Customary succession and the development of customary law: The Bhe legacy

• Jurisdiction: South Africa
• Published date: 15 August 2019
• Pages: 215-255
• Author: Sindiso Mnisi Weeks
• Date: 15 August 2019

Customary succession and the development

of customary law: The Bhe legacy

SINDISO MNISI WEEKS*

The Bhe decision was an important intervention in customary succession and

women’s ability to inherit under off‌icial customary law.It also had signif‌icant

implications for the development of legislated customary law and the jurispru-

dence pertaining to it. This article explores the Constitutional Court’sf‌indings

in light of literature and empirical evidence of women’s rights to inherit under

customary law both before and after the judgment with the goal of celebrating

the legal successes that the judgment symbolises and critiquing it on its limited

benef‌it to remotely placed, rural women on the ground. The article draws on a

detailed empirical study of how Bhe minimally impacted the dispute resolu-

tion of rural traditional courts around women’s inheritance, substantially – but

not entirely positively – impacted a rural magistrates’ court in Mpumalanga

and, in turn, impacted the women who rely on these forums for access to

justice. It also draws on data from the Community Agency for Social Enquiry’s

2010 survey on women, land and customary law to ref‌lect the trends in

inheritance practices that have emerged in customary communities from pre-

to post-1994. The article is, in part, a commentary on the narrow interaction

between formal and informal legal institutions as well as the need to review the

tools possessed by the formal courts to develop vernacular (that is, living

customary) law. The article concludes with suggestions on what further

developments are needed if rural women are to be served by the law as it

stands.

I INTRODUCTION

In 2004, the Constitutional Court handed down a signif‌icant decision on

customary succession.

1

It struck down legislative provisions that

entrenched male primogeniture and thus prevented women and illegiti-

mate children from inheriting under customary law, since the oldest male

member of the family was deemed the heir of the deceased estate. It held

in favour of the Constitution’s requirement of equality on the basis of

gender.

This principle of primogeniture applied in the state courts was a

distortion of a loose living customary law principle that allowed the oldest

male member of the family to ‘step into the shoes of’ the deceased male

head and administer his possessions as he would have done, for the benef‌it

* Assistant Professor, School for Global Inclusion and Social Development, University of

Massachusetts Boston; BALLB (Cape Town) MSt DPhil (Oxon).

1

Bhe and Others v Khayelitsha Magistrate and Others; Shibi v Sithole and Others 2005 (1) SA580

(CC).

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2015 Acta Juridica 215

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of his dependants. I call the living principle from which the off‌icial

principle was drawn ‘loose’ because, as shown by John Comaroff and

Simon Roberts in their detailed treatment of the nature of Tswana

customary law rules and processes,

2

customary rules are a f‌lexible ‘reper-

toire of norms’. Customary rules therefore allow for the case-dependent

and selective application of rules all spoken of as being predictive and

determinative even though they are not and are, in fact, often mutually

contradictory.

3

Through the decades – especially as the living law principle was

adopted and interpreted by apartheid legislation as well as developed and

applied by the courts – the emphasis of the principle on the oldest male’s

inheritance of responsibility to attend to communal need and benef‌it

shifted to his inheritance of the property. Initially, the courts attached the

male primogenitor’s inheritance of the deceased’s property to an expecta-

tion that he provide for the deceased’s dependants. However, this was

diff‌icult to enforce because black family migration increased, the courts

are typically far removed from the parties, and the courts (also applying

the rule declaring the perpetual minority of black women) showed little

resolve to protect women’s independent interests. The loose principle of

male primogeniture under living law became the rule of oldest male

inheritance under off‌icial law.

The Constitutional Court’s decision in Bhe and Others v Khayelitsha

Magistrate and Others

4

was an attempt to decisively correct that imbalance

in the law and end the severe material disadvantage of women to which

this legal principle had led. The main question in the court was not,

however, whether the principle should be repealed but what should take

its place. The key decision for the court to make in this, its second case on

the role of customary law in the constitutional order, was how was

customary law to be treated as compared to the common law.

