Bhe v. Magistrate Khayelitsha & Ors. 2005 (1) BCLR 1 (CC), 15 Oct. 2004
In three cases, the applicants and public interest organisations challenged inheritance laws that favoured males; rights of African women and children to inheritance; Black Administration Act that recognised customary law governing succession was discriminatory on grounds of race; customary law rules on male primogeniture discriminatory on grounds of race, gender and birth.
The Bhe judgment concerned three related cases (Bhe, SAHRC and Shibi), which were decided together. In the first action, the father of applicants, Nonkuleleko and Anelisa Bhe (aged 9 and 2), had died, and the mother (the third applicant) 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. The South African Human Rights Commission (SAHRC) and the Women's Legal Centre Trust brought the action in the public interest and as a class action on behalf of all women and children in a similar situation. In Shibi, a sister was denied the right to inherit from her brother's intestate deceased estate under African Customary Law. In all three cases, the Constitutional Court declared the African customary law rule of primogeniture unconstitutional and struck down the entire legislative framework regulating intestate deceased estates of black South Africans. According to the Court, section 23 of the Act was anachronistic since it ossified official' customary law and grossly violated the rights of black African persons relative to white persons. With regard to the customary law rule of male primogeniture, the Court held that it discriminates unfairly against women and illegitimate children on the grounds of race, gender and birth. The result of the order was that all deceased estates are to be governed, until further legislation, by the Intestate Succession Act 81 of 1987, whereby widows and children can benefit regardless of their gender or legitimacy. The Court also made orders for the division of deceased estates in circumstances where the deceased person was in a polygamous marriage and was survived by more than one spouse.
Keywords: Bhe v. Magistrate Khayelitsha & Ors. 2005 (1) BCLR 1 (CC), 15 Oct. 2004, Children, Right
The case has the practical effect of annulling discriminatory laws. However, Michelle Sullivan from the Women's Law Centre has commented that the challenge is to ensure implementation of the decision since the affected women and girls are located in rural areas and many deceased estates are dealt with informally. Such beneficiaries can bring enrichment claims but they will require significant assistance from government officials and magistrates. See article by Sullivan cited below.
Information on groups and individuals involved on the case: Women’s Legal Centre (Fourth Applicant in Bhe and Second Applicant in SAHRC) P.O Box 5356, Cape Town, 8000 Telephone number: (021) 421 1380 Fax number: (021) 421 1386 Email: sharon@wlce.co.za Web: http://www.wlce.co.za
The order is significant since it conclusively strikes down discrimination against women, girl children and men other than the eldest male relative on the basis of race, sex, gender, social origin and birth. Michelle Sullivan notes that it will help assist widows and children avoid eviction from the family home upon the death of a husband or father. The judgment also enabled the government to avoid having to legislate in this controversial area of customary law; it was joined to the case but simply submitted that it would abide by the Court's decision. However, a partially dissenting judge felt that the customary rule of male primogeniture should not have been struck down but developed so as to be brought in line with the right to equality.
