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THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

Reportable THE SUPREME COURT OF APPEAL . OF SOUTH AFRICA . Case No: 71/98. In the matter between MILDRED HLEZIPHI MTHEMBU Appellant and HENRY K LETSELA 1st Respondent The MAGISTRATE, Boksburg 2nd Respondent Coram: Smalberger, Marais, Zulman JJA, Mpati and Mthiyane AJJA. DATE HEARD: 4 May 2000. DATE DELIVERED: 30 May 2000. JUDGMENT. Mpati AJA. 2. [1] This is an APPEAL against a judgment of Mynhardt J in the Transvaal Provincial Division, which is reported as Mthembu v Letsela and Another 1998 (2). SA 675 (T) (the 1998 judgment). [2] Tebalo Watson Letsela (the deceased) died on 13 August 1993, gunned down by an unknown person or persons. At the time of his death he was the holder of a 99 year leasehold title in respect of a fixed property known as Erf 822 Vosloorus Extension 2 Township, Registration Division ,Transvaal, situate at 822 Ditopi Street, Vosloorus, Boksburg (the property). He lived on the property with the appellant and her two minor daughters, one of whom, Tembi Mthembu (Tembi), was born of an intimate relationship between the appellant and the deceased.

Reportable THE SUPREME COURT OF APPEAL OF SOUTH AFRICA Case No: 71/98 In the matter between MILDRED HLEZIPHI MTHEMBU Appellant and HENRY K LETSELA 1st Respondent The MAGISTRATE, Boksburg 2nd Respondent Coram: Smalberger, Marais, Zulman JJA, Mpati and Mthiyane AJJA DATE HEARD: 4 May 2000

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Transcription of THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

1 Reportable THE SUPREME COURT OF APPEAL . OF SOUTH AFRICA . Case No: 71/98. In the matter between MILDRED HLEZIPHI MTHEMBU Appellant and HENRY K LETSELA 1st Respondent The MAGISTRATE, Boksburg 2nd Respondent Coram: Smalberger, Marais, Zulman JJA, Mpati and Mthiyane AJJA. DATE HEARD: 4 May 2000. DATE DELIVERED: 30 May 2000. JUDGMENT. Mpati AJA. 2. [1] This is an APPEAL against a judgment of Mynhardt J in the Transvaal Provincial Division, which is reported as Mthembu v Letsela and Another 1998 (2). SA 675 (T) (the 1998 judgment). [2] Tebalo Watson Letsela (the deceased) died on 13 August 1993, gunned down by an unknown person or persons. At the time of his death he was the holder of a 99 year leasehold title in respect of a fixed property known as Erf 822 Vosloorus Extension 2 Township, Registration Division ,Transvaal, situate at 822 Ditopi Street, Vosloorus, Boksburg (the property). He lived on the property with the appellant and her two minor daughters, one of whom, Tembi Mthembu (Tembi), was born of an intimate relationship between the appellant and the deceased.

2 Tembi was born on 7 April 1988. The deceased, a SOUTH Sotho, had no other issue, but is also survived by his father, the first respondent in this matter, mother and three sisters. He died intestate. His parents, together with one 3. of their daughters and her children, share the same house on the property with the appellant and her two daughters. [3] The magistrate, Boksburg (the second respondent) appointed the appellant, in terms of regulation 4(1) of the regulations made in terms of the Black Administration Act 38 of 1927 (the Act), published under Government Notice R200 of 6 February 1987, to administer the estate of the deceased. He indicated in a letter to the appellant's legal representatives that the deceased's estate was to devolve in terms of Black law and custom . The first respondent claims that the property has devolved upon him by virtue of the operation of the customary law rule of succession. [4] The appellant brought an application in the Transvaal Provincial Division for an order, inter alia, declaring: 1 the customary law rule of primogeniture, which generally excludes African women from intestate succession; and 4.

3 2 regulation 2 of the Regulations for the Administration and Distribution of the Estates of Deceased Blacks, made in term of s 23(10) of the Act and promulgated under Government Notice R200 of 6 February 1987, (the Regulations), to be invalid on grounds of being inconsistent with the Constitution of the Republic of SOUTH AFRICA , Act 200 of 1993 (interim Constitution). Mynhardt J dismissed the application with costs, but granted the appellant leave to APPEAL to this COURT . [5] In her founding affidavit the appellant alleges that on 14 June 1992 she and the deceased entered into a customary union at Brakpan. In support of this allegation she has annexed to her founding affidavit a copy of an acknowledgment of receipt of the first instalment of R900,00 towards her lobola of R2 000,00, signed by her brother, Richard Mtembu. The balance was to be paid soon thereafter. The deceased, however, died before it was paid. The appellant accordingly claims, on the strength of the affidavits filed in the papers, to be the 5.

