Sikokele Blayi

2826875

Law Tutorial Assignment 16

Declaration of Original Tutorial Work

I, (Name and surname) _______Sikokele Blayi_________

Student number: ______2826875__________________, understand and agree that

plagiarism or any form of academic misconduct is dishonest. I acknowledge that if I do not
answer this honestly and am found to have violated these principles, I will be subject to
the University’s disciplinary procedures.

Please confirm the following AFTER completing your tutorial answer:

For each statement below, mark your response as 'Yes' or 'No'.

yes I have completed this tutorial independently and with integrity.

I have read and understood the tutorial question(s) by completing the
yes
“Before You Start” section prior to attempting my answer/s.
I have used only the prescribed course materials and relevant academic
yes
resources to support my responses.
I confirm that I have uploaded my typed or handwritten tutorial answer to
yes
Ulwazi as required.
I have not copied or plagiarised any part of this submission from another
yes
student, online source, or any other unauthorised material.
I have not used artificial intelligence tools (e.g., ChatGPT, Google Gemini,
yes
etc.) or any automated assistance to generate or edit my answers.
I understand that academic dishonesty may result in disciplinary action and
yes
loss of marks.
I understand and agree that it is my responsibility to follow all instructions
yes provided for each tutorial. For every instruction not followed, one mark will
be deducted from my total score.

Signed: ______S.L Blayi______________________

Date: ______14 September 2025______________________

Tutor: Relebohile
Before you start:

• The instructional words are "critically analyse," "explain," and "assess," and "include
reference." "Critically analyse" requires me to examine both judgments in detail,
identifying their core arguments, strengths, and weaknesses. "Explain the reasoning"
means I must articulate the logical basis and justifications presented in each judgment
for their conclusions. "Assess" requires me to evaluate which judgment, in my view,
better upholds the constitutional role of courts in developing customary law, providing
justifications for my assessment. "Include reference" means I must specifically refer
to and discuss the approaches taken in Mabena v Letsoal and Shilubana v Mwamitwa.
• The question asks me to critically examine and evaluate the majority and minority
judgments in Bhe v Magistrate of Khayelitsha and Others concerning the
constitutionality of the rule of male primogeniture in customary law. I need to clearly
explain the reasoning behind each judgment, and then assess which of the two
judgments, in my opinion, more accurately reflects the constitutional mandate for
courts to develop customary law. I am also required to integrate discussions of
Mabena v Letsoalo and Shilubana v Mwamitwa.
• The primary authority to be used is the judgment for Bhe and Others v The
Magistrate, Khayelitsha and Others, along with discussions of Mabena v Letsoalo

Tutorial Answer:

The Constitutional Court in Bhe and Others v The Magistrate, Khayelitsha and Others
addressed the constitutional validity of intestate succession laws and the customary law
principle of male primogeniture. The case centred on Section 23 of the Black
Administration Act 38 of 1927 (BAA) and its regulations, which mandated a separate
system of intestate succession for Africans based on "Black law and custom," particularly
the rule of male primogeniture. Both the majority judgment by Langa DCJ and the
minority judgment by Ngcobo J critically analysed these provisions within the framework
of the Constitution, specifically concerning equality, human dignity, and the rights of
children.
The Majority Judgment by Langa DCJ:

Langa DCJ’s majority judgment focused on the constitutional invalidity of Section 23 of

the BAA and its associated regulations, and the principle of male primogeniture in
customary law of succession.

Langa DCJ declared Section 23 of the BAA a "racist provision" that was "fundamentally
incompatible with the Constitution". He argued that the Act was "specifically crafted to fit
in with notions of separation and exclusion of Africans" and served as a "cornerstone of
racial oppression," creating a system based purely on "racial grounds without more". The
distinction it drew between estates devolving according to "Black law and custom" and
those devolving as if the deceased "had been a European" was described as demeaning
and overtly racist. The majority found that Section 23 and its regulations were manifestly
discriminatory, violating Section 9(3) (equality) and Section 10 (human dignity) of the
Constitution, and thus could not be justified under Section 36.

The majority also challenged the principle of male primogeniture, which dictates that
only a male relative can be an intestate heir, thereby excluding women and extra-marital
children. Langa DCJ acknowledged the traditional purpose of customary law succession,
which was to preserve the family unit and ensure the heir assumed responsibilities, but
noted that modern urban life has significantly changed this context, leading to the
"ossification" of customary rules that no longer reflect "real values and circumstances".

Langa DCJ concluded that merely striking down the provisions would create an
"unacceptable lacuna," and suspending the invalidity was also unacceptable due to the
urgency of human rights protection. He found "insufficient evidence and material" for the
Court to determine the "true content of customary law as it is today" and develop it
constitutionally on a case-by-case basis.

The Minority Judgment by Ngcobo J

Ngcobo J concurred with the majority on the invalidation of Section 23 of the BAA and
its regulations, describing the Act as "manifestly racist" and "an affront to the dignity of
those that it governs".

Ngcobo J argued that the rule of primogeniture, by limiting the rights of younger children
to succeed, was reasonable and justifiable under Section 36(1) of the Constitution. His
reasoning was that the rule's primary purpose was to "preserve the family unit" and ensure
that a successor (indlalifa) takes over the responsibilities of the deceased family head,
including maintaining dependants and administering family property.

Despite his stance on age and birth discrimination, Ngcobo J found the exclusion of
women from succession to be unfair and unjustifiable. He acknowledged the changed
social and economic context, where women play significant roles and are often de facto
heads of families, rendering the traditional rule obsolete. He cited African jurisprudence
(from Nigeria, Zimbabwe, Tanzania, Ghana) demonstrating a trend towards recognising
women's rights in succession.

Ngcobo J strongly advocated for developing the rule of male primogeniture to align it
with the Bill of Rights, rather than replacing it with the Intestate Succession Act. He
stressed the constitutional obligation under Section 39(2) to develop indigenous law to
remove deviations from the Bill of Rights. He argued that striking down a customary rule
completely could lead to its "obliteration," yet the Constitution guarantees "the survival of
an evolving customary law”.

Both the majority and minority judgments in Bhe referred to Mabena v Letsoalo. Langa
DCJ noted Mabena as an example where courts have shown a willingness to recognise
changes in customary law, accepting a "principle of living, actually observed law" as a
development in line with the "spirit, purport and objects of the Bill of Rights" of the
interim Constitution. Ngcobo J used Mabena to illustrate how indigenous law can be
adapted to changed circumstances. In Mabena, the court found that parental consent for
marriage was no longer strictly required if the young man could provide lobolo, and
crucially, that a woman could act as a head of a family and receive lobolo. This
demonstrated judicial development of customary law by incorporating evolving social
contexts. Both judges therefore saw Mabena as a precedent for the adaptability and
development of customary law.

In my view, Ngcobo J’s minority judgment more accurately reflects the constitutional role
of the courts in developing customary law. While the majority's swift invalidation of
racist statutory provisions was essential, its wholesale replacement of customary
succession with the ISA, even with modifications, risks undermining the Constitution's
commitment to legal pluralism and the continued existence and evolution of customary
law. Section 39(2) places an active duty on courts to develop customary law, not simply
to invalidate and substitute it. Ngcobo J’s approach, by seeking to transform
discriminatory aspects from within the customary law framework and advocating for a
flexible judicial process, better balances the need to uphold constitutional rights with the
imperative to foster the internal growth and legitimacy of customary law in a democratic
society, sensitive to cultural context and the protective purpose of traditional succession.