## Facts

- South Africa maintained a dual intestate-succession regime: the Intestate Succession Act 81 of 1987 generally, and § 23 of the Black Administration Act 38 of 1927 (with regulations) for intestate estates of persons classified as “African,” excluding those estates from the Intestate Succession Act.
- The § 23 regime purported to reflect customary law and applied male primogeniture, generally prioritizing senior male heirs and excluding many women and extra-marital children from inheriting.
- In **Bhe**, two minor daughters born outside marriage were excluded from inheriting their deceased father’s intestate estate; the deceased’s father was appointed sole heir and estate representative under § 23 and its regulations.
- In **Shibi**, a woman was barred from inheriting her brother’s intestate estate (he died unmarried, childless, and without surviving parents or grandparents); male cousins were treated as heirs under the § 23 regime.
- The South African Human Rights Commission and the Women’s Legal Centre Trust sought broad, public-interest relief on behalf of women and children affected by § 23 and male primogeniture.
- High Courts had declared parts of § 23, related regulations, and the Intestate Succession Act’s exclusion of § 23 estates unconstitutional; the Constitutional Court heard the matters together to confirm invalidity and craft relief.

## Issues

1. Whether § 23 of the Black Administration Act and its regulations establishing a separate intestate-succession regime for “deceased Blacks” violated constitutional rights to equality, dignity, and children’s rights.
2. Whether the customary-law rule of male primogeniture in intestate succession was unconstitutional to the extent it excluded or disadvantaged women and extra-marital children.
3. Whether Intestate Succession Act § 1(4)(b), which excluded estates governed by § 23 from the Act, was unconstitutional.
4. What remedy should govern intestate estates previously falling under § 23, including estates in polygynous customary marriages, pending legislative reform.

## Decision

- The Constitutional Court (per Langa DCJ; Ngcobo J concurring on invalidity but differing in part on remedy) held § 23 of the Black Administration Act and its associated regulations unconstitutional and invalid.
- The Court held male primogeniture in intestate succession unconstitutional and invalid to the extent it excluded or hindered women and extra-marital children from inheriting.
- The Court held Intestate Succession Act § 1(4)(b) unconstitutional and invalid insofar as it excluded § 23 estates from the Act.
- As an interim remedial regime, the Court ordered that intestate estates previously devolving under § 23 and male primogeniture would devolve under § 1 of the Intestate Succession Act.
- The Court crafted additional interim rules to address polygynous customary marriages, including allocation to each surviving spouse of a child’s share (or a capped amount) under the intestate scheme.
- The Court confirmed the High Courts’ invalidity orders and granted substantially similar class-wide relief, subject to the interim framework.

## Legal Principles

- A statutory succession system that differentiates on race and entrenches gender- and birth-based exclusion violates constitutional equality and dignity guarantees.
- Customary law is recognized as a source of law, but must be applied and developed consistently with the Bill of Rights; “official” codifications that freeze discriminatory rules are not insulated from constitutional review.
- Male primogeniture in intestate succession is unconstitutional to the extent it excludes or materially disadvantages women and children born outside marriage.
- Children’s best interests and related constitutional protections are infringed where intestate-succession rules deny minor children inheritance solely due to gender or birth status.
- Where invalidity would otherwise leave a legal vacuum and ongoing rights violations, a court may impose an interim succession regime of general application, including tailored rules for polygynous customary marriages, pending legislative action.

## Conclusion

The Constitutional Court invalidated a racially separate intestate-succession regime and the rule of male primogeniture insofar as it barred or burdened women and extra-marital children, and it replaced those rules with an interim order applying the Intestate Succession Act (with specific provisions for polygynous customary marriages) to ensure equal inheritance rights pending legislative reform.


Bhe v. Magistrate of Khayelitsha (In re Shibi v. Sithole; S. Afr. Hum. Rts. Comm’n v. President of the Republic of S. Afr.), 18 BHRC 52 (S. Afr. Const. Ct. 2004)