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In this case, involving succession to the whole of the estate of a deceased person who died intestate, the respondent (father of the deceased) opposed an application by the widow to succeed to the estate.
Mthembu v Letsela and Another 1997 (2) SA 936 (T)
Mandla Nkala (Candidate attorney with Bregman Mitchley)
In this case note I will concentrate on the leading case of Mthembu v Letsela and Another 1997 (2) SA 936 (T) where the application of the Bill of Rights was considered by the Pretoria high court. Women have unfortunately lost the war for equality in the battle between the sexes. In this case, involving succession to the whole of the estate of a deceased person who died intestate, the respondent (father of the deceased) opposed an application by the widow to succeed to the estate.
The applicant sought to have the provisions of s 23(2) of the Black Administration Act 38 of 1927 regulating succession nullified on the basis that they were inconsistent with the provisions of s 8 of the Bill of Rights as the system of primogeniture discriminated on the grounds of sex or gender. Section 8 provides that no one may unfairly be discriminated against on the grounds of sex or gender.
The respondent based his claim to succeed to the estate on the primogeniture rule as well as on s 30 of the Bill of Rights which provides that everyone has the right to participate in the cultural life of his choice. The primogeniture system provides that only male relatives of the deceased in the direct line, that is son, father, grandfather, may succeed as heirs to the estate. This principle is confirmed by TW Bennett in A Source Book of African Customary Law for Southern Africa (Cape Town: Juta 1991).
The Bill of Rights is a cornerstone of democracy in South Africa (see s 7(1) of the Constitution). One of the fundamental elements embodied in the principle of democracy is the promotion of equality in society. Section 7(1) enshrines this element, but of course subject to limitation (s 7(3)). Section 7(1) provides that everyone is equal before the law and subs 9(2) provides that steps may be taken to promote or advance persons disadvantaged by unfair discrimination.
In the Mthembu case, the court gave judgment in favour of the respondent on the basis that everyone has the right to participate in the cultural life of his choice in terms of s 30. Therefore the customary primogeniture system was upheld.
But s 30 further says that no one exercising these rights may do so in a manner inconsistent with any provision of the Bill of Rights. Does the upholding of the primogeniture system which perpetuates male dominance over females in customary succession matters not amount to subjecting women to another form of unfair discrimination on the grounds of sex? This can be said to be in violation of the equality clause in s 9(2) which provides for the full and equal enjoyment of all rights concerning equality. But when it comes to customary succession a woman’s right is limited by the fact that somebody has to be allowed to enjoy the application of his own culture as provided for in s 30.
Furthermore, s 9(3) provides that the state, through its judicial organs, that is courts, has to promote equality and may not unfairly discriminate directly or indirectly on the grounds of sex or culture. Is the upholding of the customary primogeniture system by the courts not indirect discrimination against women on the grounds of sex?
It is true that no right is absolute, as is provided by s 36(1), but still, if the right of equality between the sexes is weighed against the principles set out in this section, should the scales between the sexes not be balanced by giving equal recognition even in customary succession?
A detailed analysis of s 36(1) will shed some light on whether a partial limitation on the right by a woman in a customary marriage to inherit should not be considered as unfair discrimination. In view of s 36(1)(a), could the right to equality in customary succession be juxtaposed with subs (b)? How important is equality between men and women in succession matters? Is the limitation of equality still relevant in the present dispensation of democracy embodying equality? Could it mean continual denial of recognition of women’s status as being equal to that of men? Furthermore, what remedy does s 36(1)(e) provide to women to enhance their dignity and status before society?
When interpreting the Bill of Rights the courts must not only promote the values of democracy, (see s 39(1)(a)) but are also obliged under s 39(2) to develop customary law. In developing customary law, the courts must promote the spirit, purpose and object of the Bill of Rights. What is the object and purpose of the Bill of Rights? Is it not to promote equality and human dignity for all? By upholding the primogeniture system of customary law in succession, the Pretoria high court seems to have fallen short in its duty of developing the customary law system that could be regarded in its present state as oppressive and perhaps infringing upon women’s dignity in giving men preference over women.
Finally, when comparing South African women with their counterparts in the neighbouring states, is there any hope of widows succeeding their deceased husbands? In his book Human Rights and African Customary Law, TW Bennett highlights the Zimbabwe case of Chihowa v Mangwende 1987 (1) ZLR 228 (5). The deceased had died intestate leaving his widow and two major daughters. One daughter applied to succeed to the father’s estate, relying on the Legal Age of Majority Act 15 of 1982.
Dumbutshena CJ said at 97 of the judgment
‘There is no indication of a contrary intention other than that enshrined in subs (3) of s 3 of Act No 15 of 1982 or 15 of 1980. It is my opinion that there is nothing now in any enactment or at customary law which prohibits a woman from being appointed an intestate heiress.’
The decision of the Zimbabwean courts on the primogeniture system could be regarded as a victory for Zimbabwean women. Their right to equal succession to the deceased estate is a good example of positive development of African customary law [* But see also 45 of this issue – Editor]. Going back to the South African situation, the duty to interpret and develop customary law in view of the changing social climate regionally, lies with the courts: to develop the law in a positive way as envisaged in s 39(2) of the Bill of Rights of the South African Constitution.
South African women married under customary law should not lose hope in the battle for equality between the sexes in view of the present dispensation of democracy. The South African courts as in the Mthembu case are still treading on unexplored ground with regard to the constitutionality of customary law vis-à-vis the Bill of Rights.
While there is room for improvement in cases based on customary law, it is likely that with time, more lawyers and jurists will be exposed to customary law cases. This could result in a more positive situation for women thus improving their status in our modern democratic society.
The recent adoption by the legislature of the Recognition of Customary Marriages Act 120 of 1998 could be regarded as another positive milestone for women married under customary law. One of the aims of the Recognition of Customary Marriages Act is to provide equal status and capacity of spouses in customary marriages as well as to regulate the proprietary consequences of such marriages. Section 6 of the Act provides:
‘A wife in a customary marriage has, on the basis of equality with her husband…full status and capacity, including the capacity to acquire assets and to dispose of them… .’
When this provision is interpreted in the light of ss 9 and 10 of the Bill of Rights, the legislature seems to have been striving to promote the purport, spirit and objects of the Bill of Rights namely equality, human dignity and freedom. The contextual approach used in interpreting statutes would probably reveal that the legislature seems to have considered the social and historical background of customary marriages vis-à-vis the position and status of women in such societies in the light of the new constitutional era. In the above provision the legislature seems to have been promoting or elevating the status of women to that of being equal to men enabling them to be capable of acquiring assets. The primogeniture rule seems to have been eliminated by the provisions of s 6 and women can now perhaps challenge the primogeniture system basing their defence on s 6 which recognises them as equal to their male counterparts in all aspects of their married life. It is a pity that the Mthembu case was decided before the Act was passed; perhaps the plaintiff would have succeeded in her claim to inherit the estate of her husband, relying on s 6 of the Recognition of Customary Marriages Act and also on s 9(1)(2) of the Bill of Rights.