ADVANCED LCP4804
INDIGENOUS LAW
MAY 2023 EXAM ANSWERS
, 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 principle of male primogeniture. [20]
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 Bhe2 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 Shibi3, 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
1
Black Administration Act 38 of 1927.
2
Bhe and Others v Magistrate, Khayelitsha, and Others (Commission for Gender Equality as Amicus Curiae)
3
Shibi v Sithole and Others; South African Human Rights Commission v President of the Republic of South Africa
and Others [2005] ZACC 11
INDIGENOUS LAW
MAY 2023 EXAM ANSWERS
, 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 principle of male primogeniture. [20]
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 Bhe2 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 Shibi3, 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
1
Black Administration Act 38 of 1927.
2
Bhe and Others v Magistrate, Khayelitsha, and Others (Commission for Gender Equality as Amicus Curiae)
3
Shibi v Sithole and Others; South African Human Rights Commission v President of the Republic of South Africa
and Others [2005] ZACC 11
