The Male Primogeniture Rule is a customary law which states that only the elder legitimate son can inherit the deceased estate in exclusion of the other siblings.
A large number of South Africans live in terms of customary law rules and they see them as being legally obligatory despite being inconsistent with the Constitution, which is the supreme law of the country.
Prior to the Constitutional era, the Male Primogeniture Rule was ignored by the South African government and was supported by Black Administration Act 38 of 1927.
The 1996 Constitution of South Africa entrenches human rights, Ubuntu and democratic values, and at the same time recognizes customary law as one of the sources of law, however it must be subject to The Bill of Rights. This is further supported by Section 39(2) of the Constitution which states that ‘when interpreting any legislation, and when developing any common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bills of Rights’.
Male Primogeniture Rule has been said to oppose natural justice and public law as it discriminates against women and extra marital children.
Before discussing this principle further, let us have a look at some of the important cases that dealt with Male Primogeniture Rule:
Bhe v Magistrate Khayelitsha 2005(1) SA 580 (CC):
In this case, the applicant brought an application on behalf of her two minor daughters and on public interest. The applicant and the deceased were not married but have lived together as husband and wife for a period of 12 years and had two daughters. According to the principle of male primogeniture, the widow and her children could not inherit, but a close male relative of the deceased was the one who is supposed to inherit the deceased’s estate. The court held that the primogeniture rule is invalid and unconstitutional as it infringes on equality (section 9 of the Constitution) and human dignity (section 10 of the Constitution) and that it also discriminates against extra marital children (section 2 of The Children’s Act 38 of 2005.)
Shibi v Sithole 2005 (1) SA 580 (CC):
The applicant was a sister whose brother died intestate. The deceased did not have any children, was not married nor had he any partner. By the time of his death, his closest male relative was his cousin whom according to primogeniture principle, was the one who must inherit. The applicant argued that section 23 of the Black Administration of Estate Act 66 of 1965 is inconsistent with equality and human dignity rights. The court concluded that the violation of equality and human dignity caused by section 23 is very serious and that it cannot be justified and was to be struck down.
Promulgation of the Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009, abolished the male primogeniture principle, recognizing equal inheritance to all surviving children and spouse(s).
Although the Constitution recognizes and allows application of customary law rules, such rules must not in any way be directly or indirectly discriminating to some persons, instead they must uphold the Bill of Rights. The Male primogeniture rule undermines equality and human dignity, which one can say are superior rights in the Bill of Rights, as without them it is almost impossible for one to enjoy other rights.
Though the Male Primogeniture Rule has been abolished and declared unconstitutional by the Constitutional Court, a lot of cultures still follow this rule and violate women and children’s rights through its application. This is due to the fact that most of these people are deeply rooted in their customs and cultures and are not very educated or aware of the Bill of Rights and the Constitution. They live solely according to the rules and customs which have been orally passed on from one generation to the next. Thus, it is safe to say that a lot of community education is needed in order to ensure that people are aware of their Constitutional rights and obligations.