Equality and Customary Law
Bhe and Others v Khayelitsha Magistrate and Others 2004
Are African customary laws related to inheritance inconsistent with the constitutional guarantee of equality?
Nonkululeko Letta Bhe and her two children, Anelisa and Nontupheko, were financially dependent on Vuyo Elius Mgolombane who had passed away without a will. Bhe and the deceased never married but had lived together for 12 years. Mgolombane’s estate included the temporary informal shelter that the family lived in, and the property on which it stood. It also included other items that Bhe and the deceased had acquired over the years. The deceased’s father made it clear that he intended to sell the property to help pay for the funeral of the deceased. Thus, Bhe and her two minor children would be left homeless and without their possessions.
The Black Administration Act, that governed the estates of people who live under African customary law and die without a will, prevented women and children from inheriting.
Vuyo wanted to avoid the immovable property being sold after his death and told me that he wanted Nonkululeko, Anelisa and me to continue to live there … Vuyo’s father threatened to sabotage the future of Nonkululeko and Anelisa.
The Shibi case:
Charlotte Shibi’s brother passed away without a will. The deceased was not married in terms of the Marriage Act or customary law. He had no children, and was not survived by his parents or grandparents. His nearest male relatives were his two cousins. The deceased’s estate was thus administered by the Black Administration Act which meant his sister, Shibi, was prevented from inheriting his estate.
The deceased’s male cousin, Mantabeni Sithole, was appointed as the executor and heir of the estate by the Wonderboom Magistrates Court, much to the disappointment of the family. Sithole was accused by the family of misusing the estate funds.
Path to the Constitutional Court
The high court found sections 23(10)(a), (c), and (e) of the Black Administration Act, and regulation 2(e) of the Regulations for the Administration and Distribution of the Estates of Deceased Blacks to be unconstitutional and invalid.
Bhe and Shibi applied to the Constitutional Court to confirm the orders of constitutional invalidity made by the high court in their individual cases.
Some of the Arguments
Nonkululeko Bhe/ Charlotte Shibi
Bhe contended that the customary law rule of male primogeniture unfairly discriminated against the two children in that they prevented the children from inheriting the deceased estate of their late father. Shibi also contended that this customary law rule, which also prevented women from inheriting the estate of her deceased brother, was unconstitutional.
Minister of Justice and Constitutional Development
The government did not oppose this matter.
What did the Constitutional Court decide?
The Constitutional Court found that the Black Administration Act violated the rights to equality and dignity under the Constitution, and was therefore unconstitutional.
The Court held that section 23 of the Black Administration Act was an outdated and antiquated piece of legislation which solidified ‘official’ customary law and caused violations of the rights of black African people, mainly women and children. The section created a parallel system of succession for black Africans, without sensitivity to their wishes and circumstances.
The Court then considered the African customary law rule of male primogeniture – the rule that allowed only men to inherit – and held that it discriminated unfairly against women and illegitimate children. It was thus declared unconstitutional.
Certain provisions of the Constitution put it beyond doubt that our basic law specifically requires that customary law should be accommodated, not merely tolerated, as part of South African law, provided the particular rules or provisions are not in conflict with the Constitution.
I have found that the primogeniture rule as applied to inheritance in customary law is inconsistent with the constitutional guarantee of equality.
Impact and Significance
The Bhe decision fundamentally changed the way deceased estates are administered and distributed. In 2005, certain provisions of the Black Administration Act were repealed, and the Intestate Succession Act has applied to all intestate estates since then. This was confirmed in 2009, by the passing by Parliament of the Reform of Customary Law of Succession and Regulation of Related Matters Act, which came into operation in September 2010.
Other cases that relate to the Bhe case are as follows:
Hassam v Jacobs (2009)
Fatima Hassam was married to Ebrahim Hassam in a polygynous Muslim marriage. Mr Hassam died without a will, and on his death certificate it showed that he “had never married”. Women married in polygynous Muslim marriages are not considered “spouses” in terms of the Intestate Succession Act, and thus cannot inherit from their intestate spouses. Mrs Hassam took the matter to the Western Cape High Court where the court found that the exclusion of women married in Muslim marriages was unconstitutional, and ruled that the term “spouse” should include these women as well.
The matter was sent to the Constitutional Court for confirmation. The Constitutional Court confirmed the High Court’s ruling, and further stated that the exclusion of women married in polygynous marriages from the Act infringes on their constitutional rights to equality, religion, and culture.
“By discriminating against women in polygynous Muslim marriages on the grounds of religion, gender and marital status, the Act clearly reinforces a pattern of stereotyping and patriarchal practices that relegates women in these marriages to being unworthy of protection.
Needless to say, by discriminating against those women, the provisions in the Act conflict with the principle of gender equality which the Constitution strives to achieve. That cannot, and ought not, be countenanced in a society based on democratic values, social justice and fundamental human rights.”
– Justice Bess Nkabinde, the Hassam Judgment, 15 July 2009
Bukelwa Nolizwe Holomisa v Sango Patekile Holomisa and Another (2018)
This case dealt with the validity of the Transkei Marriage Act which applied to black people who married in the former apartheid homeland of the Transkei. According to this Act, the marriage between Mr and Mrs Holomisa was out of community of property, which was the default position by law in the former Transkei before 2000. Community of property is a marital property regime under which one half of all property owned by one spouse before marriage is automatically owned by the other spouse, and will become that spouse’s separate property, upon divorce.
However, section 7(3) of the Divorce Act allows a court to order a just and equitable transfer of assets during divorce proceedings, but this section did not include women married under the Transkei Marriage Act. This meant that women married under the Transkei Act had no recourse to the provisions of the Divorce Act which would leave the question of fair distribution between the parties to the courts. If they are married out of community of property, the assets in this case would largely belong to Mr Holomisa and place Mrs Holomisa in a less than fair position.
The Constitutional Court found section 7(3) of the Divorce Act to be unconstitutional as it unfairly discriminated against women married under the Transkei Marriage Act.
It is reported that despite this legislative intervention, many women are still cut out from the right to inherit.