Bhe v Magistrate, Khayelitsha

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Bhe and Others v Magistrate, Khayelitsha and Others; Shibi v Sithole and Others; SA Human Rights Commission and Another v President of the RSA and Another,[1] an important case in South African customary law, was heard in the Constitutional Court on 2 and 3 March 2004, with judgment handed down on 15 October. 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 were the presiding judges. The court held that section 23 of the Black Administration Act, in applying the system of male primogeniture, was incompatible with sections 9 (equality) and 10 (dignity) of the Constitution.


There were two main issues at hand:

  1. the question of the constitutional validity of section 23 of the Black Administration Act;[2] and
  2. the 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[3] 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 was appointed representative and sole heir of the deceased's estate, in accordance with section 23 of the Act. Under the system of intestate succession created by section 23 and the regulations, particularly regulation 2(e), minor children did not qualify to be heirs in the intestate estate of their deceased father. According to these provisions, the estate was to be distributed according to "Black law and custom."

The applicants challenged, in the High Court, the appointment of the deceased's father as heir and representative of the estate. 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 and therefore invalid. The court further declared that, until the defects were corrected by the legislature, the distribution of intestate black estates was to be governed by the Intestate Succession Act.[4][5]

In the Shibi matter, the applicant's brother had died intestate. The deceased had not married, nor had he been a partner in a 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 section 23(10) of the Black Administration Act, resulting in first the one cousin being appointed as representative, and then, after protestations, the other cousin being appointed as sole heir of the estate. In terms of the system created by section 23 and the regulations made thereunder (in particular regulation 2[e]), the estate of the deceased fell to be distributed according to custom. Ms Shibi, in terms of that system, was precluded from being the heir to the intestate estate of her deceased brother. In the High Court, she challenged the magistrate's decision and the manner in which the estate had been administered. She sought and obtained an order declaring herself to be the sole heir in the estate of her deceased brother.

Both the Bhe and Shibi matters were applications for confirmation of the High Court orders. In the matter of South African Human Rights Commission and Another v President of the Republic of South Africa and Another, an application for direct access was brought by both the South African Human Rights Commission and the Women's Legal Centre Trust, acting in their own interest as well as that of the public. The relief sought was wider than that in the Bhe and Shibi matters. Apart from the provisions declared invalid by the High Court, the applicants contended that the whole of section 23, and alternatively subsections (1), (2) and (6) of section 23, had to be declared unconstitutional and invalid because of their inconsistency with section 9 (right to equality), section 10 (right to human dignity) and section 28 (rights of children) of the Constitution.


Direct access[edit]

The Constitutional Court held that it could grant direct access in exceptional circumstances only. In the present matter, the court considered the following: The challenged provisions governed the administration and distribution of all intestate estates of deceased Africans. The impact of the provisions fell mainly on African women and children, arguably the most vulnerable groups in South African society. The provisions also affected male persons who, in terms of the customary-law rule of primogeniture, were not heirs to the intestate estates of deceased Africans. Many people were therefore affected by these provisions; it was desirable that clarity as to their constitutional validity be established as soon as possible. The submissions sought to be made by the applicants related to substantive issues that were already before the Court. The application further added fresh insights on difficult issues, including the question of the appropriate remedy. Both applicants were found to be eminently qualified to be part of the debate on the issues before the Court.[6] The court held, accordingly, that it was in the interests of justice that the application for direct access be granted.[7]

Legislative framework in relation to the Constitution[edit]

The system that flowed from section 23 of the Act, read with the regulations published thereunder, as well as section 1(4)(b) of the Intestate Succession Act, purported to give effect to customary law. Customary law, in its own right protected by and subject to the Constitution, had to be interpreted to answer in the first place to constitutional requirements. The validity of the rules and principles of customary law accordingly depended on whether or not they were consistent with the Constitution and, in particular, the Bill of Rights.[8][9]

The court held that section 28 of the Constitution marked the importance specifically given to the protection of the rights of children, which included not only those rights expressly conferred by section 28, but also all the other constitutional rights which, appropriately construed, were conferred upon children. Children could therefore not, any more than adults, be subjected to unfair discrimination in breach of section 9(3). Two prohibited grounds of discrimination were relevant in this case, the first relating to sex, and the other to birth.[10]

