UNIVERSITY OF SOUTH AFRICA (UNISA)
College of Law
⋄
Gender, Customary Law of Succession
and the Constitution
Assignment 02 — Semester 2, 2026
⋄
Module Code: IRM1501
Module Name: Indigenous Law
Assignment No.: Assignment 02
Due Date: September 2026
Semester: Semester 2, 2026
Submitted in partial fulfilment of the requirements for Indigenous Law (IRM1501)
at the University of South Africa.
, UNISA | IRM1501 Gender Discrimination and the Customary Law of Succession
The Constitutionality of Excluding Zakumi from Intestate Succession on the Ground of
Gender
Zakumi’s uncles have told her that she cannot inherit her late parents’ estate, including the
family house, because under customary law only male heirs may inherit, and they have pro-
posed that a male relative, Thimbeza, inherit in her place because she is the only child and a
daughter. The rule they are relying on is the customary-law principle of male primogeniture, in
terms of which the eldest surviving male in the deceased’s family line succeeds to the estate
to the exclusion of women and, historically, of extra-marital children.1 The question is whether
this rule, as applied to Zakumi, can withstand constitutional scrutiny, and what the correct
legal position now is.
1.1 The Constitutional Status of Customary Law
Customary law does not stand outside the Constitution of the Republic of South Africa, 1996,
waiting to be tolerated as a cultural curiosity. Section 211(3) obliges the courts to apply cus-
tomary law when it is applicable, subject to the Constitution and any legislation that specif-
ically deals with customary law.2 Sections 30 and 31 protect the right to participate in the
cultural life of one’s choice and the right of communities to practise their culture, but both
provisions are expressly qualified: no one may exercise these rights in a manner inconsistent
with any provision of the Bill of Rights.3 Customary law is therefore recognised as an indepen-
dent, living source of law of equal standing with the common law, but it is not immune from
the equality clause; on the contrary, it must be developed to promote the spirit, purport and
objects of the Bill of Rights, in line with the Constitutional Court’s approach that customary
law be dealt with as a system in its own right rather than tested by common-law standards.4
The provision most directly in issue on Zakumi’s facts is section 9, the equality clause. Sec-
tion 9(1) guarantees everyone equality before the law and the right to equal protection and
benefit of the law, and section 9(3) prohibits the state from unfairly discriminating, directly or
indirectly, against anyone on one or more grounds, including race, gender and sex.5 Gender
is a listed ground, which means that discrimination on this basis is presumed unfair unless
1
Bhe v Magistrate, Khayelitsha 2005 (1) SA 580 (CC) para 77.
2
Constitution of the Republic of South Africa, 1996, s 211(3).
3
Constitution (n 1) ss 30–31.
4
Alexkor Ltd v Richtersveld Community 2004 (5) SA 460 (CC) para 51.
5
Constitution (n 1) s 9(1) and s 9(3).
Page 1 of 7
College of Law
⋄
Gender, Customary Law of Succession
and the Constitution
Assignment 02 — Semester 2, 2026
⋄
Module Code: IRM1501
Module Name: Indigenous Law
Assignment No.: Assignment 02
Due Date: September 2026
Semester: Semester 2, 2026
Submitted in partial fulfilment of the requirements for Indigenous Law (IRM1501)
at the University of South Africa.
, UNISA | IRM1501 Gender Discrimination and the Customary Law of Succession
The Constitutionality of Excluding Zakumi from Intestate Succession on the Ground of
Gender
Zakumi’s uncles have told her that she cannot inherit her late parents’ estate, including the
family house, because under customary law only male heirs may inherit, and they have pro-
posed that a male relative, Thimbeza, inherit in her place because she is the only child and a
daughter. The rule they are relying on is the customary-law principle of male primogeniture, in
terms of which the eldest surviving male in the deceased’s family line succeeds to the estate
to the exclusion of women and, historically, of extra-marital children.1 The question is whether
this rule, as applied to Zakumi, can withstand constitutional scrutiny, and what the correct
legal position now is.
1.1 The Constitutional Status of Customary Law
Customary law does not stand outside the Constitution of the Republic of South Africa, 1996,
waiting to be tolerated as a cultural curiosity. Section 211(3) obliges the courts to apply cus-
tomary law when it is applicable, subject to the Constitution and any legislation that specif-
ically deals with customary law.2 Sections 30 and 31 protect the right to participate in the
cultural life of one’s choice and the right of communities to practise their culture, but both
provisions are expressly qualified: no one may exercise these rights in a manner inconsistent
with any provision of the Bill of Rights.3 Customary law is therefore recognised as an indepen-
dent, living source of law of equal standing with the common law, but it is not immune from
the equality clause; on the contrary, it must be developed to promote the spirit, purport and
objects of the Bill of Rights, in line with the Constitutional Court’s approach that customary
law be dealt with as a system in its own right rather than tested by common-law standards.4
The provision most directly in issue on Zakumi’s facts is section 9, the equality clause. Sec-
tion 9(1) guarantees everyone equality before the law and the right to equal protection and
benefit of the law, and section 9(3) prohibits the state from unfairly discriminating, directly or
indirectly, against anyone on one or more grounds, including race, gender and sex.5 Gender
is a listed ground, which means that discrimination on this basis is presumed unfair unless
1
Bhe v Magistrate, Khayelitsha 2005 (1) SA 580 (CC) para 77.
2
Constitution of the Republic of South Africa, 1996, s 211(3).
3
Constitution (n 1) ss 30–31.
4
Alexkor Ltd v Richtersveld Community 2004 (5) SA 460 (CC) para 51.
5
Constitution (n 1) s 9(1) and s 9(3).
Page 1 of 7
