ADVANCED
INDIGENOUS LAW
LCP4801
EXAMINATION
EXAMINATION
MEMORANDUM
18 February 2022
February / March 2022
, ACADEMIC INTEGRITY DECLARATION
1. I understand what academic dishonesty entails and am aware of UNISA’s policies in this regard.
2. I declare that this assignment is my own, original work. Where I have used someone else’s work I
have indicated this by using the prescribed style of referencing. Every contribution to, and quotation
in, this assignment from the work or works of other people has been referenced according to this
style.
3. I have not allowed, and will not allow, anyone to copy my work with the intention of passing it off as
his or her own work.
4. I did not make use of another student’s work and submitted it as my own.
NAME: …………………………………………………………………….
STUDENT NUMBER: ……………………………………………………
MODULE CODE: .........................................................................
SIGNATURE: …………………………………………………………….
DATE: ……………………………………………………………………..
, QUESTION 1
With reference to the relevant African customary law authorities, and while providing practical
examples, critically discuss how South African courts have dealt with the application of the divisive
principle of male primogeniture. [25]
In Section 23 of the Black Administration Act1 it becomes clear that males are preferred before female
when it comes to succession. It must be noted that the past practice of customary law (official
customary law) applied the primogeniture rule which allowed only a male child to inherit from the
father’s estate.
The Bhe judgment concerned three related cases (Bhe, SAHRC and Shibi), which were decided
together. In the first action, the father of applicants, Nonkuleleko and Anelisa Bhe (aged 9 and 2), had
died, and the mother (the third applicant) brought an action to secure the deceased's property for her
daughters. Under the African customary law rule of primogeniture as well as section 23 of the Black
Administration Act, the house became the property of the eldest male relative of the father, in this
case the grandfather. The South African Human Rights Commission (SAHRC) and the Women's
Legal Centre Trust brought the action in the public interest and as a class action on behalf of all
women and children in a similar situation.
In Shibi, a sister was denied the right to inherit from her brother's intestate deceased estate under
African Customary Law. In all three cases, the Constitutional Court declared the African customary
law rule of primogeniture unconstitutional and struck down the entire legislative framework regulating
intestate deceased estates of black South Africans. According to the Court, section 23 of the Act was
anachronistic since it ossified ‘official' customary law and grossly violated the rights of black African
persons relative to white persons. With regard to the customary law rule of male primogeniture, the
Court held that it discriminates unfairly against women and illegitimate children on the grounds of
race, gender and birth.
The result of the order was that all deceased estates are to be governed, until further legislation, by
the Intestate Succession Act 81 of 1987, whereby widows and children can benefit regardless of their
gender or legitimacy. The Court also made orders for the division of deceased estates in
circumstances where the deceased person was in a polygamous marriage and was survived by more
than one spouse. The order is significant since it conclusively strikes down discrimination against
1 Black Administration Act 38 of 1927.
INDIGENOUS LAW
LCP4801
EXAMINATION
EXAMINATION
MEMORANDUM
18 February 2022
February / March 2022
, ACADEMIC INTEGRITY DECLARATION
1. I understand what academic dishonesty entails and am aware of UNISA’s policies in this regard.
2. I declare that this assignment is my own, original work. Where I have used someone else’s work I
have indicated this by using the prescribed style of referencing. Every contribution to, and quotation
in, this assignment from the work or works of other people has been referenced according to this
style.
3. I have not allowed, and will not allow, anyone to copy my work with the intention of passing it off as
his or her own work.
4. I did not make use of another student’s work and submitted it as my own.
NAME: …………………………………………………………………….
STUDENT NUMBER: ……………………………………………………
MODULE CODE: .........................................................................
SIGNATURE: …………………………………………………………….
DATE: ……………………………………………………………………..
, QUESTION 1
With reference to the relevant African customary law authorities, and while providing practical
examples, critically discuss how South African courts have dealt with the application of the divisive
principle of male primogeniture. [25]
In Section 23 of the Black Administration Act1 it becomes clear that males are preferred before female
when it comes to succession. It must be noted that the past practice of customary law (official
customary law) applied the primogeniture rule which allowed only a male child to inherit from the
father’s estate.
The Bhe judgment concerned three related cases (Bhe, SAHRC and Shibi), which were decided
together. In the first action, the father of applicants, Nonkuleleko and Anelisa Bhe (aged 9 and 2), had
died, and the mother (the third applicant) brought an action to secure the deceased's property for her
daughters. Under the African customary law rule of primogeniture as well as section 23 of the Black
Administration Act, the house became the property of the eldest male relative of the father, in this
case the grandfather. The South African Human Rights Commission (SAHRC) and the Women's
Legal Centre Trust brought the action in the public interest and as a class action on behalf of all
women and children in a similar situation.
In Shibi, a sister was denied the right to inherit from her brother's intestate deceased estate under
African Customary Law. In all three cases, the Constitutional Court declared the African customary
law rule of primogeniture unconstitutional and struck down the entire legislative framework regulating
intestate deceased estates of black South Africans. According to the Court, section 23 of the Act was
anachronistic since it ossified ‘official' customary law and grossly violated the rights of black African
persons relative to white persons. With regard to the customary law rule of male primogeniture, the
Court held that it discriminates unfairly against women and illegitimate children on the grounds of
race, gender and birth.
The result of the order was that all deceased estates are to be governed, until further legislation, by
the Intestate Succession Act 81 of 1987, whereby widows and children can benefit regardless of their
gender or legitimacy. The Court also made orders for the division of deceased estates in
circumstances where the deceased person was in a polygamous marriage and was survived by more
than one spouse. The order is significant since it conclusively strikes down discrimination against
1 Black Administration Act 38 of 1927.
