Nontupheko Bhe Case Essay

1
There are two main issues in the Bhe case , the first concerns the question of whether s 23 of the Black Administration Act is constitutionally valid, and the second concerns the constitutionality of the principle of male primogeniture in the customary law of succession. The application in the Bhe case was made on behalf of the two minor daughters of Ms Nontupheko Bhe and her deceased partner. The basic facts are that the head of the Bhe family died intestate. In this situation the customary law of male primogeniture would normally apply, in that the first born son would assume the role as head of the household and inherit everything in the estate along with the rights and responsibilities of his deceased father. In this case the problem
This was because s 23 of the Black Administration Act as well as the rule of male primogeniture as it applies in the African customary law of succession only allowed for males to be the rightful heir to a deceased’s estate. The court had deal with two main issues in this case. The first being the question of whether s 23 of the Black Administration Act is constitutionally valid, and the second concerns the constitutionality of the principle of male primogeniture in the customary law of succession. The court had to determine whether s 23 of the Black Administration Act and the principle of male primogeniture was in line with the Bill of Rights or if they infringed on Ms Nontupheko Bhe’s daughters right to gender
He concluded that it unfairly discriminates against women and illegitimate children and went on to declare it unconstitutional and invalid. The court acknowledged that although the development of new rules around African customary law is desired in order to bring African customary law in line with the constitution, it was a remedy which was unavailable to them because the rule of male primogeniture is fundamental to customary law and not replicable on a case-by-case