As part of our Pro Bono Chapter, we made our services available to a lady from a disadvantaged background who was considering different options for her late parents’ property. It was striking that she refused to inherit the modest size home that her parents resided at, on the basis that it should go to her male siblings as her culture did not permit her to inherit this property as a result of her parents’ demise.

The Constitution of South Africa¹ says everyone is equal before the law and further says that one cannot discriminate on grounds of sex, gender and ethnic or social origin amongst others. It is true that equality is not an absolute right. Laws in democratic South Africa such as the Employment Equity Act² and the Broad Based Black Economic Empowerment Act³ are discriminatory and for good reason, as these laws are intended for purposes that aims to address the harms of apartheid South Africa.

On the issue of culture and African customary law, s 211 of the Constitution recognises customary law and provides that courts must apply customary law when that law is applicable (subject to the Constitution). This means that there is a duty on the Courts to apply customary law as and when it is applicable.

The instance of male primogeniture (the lines of succession are to male relatives only and exclude females from inheriting) was one of the issues before the Constitutional Court in Bhe v Magistrate, Khayelitsha; Shibi v Sithole; South African Human Rights Commission v President of the Republic of South Africa⁴. The Court had to decide whether the male primogeniture rule was constitutional. In short, the basis of these joint cases were whether two minor daughters were barred from inheriting from their father’s intestate estate, and in the other case whether a sister could be barred from inheriting from her brother’s intestate estate which otherwise had no dependants because of their culture did not permit a female to inherit.

The Court found that the rules of male primogeniture are unconstitutional and invalid. It goes against the constitutional values of equality, non-discrimination, and the rights of children. In a detailed judgment, the Court ruled that the two minor daughters were allowed to inherit their father’s estate and the same for the sister from her brother’s estate.

This case has wide-reaching effects in that rules of customary law relating to male primogeniture cannot be followed as a course of law. It means that Courts cannot apply this rule because it fails the test of the Constitution. This is where the problem lays. It is not the fact that it fails the test of the Constitution that makes it a problem but the fact that the Constitution will not give effect to customary laws that may be discriminatory. Customary laws have discriminatory elements much in the same way that laws gazetted in democratic South Africa have discriminatory elements. 

Whilst South Africa celebrates different cultures and practices in a democratic setting, laws that are on the face discriminatory may always be subject to a constitutional challenge. The Courts cannot give effect to such laws and practices (which are prima facie prejudicial) because it is bound by the Constitution to ensure that these laws and practices meet the Constitution’s requirements. The problem with this is that the very laws and practices that stem from one’s culture are changed because of the Constitution. A university lecturer said to me, “law is a blunt instrument” and that is what is happening here. The Constitution is cutting across these cultural laws and practices with consequences that may change century old culture.

In light of our legal services to our client, the law may dictate that she is entitled to an equal share of her parent’s estate but that does not mean she may want it because her culture says she must not have it. Some may argue that she has the choice of whether or not she would want to inherit that estate. That is true, she would have that choice, however, the essence of their cultural laws and practices has been changed by a Constitution that found it not to be in line with its definitions of equality.

Written and prepared by Kirith P. Haria
BOUWER KOBELI MORABE

Please do not hesitate to contact us on +27 11 788-0083 should you have any further enquiries or email enquiries@bkm.co.za.

Notes:

1. Act No 108 of 1996, herein after referred to as “the Constitution”.
2. 55 of 1998
3. 53 of 2003
4. 2005 (1) BCLR (CC), herein after referred to as “Bhe”.