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not be a reasonably possible interpretation.
I have reached this conclusion with considerable reluctance. It is, however, borne out by the approach adopted by the Constitutional Court in recent cases, particularly National Coalition for Gay and Lesbian Equality & Others v Minister of Home Affairs & Others 2000 (2) SA 1 (CC) and Satchwell v President of the Republic of South Africa & Another 2002 (6) SA 1 (CC). In the former case, Ackermann J, writing for the full Court, held that the word ‘spouse’, as used in section 25(5) of the Aliens Control Act 96 of 1991, was not reasonably capable of a broad construction so as to include partners in permanent same-sex life partnerships. The word ‘spouse’ was not defined in the Act, but its ordinary meaning connoted a ‘married person: a wife, a husband’ and the context in which ‘spouse’ was used in section 25(5) did not suggest a wider meaning. While some of these statements by Ackermann J may possibly be construed as supporting the interpretative arguments relied upon by the applicants in the present proceedings, it is important to note that Ackermann J went further by stating (at para [25]) that there was no indication that the word ‘marriage’ as used in the Aliens Control Act extended ‘any further than those marriages that are ordinarily recognised by our law’, ie marriages that are solemnised in accordance with the provisions of the Marriage Act 25 of 1961. In coming to these conclusions, the learned judge made the following salient comments:

[23] … There is, it is true, a principle of constitutional interpretation that where it is reasonably possible to construe a statute in such a way that it does not give rise to constitutional inconsistency, such a construction should be preferred to another construction which, although also reasonable, would give rise to such inconsistency. Such a construction is not a reasonable one, however, when it can be reached only by distorting the meaning of the expression being considered.

[24] There is a clear distinction between interpreting legislation in a way which “promote[s] the spirit, purports and objects of the Bill of Rights” as required by s 39(2) of the Constitution and the process of reading words into or severing them from a statutory provision which is a remedial measure under section 172(1)(b), following upon a declaration of constitutional invalidity under s 172(1)(a))… What is now being emphasised is the fundamentally different nature of the two processes. The first process, being an interpretative one, is limited to what the text is reasonably capable of meaning. The latter can only take place after the statutory provision in question, notwithstanding the application of all legitimate interpretative aids, is found to be constitutionally invalid.
In a similar vein, Madala J (writing for the full Court) in the Satchwell case (supra) considered the meaning of the word ‘spouse’ in sections 8 and 9 of the Judges’ Remuneration and Conditions of Employment Act 88 of 1989 (which Act was subsequently replaced by the Judges’ Remuneration and Conditions of Employment Act 47 of 2001), both of which sections provided for the payment of certain financial benefits to the ‘surviving spouse’ of a deceased judge. Despite the previous finding by Ackermann J in the National Coalition for Gay and Lesbian Equality case (supra), to the effect that the omission from section 25(5) of the Aliens Control Act after the word ‘spouse’ of the words ‘or partner, in a permanent same-sex life partnershipwas unconstitutional, the interpretative point of departure taken by Madala J was precisely the same as that previously adopted by Ackermann J. Pointing out that the Judges’ Remuneration and Conditions of Employment Act 88 of 1989 restricted the provision of certain benefits to ‘spouses’ only and that there was no definition of the word ‘spouse’ in the provisions under attack, Madala J continued as follows (at para [9]):

In the circumstances the ordinary wording of the provisions must be taken to refer to a party to a marriage that is recognised as valid in law and not beyond that … The context in which ‘spouse’ is used in the impugned provisions does not suggest a wider meaning, nor do I know of one. Accordingly, a number of relationships are excluded, such as same-sex partnerships and permanent life partnerships between unmarried heterosexual cohabitants.

