Bhe v Magistrate, Khayelitsha

Bhe and Others v Magistrate, Khayelitsha and Others; Shibi v Sithole and Others; SA Human Rights Commission and Another v President of the RSA and Another, an important case in South African customary law, was heard in the Constitutional Court on 2 and 3 March 2004, with judgment handed down on 15 October. Chaskalson CJ, Langa DCJ, Madala J, Mokgoro J, Moseneke J, Ngcobo J, O'Regan J, Sachs J, Skweyiya J, Van Der Westhuizen J, and Yacoob J were the presiding judges. The court held that section 23 of the Black Administration Act, in applying the system of male primogeniture, was incompatible with sections 9 (equality) and 10 (dignity) of the Constitution.

There were two main issues at hand:

In the matter of Bhe and Others v Magistrate, Khayelitsha, and Others two minor children, both extra-marital daughters, had failed to qualify as heirs in the intestate estate of their deceased father. The father of the deceased was appointed representative and sole heir of the deceased's estate, in accordance with section 23 of the Act. Under the system of intestate succession created by section 23 and the regulations, particularly regulation 2(e), minor children did not qualify to be heirs in the intestate estate of their deceased father. According to these provisions, the estate was to be distributed according to "Black law and custom."

The applicants challenged, in the High Court, the appointment of the deceased's father as heir and representative of the estate. After considering the opposed application, the High Court concluded that the legislative provisions that had been challenged, and on which the father of the deceased had relied, were inconsistent with the Constitution and therefore invalid. The court further declared that, until the defects were corrected by the legislature, the distribution of intestate black estates was to be governed by the Intestate Succession Act.

In the Shibi matter, the applicant's brother had died intestate. The deceased had not married, nor had he been a partner in a customary union. He had no children and was not survived by a parent or grandparent. His nearest male relatives were his two cousins. Since the deceased was an African, his estate fell to be administered under the provisions of section 23(10) of the Black Administration Act, resulting in first the one cousin being appointed as representative, and then, after protestations, the other cousin being appointed as sole heir of the estate. In terms of the system created by section 23 and the regulations made thereunder (in particular regulation 2[e]), the estate of the deceased fell to be distributed according to custom. Ms Shibi, in terms of that system, was precluded from being the heir to the intestate estate of her deceased brother. In the High Court, she challenged the magistrate's decision and the manner in which the estate had been administered. She sought and obtained an order declaring herself to be the sole heir in the estate of her deceased brother.

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