IRM1501
Assignment 2 Semester 2 2026
Unique number:
Due date: September 2026
2 DIFFERENT ANSWERS INLCUDED
THE CONSTITUTIONALITY OF MALE PRIMOGENITURE IN CUSTOMARY
INTESTATE SUCCESSION
1. Introduction
Zakumi’s dispute concerns intestate succession under customary law and, more
specifically, the rule of male primogeniture. Under that traditional rule, succession
followed the senior male line, while women and girls were excluded from inheriting
family property merely because of their sex.1The rule would allow Thimbeza, as a
male relative, to inherit the deceased estate even though Zakumi is the deceased’s
only child.1The legal issue is whether this exclusion remains constitutionally valid
after the development of South African constitutional and succession law.
, 2 DIFFERENT ANSWERS INLCUDED
THE CONSTITUTIONALITY OF MALE PRIMOGENITURE IN CUSTOMARY
INTESTATE SUCCESSION
1. Introduction
Zakumi’s dispute concerns intestate succession under customary law and, more
specifically, the rule of male primogeniture. Under that traditional rule, succession
followed the senior male line, while women and girls were excluded from inheriting
family property merely because of their sex.1The rule would allow Thimbeza, as a
male relative, to inherit the deceased estate even though Zakumi is the deceased’s
only child.2The legal issue is whether this exclusion remains constitutionally valid
after the development of South African constitutional and succession law.
The rule cannot presently be enforced against Zakumi. The constitutional protection
of equality and dignity, together with the decision in Bhe and Others v Khayelitsha
Magistrate and Others, changed the former customary-law position.3The material
further identifiesMthembu v Letsela and Another and M and Another v M and
Another as relevant decisions in the legal development surrounding primogeniture
and customary succession.4This essay argues that Zakumi may inherit her parent’s
estate and that her uncles cannot lawfully replace her with Thimbeza because she is
female.5
2. The customary-law principle of primogeniture
Primogeniture is a customary succession rule under which inheritance follows the
senior male line of the family.6The eldest son ordinarily inherits the deceased’s
estate, while the descendants of the senior male line may succeed where the eldest
1
C Rautenbach, NMI Goolam and JC Bekker, Introduction to Legal Pluralism (LexisNexis
2014) 121–122.
2
C Rautenbach, W Du Plessis and G Pienaar, ‘Is Primogeniture Extinct Like the Dodo, or Is
There Any Prospect of It Rising from the Ashes? Comments on the Evolution of Customary
Succession Laws in South Africa’ (2006) 22 South African Journal on Human Rights 99, 99–118.
3
Bhe and Others v Khayelitsha Magistrate and Others 2005 (1) SA 580 (CC).
4
Mthembu v Letsela and Another 2000 (3) All SA 219 (A); M and Another v M and Another
(63462/12) [2014] ZAGPPHC 1026.
5
Constitution of the Republic of South Africa, 1996 s 9(1).
6
Rautenbach, Goolam and Bekker (n 1) 121.
Assignment 2 Semester 2 2026
Unique number:
Due date: September 2026
2 DIFFERENT ANSWERS INLCUDED
THE CONSTITUTIONALITY OF MALE PRIMOGENITURE IN CUSTOMARY
INTESTATE SUCCESSION
1. Introduction
Zakumi’s dispute concerns intestate succession under customary law and, more
specifically, the rule of male primogeniture. Under that traditional rule, succession
followed the senior male line, while women and girls were excluded from inheriting
family property merely because of their sex.1The rule would allow Thimbeza, as a
male relative, to inherit the deceased estate even though Zakumi is the deceased’s
only child.1The legal issue is whether this exclusion remains constitutionally valid
after the development of South African constitutional and succession law.
, 2 DIFFERENT ANSWERS INLCUDED
THE CONSTITUTIONALITY OF MALE PRIMOGENITURE IN CUSTOMARY
INTESTATE SUCCESSION
1. Introduction
Zakumi’s dispute concerns intestate succession under customary law and, more
specifically, the rule of male primogeniture. Under that traditional rule, succession
followed the senior male line, while women and girls were excluded from inheriting
family property merely because of their sex.1The rule would allow Thimbeza, as a
male relative, to inherit the deceased estate even though Zakumi is the deceased’s
only child.2The legal issue is whether this exclusion remains constitutionally valid
after the development of South African constitutional and succession law.
The rule cannot presently be enforced against Zakumi. The constitutional protection
of equality and dignity, together with the decision in Bhe and Others v Khayelitsha
Magistrate and Others, changed the former customary-law position.3The material
further identifiesMthembu v Letsela and Another and M and Another v M and
Another as relevant decisions in the legal development surrounding primogeniture
and customary succession.4This essay argues that Zakumi may inherit her parent’s
estate and that her uncles cannot lawfully replace her with Thimbeza because she is
female.5
2. The customary-law principle of primogeniture
Primogeniture is a customary succession rule under which inheritance follows the
senior male line of the family.6The eldest son ordinarily inherits the deceased’s
estate, while the descendants of the senior male line may succeed where the eldest
1
C Rautenbach, NMI Goolam and JC Bekker, Introduction to Legal Pluralism (LexisNexis
2014) 121–122.
2
C Rautenbach, W Du Plessis and G Pienaar, ‘Is Primogeniture Extinct Like the Dodo, or Is
There Any Prospect of It Rising from the Ashes? Comments on the Evolution of Customary
Succession Laws in South Africa’ (2006) 22 South African Journal on Human Rights 99, 99–118.
3
Bhe and Others v Khayelitsha Magistrate and Others 2005 (1) SA 580 (CC).
4
Mthembu v Letsela and Another 2000 (3) All SA 219 (A); M and Another v M and Another
(63462/12) [2014] ZAGPPHC 1026.
5
Constitution of the Republic of South Africa, 1996 s 9(1).
6
Rautenbach, Goolam and Bekker (n 1) 121.