In the light of what I have said above, it follows that I am of the view that the word ‘spouse’, as utilised in the Intestate Succession Act and the Maintenance of Surviving Spouses Act, cannot be interpreted so as to extend to a husband or wife in a de facto monogamous marriage by Muslim rites. Prayers 1 and 3 of the relief sought by the applicant therefore cannot be granted.
The Constitutional issues

As indicated above, counsel for the applicant contended that if this Court were to decide that, on a proper construction of the Intestate Succession Act and the Maintenance of Surviving Spouses Act, a person such as the applicant married in accordance with Muslim rites in a de facto monogamous union is not a ‘spouse’ for the purposes of such Acts, the failure to provide for such persons in these Acts is unconstitutional and invalid. Counsel based their submissions in this regard on an alleged violation of the equality clause (section 8) contained within the Bill of Rights (Chapter 3) of the interim Constitution. The relevant provisions of section 8 read as follows:

(1) Every person shall have the right to equality before the law and to equal protection of the law.

  1. No person shall be unfairly discriminated against, directly or indirectly, and, without derogating from the generality of this provision, on one or more of the following grounds in particular: race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture or language.

(3) (a) This section shall not preclude measures designed to achieve

the adequate protection and advancement of persons or groups or categories of persons disadvantaged by unfair discrimination, in order to enable their full and equal enjoyment of all rights and freedoms.

  1. Prima facie proof of discrimination on any of the grounds specified in subsection (2) shall be presumed to be sufficient proof of unfair discrimination as contemplated in that subsection, unless the contrary is established.

According to applicant’s counsel, the interpretation of the word ‘spouse’ as utilised in the two Acts so as to exclude a person in the position of the applicant results in a differentiation between de facto monogamous marriages entered into in accordance with the procedures of religions (like Islam) which permit polygynous marriages, and de facto monogamous marriages entered into in accordance with the procedures of religions which do not permit polygynous marriages or in accordance with the procedures performed by a civil marriage officer - as such differentiation between different types of spouses is on the listed grounds of religion and culture, it is presumed to be unfair discrimination.
I have interpreted the word ‘spouse’, as utilised in the relevant Acts, to mean a party to a ‘marriage’ celebrated in accordance with the provisions of the Marriage Act 25 of 1961. This Act requires that, to be valid, a marriage must be solemnised by an authorised marriage officer. Certain public officials (such as magistrates) are ex officio marriage officers, while other officers or employees of the public service or the diplomatic or consular service of the Republic may be designated as marriage officers by the Minister of Home Affairs or any officer in the public service authorised thereto by him (see section 2 of Act 25 of 1961). As regards what may be called ‘religious marriage officers’, section 3(1) of Act 25 of 1961 provides that the Minister of Home Affairs and any officer in the public service authorised thereto by him ‘may designate any minister of religion of, or any person holding a responsible position in, any religious denomination or organisation to be, so long as he is such a minister or occupies such position, a marriage officer for the purpose of solemnising marriages according to Christian, Jewish or Mohammedan rites or the rites of any Indian religion.’ Theoretically, therefore, Muslim couples are free to solemnise their marriage in terms of the Marriage Act and thus acquire for their relationship the status of a valid civil marriage.
The matter is not, however, as simple as it may seem. As was held by Trengove JA in the Ismail case (supra) at 1021D-E, the words ‘marriages according to Christian, Jewish or Mohammedan rites or the rites of any Indian religion’ in section 3(1) of the Marriage Act relate only to the form of the marriage ceremony, and not to the essentials of the marriage as such. Section 3(1) does not accord any recognition whatsoever to polygynous unions and, while it (theoretically) enables a Muslim couple to have their marriage solemnised - according to Muslim rites - by a Muslim priest who has been designated a marriage officer, if the marriage is intended to be a monogamous one, such Muslim priest would have to comply with all the prescribed formalities pertaining to the solemnisation of marriages under the Act. It would appear that very few Muslim priests have in fact been appointed as marriage officers in terms of section 3 of the Marriage Act and, accordingly, the great majority of marriages contracted in South Africa in accordance with Muslim rites are not solemnised in terms of the Marriage Act (see, in this regard, Cachalia ‘Citizenship, Muslim Family Law and a Future South African Constitution: A Preliminary Enquiry’ (1993) 56 THRHR 392 at 398-399 note 44; Sinclair (assisted by Heaton) The Law of Marriage Volume 1 (1996) 265; and Joubert ‘Law of Marriage’ in Clark (ed) Family Law Service (1987, with looseleaf updates) para A7).
In terms of section 2 of the Indians Relief Act 22 of 1914, it was possible to transform a ‘marriage’ entered into in South Africa between Indian persons according to Muslim or Hindu custom into a ‘legal marriage’ by registration, provided the marriage by Muslim or Hindu rites was recognised as a marriage under the tenets of the relevant religion and was, in fact, monogamous. When section 2 of Act 22 of 1914 was repealed by section 2 of the General Law Amendment Act 80 of 1981, this possibility ceased to exist.
By contrast with marriages by Muslim rites, it would appear that the vast majority of marriages by Christian or Jewish rites, which marriages are monogamous marriages, are solemnised in accordance with the provisions of the Marriage Act and are hence regarded as valid marriages (see, for example, Sinclair (assisted by Heaton) op cit 158 and Van Heerden et al op cit 164-168; cf also South African Law Commission Discussion Paper 88 ‘The Review of the Marriage Act, 25 of 1961’ Project 109 (September 1999) paras et seq). I am therefore not unduly impressed by the argument seemingly advanced on behalf of the first and second respondents to the effect that, when the applicant married the deceased by Muslim rites only, she exercised ‘an election’ not to enter into a marriage in accordance with the provisions of the Marriage Act. To my mind, the reality of the situation in which the applicant – and other persons in her position – find themselves is cogently illustrated by the following statement made by the applicant in the replying affidavit deposed to by her:

