The role of male primogeniture and the role of women to inherit any success under customary law of succession

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.