CCT50/03

2005 (1) SA 580 (CC)

2005 (1) BCLR 1 (CC)

Langa DCJ Majority judgment

Ngcobo J separate judgment

15 October 2004

http://hdl.handle.net/20.500.12144/2203

Judgment concerns three cases: Bhe and Shibi are applications for confirmation of orders of constitutional invalidity made by the Cape High Court in Bhe and Others v Magistrate, Khayelitsha and Others 2004 (2) SA 544 (C) ; 2004 (1) BCLR 27 (C), and the Pretoria High Court in Case 7292/01, 19 November 2003,unreported. Third case is an application for direct access to the Constitutional Court brought by the South African Human Rights Commission and the Women's Legal Centre Trust.

Confirmation proceedings and application for direct access. The applicants sought confirmation of orders of invalidity of certain provisions of the Black Administration Act 38 of 1927 and regulations made in terms of the Act, which govern intestate succession for black estates. The applicants also challenged the system of male primogeniture as it applies in African customary law. Langa DCJ, for the majority, held that the impugned provisions are manifestly discriminatory and in breach of the section 9(3) and section 10 of the Constitution, and therefore must be struck down. The effect of this order is that not only are the substantive rules governing inheritance provided in the section held to be inconsistent with the Constitution, but also the procedures whereby the estates of black people are treated differently from the estates of white people are held to be inconsistent with the Constitution. The Court ordered that estates that would previously have devolved according to the rules in the Black Administration Act and the customary law rule of male primogeniture must now devolve according to the rules provided in the Intestate Succession Act. Special provision was made in the order for polygynous unions. Partial dissent: Ngcobo J