Bhe and Others v Magistrate, Khayelitsha, and Others (Commission for Gender Equality as Amicus Curiae); Shibi v Sithole and Others; South African Human Rights Commission and Another v President of the Republic of South Africa and Another

• Jurisdiction: South Africa

Bhe and Others v Magistrate, Khayelitsha, and Others (Commission for Gender Equality as Amicus Curiae);
Shibi v Sithole and Others;
South African Human Rights Commission and Another v President of the Republic of South Africa and Another
2005 (1) SA 580 (CC)

2005 (1) SA p580

Citation	2005 (1) SA 580 (CC)
Case No	CCT 49/03, 69/03 and 50/03
Court	Constitutional Court
Judge	Chaskalson CJ, Langa DCJ, Madala J, Mokgoro J, Moseneke J, Ngcobo J, O'Regan J, Sachs J, Skweyiya J, Van Der Westhuizen J and Yacoob J
Heard	March 2, 2004; March 3, 2004
Judgment	October 15, 2004
Counsel	W Trengove SC (with him R Paschke and S Cowen) for the applicants.; N Cassim SC for the fourth respondent.; P M Mtshaulana and K Pillay for the amicus curiae.; V Maleka SC (with him K Pillay) for the applicant.; M Chaskalson and S Cowen for the applicant.; N Cassim SC (with him T I Bodiba) for the second respondent.

Flynote : Sleutelwoorde B

Administration of estates — Intestate succession — Black persons — Administration of estate — Section 23 of Black C Administration Act 38 of 1927 inconsistent with Constitution and invalid. D

Administration of estates — Intestate succession — Black persons — Administration of estate — Intestate Succession Act 81 of 1987 — Section 1(4)(b) providing for exclusion of estates subject to s 23 of Black Administration Act 38 of 1927 inconsistent with Constitution and invalid. E

Administration of estates — Intestate succession — Black persons — Administration of estate — Black Administration Act 38 of 1927 — Regulations for the Administration and Distribution of the Estates of Deceased Blacks (R200 published in Government Gazette 10601 dated 6 February 1987), as amended, unconstitutional and invalid. F

Administration of estates — Intestate succession — Black persons — Administration of estate — Customary law of succession — Rule of male primogeniture as applicable in customary law to inheritance of property inconsistent with Constitution and invalid to extent that it excludes or hinders women and extra-marital children from inheriting property. G

Administration of estates — Intestate succession — Black persons — Administration of estate — Court declaring unconstitutional and invalid (1) s 23 of Black Administration Act 38 of 1927, (2) Regulations for the Administration and Distribution of the Estates of Deceased Blacks (R200 published in Government Gazette 10601 dated 6 February 1987), as amended, (3) s 1(4)(b) of Intestate Succession Act 81 of 1987, and (4) customary-law rule of male H primogeniture to extent that it excludes or hinders women and extra-marital children from inheriting property — Effect of declaration — Pending legislation flowing from declaration of invalidity, s 1 of Intestate Succession Act, as extended by order of present Court, applicable to intestate deceased estates that would formerly have been governed by s 23 of Black Administration Act — Any estate being administered at time I of order in terms of s 23 and its regulations will, however, conditionally continued to be so wound up — Order also not invalidating transfer of ownership prior to date of this order unless transferee having notice that property in question subject to legal challenge on grounds upon which applicants brought challenges in present cases. J

2005 (1) SA p581

Customary law — Succession — Intestate succession — Rule of male primogeniture — Section 23 of Black Administration Act 38 A of 1927 and Regulations for the Administration and Distribution of the Estates of Deceased Blacks (R200 published in Government Gazette 10601 of 6 February 1987), as amended, declared invalid — Effect of invalidation that customary law of succession applying — Rule of male primogeniture central thereto — Customary law of succession, by emphasising patriarchal features over communitarian ones, increasingly out of step B with real community values — Exclusion of women in clear violation of ss 9(3) and 10 of Constitution — Rule also discriminating against all female and male extra-marital children — Rule as applicable to customary law of succession irreconcilable with current notions of equality and human dignity as contained in Bill of Rights, and accordingly inconsistent C with Constitution and invalid to extent that it excludes or hinders women and extra-marital children from inheriting property.