Children whose parents were not married at the time they were conceived or born were historically discriminated against in a range of ways. This, the court held, was particularly true of children whose lives were governed by common law. Although much of the stigma attaching to extra-marital children was social and religious rather than legal in origin, that stigma was nevertheless deeply harmful. For example, extra-marital sons had reduced rights of inheritance under customary law, being able to inherit only in the absence of any other male descendants.[11]

The prohibition of unfair discrimination on the ground of birth, contained in section 9(3) of the Constitution, had to be interpreted to prohibit differentiating between children on the basis of whether their biological parents were married either at the time the child was conceived or when it was born. Extra-marital children suffered from social stigma and impairment of their dignity. Where differentiation was made on such grounds, it had to be assumed to be unfair unless it was otherwise established.[12]

The court held further that section 23 was a racist provision and fundamentally unconstitutional, being contrary to sections 9 and 10 of the Constitution due to its blatant discrimination on grounds of race, colour and ethnic origin, and its harmful effects on the dignity of persons affected by it. Section 23 could not escape its context, viz an Act specifically crafted to fit in with notions of separation and exclusion of Africans from the people of "European" descent.[13]

Although the constitutional attack in Bhe and Shibi was directed specifically against section 23(10) and the regulations, it was nevertheless quite clear the subsections making up section 23, read with the regulations, constituted a scheme of intestate succession. Since the subsections were interlinked, they all had to stand or fall together. They provided a scheme whereby the legal system governing intestate succession was determined simply by reference to skin colour. The choice of law was thus based on racial grounds only, and so section 23 and its regulations imposed a system on all Africans irrespective of their circumstances and inclinations. What it said to Africans, the court held, was that, if they wished to extricate themselves from the regime so created, they were obliged to make a will. Only those with sufficient resources, knowledge, education or opportunity to make an informed choice would be able to benefit from that provision. Moreover, the section provided that some categories of property were incapable of being devised by will but had to devolve according to the principles of "Black law and custom."[14]

The racist provenance of the provision was illustrated, according to the court, by the distinction drawn in the regulations between estates that had to devolve in terms of "Black law and custom" and those that devolved as though the deceased "had been a European." The purported exemption of certain Africans from the operation of "Black law and custom" was not only demeaning; it was overtly racist. Although it was to be found in the regulations and not in the statute itself, this provision nevertheless provided a contextual indicator of the purpose and intent of the overall scheme contemplated by section 23 and the regulations.[15]

The court held, accordingly, that section 23 of the Act and its regulations were, construed in the light of their history and context, manifestly discriminatory and thus in breach of section 9(3) of the Constitution. The only remaining question was whether this discrimination was capable of justification in terms of section 36 of the Constitution.[16]

Justification inquiry[edit]

The court found that the rights violated were important ones, particularly in the South African context. The rights to equality and dignity were among the most valuable in any open and democratic State, and assumed special importance in South Africa, due to its history of inequality and hurtful discrimination on grounds such as race and gender.[17] Although it was possible to argue that, despite its racist and sexist nature, section 23 gave recognition to customary law and acknowledged the pluralist nature of South African society, this was not its dominant purpose or effect. Section 23 was enacted as part of a racist programme intent on entrenching division and subordination, and its effect had been to ossify customary law; in the light of this, it could not be justified in the open and democratic society intended in section 36 of the Constitution.[18] It was clear, therefore, that the serious violation by the provisions of section 23 of the rights to equality and human dignity could not be justified in the new constitutional order. Section 23 accordingly had to be struck down in accordance with s 172(1)(a) of the Constitution.[19]

Customary law of succession[edit]

The effect of the invalidation of section 23 of the Act was that the customary-law rules governing succession were applicable, including the customary-law rule of primogeniture attacked in the Bhe and Shibi cases.[20]

According to the customary law of succession, an heir did not merely succeed to the assets of the deceased. This was because succession was concerned not primarily with the distribution of the estate of the deceased, but rather with the preservation and perpetuation of the family unit. Property was collectively owned, and the family head, who was the nominal owner of the property, administered it for the benefit of the family unit as a whole. The heir stepped into the shoes of the family head and acquired all the rights and became subject to all the obligations of the family head. Family members under the guardianship of the deceased fell under the guardianship of his heir, and the latter in turn acquired the duty to maintain and support all the members of the family, who were assured of his protection and enjoyed the benefit of the heir's maintenance and support. He inherited the property of the deceased only in the sense that he assumed control and administration of the property, subject to his rights and obligations as head of the family unit.[21]

