|Bhe and Shibi cases were dealt with by the respective Magistrates.|
The problem with primogeniture
The basis of the constitutional challenge to the official customary law of succession is that the rule of primogeniture precludes (a) widows from inheriting as the intestate heirs of their late husbands;104 (b) daughters from inheriting from their parents;105 (c) younger sons from inheriting from their parents,106 and (d) extra-marital children from inheriting from their fathers.107 It was contended that these exclusions constitute unfair discrimination on the basis of gender and birth and are part of a scheme underpinned by male domination.
Customary law has, in my view, been distorted in a manner that emphasises its patriarchal features and minimises its communitarian ones. As Nhlapo indicates:
“Although African law and custom has always had [a] patriarchal bias, the colonial period saw it exaggerated and entrenched through a distortion of custom and practice which, in many cases, had been either relatively egalitarian or mitigated by checks and balances in favour of women and the young. . . . Enthroning the male head of the household as the only true person in law, sole holder of family property and civic status, rendered wives, children and unmarried sons and daughters invisible in a social and legal sense.
. . .
The identification of the male head of the household as the only person with property-holding capacity, without acknowledging the strong rights of wives to security of tenure and use of land, for example, was a major distortion. Similarly, enacting the so-called perpetual minority of women as positive law when, in the pre-colonial context, everybody under the household head was a minor (including unmarried sons and even married sons who had not yet established a separate residence), had a profound and deleterious effect on the lives of African women. They were deprived of the opportunity to manipulate the rules to their advantage through the subtle interplay of social norms, and, at the same time, denied the protections of the formal legal order. Women became ‘outlaws’.”
Nhlapo concludes that protecting people from distortions masquerading as custom is imperative, especially for those they disadvantage so gravely, namely, women and children.
At a time when the patriarchal features of Roman-Dutch law108 were progressively being removed by legislation,109 customary law was robbed of its inherent capacity to evolve in keeping with the changing life of the people it served, particularly of women. Thus customary law as administered failed to respond creatively to new kinds of economic activity by women, different forms of property and household arrangements for women and men, and changing values concerning gender roles in society. The outcome has been formalisation and fossilisation of a system which by its nature should function in an active and dynamic manner.
The exclusion of women from inheritance on the grounds of gender is a clear violation of section 9(3)110 of the Constitution. It is a form of discrimination that entrenches past patterns of disadvantage among a vulnerable group, exacerbated by old notions of patriarchy and male domination incompatible with the guarantee of equality under this constitutional order.
The principle of primogeniture also violates the right of women to human dignity as guaranteed in section 10 of the Constitution as, in one sense, it implies that women are not fit or competent to own and administer property. Its effect is also to subject these women to a status of perpetual minority, placing them automatically under the control of male heirs, simply by virtue of their sex and gender. Their dignity is further affronted by the fact that as women, they are also excluded from intestate succession and denied the right, which other members of the population have, to be holders of, and to control property.
To the extent that the primogeniture rule prevents all female children and significantly curtails the rights of male extra-marital children from inheriting, it discriminates against them too. These are particularly vulnerable groups in our society which correctly places much store in the well-being and protection of children who are ordinarily not in a position to protect themselves.111 In denying female and extra-marital children the ability and the opportunity to inherit from their deceased fathers,112 the application of the principle of primogeniture is also in violation of section 9(3) of the Constitution.
In view of the conclusion reached later in this judgment, that it is not possible to develop the rule of primogeniture as it applies within the customary law rules governing the inheritance of property, it is not necessary or desirable in this case for me to determine whether the discrimination against children, who happen not to be the eldest, necessarily constitutes unfair discrimination. I express no view on that question. Nor, I emphasise again, does this judgment consider at all the constitutionality of the rule of male primogeniture in other contexts within customary law, such as the rules which govern status and traditional leaders.