The court’s decision not to develop off‌icial customary law using the

evidence of positive and constitutionally compliant developments in the

living customary law was seen by many scholars as regrettable. More than

that, even as the court made positive statements about customary law’s

equality to the common law under the Constitution, it was simulta-

neously seen to make a negative statement by ‘developing’ the off‌icial

customary law by replacing it with the common-law principles embodied

in civil legislation. Thus, the court was understood to have failed to live

out its commitment to treating customary law equally beyond mere

2

J Comaroff & S Roberts Rules and Processes: The Cultural Logic of Dispute in an African

Context (1981).

3

Comaroff & Roberts (n 2) 81–2, 84.

4

Bhe (n 1).

216 A TRANSFORMATIVE JUSTICE:ESSAYS IN HONOUR OF PIUS LANGA

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rhetoric. More importantly, it was concluded to have failed to equally

develop customary law as required by the Constitution.

5

Beyond this question of legal development, Bhe has subsequently been

critiqued in terms of how much impact it has had on the lives of women

who live under customary law at all as well as the questionability of the

impact that it has had on some women’s lives. Put differently, evidence

suggests that Bhe had limited impact on the lives of most remotely placed

rural women

6

(who make up the largest number of those whose lives

were meant to be improved by the decision).

7

Moreover, the decision in

Bhe has not necessarily had positive implications for all the women whom

it has reached.

This contribution provides qualitative empirical evidence of both of

these claims that have been made by other scholars. It argues that, indeed,

living customary law was more pragmatic and dynamic in its application

of the male primogeniture principle than the court in Bhe was prepared to

accept. Yet it does not refute the pronounced stamp of patriarchy in much

of living customary law. In fact, it aff‌irms the court’s concern that living

law may not have been universally developed to obliterate the need for

decisive intervention to strengthen gender equality and the protection of

women and children’s rights at the off‌icial level.

8

Indeed, it conf‌irms the

need for the off‌icial customary law to have changed in order to better

protect women whose inheritance was mediated by the state process. In

this sense, it agrees with those scholars who argue that Bhe was a

signif‌icant victory for the cause of women.

9

5

W Lehnert ‘The role of the courts in the conf‌lict between African customary law and

human rights’ (2005) 21(2) SAJHR 241 at 256 and 270; E Curren & E Bonthuys ‘Customary

law and domestic violence in rural SouthAfrican communities’ (2005) 21 SAJHR 628 at 635.

6

Debbie Budlender’s analysis shows that women form 58.9 per cent of those living in rural

areas. See AClaassens & S Ngubane ‘Women, land and power: The impact of the Communal

Land RightsAct’ in AClaassens & B Cousins (eds) Land, Power & Custom: Controversies Generated

by South Africa’sCommunal Land Rights Act (2008) 154–183 at 168 fn 22. It is worth also noting

that, according to C Walker ‘Elusive equality: Women, property rights and land reform in

South Africa’ (2009) 25(3) SAJHR 467 at 476, in 2004, female-headed households made up 44

per cent of rural households.

7

C Himonga ‘The advancement of women’s rights in the f‌irst decade of democracy in

South Africa:The reform of the customary law of marriage and succession’ 2005 Acta Juridica 82

at 97; T Venter & J Nel ‘African customary law of intestate succession and gender inequality’

(2005) 98 TSAR 86 at 100; T Higgins, J Fenrich & Z Tanzer‘Gender equality and customary

marriage: Bargaining in the shadow of post-apartheid legal pluralism’ (2007) 30(6) Fordham

International LJ 1653 at 1696 and 1703. See also G van Niekerk ‘Harmonisation of indigenous

laws in southern Africa’ (2008) 14(2) Fundamina: AJournal of Legal History 155 at 165 at 167:

‘harmonisation will not affect the application of the living law at all’.

8

For discussion of a signif‌icant way in which living law has been failing women, see Curren

& Bonthuys (n 5) 607.

9

R Keightley ‘Law of succession (including administration of estates) and trusts’ 2005

Annual Survey of South Africa Law 452 at 459; M Pieterse ‘Relational socio-economic rights’

(2009) 25(2) SAJHR 198 at 209; C Rautenbach, W du Plessis & G Pienaar ‘Is primogeniture

extinct like the dodo, or is there any prospect of it rising from the ashes? Comments on

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CUSTOMARY SUCCESSION —DEVELOPMENT OF CUSTOMARY LAW

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