Abstract:
South African customary law has a significant impact on the personal lives of the
majority of African people. It has over the years, gained a repute of discriminating
against women, treating them as second-class citizens.1 Central to customary law’s
application was the rule of male primogeniture. A rule that is at the heart of this
research and is identified by its tendency to discriminate against women in areas
such as guardianship, inheritance, appointment to traditional offices, exercise of
traditional authority and the age of majority.2
The legal system of South Africa is pluralistic in nature.3 Hence, the South African
law of succession consisted of the common law of succession as well as the
customary law of succession.4 The Intestate Succession Act,5 and the Wills Act,6
regulated common law of succession, whilst customary law of succession was
characterised by the application of the rule of male primogeniture, a rule that is
central to this research.7
Some people argued that extending the Intestate Succession Act, as held in the Bhe
v Magistrate, khayelitsha 2004 (2) SA 544 (C) case, to apply to indigenous persons
had the effect of abandoning the customary system of succession in favour of
common law.8 This method of reform was considered inappropriate because rather
than merely imposing common law of succession on people who are subject to
customary law, Nhlapo and Himonga argue that it is first vital to investigate the
possibility of incorporating those aspects of customary law, and values that are
consistent with the Constitution in the reform of the law of succession. This research will look at some of the problems presented by the abolition of the rule
of male primogeniture and the extension of the Intestate Succession Act to
customary law of succession. It will also look at the possibility of harmonising
common law with customary law without imposing one system of law on the other.
The researcher makes remarks and recommendation on how best to reconcile
customary law with the Constitution without imposing western law on customary law.
