2023
LWSNA2-11 – Group EssayCampus Name- Student
Number
IMPACT OF THE CONSTITUTION ON INTESTATE SUCCESSION
ANNALIZE OOSTHUIZEN;MZWAKHE MNGUNI
Contents
Introduction: ..................................................................................................................................................................... 2
DECLARED SECTION 23 OF BLACK ADMINISTRATION ACT AND THE REGULATIONS THERETO UNCONSTITUTIONAL AND
EXTENDED THE INTESTATE SUCCESSION ACT TO THE CUSTOMARY LAW OF INTESTATE SUCCESSION ........................... 3
Bhe v Magistrate Khayelitsha 2005(1) SA 580 (CC): ..................................................................................................... 3
Shibi v Sithole 2005 (1) SA 580 (CC): ............................................................................................................................. 3
Moseneke v The Master 2001 (2) SA 18 (CC):............................................................................................................... 4
EXTENTION OF THE MEANING OF “SPOUSE” IN THE INTESTATE SUCCESSION ACT TO INCLUDE MONOGAMOUS
MUSLIM MARRIAGES, POLYGAMOUS MUSLIM MARRIAGES, AND MONOGAMOUS HINDU MARRIAGES ...................... 5
Daniels v Campbell 2004 (5) SA 331 (CC): ..................................................................................................................... 5
Hassam v Jacob 2009 (11) BCLR 1148 (CC) ................................................................................................................... 5
Govender v Ragavayah 2009 (3) SA 178 (D) ................................................................................................................. 5
INCLUSION OF SAME-SEX LIFE PARTNERSHIP AS ‘SPOUSE’ OR ‘SURVIVOR’..................................................................... 6
Gory v Kolver 2007 (4) SA 97 (CC) ................................................................................................................................. 6
Our case study: ................................................................................................................................................................. 6
Conclusion ......................................................................................................................................................................... 7
Works Cited ....................................................................................................................................................................... 8
1
Introduction:
The constitution of the Republic of South Africa in its preamble makes declaration to the nation's
pursuit of equality and the correction of past injustices. Many amendments have been made since
the first democratic elections through legislature and various landmark court decisions in apparent
support of the declaration. We investigate its validity by studying the legal circumstances in cases
such as Bhe and Others v Magistrate and Others, assessing the constitutionality of their outcomes.
In this paper the constitution is read through the grid of Ubuntu to assess how consistently the
value systems align, where inconsistencies represent grave injustice. The spirit of Ubuntu is one of
community, which values and respects all human life always considering that “I am because you
are.” According to New world encyclopaedia, it loosely translates to “humanity towards others.”,
the preamble echoes this sentiment by stating that South Africa belongs to all who live in it. How
well poetry depicts reality however remains to be seen in the assessment of the events below.
We investigate the condition of modern intestate succession under customary law to determine
whether progress has been made in representing marginalised groups. The Black Administration
Act which previously administered the devolving of an intestate’s assets excluded female heirs as
well as male heirs considered to be illegitimate from inheriting. Section 23 of the act promoted
male primogeniture maintaining that under African customary law the eldest son was to inherit the
deceased’s entire estate. Where no son existed the closest male relative was to inherit the estate
if he was not an illegitimate child.
Women especially were disadvantaged as their economic standing and access to resources that
they may well have helped to attain were stripped from them. How has the constitution sought to
rectify this?
2
DECLARED SECTION 23 OF BLACK ADMINISTRATION ACT AND THE REGULATIONS
THERETO UNCONSTITUTIONAL AND EXTENDED THE INTESTATE SUCCESSION ACT
TO THE CUSTOMARY LAW OF INTESTATE SUCCESSION
Bhe v Magistrate Khayelitsha 2005(1) SA 580 (CC):
In this case, the applicant brought an application on behalf of her two minor daughters and on
public interest. The applicant and the deceased were not married but had lived together as
husband and wife for a period of 12 years and had two daughters. According to the principle of
male primogeniture, the widow and her children could not inherit, but a close male relative of
the deceased was the one who was supposed to inherit the deceased’s estate. The court held
that the primogeniture rule is invalid and unconstitutional as it infringes on equality (section 9 of
the Constitution) and human dignity (section 10 of the Constitution) and that it also
discriminates against extra marital children (section 2 of The Children’s Act 38 of 2005.)
(VermeulenAttorneys, n.d.)
The Constitutional Court also held that the customary law of succession was constrained by
Section 23 of the Black Administration Act and was not allowed to develop to meet the
changes in the society that it was meant to serve (DOJ, 2023).
Shibi v Sithole 2005 (1) SA 580 (CC):
The applicant was a sister whose brother died intestate. The deceased did not have any
children, was not married nor had he any partner. By the time of his death, his closest male
relative was his cousin whom according to primogeniture principle, was the one who could
inherit. The applicant argued that section 23 of the Black Administration of Estate Act 66 of
1965 is inconsistent with equality and human dignity rights. The court concluded that the
violation of equality and human dignity caused by section 23 is very serious and that it cannot
be justified and was to be struck down. (VermeulenAttorneys, n.d.)
Promulgation of the Reform of Customary Law of Succession and Regulation of Related
Matters Act 11 of 2009, abolished the male primogeniture principle, recognizing equal
inheritance to all surviving children and spouse(s). (VermeulenAttorneys, n.d.)
