Mthembu v Letsela

Tebalo Watson Letsela died intestate on 13 August 1993, holding a 99-year leasehold over property in Vosloorus. At the time of his death, he lived with the appellant (Mildred Hleziphi Mthembu) and her two minor daughters, including Tembi, born of their relationship on 7 April 1988. Although R900 was paid toward lobola of R2000, no customary union was concluded between the appellant and deceased. The deceased had no other children but was survived by his father (first respondent), mother, and three sisters. The magistrate appointed the appellant to administer the estate but indicated it would devolve according to Black law and custom. The first respondent claimed the property devolved to him under the customary law rule of primogeniture. The appellant challenged the customary law rule of primogeniture and regulation 2 of the Regulations under the Black Administration Act 38 of 1927 as unconstitutional.

• Whether the customary law rule of primogeniture is inconsistent with the interim Constitution's equality provisions
• Whether regulation 2(e) of the Regulations for Administration and Distribution of Estates of Deceased Blacks is ultra vires at common law
• Whether regulation 2(e) has been impliedly repealed by the Intestate Succession Act 81 of 1987
• Whether the customary law rule should be developed under section 35(3) of the interim Constitution to avoid gender discrimination
• Whether the customary law rule is repugnant to principles of public policy or natural justice under section 1 of the Law of Evidence Amendment Act 45 of 1988
• Whether the interim Constitution applies retroactively to succession rights that vested before 27 April 1994

The appeal was dismissed. The costs order granted in favor of the first respondent in the court a quo was abandoned by agreement of the parties, and neither party sought costs in the Supreme Court of Appeal.

The binding legal principles established are: (1) The interim Constitution does not operate retroactively to deprive persons of property rights that vested lawfully before the Constitution came into force (27 April 1994); (2) In customary law, an illegitimate child is not legitimized merely by payment of bridewealth or part thereof - there must be a subsequent marriage between the parents; (3) An illegitimate child in customary law belongs to the mother's family and has no succession rights in the father's estate; (4) Regulation 2(e) of the Regulations under the Black Administration Act is not ultra vires as it gives effect to customary practices that the deceased was entitled to follow; (5) The Intestate Succession Act 81 of 1987 did not impliedly repeal regulation 2(e) because section 1(4)(b) expressly excludes estates governed by section 23 of the Black Administration Act from its operation; (6) Section 35(3) of the interim Constitution, which requires courts to develop customary law with due regard to constitutional values, does not apply to succession rights that vested before the Constitution came into force.

The court made several important non-binding observations: (1) The court left open whether section 35(3) of the interim Constitution or section 39(2) of the final Constitution can be applied to causes of action arising before the commencement of the interim Constitution; (2) The court noted that it left open "the possibility that there may be cases where the enforcement of previously acquired rights would, in the light of our present constitutional values, be so grossly unjust and abhorrent that it could not be countenanced"; (3) The court observed that development of the customary law rule of primogeniture would be better left to the legislature after a process of full investigation and consultation, such as was being undertaken by the Law Commission; (4) The court noted that the deceased had the power under existing law to make a will and avoid the consequences of customary succession if he wished; (5) The court expressed the view that it would be "ill-equipped to develop the rule for lack of relevant information"; (6) The court observed that "to strike down the rule would be summarily to dismiss an African institution without examining its essential purpose and content."

This case is significant as an intermediate decision addressing the constitutional validity of the customary law rule of primogeniture under the interim Constitution. While the court upheld the rule's validity in this instance, it did so primarily on the basis that the Constitution does not operate retroactively and the deceased's rights vested before the Constitution came into force. The court left open for future consideration whether enforcement of previously acquired customary law succession rights could be so grossly unjust as to be contrary to public policy in the constitutional era. The judgment noted that development of customary succession law would be better undertaken by the legislature after proper investigation and consultation (which eventually occurred). The case demonstrates judicial restraint in developing customary law without sufficient information and in circumstances involving vested rights acquired pre-constitutionally. It forms part of the jurisprudential development that eventually led to legislative reform of customary succession law.