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Exam (elaborations) LCP4804 - Advanced Indigenous Law (LCP4804) JAN/FEB SUPPLEMENTARY EXAM DUE ON 22/02/2022
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Exam (elaborations) LCP4804 - Advanced Indigenous Law (LCP4804)
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LCP4804 – EXAMINATIONJAN/FEB 2022
QUESTION 1
The application of the principle of male primogeniture:
The application of the male primogeniture rule was surrounded with arguments,
especially with the introduction of the democratic constitution of 1996, debates arose
on the constitutionality of this principle as it is evidenced by our constitutional court’s
judgments which later abolished this so called male primogeniture rule. This
discussion will therefore provide the definition of this concept “male primogeniture
rule”, and further critically discuss its constitutionality through the lens of the
constitution and case law.
Mthembu v Litsela and Another 1997 (2) SA 936 (T) provided a definition of male
primogeniture rule in relation to matters of succession. In this case the court
highlighted that the most important customary law rule is the one of male
primogeniture in the customary law of succession in terms of which only first-born or
precedent males may inherit in cases of intestacy, to the exclusion of females and
junior males. The male primogeniture rule was endorsed by section 23 of the Black
Administrative Act which excluded females in matters of succession and on
proprietary consequences of customary marriages. Females were not
allowed/excluded from matters of succession and they were also excluded from
owning property. In simple terms, women were treated as perpetual minors who
have limited rights to act as compared to men.
The coming of the democratic constitution changed the possession of customary law
rule of male primogeniture. This principle was declared unconstitutional in most of
the constitutional court’s decisions. I will now provide an analysis of the court cases
in which this principle was declared unconstitutional.
In Bhe v Magistrate Khayelitsha: The ConCourt was asked to confirm a Western
Cape High Court decision together with a North Gauteng High Court decision both of
, which had declared the male primogeniture rule which preferred senior males in the
customary law of intestate succession unconstitutional and set it aside.1
The ConCourt confirmed both judgments; declared the male primogeniture rule
unconstitutional for violating the equality and the human dignity clauses of the
Constitution; set aside section 23 of the BAA and section 1(4) of the Intestate
Succession Act. The Intestate Succession Act was imported to customary law, to
distribute equal child portions to all the widows, descendants of the deceased, male
and female, legitimate and illegitimate.2
The court developed our customary law to be in line with the dictates of the
constitution. This is so because Bhe case is authority for jettisoning the discredited
apartheid rule entrenched in section 23 of the Black Administration Act (BAA), which
preferred males to females in matters of succession. As a result, section 23 of the
BAA, the principle of male primogeniture; the distinction between legitimate and
illegitimate children were all declared unconstitutional and removed from customary
law. The court went on to incorporate the provisions of the Intestate Succession Act,
81 of 1987, dealing with child portions and affter making the necessary adjustments,
all the children of the deceased, legitimate and illegitimate, together with all his
widows/widowers must get child portions.
In Shilubana v Nwamitwa the Constitutional Court held that the customary law
regarding the appointment of traditional leader (hosi) had legitimately evolved to
allow women to succeed the deceased and be appointed as a traditional leader (hosi)
and thus the customary law was developed to be consistent with the constitution.3
In this case the courts promoted that idea of decolonizing the South African legal
system. This is so because the courts gave the traditional leaders their power back
by giving them the authority to make and amend their laws to be in line with the
constitutional principles. It also respected the traditional leaders by calling them with
their traditional names e.g. hosi/kosi, and discarded insulting names such as chief
which presented them like stooges. The courts also promoted gender equality by
allowing women to be appointed as traditional leaders.
1
Bhe v Magistrate Khayelisha and Others 2005 (1) BCLR.
2
Bhe v Magistrate Khayelisha and Others 2005 (1) BCLR.
3
Shilubana v Nwamitwa 2008 (9) BCLR 914 (CC).
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