The Act contains an important choice of law rule that the estate of any person who is subject to
customary law that does not devolve in terms of a will, must devolve according to the Intestate
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Succession Act. A separate system existed for administering intestate estates prior to
December 2000 depending a person’s race. A magistrate administered black persons’
intestate estates, while the Master of the High Court administered the estates of all other race
groups as well as the testate estates of black persons. (Jamneck et al, 2017, p. 274)
Moseneke v The Master 2001 (2) SA 18 (CC):
In this case, Mr Moseneke, a retired school principal and inspector, died intestate. He was
survived by his wife and four sons (the appellants). They lived a so-called urban lifestyle and they
were dissatisfied with the fact that the estate of the deceased had to be administrated by a
magistrate in terms of regulation 3(1) of the Black Estates Regulations and expressed their
concern to the Master on the basis that differential treatment amounted to unfair discrimination on
the grounds of race. The Court decided that both regulation 3(1) of the Black Estates Regulations
and section 23(7)(a) of the Black Administration Act, unfairly discriminated people according to
race, ethnicity and colour which in terms of section 9 of the Constitution was unfair and
unconstitutional. In his ruling, Sachs J realised that an immediate annulment of these
inconsistencies could cause socio-economic problems and ordered that the status quo with regard
to already submitted estates in terms of section 23(7)(a) and regulation 3(1) had to be maintained
and that black families should have a choice as to whether they wished to report the deceased
estate to the Master or the magistrate. (Jamneck et al, 2017, p. 277)
With the landmark case of Bhe v Magistrate, Khayelitsha the Department of Justice and
Constitutional Development (under which the office of the Master falls) was required to design and
implement a new system for the supervision and administration of deceased estates that complies
with the values of the Constitution. Since then, the Repeal of the Black Administration Act and
Amendment of Certain Laws Act came into operation and the Reform of Customary Law of
Succession and Regulation of Related Matters Act (RCLSA) came into effect on 20 September
2010. Most importantly only the Master of the High Court has the power to supervise all deceased
estates, all deceased estates must be administered in terms of the Administration of Estates Act
and intestate estates have to be administered in terms of the Intestate Succession Act. (Jamneck
et al, 2017, pp. 277-280)
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EXTENTION OF THE MEANING OF “SPOUSE” IN THE INTESTATE SUCCESSION ACT
TO INCLUDE MONOGAMOUS MUSLIM MARRIAGES, POLYGAMOUS MUSLIM
MARRIAGES, AND MONOGAMOUS HINDU MARRIAGES
Daniels v Campbell 2004 (5) SA 331 (CC):
Mrs Daniels and Mr Campbell were married by Muslim rites, but the marriage was never
solemnised by a marriage officer appointed in terms of the Marriage Act. They had been
monogamous for 30 years until Mr Campbell passed away intestate and the main asset was a
house on a rental basis from the city council. After she was divorced from her first husband, the
tenancy was assigned to her in her own name but when she married Mr Campbell, the tenancy of
the house was registered in his name. Mrs Daniels continued to stay in the house with her
children (which were not Mr Campbell’s) and she paid rent and levies. After Mr Campbell died, his
family claimed the house as the Master of the High Court that Mrs Daniels was not the deceased’s
spouse in terms of the Intestate Succession Act because she was married under Muslim rites.
Her claim for maintenance was also rejected for the same reason. The court held that a party to a
monogamous Muslim marriage is a ‘spouse’ and a ‘survivor’ in terms or the Intestate Succession
Act and in terms of the Maintenance of Surviving Spouses Act. (Jamneck et al, 2017, p. 135)
Hassam v Jacob 2009 (11) BCLR 1148 (CC)
In Hassam v Jacob, the Cape High Court, later confirmed by the Constitutional Court, expanded
this decision to include polygamous Muslim marriages. The effect of these decisions is that
surviving spouses in all Muslim marriages, irrespective of whether they were de facto
monogamous or not, can inherit in terms of intestate succession law and also claim for
maintenance in terms of the Maintenance of Surviving Spouses Act. (Jamneck et al, 2017, p. 135)
Govender v Ragavayah 2009 (3) SA 178 (D)
The Court held that not recognising the rights of a spouse in a Hindu Marriage would amount to
unjustifiable unfair discrimination and consequently ruled that the word ‘spouse’ as used in section
1 of the Intestate Succession Act, includes the surviving partner in a monogamous Hindu
marriage.
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INCLUSION OF SAME-SEX LIFE PARTNERSHIP AS ‘SPOUSE’ OR ‘SURVIVOR’
Gory v Kolver 2007 (4) SA 97 (CC)
Before the Civil Union Act, same-sex couples could neither marry nor formalise their relationship
which meant that when a gay person died, his or her life partner had no right to inherit. Mr Gory
and Mr Brooks (the deceased) were in at the time of his demise partners in a permanent same-sex
life partnership in which they undertook reciprocal duties of support.
They lived together and wanted to have an agreement drawn up to record the applicant’s halfshare in their common home which was registered in the deceased’s name but have not done so
by the time of his death. Mr Gory was not regarded as the intestate heir of his estate as he was
not the spouse of the deceased in terms of the Intestate Succession Act. The Constitutional Court
found that the interpretation of the Intestate Succession Act section 1(1) conferred rights of
intestate succession on heterosexual spouses but not on permanent same-sex life partners who
were not legally entitled to marry. This amounted to discrimination on the listed ground of sexual
orientation in terms of equality and dignity. The Court ruled that with effect from 27 April 1994,
section 1(1) of the Intestate Succession Act, after ‘spouse’, should read the words ‘or partner in a
permanent same-sex life partnership in which the partners have undertaken reciprocal duties of
support” so that same-sex life partnerships that was previously disadvantaged could claim as
‘spouse’ or ‘survivor’ in the intestate succession rules of devolution in order to inherit from a
partner that died intestate. (Jamneck et al, 2017, p. 32)
Our case study:

