Bhe and Others v Magistrate, Khayelitsha and Others (9489/02) [2003] ZAWCHC 49; 2004 (1) BCLR 27 (C); 2004 (2) SA 544 (C) (25 September 2003)

Bhe and Others v Magistrate, Khayelitsha and Others (9489/02) [2003] ZAWCHC 49; 2004 (1) BCLR 27 (C); 2004 (2) SA 544 (C) (25 September 2003)

The court held that the principle of primogeniture, as applied under African Customary Law and enforced by the Black Administration Act and its regulations, constitutes unfair discrimination on the grounds of race and gender, violating section 9 of the Constitution. The exclusion of female descendants from intestate succession cannot withstand constitutional scrutiny. The relevant provisions of the Black Administration Act, its regulations, and section 1(4)(b) of the Intestate Succession Act are declared unconstitutional and invalid to the extent that they exclude female and Black descendants from inheritance. Until the legislature corrects these defects, the distribution of intestate...

Citation
[2003] ZAWCHC 49
Parties
Applicant: Nonkululeko Letta Bhe; Applicant: Anelisa Bhe; Applicant: Nontupheko Maretha Bhe; Applicant: The Women’s Legal Centre Trust; Respondent: The Magistrate, Khayelitsha; Respondent: Maboyisi Nelson Mgolombane; Respondent: The President of RSA; Respondent: The Minister of Justice and Constitutional Development
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
25 September 2003
Case Number
9489/02
Procedural Posture
Review Application / Judgment
Outcome
The application is granted. The relevant statutory and regulatory provisions are declared unconstitutional and invalid. The first and second applicants are declared the sole heirs to the deceased's estate.
Judges
Ngwenya, Hlophe JP
Legal Topics
Intestate Succession, Gender Discrimination, Primogeniture, Customary Law Development, Equality Clause, Invalidity of Statute
Constitutional Law Family and Children Land and Property Intestate Succession Gender Discrimination Primogeniture Customary Law Development Equality Clause +1 more

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Parties

Nonkululeko Letta Bhe

Applicant

Anelisa Bhe

Applicant

Nontupheko Maretha Bhe

Applicant

The Women’s Legal Centre Trust

Applicant

The Magistrate, Khayelitsha

Respondent

Maboyisi Nelson Mgolombane

Respondent

The President of RSA

Respondent

The Minister of Justice and Constitutional Development

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the principle of primogeniture in African Customary Law, which excludes female descendants from intestate succession, is unconstitutional.
  2. 2 Whether the relevant provisions of the Black Administration Act and its regulations, as well as the Intestate Succession Act, unlawfully discriminate on the basis of race and gender.
  3. 3 Whether the first and second applicants, as female children of the deceased, are entitled to inherit ab intestato from their father's estate.

Ratio Decidendi

The court held that the principle of primogeniture, as applied under African Customary Law and enforced by the Black Administration Act and its regulations, constitutes unfair discrimination on the grounds of race and gender, violating section 9 of the Constitution. The exclusion of female descendants from intestate succession cannot withstand constitutional scrutiny. The relevant provisions of the Black Administration Act, its regulations, and section 1(4)(b) of the Intestate Succession Act are declared unconstitutional and invalid to the extent that they exclude female and Black descendants from inheritance. Until the legislature corrects these defects, the distribution of intestate...

Court Disposition

The application is granted. The relevant statutory and regulatory provisions are declared unconstitutional and invalid. The first and second applicants are declared the sole heirs to the deceased's estate.

Orders

  • It is declared that sections 23(10)(a), (c), and (e) of the Black Administration Act are unconstitutional and invalid.
  • Regulation 2(e) of the Regulations for the Administration and Distribution of Estates of Deceased Blacks, published under Government Gazette No 10601 dated 7 February 1987, is declared invalid.