, PVL2602 Assignment 1 (COMPLETE ANSWERS) Semester
2 2026 - DUE 17 August 2026; 100% Correct solutions and
explanations.
Question 1.1
Xolani and Nomsa concluded a valid customary marriage in 2005. Although the
marriage was not registered with the Department of Home Affairs, this does not
affect its validity. Section 4(9) of the Recognition of Customary Marriages Act 120
of 1998 clearly provides that the failure to register a customary marriage does not
invalidate the marriage. Therefore, Nomsa remains Xolani's lawful surviving
spouse.
When Xolani died on 14 May 2010, he died intestate because he left no valid will.
Mandla argues that because the Reform of Customary Law of Succession Act 11 of
2009 only came into operation on 20 September 2010, the customary law rule of
male primogeniture still applied on the date of Xolani's death. His argument is
incorrect.
The decisive legal authority is Bhe and Others v Magistrate, Khayelitsha and
Others. In this landmark Constitutional Court judgment, the Court declared the
customary law rule of male primogeniture unconstitutional because it unfairly
discriminated against women and extra-marital children on the grounds of gender,
birth and age. The Court held that the rule violated the equality clause contained in
section 9 of the Constitution, the right to dignity in section 10, and the best
interests of the child principle in section 28.
Importantly, the Constitutional Court did not merely declare the rule
unconstitutional. It also ordered that, until Parliament enacted legislation regulating
customary law succession, all intestate estates previously governed by customary
law would instead be administered under the Intestate Succession Act 81 of 1987.
Consequently, from the date of the Bhe judgment in 2004, the rule of male
primogeniture ceased to have legal force.
The Reform of Customary Law of Succession Act 11 of 2009 merely codified the
legal position that had already existed following the Bhe judgment. Although the
Act commenced on 20 September 2010, it did not revive the unconstitutional rule
of male primogeniture for deaths occurring before that date. Therefore, Xolani's
estate, despite his death occurring on 14 May 2010, must still be distributed
according to the Intestate Succession Act as directed in Bhe.
2 2026 - DUE 17 August 2026; 100% Correct solutions and
explanations.
Question 1.1
Xolani and Nomsa concluded a valid customary marriage in 2005. Although the
marriage was not registered with the Department of Home Affairs, this does not
affect its validity. Section 4(9) of the Recognition of Customary Marriages Act 120
of 1998 clearly provides that the failure to register a customary marriage does not
invalidate the marriage. Therefore, Nomsa remains Xolani's lawful surviving
spouse.
When Xolani died on 14 May 2010, he died intestate because he left no valid will.
Mandla argues that because the Reform of Customary Law of Succession Act 11 of
2009 only came into operation on 20 September 2010, the customary law rule of
male primogeniture still applied on the date of Xolani's death. His argument is
incorrect.
The decisive legal authority is Bhe and Others v Magistrate, Khayelitsha and
Others. In this landmark Constitutional Court judgment, the Court declared the
customary law rule of male primogeniture unconstitutional because it unfairly
discriminated against women and extra-marital children on the grounds of gender,
birth and age. The Court held that the rule violated the equality clause contained in
section 9 of the Constitution, the right to dignity in section 10, and the best
interests of the child principle in section 28.
Importantly, the Constitutional Court did not merely declare the rule
unconstitutional. It also ordered that, until Parliament enacted legislation regulating
customary law succession, all intestate estates previously governed by customary
law would instead be administered under the Intestate Succession Act 81 of 1987.
Consequently, from the date of the Bhe judgment in 2004, the rule of male
primogeniture ceased to have legal force.
The Reform of Customary Law of Succession Act 11 of 2009 merely codified the
legal position that had already existed following the Bhe judgment. Although the
Act commenced on 20 September 2010, it did not revive the unconstitutional rule
of male primogeniture for deaths occurring before that date. Therefore, Xolani's
estate, despite his death occurring on 14 May 2010, must still be distributed
according to the Intestate Succession Act as directed in Bhe.
