Question 2
The matter of Mthembu v Letsela and Another 2000 (3) SA 867 (SCA) addressed a
contentious topic regarding customary law and gender equality in South Africa. The
Supreme Court of Appeal (SCA) affirmed the traditional law principle of male
primogeniture, which prevented a widow from inheriting her late husband's estate in
favor of a male successor. The ruling of the SCA in Mthembu v Letsela resulted in
additional issues rather than resolving them. The primary issue is that it maintained the
official principle of male primogeniture, which was evidently discriminatory. The second
issue is the Court’s indication that applying the rule of male primogeniture in an urban
environment could potentially lead to discrimination based on age and gender. The
Court's ruling present’s a third issue: it stated that the principle of male primogeniture
could not be advanced by the Court itself, as it lacked the necessary resources, and
that any such advancement should be deferred to the legislature following a thorough
investigation process. This was likewise the stance adopted in Bhe. 1 Bennett2
emphasizes that under customary law, the husband and his family possess complete
parental rights over any children born to the wife during the marriage, as long as they
have met their obligations outlined in the bride wealth agreement. It is obvious that,
regarding tradition, if these marriage duties are not fulfilled, the maternal family will gain
parental rights, and the child resulting from this union is deemed illegitimate, lacking the
ability to inherit from the paternal family. A significant criticism is that the ruling
supported a policy that discriminates against women due to their gender, breaching
Section 9 (equality clause) and Section 10 (human dignity) of the South African
Constitution.3 The court did not successfully align customary law with the Bill of Rights.
By favoring male primogeniture, the court solidified patriarchal values to the detriment of
women's rights. The court faced criticism for adopting a conservative and deferential
stance on customary law instead of proactively advancing it in accordance with
constitutional values, as mandated by Section 39(2) of the Constitution. Critics contend
that the court had the opportunity to interpret customary law in a manner that promotes
equality and dignity, yet it chose not to confront the discriminatory elements of the male
primogeniture rule. The court's ruling ignored the fragility of women, especially widows
in rural regions, who could be abandoned without financial assistance or assets after
their husbands pass away. Critics claim that the decision continued the economic
sidelining of women, sabotaging the transformative objectives of the post-apartheid
constitutional framework. It is important to mention that Bhe v Magistrate, Khayelitsha
2005 (1) SA 580 (CC) subsequently invalidated the principle of male primogeniture in
inheritance, declaring it unconstitutional. This ruling by the Constitutional Court
addressed numerous concerns highlighted in Mthembu and has since turned into a
1
Thandabantu 289.
2
Bennett African Customary Law for Southern Africa 289
3
Constution of South africa
The matter of Mthembu v Letsela and Another 2000 (3) SA 867 (SCA) addressed a
contentious topic regarding customary law and gender equality in South Africa. The
Supreme Court of Appeal (SCA) affirmed the traditional law principle of male
primogeniture, which prevented a widow from inheriting her late husband's estate in
favor of a male successor. The ruling of the SCA in Mthembu v Letsela resulted in
additional issues rather than resolving them. The primary issue is that it maintained the
official principle of male primogeniture, which was evidently discriminatory. The second
issue is the Court’s indication that applying the rule of male primogeniture in an urban
environment could potentially lead to discrimination based on age and gender. The
Court's ruling present’s a third issue: it stated that the principle of male primogeniture
could not be advanced by the Court itself, as it lacked the necessary resources, and
that any such advancement should be deferred to the legislature following a thorough
investigation process. This was likewise the stance adopted in Bhe. 1 Bennett2
emphasizes that under customary law, the husband and his family possess complete
parental rights over any children born to the wife during the marriage, as long as they
have met their obligations outlined in the bride wealth agreement. It is obvious that,
regarding tradition, if these marriage duties are not fulfilled, the maternal family will gain
parental rights, and the child resulting from this union is deemed illegitimate, lacking the
ability to inherit from the paternal family. A significant criticism is that the ruling
supported a policy that discriminates against women due to their gender, breaching
Section 9 (equality clause) and Section 10 (human dignity) of the South African
Constitution.3 The court did not successfully align customary law with the Bill of Rights.
By favoring male primogeniture, the court solidified patriarchal values to the detriment of
women's rights. The court faced criticism for adopting a conservative and deferential
stance on customary law instead of proactively advancing it in accordance with
constitutional values, as mandated by Section 39(2) of the Constitution. Critics contend
that the court had the opportunity to interpret customary law in a manner that promotes
equality and dignity, yet it chose not to confront the discriminatory elements of the male
primogeniture rule. The court's ruling ignored the fragility of women, especially widows
in rural regions, who could be abandoned without financial assistance or assets after
their husbands pass away. Critics claim that the decision continued the economic
sidelining of women, sabotaging the transformative objectives of the post-apartheid
constitutional framework. It is important to mention that Bhe v Magistrate, Khayelitsha
2005 (1) SA 580 (CC) subsequently invalidated the principle of male primogeniture in
inheritance, declaring it unconstitutional. This ruling by the Constitutional Court
addressed numerous concerns highlighted in Mthembu and has since turned into a
1
Thandabantu 289.
2
Bennett African Customary Law for Southern Africa 289
3
Constution of South africa