I deny that I exercised any “election” when I married in terms of Islamic Law. My late husband and I married under Islamic Law because that is how marriages are concluded in our community. Neither my husband, nor I intended by our mode of marriage to choose not to be married in the eyes of the law.

The fundamental importance of equality in the South African constitutional endeavour has repeatedly been emphasised by South African courts. In the words of Mohamed DP (as he then was) in Fraser v Children’s Court, Pretoria North & Others 1997 (2) SA 261 (CC) at para [20]:

There can be no doubt that the guarantee of equality lies at the very heart of the Constitution. It permeates and defines the very ethos upon which the Constitution is premised.’

It is also clear from several judgments of, inter alia, the Constitutional Court that the concept of equality must be understood in a substantive, rather than in a formal sense. Promoting substantive equality requires an acute awareness of the lived reality of people’s lives and an understanding of how the real life conditions of individuals and groups have reinforced vulnerability, disadvantage and harm.
In the first case in which the Constitutional Court had to grapple with the equality clause in the interim Constitution, namely Brink v Kitshoff NO 1996 (4) SA 197 (CC), O’Regan J pointed out that –

[40] As in other national constitutions, section 8 is the product of our own particular history. Perhaps more than any of the other provisions in chap 3, its interpretation must be based on the specific language of s 8, as well as our own constitutional context …

[41] Although our history is one in which the most visible and most vicious pattern of discrimination has been racial, other systematic motifs of discrimination were and are inscribed on our social fabric. In drafting s 8, the drafters recognised that systematic patterns of discrimination on grounds other than race have caused, and many continue to cause, considerable harm. For this reason, s 8(2) lists a wide, and not exhaustive, list of prohibited grounds of discrimination.

[42] Section 8 was adopted then in the recognition that discrimination against people who are members of disfavoured groups can lead to patterns of group disadvantage and harm. Such discrimination is unfair. It builds and entrenches inequality amongst different groups in our society … The need to prohibit such patterns of discrimination and remedy their results are the primary purposes of section 8 …
(See further in this regard Albertyn & Goldblatt ‘Facing the Challenge of Transformation: Difficulties in the Development of an Indigenous Jurisprudence of Equality’ (1998) 14 SAJHR 248; Kentridge ‘Equality’ in Chaskalson et al (eds) op cit para 14.2; Cheadle, Davis & Haysom South African Constitutional Law: The Bill of Rights (2002) 55-59, and the other authorities discussed by these writers.)
In Harksen v Lane NO & Others 1998 (1) SA 300 (CC), the Constitutional Court, drawing on its previous judgments in the cases of Prinsloo v Van der Linde & Another 1997 (3) SA 1012 (CC) and President of the Republic of South Africa & Another v Hugo 1997 (4) SA 1 (CC), set out the stages of enquiry to be followed in any case involving an alleged violation of the fundamental right to equality, as follows (at para [54]):

‘… it may be as well to tabulate the stages of enquiry which become necessary where an attack is made on a provision in reliance on section 8 of the interim Constitution. They are:

  1. Does the provision differentiate between people or categories of people? If so, does the differentiation bear a rational connection to a legitimate government purpose? If it does not, then there is a violation of section 8(1). Even if it does bear a rational connection, it might nevertheless amount to discrimination.