Customary law — Succession — Intestate succession — Black Administration Act 38 of 1927 — Constitutionality of regulations under Act recognising customary-law rule excluding illegitimate African female children from intestate succession — Section D 1(4)(b) of Intestate Succession Act 81 of 1987 excluding from its operation any part of deceased's estate to which s 23 of Black Administration Act applicable — Such sections and regulations unconstitutional and invalid — Illegitimate daughters of deceased having right to succeed to deceased as heir. E

Customary law — Succession — Intestate succession — Black Administration Act 38 of 1927 — Constitutionality of regulations under Act recognising customary-law rule of male primogeniture excluding African female from intestate succession — Section 1(4)(b) of Intestate Succession Act 81 of 1987 excluding from its operation any part of deceased's estate to which s 23 of Black Administration Act applicable — Such sections and regulations unconstitutional and invalid — Sister of F deceased having right to succeed to deceased as heir.

Constitutional law — Human rights — Right not to be unfairly discriminated against — Right not to be discriminated against on ground of birth — Constitution, s 9(3) — Right interpreted to include prohibition of differentiation between children on basis of whether child's G biological parents were married at time of conception or birth of child — Differentiation made on such ground assumed to be unfair unless otherwise established.

Constitutional law — Human rights — Right not to be unfairly discriminated against — Scheme of intestate succession created by s 23 of Black Administration Act 38 of 1927 and H regulations thereunder — Section 23 a racist provision incompatible with ss 9 and 10 of Constitution due to its blatant discrimination on grounds of race, colour and ethnic origin — Section 23 and regulations manifestly discriminatory and in breach of s 9(3) of Constitution — In light of its destructive purpose and effect, unjustifiable in open and democratic society as intended in s 36 of Constitution — Section 23 of Act and regulations I constituting unjustifiable violation of Constitution and thus invalid.

Constitutional law — Human rights — Rights of children — Right to inherit in terms of law of intestate succession — Regulations under Black Administration Act 38 of 1927 recognising customary-law rule excluding illegitimate J

2005 (1) SA p582

African female children from intestate succession declared invalid and A unconstitutional — Constitution, s 28.

Constitutional practice — Courts — Constitutional Court — Direct access to Constitutional Court — Direct access permissible only in exceptional circumstances — Challenged provisions governing administration and distribution of all intestate estates of deceased Africans — Impact thereof falling mainly on African women and children, arguably regarded as most vulnerable groups in our B society — Provisions also affecting male persons who, in terms of the customary-law rule of primogeniture, are not heirs to intestate estates of deceased Africans — Many people affected by these provisions and desirable that clarity as to their constitutional validity be established as soon as possible — Applicants both eminently qualified to be part C of debate on issues before Court — Application for direct access granted in interests of justice.

Headnote : Kopnota

There were two main issues in the present matters. The first was the question of the constitutional validity of s 23 of the Black Administration Act 38 of 1927 (the Act). The second concerned the D constitutional validity of the principle of primogeniture in the context of the customary law of succession.

In the matter of Bhe and Others v Magistrate, Khayelitsha, and Others 2004 (2) SA 544 (C) (2004 (1) BCLR 27) two minor children, both extra-marital daughters, had failed to qualify as heirs in the intestate estate of their deceased father. The father of the deceased E was appointed representative and sole heir of the deceased's estate in accordance with s 23 of the Act. Under the system of intestate succession created by s 23 and the regulations, particularly reg 2(e), minor children did not qualify to be heirs in the intestate estate of their deceased father. According to these provisions the estate fell to be distributed according to 'Black law and custom'. The applicants challenged the appointment of the F deceased's father as heir and representative of the estate in the High Court. After considering the opposed application, the High Court concluded that the legislative provisions that had been challenged, and on which the father of the deceased had relied, were inconsistent with the Constitution of the Republic of South Africa Act 108 of 1996 (the Constitution) and therefore invalid. The Court further declared that G until the defects were corrected by competent Legislature, the distribution of intestate black estates were to be governed by s 1 of the Intestate Succession Act 81 of 1987.

In the Shibi matter the applicant's brother had died intestate. The deceased had not married, nor had he been a partner in a H customary union. He had no children and was not survived by a parent or grandparent. His nearest male relatives were his two cousins. Since the deceased was an African, his estate fell to be administered under the provisions of s 23(10) of the Act, resulting in first the one cousin being...