South Africa Case Law

Yende and Another v Premier Mphumalanga Province and Others (80576/2014, A602/2017)

Yende and Another v Premier Mphumalanga Province and Others (80576/2014, A602/2017) [2019] ZAGPPHC 237 (26 June 2019)

Court

North Gauteng High Court, Pretoria

Case number

80576/2014, A602/2017

Judges

Strijdom, Molopa-Sethosa, Potterill

The appeal was upheld because the Commission failed to comply with the mandatory requirements of section 11 of the Traditional Leadership and Governance Framework Act. The Royal family, as defined by statute, was not properly consulted or represented in the identification of the Senior Traditional Leader. The absence of Felani and his sisters from the proceedings constituted a material irregularity, and the process was procedurally unfair, violating the audi alteram partem rule and sections 6(2)(b) and 6(2)(c) of PAJA. Furthermore, the Commission applied incorrect succession criteria by recog…

Source excerpt

• Customary Succession
• Review Of Administrative Action
• Traditional Leadership Disputes
• Procedural Fairness
• Primogeniture
• Recognition Of Traditional Leader

L.M and Another v J.M and Another (63462/12)

L.M and Another v J.M and Another (63462/12) [2014] ZAGPPHC 1026 (10 December 2014)

Court

North Gauteng High Court, Pretoria

Case number

63462/12

Judge

Molefe

The court found that the farms in question were not communal land but were purchased and registered in the deceased's name, making them subject to the rules of intestate succession and constitutional principles. The application of primogeniture, which excluded the children of the second wife from inheriting, was inconsistent with the Constitution's guarantee of equality. The deceased had allocated the two farms to his wives for the benefit of their respective houses, and this arrangement should have been respected in the winding-up of the estate. The court held that the property should devolv…

Source excerpt

• Customary Law Of Succession
• Primogeniture
• Intestate Succession
• Equality Under Constitution
• Polygamous Marriage Inheritance
• Development Of Customary Law

Malo and Another v Siswana and Another (A137/2008)

Malo and Another v Siswana and Another (A137/2008) [2010] ZAWCHC 128 (11 June 2010)

Court

Western Cape High Court, Cape Town

Case number

A137/2008

Judges

Traverso, Samela

The court found that the executrix's marriage to the deceased was invalid as the deceased's customary marriage to the first respondent was still subsisting and had not been dissolved by a court. Consequently, the executrix had no authority to sell or transfer the property to the appellants. The sale and transfer did not confer lawful ownership on the appellants, who were aware of the lack of authority. The respondents, as heirs under customary law and in light of the Bhe decision, were lawful owners and occupiers of the property. The magistrate's refusal to grant eviction was correct, as the…

Source excerpt

• Prevention Of Illegal Eviction Act
• Customary Marriage
• Intestate Succession
• Primogeniture
• Ownership Transfer
• Constitutional Right To Housing

Nkadimeng v Venter NO and Others (17571/2004)

Nkadimeng v Venter NO and Others (17571/2004) [2008] ZAGPHC 221 (2 June 2008)

Court

High Courts - Gauteng

Case number

17571/2004

Judge

V Tlhapi

Costs dispute in an intestate estate matter involving customary succession, joinder issues, and the administration of the late Gezani Joseph Macheke’s estate.

• Intestate Succession
• Customary Law Administration
• Costs Award
• Joinder Of Parties
• Primogeniture
• Constitutional Rights

Bhe and Others v Magistrate, Khayelitsha and Others (9489/02)

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)

Court

Western Cape High Court, Cape Town

Case number

9489/02

Judges

Ngwenya, Hlophe JP

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…

Source excerpt

• Intestate Succession
• Gender Discrimination
• Primogeniture
• Customary Law Development
• Equality Clause
• Invalidity Of Statute

Mthembu v Letsela and Another (71/98)

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

Court

Supreme Court of Appeal

Case number

71/98

Judges

Smalberger, Marais, Zulman, Mpati, Mthiyane

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 t…

Source excerpt

• Customary Law Succession
• Primogeniture
• Gender Discrimination
• Intestate Succession
• Constitutional Rights
• Public Policy