, PLEASE USE THIS DOCUMENT AS A GUIDE ONLY
QUESTION 1
1.1. With reference to the provided facts above, the timeline of the RCLSA and relevant case law,
advise Nomsa on whether Mandla’s claim to the estate is correct.
Mandla's claim is incorrect, and the argument that Nomsa cannot rely on the Reform of Customary
Law of Succession Act 11 of 2009 (RCLSA) because Xolani died before it commenced is invalid.
The central question is which law governs Xolani's estate. Mandla claims the traditional customary
law rule of male primogeniture applies.¹ However, the Constitutional Court in Bhe v Magistrate,
Khayelitsha declared this rule unconstitutional and invalid.² The Court held that the rule of male
primogeniture unfairly discriminates against women and extra-marital children and is inconsistent
with the Constitution.³ Following this judgment, the Intestate Succession Act 81 of 1987 was made
applicable to all intestate estates, regardless of the cultural affiliation of the deceased, effectively
abolishing the discriminatory primogeniture rule.⁴ The RCLSA, which commenced on 20 September
2010, later codified this position.⁵ Although Xolani died on 14 May 2010, before the RCLSA came
into effect, the Bhe judgment was already in force and had already made the Intestate Succession Act
applicable to all such estates.⁶ Therefore, Mandla cannot rely on the rule of male primogeniture.
Furthermore, the fact that Nomsa's customary marriage was not registered does not invalidate it.
Section 4(9) of the Recognition of Customary Marriages Act 120 of 1998 explicitly states that failure
to register a customary marriage does not affect its validity.⁷ Therefore, Nomsa is a valid "spouse"
for the purposes of the Intestate Succession Act.⁸
1.2. Explain how Xolani’s estate is going to devolve and calculate how much each person will
receive. Provide reasons for your calculations. Also, indicate which relatives will not inherit, with
reasons to substantiate your answer.
Step 1: Determine the Value of Xolani's Estate
The estate's total value is R2,100,000.⁹
Step 2: Identify Heirs and Applicable Rules
Xolani is survived by:
His wife, Nomsa (a "spouse" as defined in section 1 of the Intestate Succession Act).¹⁰
His two children (direct descendants).
His brother, Mandla (a collateral relative).
¹ PVL2602, Study Guide, p. 8-9; Jamneck et al., 2023, p. 32-33.
² Bhe v Magistrate, Khayelitsha (Commission for Gender Equality as Amicus Curiae); Shibi v Sithole; South African Human Rights
Commission v President of the Republic of South Africa 2005 (1) SA 580 (CC) at para 136.
³ Bhe v Magistrate, Khayelitsha 2005 (1) SA 580 (CC) at para 101-124.
⁴ Jamneck et al., 2023, p. 33; PVL2602, Study Guide, p. 8.
⁵ PVL2602, Study Guide, p. 8-9; Jamneck et al., 2023, p. 299.
⁶ Bhe v Magistrate, Khayelitsha 2005 (1) SA 580 (CC) at para 136; Jamneck et al., 2023, p. 33.
⁷ Recognition of Customary Marriages Act 120 of 1998, s 4(9).
⁸ Jamneck et al., 2023, p. 26-27; PVL2602, Study Guide, p. 9-10.
⁹ PVL2602, Study Guide, p. 12-13; Jamneck et al., 2023, p. 42-43.
¹⁰ Jamneck et al., 2023, p. 26-27.
QUESTION 1
1.1. With reference to the provided facts above, the timeline of the RCLSA and relevant case law,
advise Nomsa on whether Mandla’s claim to the estate is correct.
Mandla's claim is incorrect, and the argument that Nomsa cannot rely on the Reform of Customary
Law of Succession Act 11 of 2009 (RCLSA) because Xolani died before it commenced is invalid.
The central question is which law governs Xolani's estate. Mandla claims the traditional customary
law rule of male primogeniture applies.¹ However, the Constitutional Court in Bhe v Magistrate,
Khayelitsha declared this rule unconstitutional and invalid.² The Court held that the rule of male
primogeniture unfairly discriminates against women and extra-marital children and is inconsistent
with the Constitution.³ Following this judgment, the Intestate Succession Act 81 of 1987 was made
applicable to all intestate estates, regardless of the cultural affiliation of the deceased, effectively
abolishing the discriminatory primogeniture rule.⁴ The RCLSA, which commenced on 20 September
2010, later codified this position.⁵ Although Xolani died on 14 May 2010, before the RCLSA came
into effect, the Bhe judgment was already in force and had already made the Intestate Succession Act
applicable to all such estates.⁶ Therefore, Mandla cannot rely on the rule of male primogeniture.
Furthermore, the fact that Nomsa's customary marriage was not registered does not invalidate it.
Section 4(9) of the Recognition of Customary Marriages Act 120 of 1998 explicitly states that failure
to register a customary marriage does not affect its validity.⁷ Therefore, Nomsa is a valid "spouse"
for the purposes of the Intestate Succession Act.⁸
1.2. Explain how Xolani’s estate is going to devolve and calculate how much each person will
receive. Provide reasons for your calculations. Also, indicate which relatives will not inherit, with
reasons to substantiate your answer.
Step 1: Determine the Value of Xolani's Estate
The estate's total value is R2,100,000.⁹
Step 2: Identify Heirs and Applicable Rules
Xolani is survived by:
His wife, Nomsa (a "spouse" as defined in section 1 of the Intestate Succession Act).¹⁰
His two children (direct descendants).
His brother, Mandla (a collateral relative).
¹ PVL2602, Study Guide, p. 8-9; Jamneck et al., 2023, p. 32-33.
² Bhe v Magistrate, Khayelitsha (Commission for Gender Equality as Amicus Curiae); Shibi v Sithole; South African Human Rights
Commission v President of the Republic of South Africa 2005 (1) SA 580 (CC) at para 136.
³ Bhe v Magistrate, Khayelitsha 2005 (1) SA 580 (CC) at para 101-124.
⁴ Jamneck et al., 2023, p. 33; PVL2602, Study Guide, p. 8.
⁵ PVL2602, Study Guide, p. 8-9; Jamneck et al., 2023, p. 299.
⁶ Bhe v Magistrate, Khayelitsha 2005 (1) SA 580 (CC) at para 136; Jamneck et al., 2023, p. 33.
⁷ Recognition of Customary Marriages Act 120 of 1998, s 4(9).
⁸ Jamneck et al., 2023, p. 26-27; PVL2602, Study Guide, p. 9-10.
⁹ PVL2602, Study Guide, p. 12-13; Jamneck et al., 2023, p. 42-43.
¹⁰ Jamneck et al., 2023, p. 26-27.
