heir, excluding the children and their mother. In Shibi, a sister was excluded from inheriting her deceased brother’s intestate estate in favour of male relatives under the customary law rule of male primogeniture. 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 in its entirety. All cases highlighted how the statutory regime governing intestate succession for Africans, based on customary law and male primogeniture, excluded women and extra-marital children from inheritance.

Section 23 of the Black Administration Act 38 of 1927 and its regulations governing intestate succession were declared unconstitutional and invalid. Section 1(4)(b) of the Intestate Succession Act 81 of 1987 was declared invalid insofar as it excluded estates previously governed by section 23. Pending legislative correction, intestate succession for all persons is governed by the Intestate Succession Act. In Bhe and Shibi, the female descendants were declared the rightful heirs.

This landmark judgment dismantled the racially and gender-discriminatory regime governing intestate succession under customary law. It affirmed the supremacy of the Constitution over legislation and customary law, advanced gender equality, protected children’s rights, and ensured a uniform, non-discriminatory system of intestate succession in South Africa.