The Dignity Jurisprudence of the Constitutional Court of South Africa: Cases and Materials, Volumes I & II

Bhe

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  () SA  (CC) CASE SUMMARY Facts According to section () of the Black Administration Act  of , and the regulations promulgated under that section, particularly regulation (e), the estates of Africans who died intestate were to be distributed according to “Black law and custom.” The Intestate Succession Act  of  expressly excluded “African” estates from being assessed in terms of its provisions. According to the “accepted notion” of African customary law of succession, the distribution of the estates of African deceased were governed by the rule of male primogeniture: the nearest male relative of the deceased became the sole heir. In Bhe, the deceased’s father was recognized as sole heir. The deceased’s two extramarital minor daughters were denied any portion of the estate. In Shibi, the deceased’s nearest male relatives— and sole heirs—were two cousins. The deceased’s sister was denied any share of the inheritance. The applicants challenged the appointment of the respective heirs on the basis that section () of the act and regulation (e) were unconstitutional . Bhe Legal History The applicants in Bhe and Shibi approached the Cape High Court and Pretoria High Court, respectively, for relief. The High Courts found that certain provisions of section  of the Black Administration Act were unconstitutional and ordered that until the defects were corrected by the legislature, the distribution of intestate black estates were to be governed by section  of the Intestate Succession Act  of . The applicants then applied to the Constitutional Court for confirmation of the High Courts’ orders. Issues The Constitutional Court had to address two issues: the alleged constitutional infirmity of section  of the Black Administration Act; and the alleged constitutional infirmity of the customary law rule of male primogeniture. Decision of the Constitutional Court The Constitutional Court first found that section  of the Black Administration Act purported to give effect to customary law. Secondly, it found that under the Constitution, rules of customary law enjoyed the same status as rules of common law—or any other form other law. However, the continued validity of customary law rules and principles—as with all other forms of law—rests entirely on their consistency with the Constitution. The court then found that section  as a whole had been animated and promulgated by a racist colonial regime and maintained under an equally racist apartheid regime. Given its manifestly racist underpinnings, section  of the act was held to be a violation of the right to dignity (section ), to be unfairly discriminatory, and thus in breach of the right to equality in terms of section () of our Constitution. The court reached a similar finding with regard to the customary law rule of primogeniture . It stressed that customary law—like all other law—had to conform to the dictates of the Constitution. While the rule of male primogeniture may have originally been devised to promote family structures, it was found to no longer do so. Moreover, it now manifestly and unfairly discriminated against women. Order The court held that it would not be appropriate to simply strike down the impugned principles of customary law: too many people still regulated their lives according to these rules. In addition, the court expressed reservations about the effectiveness of piecemeal development of customary law by the courts. It granted the legislature a two year period in which to develop a better system to cater for members of traditional communities who wished to be governed by extant rules and principles of customary law (that cohered with the dictates of our basic law.) However, until the legislature promulgated the requisite piece of legislation, the court ordered that section ()(c)(i) and s ()(f) of the Intestate Succession Act would apply to Africans.  Bhe Of course, these provisions had to be read in a manner designed to accommodate familial arrangements in which, as a result of polygynous unions recognized by customary law, the deceased left more than one surviving spouse. Comment It is the manner in which the Bhe court negotiates two different kinds of claims for equal respect (and thus two different kinds of dignity claims) that is most instructive for our current purposes. The Bhe court begins with the following bromide: while customary law provides a comprehensive...