Bhe and Others v Magistrate, Khayelitsha, and Others

• Jurisdiction: South Africa
• Judge: Hlophe JP and Ngwenya J
• Judgment Date: 25 September 2003
• Citation: 2004 (2) SA 544 (C)
• Docket Number: 9489/2002
• Hearing Date: 18 June 2003
• Counsel: W H Trengove SC (with him R Paschke and S J Cowen) for the applicants. C Carolissen for the second respondent.
• Court: Cape Provincial Division

Ngwenya J:

1. Introduction

The crisp point for consideration in this matter is whether a female African person, whose parents were not married, or married according to G African law and custom, is entitled to inherit ab intestatio, upon the death of her father.

The first, second and third applicants brought this application essentially against the second respondent, who is the father of the deceased and the grandfather of the first and second applicants. The first, third and fourth respondents are interested parties in this matter and no relief is sought against them. They have accordingly H filed notices to abide. The fourth applicant has joined in these proceedings as an interested party and in the public interest. Mr Trengove, who is assisted by Mr Paschke and Ms Cowen, represents all the applicants. Mr Carolissen represents the second respondent, who is opposing this matter. I

2. Facts

With the exception of one issue, which I will deal with in due course, the essential issues in dispute in this matter are common cause. The third applicant and the deceased lived together as husband and wife for a period of 12 years. The deceased died on 9 October 2002. Two children J

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were born out of the relationship. They are the first and second applicants in these proceedings. The first applicant A was born on 18 May 1994 and is now nine years old. The second applicant was born on 3 August 2001. She is two years old now. The first two applicants, being minors and females, are assisted by their mother, the third applicant. Needless to say, the first three applicants are Africans and of Xhosa extraction. The third applicant does not seek any relief on her own. B

The deceased and the third applicant acquired an immovable property, erf No 39678, Khayelitsha at 35 Jula Street, Makaza in the City of Tygerberg, Western Cape, during their lifetime. Over the years that followed, the deceased applied for and obtained a State housing subsidy. He used it to acquire the property and planned to improve and build a house on it, but died before he could do so. The deceased and C the three applicants occupied the property until the deceased died. The first three applicants continued to live on the property.

Since the death of the deceased, the second respondent, who lives in Berlin in the Eastern Cape, claims that he is the intestate heir of the deceased by virtue of the African customary law and therefore he is D entitled to inherit the property of the deceased. Secondly, he says that he is entitled to the guardianship of the two minor children. The issue of custody and guardianship of the first two applicants is not, however, one of the issues for consideration in this matter. It would appear that the second respondent has conceded their custody and guardianship to the third applicant. E

The second respondent has indicated that he intends to sell the property of the deceased to defray the funeral expenses incurred as a result of his death. As a result of this attitude on the part of the second respondent, the first three applicants obtained an interdict pendente lite, restraining the second respondent from F alienating or encumbering the property in whatever manner.

3. The status and position of the African customary law in the South African legal system

By the proclamation of Sir David Baird in 1806, the rights and privileges of the inhabitants of the Cape Colony, as they existed under G the government of the Dutch East India Company, were expressly reserved to them. This position referred to the Cape Colony as it then existed at the time. Insofar as the position of African customary law is concerned, Whitfield on South African Native Law 2nd ed (1948, Juta & Co Ltd) at 5 has this to say: H

'In this way Roman-Dutch law was secured to the European people of South Africa, then mostly of Dutch and French descent, by the first legislative act of the British Government in South Africa. The Natives of South Africa surely had an analogous claim to the recognition of their own social laws and customs, particularly as it is now an explicit part of British policy to retain indigenous institutions in Africa and even to avoid tampering with them where it is not strictly necessary to do so in the interests of law and order.' I

(Emphasis added.) This appears to be the correct view, because, irrespective of any shortcomings African customary law might have had, it remained a system according to which most Africans lived.

However, this was not to be so. The recognition and application of J

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African customary law in South Africa has been controversial, spasmodic A and inconsistent until 1927. In 1927 the then Union of South Africa passed the Black Administration Act 38 of 1927 whereby African customary law was partially recognised throughout the then Union subject to the proviso that it was not repugnant to public policy. In the present day KwaZulu-Natal there was a Code of Zulu law which was considered to be a codification of the Zulu indigenous law. In that B province the Black Administration Act, when it refers to African indigenous law, gave further legal recognition to the code of Zulu law whose origin dates back to 1891 by Sir Theophilus Shepstone. In Mabuza v Mbatha 2003 (4) SA 218 (C) (2003 (7) BCLR 743) the Court at 227B (SA) and 751F (BCLR) refers to this repugnancy clause as C notorious. This observation I share.

African customary law at best was and is partially recognised and applied intermittently by our courts. This was despite the provisions of s 11(1) of the Black Administration Act 38 of 1927, which gave the commissioner's courts (special courts established to decide civil disputes between Africans) a discretion to apply African customary law. D The High Court required African customary law to be proven by expert evidence as if it were foreign law. (See J C Bekker Seymour's Customary Law in Southern Africa 5th ed (Juta & Co Ltd); A J Kerr The Customary Law of Immovable Property and Succession 2nd ed (Rhodes University); 'The Application of Native Law in the Supreme Court' (1957) SALJ 74 at 313; Mosii v E Motseoakhumo 1954 (3) SA 919 (A); Ngcobo v Ngcobo 1929 AD 233.)

Section 11(1) of the Black Administration Act enjoined the Court to apply African customary law, provided it was not repugnant to public policy or natural justice. Originally this proviso read 'not contrary to civilisation'. This remained the underlying rationale in the F exercise of the Court's discretion. Whatever it meant depended on the presiding Judge's value-judgment. (See also Transvaal Law 4 of 1885 and Meesedoosa v Links 1915 TPD 357.)

In Zulu and Another v Minister of Justice and Another 1956 (2) SA 128 (N) a woman sued for damages by reason of loss of the G support she enjoyed from her husband, to whom she was married according to African customary law. Holmes J (as he then was) held that such a relationship did not amount to a statutory recognition that a Black woman married by African customary law had legal rights to maintenance against her husband according to the laws of South Africa. H

Despite the outcry this judgment evoked, it was upheld in Suid-Afrikaanse Nasionale Trust en Assuransie Maatskappy Bpk v Fondo 1960 (2) SA 467 (A). (See 1956 SALJ 402; Annual Survey 1956 at 200 and 1961 SALJ 103.) Despite some legislative...