  2. Does the differentiation amount to unfair discrimination? This requires a two-stage analysis:

  1. Firstly, does the differentiation amount to “discrimination”? If it is on a specified ground, then discrimination will have been established. If it is not on a specified ground, then whether or not there is discrimination will depend upon whether, objectively, the ground is based on attributes and characteristics which have the potential to impair the fundamental human dignity of persons as human beings or to affect them adversely in a comparably serious manner.

  2. If the differentiation amounts to “discrimination”, does it amount to “unfair discrimination”? If it has been found to have been on a specified ground, then unfairness will be presumed. If on an unspecified ground, unfairness will have to be established by the complainant. The test of unfairness focuses primarily on the impact of the discrimination on the complainant and others in his or her situation.

If, at the end of this stage of the enquiry, the differentiation is found not to be unfair, then there will be no violation of section 8(2).

  1. If the differentiation is found to be unfair then a determination will have to be made as to whether the provision can be justified under the limitations clause (s 33 of the interim Constitution).

This approach to the stages of equality analysis has been repeated and confirmed by the Constitutional Court in several other cases and is now well-established in South African jurisprudence. (See, for example, National Coalition for Gay and Lesbian Equality & Another v Minister of Justice & Others 1999 (1) SA 6 (CC) at para [17]; National Coalition for Gay and Lesbian Equality & Others v Minister of Home Affairs & Others (supra) at para [32]; Hoffmann v South African Airways 2001 (1) SA 1 (CC) at para [16]; Satchwell v The President of the Republic of South Africa & Another (supra) at para [20]; Du Toit & Another v Minister for Welfare and Population Development & Others 2002 (10) BCLR 1006 (CC) at para [24].)
As I have tried to illustrate above, the interpretation of the word ‘spouse’ in the relevant Acts as meaning only a party to a marriage recognised as valid in South African law by virtue of its compliance with the provisions of the Marriage Act 25 of 1961 does, because of the practical, cultural and historical realities surrounding the solemnisation of marriages in this country, differentiate between de facto monogamous marriages celebrated in accordance with Muslim rites, on the one hand, and marriages celebrated in accordance with Christian and Jewish rites, as also non-religious (civil) marriages, on the other. To my mind, this differentiation flows from, and is linked to, the religion, belief and cultural background of persons in the position of the applicant: it is because the applicant is a practising Muslim that she entered into a marriage by Muslim rites; according to the tenets of her religion, this marriage was a potentially polygynous one and, as such, not in line with the meaning of ‘marriage’ underlying the provisions of the Marriage Act 25 of 1961; because of the cultural practices of her community, the applicant and her husband failed to have their marriage – although de facto a monogamous one – also solemnised by a marriage officer in terms of the provisions of the Marriage Act. The net result of all these factors is that the applicant’s marriage – and the marriages of persons in a like position – are not recognised as ‘valid’ marriages in South African law and the parties thereto do not enjoy the protection afforded to ‘spouses’ by virtue of, inter alia, the Intestate Succession Act and the Maintenance of Surviving Spouses Act.
It is the interplay between her religious beliefs and the cultural practices in her community – and the failure of the South African law properly to accommodate such beliefs and practices - which have resulted in the applicant being in her present position. Religion, belief and culture are all prohibited grounds of discrimination expressly listed in section 8(2) and thus, in terms of section 8(4) of the interim Constitution, it is presumed that such differentiation constitutes unfair discrimination, ‘until the contrary is established’. In view of this conclusion, it is to my mind not necessary to embark upon the ‘rational connection enquiry’ postulated by the Constitutional Court in the Harksen case (supra) as the first stage of an enquiry into an alleged violation of the equality clause, nor to attempt to ascertain what government purpose (if any) may be said to be furthered or achieved by the differentiation in question. (See, in this regard, National Coalition of Gay and Lesbian Equality & Another v Minister of Justice & Others (supra) at para [18]; Hoffmann v South African Airways (supra) at para [26]; and cf De Waal et al op cit 203-204 and 206-210, and the other authorities there cited.)
The facts of this case highlight a cruel irony. As mentioned above, the main asset in the deceased estate of the applicant’s late husband is the house situate at 2 Athon Walk, Lucerne Place, Hanover Park, which house was previously a council dwelling belonging to the City of Cape Town. On 15 October 1976 – prior to her marriage to the deceased – the tenancy of this council dwelling was allocated by the City of Cape Town to the applicant. The applicant had by that time been divorced from her previous husband (Wilson) and it would appear that, in terms of the then applicable council housing policy, the applicant was regarded as ‘a single person with dependants residing permanently with him/her’. As such, the applicant was entitled to have the tenancy allocated to her in her own name. The applicant and her children took occupation of the council dwelling during October 1976 and she has lived there continuously ever since.
