Reflection on Bhe v Magistrate Khayelitsha : In honour of Emeritus Justice Ngcobo of the Constitutional Court of South Africa

• Record Number: sapr1_v32_n1_2_a11
• DOI: 10.10520/EJC-1033c285bb
• Author: Chuma Himonga
• Published date: 01 August 2017
• Pages: 1-18
• Date: 01 August 2017

1

https://doi.org/10.25159/2522-6800/3570

ISSN 2522-6800 (Online) | ISSN 2219-6412 (Print)

© Unisa Press 2017

Southern African Public Law

https://upjournals.co.za/index.php/SAPL/index

Volume 32 | Number 1 and 2 | 2017 | pp.1–18

ARTICLE

Reection on Bhe v Magistrate Khayelitsha: In Honour

of Emeritus Justice Ngcobo of the Constitutional Court of

South Africa

Chuma Himonga

University of Cape Town

Email: Chuma.Himonga@uct.ac.za

ABSTRACT

This article highlights the major areas of convergence between Justice Ngcobo’s judgment

and living customary law as revealed in the ndings of recent empirical research. Its purpose

is to enhance the condence of the courts and inform their interpretation of the Reform of

the Customary Law of Succession and Regulation of Related Matters Act 11 of 2009 by

drawing on the minority opinion. Put dierently, the article seeks to vindicate the minority

opinion in Bhe & Others v Khayelitsha Magistrate & Others with regard to its reection of

the grounded realities of succession under living customary law, using the ndings of recent

empirical research. In this way, the article highlights the contribution that Justice Ngcobo’s

constitutional jurisprudence can make to the interpretation of legislation dealing with the

reform of the customary law of succession—subject, of course, to the fact that any precedent

has inherently limited value for understanding a dynamic and ever-evolving system of law

such as living customary law. Needless to say, the courts must continually be alert to this

caveat when interpreting and applying any legislation that deals with customary law.

Keywords: customary law; succession; family property; living customary law; Bhe

Introduction

I decided to honour Justice Ngcobo by reecting on his work in the Constitutional

Court of South Africa, to which he was appointed in 1999. This reection is from

the perspective of a scholar in customary law, legal pluralism and private law. From

this perspective, Bhe v Magistrate Khayelitsha1 is one of the most important opinions

1 Bhe & Others v Khayelitsha Magistrate & Others CCT 49/03) [2004] ZACC 17; 2005 (1) SA 580

(CC); 2005 (1) BCLR 1 (CC) (15 October 2004).

2

Himonga Reection on Bhe v Magistrate Khayelitsha

written by Justice Ngcobo in the Constitutional Court, in two respects. First, this is the

second important case the Constitutional Court decided regarding the role of customary

law in South Africa’s constitutionally entrenched legal pluralism after he was appointed

to this Court.2 Secondly, Bhe is part of the jurisprudence of the Constitutional Court

most relied upon by courts and scholars regarding various aspects of customary law in

the South African legal system. To obtain an impressionistic indication of the inuence

of this case on jurisprudence and scholarship, in June 2013 I conducted internet-based

research entitled ‘The miles Bhe v Magistrate has travelled: The rst landmark decision

in customary law in South Africa’.3 The results of this research were the following: (a)

Google Scholar showed mention of Bhe v Magistrate Khayelitsha in more than 1 700

results; (b) further renement of the search produced 23 reported cases which either

referred to (obiter dictum) or applied Bhe; (c) 112 articles or books discussed the case.4

There is no doubt that, since this research was undertaken, Bhe has travelled many more

miles in both case law and the works of scholars. In my view, these results indicate

the importance and impact of Bhe in the eld of customary law in the national and

international literature and jurisprudence. I therefore found it tting to honour Justice

Ngcobo by reecting on one of the most important of his opinions during his tenure at

the Constitutional Court.

But there is a more substantive reason for reecting on Justice Ngcobo’s minority

opinion in Bhe: this concerns the contribution it could play in interpreting the current

law that regulates succession under customary law: the Reform of the Customary Law

of Succession and Regulation of Related Matters Act5 (‘the Reform Act’).

The role I advocate for Justice Ngcobo’s opinion in interpreting this Act is premised on

closing the gap between the written formal law and the grounded and practical reality

that it is intended to regulate. An increasing body of empirical research shows signicant

degrees of divergence between formal law and living customary law (also referred to

as informal law in some contexts).6 This divergence draws attention to the gap between

2 The rst important case decided in the eld of customary law is Moseneke v The Master 2001 (2) SA

18 (CC). Justice Ngcobo was one of the judges who concurred in the unanimous judgment penned by

Sachs J.

3 I wish to thank Mathew Hewitson for assisting me with conducting the research for this project.

4 The method of research for the project was as follows: the rst search we conducted with the phrase

‘Bhe v Magistrate’ came up with more than 1 700 results. We decided to rene this search by placing

the exact phrase ‘Bhe v Magistrate Khayelitsha’ and this yielded 202 results. Most of the articles and

books that we had already found were in this search. We examined all 202 results and compiled a list

of all the relevant articles and books that referred to Bhe. We decided that the book or article had to

refer to Bhe at least four or ve times because we found that if the case was referred to less frequently

than this, then it was merely referred to in passing in a footnote and was not discussed at all.

5 Act 11 of 2009, which came into operation on 20 September 2009.

6 See, for example, Sindiso Mnisi Weeks, ‘Customary Succession and the Development of Customary

Law: The Bhe Legacy’ 2015 Acta Juridica 215. See also Chuma Himonga and Elena Moore, Reform

of Customary Law of Marriage, Divorce and Succession in South Africa: Living Customary Law and

Social Realties (Juta 2015), in which a summary of the report of the research on which the book with a

similar title is based can be found (<http://jutaacademic.co.za/uploads/SAR/> accessed 13 November