The old rule
The Rule of the Eldest Son
Male primogeniture — the traditional rule of succession.
Male primogeniture
Under official customary law, intestate succession followed the rule of male primogeniture: the eldest son (or, failing him, the nearest male relative) succeeded as heir and family head. Succession was to the status and position of the deceased, not merely his property.
The heir's duty
The heir did not simply take the estate for himself — he assumed a duty to support and maintain the deceased's dependants (widows and children). In principle the system was about continuity of the family, not personal enrichment.
Who was excluded
The rule excluded women and extra-marital children from succeeding as heir/family head — the root of its constitutional problem.
Key Rule
Traditional customary succession = male primogeniture: the eldest son succeeds to the status of family head with a duty to support dependants. Women and extra-marital children were excluded.
Common Mistake
Describing customary succession as simple "inheritance of property". It was succession to the status of family head, carrying a duty to support the family.
Leading Cases
Mthembu v Letsela2000 (3) SA 867 (SCA)Pre-Bhe, the SCA declined to strike down male primogeniture; this position was later overtaken by Bhe.
Facts. A woman married by customary law sought to challenge the male-primogeniture rule that excluded her daughter from inheriting her late partner's estate, arguing it was unconstitutional.
Legal question. Should the customary rule of male primogeniture be struck down as unconstitutional?
Judgment. The SCA upheld the primogeniture rule on the facts — a position subsequently overtaken by Bhe.
Significance. Represents the pre-constitutional-transformation position on customary succession, later reversed by the Constitutional Court in Bhe.
Exam tip. Use Mthembu to show the old position (primogeniture upheld) and contrast it sharply with Bhe, which struck the rule down.
Bhe
The Bhe Judgment
The Constitutional Court struck down male primogeniture.
The decision
In Bhe v Magistrate, Khayelitsha the Constitutional Court held that the customary rule of male primogeniture, in the context of intestate succession, is unconstitutional: it unfairly discriminates on the grounds of gender and birth (s 9) and violates dignity (s 10).
The interim remedy
The Court ordered that, pending legislation, the Intestate Succession Act 81 of 1987 (the ordinary intestate rules) applies to estates that would formerly have devolved by customary succession — with adaptations for polygynous families.
Key Rule
Bhe (2005): male primogeniture in intestate succession is unconstitutional (unfair gender/birth discrimination). The Intestate Succession Act 81 of 1987 applied in the interim.
Common Mistake
Saying customary succession is simply "abolished". Bhe struck down male primogeniture in intestate succession; customary succession to traditional leadership/status is a distinct question, and the field is now governed by the Reform Act.
Leading Case
Bhe v Magistrate, Khayelitsha2005 (1) SA 580 (CC)Male primogeniture in customary intestate succession is unconstitutional (unfair discrimination on gender and birth); the Intestate Succession Act applies in the interim.
Facts. On the death of a father intestate, the customary rule of male primogeniture meant that a male relative, not the deceased's two young daughters, would inherit and become family head. The rule was challenged as unconstitutional.
Legal question. Is the customary-law rule of male primogeniture, applied to intestate succession, consistent with the Constitution?
Judgment. The Constitutional Court struck down the primogeniture rule and ordered that the Intestate Succession Act govern such estates in the interim.
Significance. The landmark transformation of customary succession; the direct impetus for the Reform of Customary Law of Succession Act 11 of 2009.
Exam tip. Bhe is the flagship case: male primogeniture in intestate succession is unconstitutional (gender + birth discrimination). Note the interim remedy (Intestate Succession Act) and the later Reform Act.
The Reform Act
The Reform Act
The statute that gives effect to Bhe.
The Reform Act
The Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009 gives permanent effect to Bhe. The estate of a person who lived under customary law now devolves in terms of the Intestate Succession Act 81 of 1987, with special provisions for the reality of polygynous families.
Houses and multiple spouses
The Act adapts the intestate rules to accommodate customary "houses" and multiple spouses in polygynous families, so that widows and all children (including those previously excluded) share equitably.
Key Rule
The Reform of Customary Law of Succession Act 11 of 2009 applies the Intestate Succession Act 81 of 1987 to customary estates, adapted for polygynous families and "houses" — ending male-primogeniture inheritance.