It will accordingly be necessary, for purposes of this judgment, to deal with the effects of extra-marital birth on intestate succession, from the perspective of the rule of primogeniture and that of section 23 of the Act and the regulations. The problem of identifying living indigenous law therefore does not arise. He concludes that a it is inappropriate to develop the rule of male primogeniture; and b the Intestate Succession Act should, in the interim, govern all the estates that were previously governed by section 23 of the Act. Helpful submissions were however received from the Minister, who supported the application for confirmation of the orders of the High Court and the amicus curiae, the Commission for Gender Equality. It follows from this that customary law must be interpreted by the courts, as first and foremost answering to the contents of the Constitution.

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Nhlapo concludes that protecting people from distortions masquerading as custom is imperative, especially for those they disadvantage so gravely, namely, women and children. Similarly, enacting the so-called perpetual minority of women as positive law when, in the pre-colonial context, everybody under the household head was a minor including unmarried sons and even married sons who had not yet established a separate residencecx a profound and deleterious effect on the lives of African women.

In this regard, the report concludes that: But first, what is the place of indigenous law d005 our constitutional democracy?

Juta, Cape Town If the property concerned should devolve in terms of common law, the family members concerned will be left without a home and livelihood. This case was decided by a bench of three judges.

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And even within this transformative process, a majority cx Africans have not forsaken their traditional cultures. The second concerns the constitutional validity of the principle of primogeniture in w050 context of the customary law of succession. Having regard to the vulnerable position in which some of the surviving family members may find themselves, care must be taken that such agreements are genuine and not the result of the exploitation of the weaker members of the family by the strong.


In the first place, customary law is subject to the Constitution. Where differentiation is made on such grounds, it will be assumed to be unfair unless it is established that it is not. And indigenous law must reflect this change. Does section 23 violate the rights contended for? Italian motorcycle Grand Prix. The courts have embraced these fc without adhering strictly to the original customary rigid rules.

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Or take the case of a deceased who is survived by dependants but leaves nothing for the maintenance and support of the dependants. The responsibilities relate to the duty to support and maintain all the dependants of the deceased.

South Africa signed the Charter in and ratified it in The status of the deceased includes both his rights and obligations. He was a carpenter and she a domestic worker. In particular, it involves a decision on the criteria for determining when indigenous law is dc.

On the other hand, it seems to me that unqualified retrospectivity would be unfair because it could result in all transfers of ownership that have taken place over a considerably long time being reconsidered. The system had its own safeguards to ensure fairness cx the context of entitlements, duties and responsibilities.

There are obvious dangers in such an approach. They were deprived of the opportunity to manipulate the rules to their advantage through 0w05 subtle interplay of social norms, and, at the same time, denied the protections of the formal legal order.


It further recommends the extension of the application of the Intestate Succession Act to enable it to accommodate categories of Africans who are presently subject to the customary law of succession.

In all the circumstances, it would be just and equitable that the estates of the deceased devolve according to the Intestate Succession Act.

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In essence, they have outgrown the status assigned to them in traditional society. Subject to paragraph 7 of this order, section 1 of the Intestate Succession Act 81 of applies to the intestate deceased estates that would formerly have been governed by section 23 of the Black Administration Act 38 of Furthermore, the Constitution guarantees the survival of the indigenous law.

In denying extra-marital children the right to inherit from their deceased fathers, it also unfairly discriminates against them cv infringes their right to dignity as well. Any convenience the provisions might achieve could be accomplished equally as well by a non-discriminatory provision.

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The legal interest vests in her until she gives birth to her own children. The dearth of authority on what the living indigenous law is, should not therefore preclude a court from bringing a rule of indigenous law in line with the rights in the Vc of Rights. Place of indigenous law in our democracy. If in such a case the respondent has not availed himself of his right to apply for the deponents concerned to be called for cross-examination.