The rule of primogeniture, the court found, was central to the customary law of succession. The general rule was that only a male related to the deceased could qualify as intestate heir. Women did not participate in the intestate succession of deceased estates. In a monogamous family, the eldest son of the family head was his heir. If the deceased was not survived by any male descendants, his father succeeded him. If his father also did not survive him, an heir was sought among the father's male descendants related to him through the male line. The exclusion of women from heirship, and consequently from being able to inherit property, was in keeping with a patriarchal system which reserved for women a position of subservience and subordination in which they were regarded as perpetual minors under the tutelage of fathers, husbands or heads of the extended family. Extra-marital children were not entitled to succeed to their father's estate in customary law. They qualified for succession in their mother's family, but subject to the principle of primogeniture. The eldest male extra-marital child qualified for succession only after all male intra-marital children and other close male members of the family.[22]

Modern urban communities and families were no longer structured and organised purely along traditional lines. The customary rules of succession simply determined succession to the deceased's estate without the accompanying social implications they traditionally had. Nuclear families had largely replaced traditional extended families. The heir did not necessarily live with the whole extended family (which included the spouse of the deceased and other dependants and descendants), but often simply acquired the estate without assuming, or even being in a position to assume, any of the deceased's responsibilities. In these changed circumstances the succession of the heir to the assets of the deceased did not necessarily correspond in practice with an enforceable responsibility to provide support and maintenance to the family and dependants of the deceased.[23]

The customary rules of succession had not been given space to adapt and keep pace with changing social conditions and values; one reason for this was the fact that they were captured in legislation, in textbooks, in the writings of experts and in court decisions without allowing for the dynamism of customary law in the face of changing circumstances. They had become increasingly out of step with the real values and circumstances of the societies they were meant to serve and particularly the people who lived in urban areas. It was clear to the court that the application of the customary-law rules of succession in circumstances vastly different from their traditional setting caused much hardship.[24]

The official rules of customary law were sometimes contrasted with what was referred to as "living customary law," in which the rules were adapted to fit in with changed circumstances. The problem with these adaptations was that they were ad hoc and not uniform. Magistrates, and the courts responsible for the administration of intestate estates, continued to adhere to the rules of official customary law, with the consequent anomalies and hardships as a result of changes which have occurred in society.[25]

The court held that customary law had thus been distorted in a manner that emphasised its patriarchal features while minimising its communitarian ones.[26] The exclusion of women from inheritance on the grounds of gender was a clear violation of section 9(3) of the Constitution. It was a form of discrimination that entrenched past patterns of disadvantage among a vulnerable group, exacerbated by old notions of patriarchy and male domination incompatible with the guarantee of equality under the new constitutional order.[27]

The principle of primogeniture also violated the right of women to human dignity, guaranteed by section 10 of the Constitution, because it implied that women were not fit or competent to own and administer property. Its effect was also to subject these women to a status of perpetual minority, placing them automatically under the control of male heirs, by virtue simply of their sex and gender. Their dignity was further affronted by the fact that, as women, they were also excluded from intestate succession and denied the right to be holders of and to control property.[28]

The court decided that, to the extent that the primogeniture rule prevented all female children from inheriting, and significantly curtailed the inheritance rights of male extra-marital children, it discriminated against them, too. These were particularly vulnerable groups in South African society, which correctly placed much store in the well-being and protection of children who were ordinarily not in a position to protect themselves. In denying female and extra-marital children the ability and the opportunity to inherit from their deceased fathers, the application of the principle of primogeniture was also in violation of section 9(3) of the Constitution.[29]

The primogeniture rule as applied to the customary law of succession could not be reconciled with the current notions of equality and human dignity as contained in the Bill of Rights. As the centerpiece of the customary-law system of succession, the rule violated the equality rights of women and was an affront to their dignity. In denying extra-marital children the right to inherit from their deceased fathers, it also discriminated unfairly against them and infringed their right to dignity as well. The result was that the limitation it imposed on the rights of those subject to it was not reasonable and justifiable in an open and democratic society founded on the values of equality, human dignity and freedom.[30]