Both parents died without a valid will and as from 15 October 2004 both deceased estates
will be devolved in terms of the Intestate Succession Act irrespective of the cultural
affiliation of the deceased.

The deceased’s estates will be administered under the Master of the High Court’s
supervision according to the Administration of Estates Act and the Master will appoint an
executor.

All the children born of both parents and adopted children will inherit per capita (equal
share).
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
Children are only allowed to claim their inheritance at age 18 years or older and if any
money is paid to minors, it is paid into the Guardian’s Fund of the Master of the High Court
until the beneficiary can claim his/her inheritance.

The duties and obligations towards the children does not end with the death of the parents
and the children, especially the minor children, will be able to claim maintenance from the
deceased estates.

Apart from debts owed to creditors, a child’s claim for maintenance ranks above all other
claims against the estate of his deceased parent.

Children older than 18 years must prove to the court that they in fact require support and
the amount of support claimed.

A guardian will be appointed by the State for the minor children and the best interest of the
child is of paramount importance as per the Children’s Act 2005, therefor as for the selling
of the property to pay the portions out to the older children, it will have to be decided by the
Master who has the option of obtaining an enquiry into the matter and a declaration order
from court if necessary. It will also depend on if there is enough money in the estate to
support the maintenance claims before any money can be paid to the older children wants
to have their share paid out. (DOJ, 2023) (Jamneck et al, 2017) (Tannous, 2018)
Conclusion
The court decisions considered in this paper preside over a wide range of issues, yet in each case, the
judges have sought to echo the spirit of the constitution and to preserve the dignity and human rights of all
the members of society. The thread in each case is the empowerment of an unconstitutionally
marginalized and even disregarded group.
We see in the Bhe v Magistrate case the abolition of the male primogeniture rule which would otherwise
have seen a mother and her children go without a home, based on gender alone. In Shibi vs Sithole we
again see the spirit of the constitution moving us further and more determinedly away from gender biases,
which were the bedrock upon which many atrocities against women specifically were based.
Further buried in Moseneke v The Master are the sentiments of racial discrimination an archaic relic of
governance that the people of South Africa fought bravely to overcome for the sake of unity, ubuntu. To
inform the decision In Daniels v Campbell Langa DP commented by saying that our constitution is in a
society that is migrating from its history of discrimination into one that upholds democratic values.
According to Davis et al, the courts look at the substance of things as defined in the constitution and not a
mere legal form (Dennis Davis, 2021). Each case is proof of the preceding statement as each interpretation
of a statute had the effect of recognizing the human rights of many of the applicants and empowering the
disempowered. The constitution in this regard remains true to the spirit of ubuntu by preserving the
dignity of the most vulnerable in society. Regardless of gender, race, or religion the constitution has
interpreted every statute in a manner that preserves ubuntu.
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Works Cited (Anon., n.d.)
Anon., n.d. s28 (1). In: Constitution of South Africa. s.l.:s.n.
Anon., n.d. s9. In: Children's Act. s.l.:s.n.
Dennis Davis, W. G. Z. B. D. B. D. B. L. C. A. L. &. T. M., 2021. Companies and other Business Structures in South Africa.
5 ed. Cape Town: Oxford.
DOJ, &. C., 2023. Department: Justice and Constitutional Development Republic of South Africa. [Online]
Available at: https://www.justice.gov.za/master/deceased.html
[Accessed 22 March 2023].
Jamneck et al, J., 2017. The Law of Succession in South Africa. 3rd ed. Cape Town: Oxford University Press.
Tannous, T., 2018. Deceased Estate - The rights of children to claim. [Online]
Available at: https://www.millers.co.za/OurInsights/ArticleDetail.aspx?ArticleID=2521
[Accessed 22 March 2023].
VermeulenAttorneys, n.d. The Male Primogeniture Rule. [Online]
Available at: https://www.vermeulenlaw.co.za/male-primogeniturerule/#:~:text=Though%20the%20Male%20Primogeniture%20Rule,children's%20rights%20through%20its%20applicat
ion.
[Accessed 22 March 2023].
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