Bhe and Others v Magistrate, Khayelitsha and Others; Shibi v Sithole and Others; SA Human Rights Commission and Another v President of the RSA and Another[1] was an important case in South African customary law.
Chaskalson CJ, Langa DCJ, Madala J, Mokgoro J, Moseneke J, Ngcobo J, O'Regan J, Sachs J, Skweyiya J, Van Der Westhuizen J, and Yacoob J were the presiding judges.
In the matter of Bhe and Others v Magistrate, Khayelitsha, and Others[3] two minor children, both extra-marital daughters, had failed to qualify as heirs in the intestate estate of their deceased father.
After considering the opposed application, the High Court concluded that the legislative provisions that had been challenged, and on which the father of the deceased had relied, were inconsistent with the Constitution and therefore invalid.
The provisions also affected male persons who, in terms of the customary-law rule of primogeniture, were not heirs to the intestate estates of deceased Africans.
The rights to equality and dignity were among the most valuable in any open and democratic State, and assumed special importance in South Africa, due to its history of inequality and hurtful discrimination on grounds such as race and gender.
In order to avoid possible inequality between the houses in such unions, the estate should devolve in such a way that persons in the same class or category received an equal share.
This could be done by ensuring that sections 1(1)(c)(i) and 1(4)(f) of the Intestate Succession Act, which were concerned with providing for a child's share of the single surviving spouse and its calculation, should apply with three qualifications if the deceased is survived by more than one spouse: The court held that the declaration of invalidity had to be made retrospective to 27 April 1994, but that it did not apply to any completed transfer of ownership to an heir who had no notice of a challenge to the legal validity of the statutory provisions and the customary-law rule in question.
[18] The court held that the order made in this case did not mean that the relevant provisions of the Intestate Succession Act were fixed rules that had to be applied regardless of any agreement by all interested parties that the estate should devolve in a different way.
In this regard, a special duty rested on the Master of the High Court, the magistrates and other officials responsible for the administration of estates to ensure that no-one was prejudiced in the discussions leading to the purported agreements.
The Master was no longer precluded from dealing with intestate deceased estates that were formerly governed by section 23 of the Act, since they would now fall under the terms of this judgment and not customary law.
The Regulations for the Administration and Distribution of the Estates of Deceased Blacks (R200) published in Government Gazette No 10601 dated 6 February 1987, as amended, were also invalid.
In the application of sections 1(1)(c)(i) and 1(4)(f) of the Intestate Succession Act to the estate of a deceased person who was survived by more than one spouse, In terms of section 172(1)(b) of the Constitution, the court held that the transfer of ownership prior to the date of this order of any property pursuant to the distribution of an estate in terms of s 23 of the Act and its regulations could not be invalidated unless it was established that, when such transfer was taken, the transferee was on notice that the property in question was subject to a legal challenge on the grounds upon which the applicants brought challenges in this case.
[22] Ngcobo delivered a dissenting judgment in which he held that the rule of male primogeniture should be developed in order to bring it in line with the Bill of Rights.