The court accordingly held that, as a result of the inconsistency of section 23 with the Constitution, regulation 2(e) also had to fall away. The customary-law rule of primogeniture, in its application to intestate succession, was not consistent with the equality protection under the Constitution. It followed that any finding in Mthembu v Letsela and Another[31] which was at odds with this judgment could not stand.[32]


The court held that the legislature was in the best position to deal with the situation and to safeguard the rights that had been violated by the impugned provisions. It was the appropriate forum to make the adjustments needed to rectify the defects identified in the customary law of succession. However, the task of preventing ongoing violations of human rights was urgent. The rights involved were very important, implicating the foundational values of the Constitution. The victims of the delays in rectifying the defects in the legal system were those who were among the most vulnerable of South African society. The court's task was to facilitate the cleansing of the statute book of legislation so deeply rooted in the country's unjust past, while preventing undue hardship and dislocation. The court had to fashion an effective and comprehensive order that would be operative until appropriate legislation was put in place. Any order by the court, however, should be regarded by the Legislature as an interim measure. It would be undesirable if the order were to be regarded as a permanent fixture of the customary law of succession.[33]

In light of the wider relief requested by the South African Human Rights Commission and the Women's Legal Centre Trust, the relief given by the High Courts in both the Bhe and the Shibi cases fell to be reconsidered. It was also necessary to deal with the applicability of the order by the Constitutional Court to polygynous marriages. An appropriate order would be one that protected partners to monogamous and polygynous customary marriages as well as unmarried women and their respective children. This would ensure that their interests were protected until Parliament enacted a comprehensive scheme that would reflect the necessary development of the customary law of succession. It had to be clear, however, that no pronouncement was made in the present judgment on the constitutional validity of polygynous unions. In order to avoid possible inequality between the houses in such unions, the estate should devolve in such a way that persons in the same class or category received an equal share.[34][35]

The advantage of using section 1 of the Intestate Succession Act as the basic mechanism for determining the content of the interim regime was that extra-marital children, women who were survivors in monogamous unions, unmarried women and all children would not be discriminated against. However, the section provided for only one surviving spouse and would need to be tailored to accommodate situations where there was more than one surviving spouse because the deceased was party to a polygynous union. This could be done by ensuring that sections 1(1)(c)(i) and 1(4)(f) of the Intestate Succession Act, which were concerned with providing for a child's share of the single surviving spouse and its calculation, should apply with three qualifications if the deceased is survived by more than one spouse:

  1. A child's share would be determined by having regard to the fact that there was more than one surviving spouse.
  2. Provision should be made for each surviving spouse to inherit the minimum if there was not enough in the estate.
  3. The order had to take into account the possibility that the estate may not be enough to provide the prescribed minimum to each of the surviving spouses.[36]


The court held that the declaration of invalidity had to be made retrospective to 27 April 1994, but that it did not apply to any completed transfer of ownership to an heir who had no notice of a challenge to the legal validity of the statutory provisions and the customary-law rule in question. Furthermore, anything done pursuant to the winding-up of an estate in terms of the Act, other than the identification of heirs in a manner inconsistent with this judgment, would not be invalidated by the order of invalidity in respect of section 23 of the Act and its regulations.[37]


The court held that the order made in this case did not mean that the relevant provisions of the Intestate Succession Act were fixed rules that had to be applied regardless of any agreement by all interested parties that the estate should devolve in a different way. The spontaneous development of customary law would continue to be hampered if this were to happen. The Intestate Succession Act did not preclude an estate devolving in accordance with an agreement reached among all interested parties, but in a way that was consistent with its provisions. Having regard to the vulnerable position in which some of the surviving family members might find themselves, care had to be taken to ensure that such agreements were genuine and not the result of the exploitation of the weaker members of the family by the strong. In this regard, a special duty rested on the Master of the High Court, the magistrates and other officials responsible for the administration of estates to ensure that no-one was prejudiced in the discussions leading to the purported agreements.[38]