The applicant subsequently married the deceased by Muslim rites on 2 March 1977. She informed the City of Cape Town of this marriage, furnishing it with a copy of her marriage certificate. Although this marriage by Muslim rites was not then (nor is now) recognised as a ‘valid’ marriage under South African law, it was nevertheless recognised by the Council of the City of Cape Town, in accordance with the housing policy prevailing at that time, as a ‘marriage’ for the purposes of effecting a transfer of the tenancy of the council dwelling from the applicant’s name into the name of her husband (the deceased). The extracts from the ‘Department of Community Development Housing Code’ annexed to the applicant’s founding affidavit make it clear that a ‘married female’ could at that time only be the tenant or the purchaser of a council dwelling if she was ‘the breadwinner of her family and who has dependants residing permanently with her’, although no such restrictions were imposed upon the sale or letting of a council dwelling to ‘a married male’. The transfer of tenancy was effected on 17 July 1978, at the time when the deceased was apparently the principal breadwinner of the family.
The transfer of tenancy form (a copy of which is also annexed to the applicant’s founding affidavit) reflects the marital status of the deceased as ‘Married (Moslem Rites)’, while the reason for the transfer of the tenancy is stated to be ‘Transfer of Tenancy – New Husband’. The ‘recognition’ by the Council of the City of Cape Town of the applicant’s marriage by Muslim rites as a ‘marriage’ for the purposes of its housing policy therefore had the result that the tenancy of a council dwelling (recognised as a ‘patrimonial benefit’ in Persad v Persad & Another 1989 (4) SA 685 (D) at 688B-F) ceased to be an asset in the estate of the applicant and became an asset in the estate of her husband, the deceased. As community of property is not recognised under Islamic law, each spouse retaining sole ownership and control of his or her property (whether movable or immovable and whether acquired before or during the marriage), the transfer of the tenancy was also not in accordance with the matrimonial property regime ‘governing’ the marriage by Muslim rites (see, in this regard, South African Law Commission Discussion Paper 101 ‘Islamic Marriages and Related Matters’ Project 59 (December 2001) para 5.26; Cachalia op cit 401, and Rautenbach & Goolam (eds) Introduction to Legal Pluralism in South Africa: Part II – Religious Legal Systems (2002) para This in itself is not surprising in view of the approach adopted by the South African courts, until fairly recently, that no custom or contract flowing from a marriage by Muslim rites could be enforced because the marriage was potentially polygynous and hence contrary to public policy (see, for example, the cases of Seedat’s Executors v The Master (Natal) (supra) and Ismail v Ismail (supra).
The anomalous situation created by the application of the then prevailing council housing policy was compounded by the subsequent application of the conditions of the so-called ‘National Sales Campaign’, in terms of which only the tenants of council houses were given the opportunity to purchase such houses on what appeared to have been extremely favourable terms. Thus, when the opportunity to purchase the applicant’s home arose, the written instalment sale agreement was entered into (on 24 September 1990) between the City of Cape Town (as seller) and the then tenant, the deceased (as purchaser). As indicated above, the applicant also signed the Deed of Sale, ostensibly thereby consenting to the deceased purchasing the property, but the Deed incorrectly reflects that the applicant was ‘married’ to the deceased ‘in community of property’.
In Ryland v Edros (supra), Farlam J departed from the previous South African jurisprudence by recognising and enforcing certain terms of the ‘contractual agreement’ arising from the conclusion of a de facto monogamous marriage by Muslim rites. Similarly, in the Amod case (supra), Mahomed CJ recognised, for the purposes of the dependant’s action, the contractually enforceable right of a Muslim wife to be maintained by her husband in the context of a de facto monogamous Muslim marriage. In view of these developments, it might have been open to the applicant to argue that recognition should be given to the fact that, in terms of the marriage ‘contract’ between her and her deceased husband, the tenancy of the property was an asset which she acquired prior to her marriage to the deceased and that, despite the subsequent transfer of the tenancy – and indeed the subsequent sale and transfer of the property itself – into the name of the deceased/the deceased’s estate, the value of the tenancy must be regarded as an asset in her estate to which she is presently entitled. In a rather vague way, this does appear to have been one of the bases upon which the applicant’s claim to the property in the 1998 application was based. Steyn AJ did not, however, in the course of her judgment make any mention of this possible cause of action, dealing only with the applicant’s cause of action based on an alleged oral agreement between her and the deceased in terms of which the applicant would, upon the deceased’s death, be the owner of the property.
