Mthembu v Letsela and Another (71/98) [2000] ZASCA 181; [2000] 3 All SA 219 (A) (30 May 2000)

Mthembu v Letsela and Another (71/98) [2000] ZASCA 181; [2000] 3 All SA 219 (A) (30 May 2000)

The Supreme Court of Appeal held that the customary law rule of male primogeniture, as embodied in regulation 2(e) of the Regulations under the Black Administration Act, was not unconstitutional in the circumstances of this case. The appellant’s daughter, Tembi, was excluded from inheriting not due to her gender but because she was illegitimate under customary law, which requires a customary union for legitimacy. The Intestate Succession Act did not repeal the regulation, as it expressly excluded estates governed by section 23 of the Act. The Constitution does not operate retroactively, and the first respondent’s right to inherit vested before the interim Constitution came into effect....

Citation
[2000] ZASCA 181
Parties
Appellant: Mildred Hleziphi Mthembu; Respondent: Henry K Letsela; Respondent: The Magistrate, Boksburg
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
30 May 2000
Case Number
71/98
Procedural Posture
Civil Appeal / Appeal From Transvaal Provincial Division
Outcome
Appeal dismissed.
Judges
Smalberger, Marais, Zulman, Mpati, Mthiyane
Legal Topics
Customary Law Succession, Primogeniture, Gender Discrimination, Intestate Succession, Constitutional Rights, Public Policy
Family and Children Land and Property Constitutional Law Customary Law Succession Primogeniture Gender Discrimination Intestate Succession Constitutional Rights +1 more

Case Brief

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Parties

Mildred Hleziphi Mthembu

Appellant

Henry K Letsela

Respondent

The Magistrate, Boksburg

Respondent

Procedural Posture

Civil Appeal / Appeal From Transvaal Provincial Division

Legal Issues

  1. 1 Whether the customary law rule of male primogeniture excluding women and illegitimate children from intestate succession is unconstitutional.
  2. 2 Whether regulation 2(e) of the Regulations for the Administration and Distribution of the Estates of Deceased Blacks is ultra vires or has been impliedly repealed by the Intestate Succession Act 81 of 1987.
  3. 3 Whether the rule should be developed under section 35(3) of the interim Constitution to avoid discrimination.

Ratio Decidendi

The Supreme Court of Appeal held that the customary law rule of male primogeniture, as embodied in regulation 2(e) of the Regulations under the Black Administration Act, was not unconstitutional in the circumstances of this case. The appellant’s daughter, Tembi, was excluded from inheriting not due to her gender but because she was illegitimate under customary law, which requires a customary union for legitimacy. The Intestate Succession Act did not repeal the regulation, as it expressly excluded estates governed by section 23 of the Act. The Constitution does not operate retroactively, and the first respondent’s right to inherit vested before the interim Constitution came into effect....

Court Disposition

Appeal dismissed.

Orders

  • The appeal is dismissed.
  • No order as to costs; the first respondent abandons costs awarded in the court a quo.