The primogeniture rule as applied to the customary law of succession cannot be reconciled with the current notions of equality and human dignity as contained in the Bill of Rights. As the centrepiece of the customary law system of succession, the rule violates the equality rights of women and is an affront to their dignity. In denying extra-marital children the right to inherit from their deceased fathers, it also unfairly discriminates against them and infringes their right to dignity as well. The result is that the limitation it imposes on the rights of those subject to it is not reasonable and justifiable in an open and democratic society founded on the values of equality, human dignity and freedom.
I have already observed that with the changing circumstances, the connection between the rules of succession in customary law and the heir’s duty to support the dependants of the deceased is, at best, less than satisfactory.113 Compliance with the duty to support is frequently more apparent than real. There may well be dependants of the deceased who would lay claim to the heir’s duty to support them; they would however be people who, in the vast majority, are so poor that they are not in a position to ensure that their rights are protected and enforced. The heir’s duty to support cannot, in the circumstances, constitute justification for the serious violation of rights.
In conclusion, the official system of customary law of succession is incompatible with the Bill of Rights. It cannot, in its present form, survive constitutional scrutiny.
The relationship between customary law and the Constitution was considered in the two Mthembu decisions, firstly in the Pretoria High Court and lastly in the appeal heard by the Supreme Court of Appeal. The appellants brought an application in the High Court for an order, declaring the customary law rule of primogeniture and regulation 2(e) to be invalid on the grounds that they gratuitously discriminate against women, children who are not the eldest and extra-marital children in a manner that offends the equality guarantee under section 8 of the interim Constitution. The High Court dismissed the application, holding that neither the rule nor the regulation was inconsistent with the equality protection under the interim Constitution. On appeal, the Supreme Court of Appeal was invited to set aside the order of the High Court and to develop, as required by section 35(3) of the interim Constitution, the rule of primogeniture in order to allow all descendants to participate in intestacy. The Supreme Court of Appeal declined to decide the constitutional challenge or to develop the rule on the ground that the interim Constitution does not operate retroactively. It reasoned that the rights of the heir in the estate had vested on the death of the deceased, which was on 13 August 1993 and before the interim Constitution took effect.114
In an alternative argument, the Supreme Court of Appeal was urged to conclude that the rule of primogeniture and regulation 2(e) are bad under the common law because they are offensive to public policy or natural justice which are premised on the fundamental value of equality. The Court rejected this contention and dismissed the appeal. It held that neither the rule nor the regulation offended the common law. The regulation, it held, is neither unreasonable nor “ultra vires at common law.”115 It merely gives legislative recognition to a well established principle of male primogeniture according to which “many blacks, even to this day, would wish their estates to devolve.”116
I have held that section 23 is inconsistent with the Constitution and invalid. As a result, regulation 2(e) falls away. I have also found that the customary law rule of primogeniture, in its application to intestate succession, is not consistent with the equality protection under the Constitution. It follows therefore that any finding in Mthembu which is at odds with this judgment cannot stand.
Perhaps the most difficult aspect of this composite case is the issue of remedy. It will be as well, though to keep a few salutary principles in mind. In S v Bhulwana; S v Gwadiso, the Court expressed two important principles, namely that:
“[c]entral to a consideration of the interests of justice in a particular case is that successful litigants should obtain the relief they seek. . . . In principle, too, the litigants before the Court should not be singled out for the grant of relief, but relief should be afforded to all people who are in the same situation as the litigants”.117
Factors relevant to any order made by this Court include speed, practicality, clarity and the mitigation of any potential damage resulting from the relief of a temporary nature which this Court may give. Further, as was suggested in the second National Coalition case,118 the Court should not shy away from forging innovative remedies should this be required by the circumstances of the case.
