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With reference to the relevant African customary law authorities, and while
providing practical examples, critically discuss how South African courts
have dealt with the application of the divisive principle of male
primogeniture. [25]
Introduction:
The Male Primogeniture Rule is a customary law that specifies that only the oldest
legitimate son, to the exclusion of the other siblings, can inherit the deceased
inheritance. Prior to the Constitutional era, the South African government ignored
the Male Primogeniture Rule, which was endorsed by Black Administration Act 38
of 1927.
The South African Constitution of 1996 enshrines human rights, Ubuntu, and
democratic principles while also acknowledging customary law as a source of law,
but it must be subject to The Bill of Rights. This is backed up by Section 39(2) of
the Constitution, which provides that "when interpreting any legislation, and when
formulating any common law or customary law, every court, tribunal, or forum
must promote the spirit, meaning, and goals of the Bills of Rights."
The constitutional rights implicated 1 - In both written and oral submissions before
the Court, it was argued that the impugned provisions seriously violate various
constitutional rights, primarily, rights to human dignity 2, and to equality3, as well as
the rights of children4.
Cases that dealt with Male Primogeniture Rule:
SHILUBANA AND OTHERS V NWAMITWA 2009 (2) SA 66 (CC)
1
Bhe and Others v Khayelitsha Magistrate and Others (CCT 49/03) [2004] ZACC 17; 2005 (1) SA 580
(CC); 2005 (1) BCLR 1 (CC) (15 October 2004) para 47.
2
section 10 of the Constitution of the Republic of South Africa, Act 108 of 1996.
3
section 9 of the Constitution.
4
section 28 of the Constitution.
2
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