Primogenature
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Introduction.
The 21st century has evolved many things around us. It is no doubt that even the law itself has evolved since its conception to govern human conduct.[1] Customary law itself has evolved post 1994 into a primary source of law. The concept of male primogeniture in the customary law of intestate succession has been a subject of debate for many years. In many African cultures the rule of primogeniture is prominently practiced as culture for example in the Tsonga and Valoyi custom it is a norm for a chief to be succeeded by a male heir because a female’s children wouldn’t be fathered by a Valoyi male. In the Shilubana & Others v Nwamitwa [2]case the the court declared that the succession of the Valoyi chieftainship had used male primogeniture and according to the Constitution of 1996, everyone has the right to equality and it was unconstitutional to strip females from chieftainship on the grounds of gender.[3] In the Mthembu v Letsela[4] case was later a mother unsuccessfully approached the courts three times to contest the rule of male primogeniture in order to save her family from her father-in-law. The courts were reluctant to declare the rule unconstitutional. Their reasoning implied that in urban areas the rule may not apply.The judgment in Mthembu v Letsela[5] was overturned by the Constitutional Court in the infamous case of South African customary law of Bhe v Magistrate case[6] where two minor children, both extra-marital daughters, had failed to qualify as heirs in the intestate estate of their deceased father according to section 23 of the Black Administration Act[7]. The rule of male primogeniture was successfully challenged and the court found the rule to be “out of pace with changing social condition”[8]. We will first give reference to the van Breda case[9] which discusses the distinction between custom and customary law and secondly, we will discuss the facts of the Shilubana[10] case which discusses the constitutionality of male primogeniture in a developing legal system of customary succession laws. Then we will discuss the facts of the Mthembu[11], Shibi[12] and Bhe[13] cases which have contradictory judgments from the Constitutional Court regarding intestate succession and finally we will discuss whether the rule of male primogeniture has a place in the new dispensation which is constantly evolving with reference to our 1996 Constitution or whether it is an ancient custom which should’ve been left in the past.
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Previously, custom and customary law were not seen as an integral part of our legal system however, since the new dispensation, it has has now become a very important part of our legal system. The leading case of custom is the Van Breda v Jacobs[14] case which states that a custom must meet certain requirements to be regarded as law. It must have been a long standing practice, it must’ve been in practice without exception since its origin, must be reasonable, must be certain and it must be generally recognized and observed by the community. On the other hand, customary law arises from the social practices of a particular group of people which the group regard as legally obligatory[15]. South African law distinguishes between official and living customary law. [16] Official customary law consists of those rules of customary law that have been written down in customary law codes or other legislation, in precedents from cases heard in the Native Appeal Courts or in the Supreme Court or Appellate Division that people regard as legally binding. Living customary refers to the flexible and ever-changing aspects of customary law that is practiced by communities.[17] Its referred to as “living” considering that it changes as people’s economic, social and political circumstances change as well and is regarded as inherently preferable to official customary law[18]. The 21st century is comprised of the developing traditional practices of many African communities and “living” customary law is a more accurate portrayal of that.