In the Bhe case before the Cape High Court, paragraphs 1 and 2 of the order given declared section 23(10)(a), (c) and (e) of the Act as unconstitutional and invalid, with the consequence that regulation 2(e) fell away. Section 1(4)(b) of the Intestate Succession Act was also found to be unconstitutional and invalid in so far as it excludes from the application of section 1, any estate or part of any estate in respect of which section 23 of the Act applies. The order goes on to declare that “until the aforegoing defects are corrected by competent legislature, the distribution of intestate Black estates is governed by [section] 1 of the Intestate Succession Act”.119 The corresponding part of the order in the Shibi application is to similar effect.120 As pointed out earlier, the application by the South African Human Rights Commission and the Women’s Legal Centre Trust has broadened the ambit of the inquiry considerably.121
What needs to be determined is the nature and form of the wider relief that should be granted pursuant to the finding that section 23 of the Act is unconstitutional and invalid in its entirety. In terms of section 172(1)(a)122 of the Constitution, such a finding by the Court must be followed by a declaration of invalidity, to the extent of the inconsistency. Thereafter, the Court “may make any order that is just and equitable.”123
In considering an appropriate remedy in this case, various courses present themselves. They are: (a) whether the Court should simply strike the impugned provisions down and leave it to the legislature to deal with the gap that would result as it sees fit; (b) whether to suspend the declaration of invalidity of the impugned provisions for a specified period; (c) whether the customary law rules of succession should be developed in accordance with the “spirit, purport and objects of the Bill of Rights”,124 or (d) whether to replace the impugned provisions with a modified section 1 of the Intestate Succession Act or with some other order.
The question of polygynous marriages and whether or not the order by this Court should accommodate them must also be considered. These are complex issues and that is why it is regrettable that the opportunity given to the Chairperson of the House of Traditional Leaders by the Chief Justice to provide their view did not receive a positive response.
In the circumstances of this case it will not suffice for the Court to simply strike down the impugned provisions. There is a substantial number of people whose lives are governed by customary law and their affairs will need to be regulated in terms of an appropriate norm. It will therefore be necessary to formulate an order that incorporates appropriate measures to replace the impugned framework in order to avoid an unacceptable lacuna which would be to the disadvantage of those subject to customary law.
Nor can this Court afford to suspend the declaration of invalidity to a future date and leave the current legal regime in place pending rectification by the legislature. The rights implicated are important; those subject to the impugned provisions should not be made to wait much longer to be relieved of the burden of inequality and unfair discrimination that flows from section 23 and its related provisions. That would mean that the benefits of the Constitution would continue to be withheld from those who have been deprived of them for so long.
I have found that the primogeniture rule as applied to inheritance in customary law is inconsistent with the constitutional guarantee of equality. The question whether the Court was in a position to develop that rule in a manner which would “promote the spirit, purport and objects of the Bill of Rights”125 evoked considerable discussion during argument. In order to do so, the Court would first have to determine the true content of customary law as it is today and to give effect to it in its order. There is however insufficient evidence and material to enable the Court to do this. The difficulty lies not so much in the acceptance of the notion of “living” customary law, as distinct from official customary law, but in determining its content and testing it, as the Court should, against the provisions of the Bill of Rights.126
It was suggested in argument that if the Court is not in a position to develop the rules of customary law in this case, it should allow for flexibility in order to facilitate the development of the law. The import of this was that since customary law is inherently flexible with the ability to permit compromise settlements,127 courts should introduce into the system those constitutional principles that the official system of succession violates. It was suggested that this could be done by using the exceptions in the implementation of the primogeniture rule which do occur in the actual administration of intestate succession as the applicable rule for customary law succession in order to avoid unfair discrimination and the violation of the dignity of the individuals affected by it. Those exceptions would, according to this view, constitute the “living” customary law which should be implemented instead of official customary law.
There is much to be said for the above approach. I consider, however, that it would be inappropriate to adopt it as the remedy in this case. What it amounts to is advocacy for a case by case development as the best option. It is true that there have been signs of evolution in court decisions in recent times, where some courts have shown a willingness to recognise changes in customary law.128 In