The present judgment was concerned with intestate deceased estates governed by section 23 of the Act only. All such estates had henceforth to be administered in terms of the present judgment. The question arose as to the role of the Master of the High Court, magistrates and other officials appointed by the Master. Section 4(1A) of the Administration of Estates Act[39] provided that the Master did not have jurisdiction over estates that devolved in terms of customary law. The effect of this judgment was to bring about a change in that respect. The Master was no longer precluded from dealing with intestate deceased estates that were formerly governed by section 23 of the Act, since they would now fall under the terms of this judgment and not customary law.[40]


Section 23 of the Act and section 1(4)(b) of the Intestate Succession Act were declared inconsistent with the Constitution and invalid. The Regulations for the Administration and Distribution of the Estates of Deceased Blacks (R200) published in Government Gazette No 10601 dated 6 February 1987, as amended, were also invalid. The rule of male primogeniture as it applied in customary law to the inheritance of property was inconsistent with the Constitution and invalid to the extent that it excluded or hindered women and extra-marital children from inheriting property.[41]

Subject to the following, section 1 of the Intestate Succession Act applied to the intestate deceased estates that would formerly have been governed by section 23 of the Act. In the application of sections 1(1)(c)(i) and 1(4)(f) of the Intestate Succession Act to the estate of a deceased person who was survived by more than one spouse,

  1. a child's share in relation to the intestate estate of the deceased had to be calculated by dividing the monetary value of the estate by a number equal to the number of the children of the deceased who have either survived or predeceased such deceased person but are survived by their descendants, plus the number of spouses who have survived such deceased;
  2. each surviving spouse inherited a child's share of the intestate estate or so much of the intestate estate as did not exceed in value the amount fixed from time to time by the Minister for Justice and Constitutional Development by notice in the Gazette, whichever was the greater; and
  3. notwithstanding the provisions of 2. above, where the assets in the estate were not sufficient to provide each spouse with the amount fixed by the Minister, the estate had to be equally divided between the surviving spouses.[42]

In terms of section 172(1)(b) of the Constitution, the court held that the transfer of ownership prior to the date of this order of any property pursuant to the distribution of an estate in terms of s 23 of the Act and its regulations could not be invalidated unless it was established that, when such transfer was taken, the transferee was on notice that the property in question was subject to a legal challenge on the grounds upon which the applicants brought challenges in this case. It was further declared that any estate that was being administered in terms of section 23 of the Act and its regulations would continue to be so administered until it was finally wound up, subject to paragraphs 4, 5 and 6 of the order of Court.[43]


Ngcobo delivered a dissenting judgment in which he held that the rule of male primogeniture should be developed in order to bring it in line with the Bill of Rights.[44]

See also[edit]


  • Bhe and Others v Magistrate, Khayelitsha and Others; Shibi v Sithole and Others; SA Human Rights Commission and Another v President of the RSA and Another 2005 (1) BCLR 1 (CC).


  1. ^ 2005 (1) SA 580 (CC).
  2. ^ Act 38 of 1927.
  3. ^ 2004 (2) SA 544 (C).
  4. ^ Act 81 of 1987.
  5. ^ s 1.
  6. ^ Paras 32-34.
  7. ^ Para 34.
  8. ^ Paras 40-41.
  9. ^ Para 46.
  10. ^ Paras 52-54.
  11. ^ Paras 57-58.
  12. ^ Para 59.
  13. ^ Paras 60-61.
  14. ^ Para 66.
  15. ^ Para 67.
  16. ^ Para 68.
  17. ^ Para 71.
  18. ^ Para 72.
  19. ^ Para 73.
  20. ^ Para 74.
  21. ^ Para 76.
  22. ^ Paras 77-79.
  23. ^ Para 80.
  24. ^ Paras 82-83.
  25. ^ Para 87.
  26. ^ Para 89.
  27. ^ Para 91.
  28. ^ Para 92.
  29. ^ Para 93.
  30. ^ Para 95.
  31. ^ 2000 (3) SA 867 (SCA).
  32. ^ Para 100.
  33. ^ Paras 115-116.
  34. ^ Para 122.
  35. ^ Para 124.
  36. ^ Para 125.
  37. ^ Para 129.
  38. ^ Para 130.
  39. ^ Act 66 of 1965.
  40. ^ Para 131.
  41. ^ Para 136.
  42. ^ Para 136.
  43. ^ Para 136.
  44. ^ Para 139.