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

Three consolidated cases challenged the constitutional validity of section 23 of the Black Administration Act 38 of 1927 and the customary law principle of male primogeniture in intestate succession. In Bhe, two minor daughters were denied inheritance when their father died intestate, with the grandfather appointed as heir. In Shibi, a sister was excluded from inheriting her deceased brother's estate in favour of male cousins. The impugned provisions created a parallel system of intestate succession applying only to Africans, requiring estates to devolve according to "Black law and custom" based on male primogeniture, which excluded women and younger sons from inheritance.

• Whether section 23 of the Black Administration Act 38 of 1927 and related regulations are unconstitutional
• Whether the customary law principle of male primogeniture unfairly discriminates on grounds of gender and birth
• Whether the rule of male primogeniture can be developed to conform with the Constitution
• What remedial order is appropriate pending legislative reform
• Whether the Intestate Succession Act should apply to estates previously governed by section 23

Section 23 of the Black Administration Act 38 of 1927, the Regulations for the Administration and Distribution of Estates of Deceased Blacks, and section 1(4)(b) of the Intestate Succession Act were declared unconstitutional and invalid. The rule of male primogeniture in customary law was declared unconstitutional to the extent it excludes women and extra-marital children from inheriting. Section 1 of the Intestate Succession Act was made applicable to estates previously governed by section 23, with modifications for polygynous marriages. In Bhe, the two daughters were declared sole heirs. In Shibi, the sister was declared sole heir and the cousins ordered to pay her amounts they had received. The orders had retrospective effect to 27 April 1994 but did not invalidate completed transfers to bona fide heirs.

Section 23 of the Black Administration Act and its regulations are unconstitutional as they discriminate on grounds of race in violation of sections 9(3) and 10 of the Constitution, creating a racially-based succession regime that cannot be justified in an open and democratic society. The customary law principle of male primogeniture violates sections 9(3) (equality) and 10 (dignity) of the Constitution insofar as it excludes women and extra-marital children from intestate succession, perpetuating patriarchal discrimination that can no longer be justified by changed social and economic circumstances. Section 172(1)(a) requires courts to declare law inconsistent with the Constitution invalid to the extent of the inconsistency. Section 39(2) requires courts to develop customary law to promote the spirit, purport and objects of the Bill of Rights. Indigenous law derives its validity from the Constitution and must be interpreted consistently with the Bill of Rights, not through the lens of common law. Where indigenous law deviates from constitutional values, courts have an obligation to develop it to remove the deviation.

Langa DCJ observed that customary law has been fossilized and marginalized through codification rather than being allowed to develop dynamically, and that true customary law should recognize and acknowledge ongoing changes in society. He noted that the rule of primogeniture might be justified regarding discrimination based on age/birth in the context of succession to status and responsibilities, but expressed no final view on this. Langa DCJ emphasized that accommodating customary law does not mean accepting all its rules uncritically - rules must be consistent with the Constitution. He stated that magistrates and officials have a duty to ensure agreements on estate distribution are genuine and not the result of exploitation of vulnerable family members. Ngcobo J (minority) distinguished between developing customary law to adapt to changed circumstances versus developing it to conform with the Bill of Rights, noting different evidence requirements. He emphasized that succession in customary law is primarily about succession to status and responsibilities, not merely inheritance of property as in common law. Ngcobo J warned against the "danger of obliterating" indigenous law and stressed the need to respect diversity and communities' rights to live by indigenous law while protecting vulnerable members.

This landmark judgment struck down a key pillar of apartheid legislation governing African people and recognized that customary law must comply with the Constitution and Bill of Rights. It affirmed that indigenous law is integral to South African law but must be interpreted and developed consistently with constitutional values, particularly equality and dignity. The judgment acknowledged the tension between respecting cultural diversity and protecting vulnerable family members (especially women and children) from discriminatory practices. It addressed the evolution of customary law from traditional communal settings to modern urban contexts where protective mechanisms have broken down. The decision required fundamental reform of succession law affecting millions of South Africans and called for legislative intervention to create a comprehensive system respecting both indigenous law and constitutional rights.