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African Customary Law
Content
- Case summaries
- Tutorial answers
- Class test answer guide
Cases
1. Bhe v Magistrate 2005
2. Shilubana and Others v Nwamitwa and Others 2008
3. MM v MN 2013 (CC)
4. Mabena v Letsoalo 1998
5. Mabuza v Mbatha 2003
6. Mbungela v Mkabi 2020
7. Mathaba v Minister of Home Affairs (not prescribed)
8. MN v MM 2012 (SCA)
9. Palesa v Moloko 2013 (not prescribed)
10. Monyepao v Ledwaba 2020 (not prescribed)
11. Moseneke v the Master
12. Mxhosana v Mxhosana 2022
13. Mogale v Speaker of the National Assembly 2023
14. Maledu and Others v Itereleng Bakgatla Mineral Resources (Pty) 2018 (para
1-29 and 93 onwards)
15. Tongoane
16. Baleni and Others v Minister of Mineral Resources
Ascertainment and Proof of ACL
Bhe v Magistrate
2005
Facts
- concerned a constitutional challenge to the rule of male primogeniture
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- the father of applicants, Nonkuleleko and Anelisa Bhe (aged 9 and 2), had died,
and the mother brought an action to secure the deceased's property for her
daughters
- Under the African customary law rule of primogeniture as well as section 23 of
the Black Administration Act, the house became the property of the eldest male
relative of the father, in this case the grandfather.
Issue
- Black intestate estates and non-Black intestate estates were formerly governed
by different systems. Is this discriminatory?
Outcome
- s 23 of the Black Administration Act and s 1(4)(b) of the Intestate
Succession Act are inconsistent with the Constitution and are invalid
- Found to be discriminatory on the basis of race and gender
- The ISA will rather apply to intestate estates that were formerly governed by
s 23 of the Black Administration Act (BAA)
- the two Bhe daughters were appointed sole heirs to their deceased father’s
estate and received child’s portions
- the Court declined to develop customary law in terms of section 39(2) of the
Constitution on a case-by-case basis.
- It reasoned that adopting this approach would result in the slow development of
customary law.
- Regarding certainty the Court stated: ‘The problem with the development by the
courts on a case-by-case basis is that ... uncertainties regarding the real rules of
customary law will be prolonged and there may well be different solutions to
similar problems’
- ACL is recognised, protected and subject to the Constitution
Majority (Langa DCJ)
- the majority judgment acknowledged the difference between forms of customary
law in the following statement:
- The official rules of customary law are contrasted with ‘living customary
law’. The problem with the adaptations is that they are ad hoc and not
uniform. However, magistrates and the courts responsible for the
administration of intestate estates continue to adhere to the rules of
official customary law, with the consequent anomalies and hardships as
a result of changes which have occurred in society
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African Customary Law
Content
- Case summaries
- Tutorial answers
- Class test answer guide
Cases
1. Bhe v Magistrate 2005
2. Shilubana and Others v Nwamitwa and Others 2008
3. MM v MN 2013 (CC)
4. Mabena v Letsoalo 1998
5. Mabuza v Mbatha 2003
6. Mbungela v Mkabi 2020
7. Mathaba v Minister of Home Affairs (not prescribed)
8. MN v MM 2012 (SCA)
9. Palesa v Moloko 2013 (not prescribed)
10. Monyepao v Ledwaba 2020 (not prescribed)
11. Moseneke v the Master
12. Mxhosana v Mxhosana 2022
13. Mogale v Speaker of the National Assembly 2023
14. Maledu and Others v Itereleng Bakgatla Mineral Resources (Pty) 2018 (para
1-29 and 93 onwards)
15. Tongoane
16. Baleni and Others v Minister of Mineral Resources
Ascertainment and Proof of ACL
Bhe v Magistrate
2005
Facts
- concerned a constitutional challenge to the rule of male primogeniture
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- the father of applicants, Nonkuleleko and Anelisa Bhe (aged 9 and 2), had died,
and the mother brought an action to secure the deceased's property for her
daughters
- Under the African customary law rule of primogeniture as well as section 23 of
the Black Administration Act, the house became the property of the eldest male
relative of the father, in this case the grandfather.
Issue
- Black intestate estates and non-Black intestate estates were formerly governed
by different systems. Is this discriminatory?
Outcome
- s 23 of the Black Administration Act and s 1(4)(b) of the Intestate
Succession Act are inconsistent with the Constitution and are invalid
- Found to be discriminatory on the basis of race and gender
- The ISA will rather apply to intestate estates that were formerly governed by
s 23 of the Black Administration Act (BAA)
- the two Bhe daughters were appointed sole heirs to their deceased father’s
estate and received child’s portions
- the Court declined to develop customary law in terms of section 39(2) of the
Constitution on a case-by-case basis.
- It reasoned that adopting this approach would result in the slow development of
customary law.
- Regarding certainty the Court stated: ‘The problem with the development by the
courts on a case-by-case basis is that ... uncertainties regarding the real rules of
customary law will be prolonged and there may well be different solutions to
similar problems’
- ACL is recognised, protected and subject to the Constitution
Majority (Langa DCJ)
- the majority judgment acknowledged the difference between forms of customary
law in the following statement:
- The official rules of customary law are contrasted with ‘living customary
law’. The problem with the adaptations is that they are ad hoc and not
uniform. However, magistrates and the courts responsible for the
administration of intestate estates continue to adhere to the rules of
official customary law, with the consequent anomalies and hardships as
a result of changes which have occurred in society
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