This possible cause of action was certainly not one upon which the applicant relied in the proceedings before me, and it was not canvassed in any way in the arguments advanced by counsel for either side. It is also not possible, on the papers before this Court, to even make an attempt to ascertain the value of the tenancy brought by the applicant into the marriage (or possibly, the value of the rights which the applicant may have acquired by virtue of the tenancy) – although it would appear that both the applicant and the deceased were employed for relatively lengthy periods during their marriage and that they both contributed towards the household’s expenses, including the rental and later the purchase price of the property and the service charges levied in respect of the property, the proportion in which these contributions were made is simply impossible to determine. This whole saga illustrates vividly the anomalous – and prejudicial – consequences of the apparently arbitrary manner in which the State recognised the applicant’s Muslim marriage for the purposes of transferring the tenancy of the property to her husband, on the one hand, but now fails to recognise her Muslim marriage for the purposes of affording her the protection given to surviving ‘spouses’ in terms of the Intestate Succession Act and the Maintenance of Surviving Spouses Act, on the other.
Counsel for the first and second respondents submitted that a ruling by this Court based on the constitutionality of possible interpretations of the relevant Acts or the Acts themselves was not ‘feasible’. The submissions made by counsel in this regard may be construed as an attempt to show that any discrimination caused by the ‘narrow’ interpretation of the word ‘spouse’ in the two Acts is fair discrimination or, alternatively, that such discrimination may be justified under the limitations clause (section 33) of the interim Constitution. Counsel rely, in the main, on the provisions of section 14 of the interim Constitution, subsection (1) of which provides for the right to freedom of, inter alia, religion and belief. Section 14(3) expressly permits the enactment of legislation recognising (a) a system of personal and family law adhered to by persons professing a particular religion, and (b) the validity of marriages concluded under a system of religious law subject to specified procedures. Furthermore, section 31 of the interim Constitution entrenches the fundamental rights of every person to participate in the cultural life of his or her choice.
It is common cause on the papers before me that, in terms of the Islamic law of intestate succession, as governed by the Holy Qur’an, read together with the complilations of the practices and traditions of the Prophet Mohammed, which form a body of commandments (‘Shari’ah’), the applicant is ‘entitled’ to inherit one-eighth of the deceased’s estate. This is confirmed by various authors on the subject (see, for example, Cachalia op cit 402-403 and Rautenbach & Goolam (eds) op cit 104). Moreover, it appears from the papers before me (including the confirmatory affidavit deposed to on behalf of the first and second respondents by one Shouket Allie, an expert on Islamic personal law) that, in terms of Islamic law, the applicant is not entitled to claim maintenance from the deceased estate of her husband. Counsel for the first and second respondents thus contended that the constitutional relief sought by the applicant would have the effect of negating the system of inheritance law practised by those who adhere to the system of Islamic personal law in South Africa, and that such a result would be contrary to ‘the new ethos of tolerance, pluralism and religious freedom which has consolidated itself in the new South African society’.
Counsel attempted to draw a parallel between the present case and the recent decision of the Supreme Court of Appeal in Mthembu v Letsela & Another 2000 (3) SA 867 (SCA). In that case, the appellant (applicant) was the mother and guardian of a minor girl who was the illegitimate child of the deceased father. The father had died leaving no will and, according to the African customary law of succession, the father of the deceased, as the oldest surviving male relative, became the deceased’s heir. The applicant applied for an order declaring, inter alia, that the customary law rule of male primogeniture, as well as regulation 2 of the Regulations for the Administration and Distribution of the Estates of Deceased Blacks (made in terms of section 23(10) of the Black Administration Act 38 of 1927 and promulgated under Government Notice R200 of 6 February 1987) which gives legislative recognition to the customary law of succession, including the rule of male primogeniture), were invalid on the ground that they were inconsistent with the interim Constitution. The applicant failed (twice) in the Transvaal Provincial Division and, ultimately, the Supreme Court of Appeal (like the court a quo) refused the invitation to develop the customary law of succession, in terms of section 35(3) of the interim Constitution, so as to bring it into line with the principle of equality enshrined in section 8 by allowing all descendants, whether male or female, legitimate or illegitimate, to inherit.
In his judgment, Mpati AJA held that the interim Constitution was not applicable, because the deceased had died prior to the date upon which that Constitution had come into operation, and that the case before him was not one where, in a phrase taken from a dictum in Du Plessis & Others v De Klerk & Another 1996 (3) SA 850 (CC) at para [20], ‘the recognition and respecting of previously acquired rights would be so grossly unjust and abhorrent, in the light of the present constitutional order, that they cannot be countenanced’ (see the Mthembu case at para [36] - [40]). The Supreme Court of Appeal also stated (at para [40]) that it ‘would be ill-equipped to develop the rule for lack of relevant information. Any development of the rule would be better left to the Legislature after a process of full investigation and consultation, such as is currently being undertaken by the Law Commission.’
In rejecting the appellant’s argument that the abovementioned regulation 2(e), which gives legislative effect to the application of customary rules of succession on intestacy, is ultra vires at common law in that, by discriminating gratuitously against women and girls, children who are not eldest children, and illegitimate children, it is partial and unequal in its operation, the Supreme Court of Appeal stated the following:

[23] What needs to be stressed from the outset is that the regulation in issue did not introduce something foreign to black persons … It merely gave legislative recognition to a principle or system which had been in existence and followed, at least, for decades. It is not inconceivable that many blacks, even to this day, would wish their estates to devolve in terms of black law and custom. Section 23(3) of the Act [the Black Administration Act 38 of 1927] provides that:

“all other property of whatsoever kind [excluding property referred to in ss (1) and (2)] belonging to a black shall be capable of being devised by will.” The existing law therefore enables blacks to avoid the consequences of the application of the customary law of succession if they so wish. It is therefore within the power of blacks to choose how they wish their estates to devolve. If they take no steps to alter the devolution of their estates (as is their right), the resulting consequences cannot be assumed to be contrary to their wishes.’
The validity of this reasoning has been subjected to criticism by, inter alia Keightley 2000 Annual Survey of South African Law 462 at 473-474. This writer rejects the assumption that black South Africans choose to die intestate because they intend the customary law of succession (which enjoys legislative recognition) to apply, pointing out that:

If one considers the circumstances of the majority of persons in respect of whom African customary law applies, it is equally likely that such factors as lack of education, lack of access to legal advice and general ignorance about legal matters have as much, if not more, of a role to play in their dying intestate as the role played by the free choice or intent assumed by the court.

It is submitted that the issue before the court is not one of free choice in the application of a discriminatory rule, but rather one of the application of a discriminatory rule

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