4 Deceased's widow. [6] That an amount of R900,00 was paid towards the appellant's lobola is not in dispute, but the first respondent denies that a customary union was ever entered into as alleged and states that certain essentials of a customary union were not satisfied. [7] The matter first came before le Roux J, who was unable to resolve the factual dispute relating to the existence or otherwise of a customary union between the appellant and the deceased. The learned judge referred that issue for oral evidence. The matter was accordingly postponed sine die. The judgment of Le Roux J is reported as Mthembu v Letsela and Another 1997 (2) SA 936 (T) (the 1997 judgment). When the case came before Mynhardt J, however , no evidence was led and counsel were ad idem that the matter stands to be determined on the facts that are common cause . Counsel for the appellant (before Mynhardt J) went 6. further and said that because no evidence has been tendered from either side the [appellant] accepts that the matter is to be decided on the basis that there was indeed no such marriage between the parties.

5 The matter was accordingly decided on the basis that Tembi is the deceased's illegitimate child. Counsel for the appellant, however, submitted in the COURT a quo that on the facts which were common cause Tembi is the only heir to the estate of the deceased. That argument was persisted in before us by Mr Gauntlett, who, together with Mr Chaskalson, appeared for the appellant. [8] The customary law of succession in Southern AFRICA is based on the principle of male primogeniture. In monogamous families the eldest son of the family head is his heir, failing him the eldest son's eldest male descendant. Where the eldest son has predeceased the family head without leaving male issue the second son becomes heir; if he be dead leaving no male issue the third son 7. succeeds and so on through the sons of the family head. Where the family head dies leaving no male issue his father succeeds. Bekker: Seymour's Customary Law in Southern AFRICA , 5 ed, p 274; Bennett: A Sourcebook of African Customary Law for Southern AFRICA , 1 ed (1991) p 399-400.

6 See also Kerr: The Customary Law of Immovable Property and of Succession, 3 ed, p 99. It follows that in terms of this system of succession, whether or not Tembi is the deceased's legitimate child, being female, she does not qualify as heir to the deceased's estate. Women generally do not inherit in customary law. When the head of the family dies his heir takes his position as head of the family and becomes owner of all the deceased's property, movable and immovable; he becomes liable for the debts of the deceased and assumes the deceased's position as guardian of the women and minor sons in the family. He is obliged to support and maintain them, if necessary from his own resources, and not to expel them from his home. Kerr, op cit at 8. 100-108. [9] The customary law of succession, the principle of primogeniture, also enjoys legislative recognition. It is embodied, for example, in regulation 2 of the Regulations, which reads as follows: 2 If a Black dies leaving no valid will, so much of his property, including immovable property, as does not fall within the purview of subsection (1) or subsection (2) of section 23 of the Act shall be distributed in the manner following: (a).

7 (b) .. (c) .. (d) .. (e) If the deceased does not fall into any of the classes described in paragraph (a), (b), (c) and (d) the property shall be distributed according to Black law and custom. (My underlining). It is not in dispute that in casu regulation 2(e), if valid, applies, the deceased's estate falls to be distributed according to Black law and custom. 9. [10] Both before Le Roux J and Mynhardt J, as well as before this COURT , it was argued that the rule of customary law of succession, the principle of primogeniture (the rule) is grossly discriminatory; that it discriminates against all Black women and girls and all Black children who are not eldest children by excluding them from participation in intestate succession, while it does not visit the same disability upon eldest sons or anybody who is not Black. [11] In dealing with an argument that the rule is obviously unconstitutional on the basis that it contravenes ss 8(1), 8(2) and 14 of the interim Constitution as it discriminates between persons on the grounds of sex or gender, Le Roux J said the following in the 1997 judgment (at 945H-946C): If one accepts the duty to provide sustenance, maintenance and shelter as a necessary corollary of the system of primogeniture (a feature which has been called one of the most hallowed principles of customary law - see T W Bennett A Source Book of African Customary Law for Southern AFRICA (Juta, 1991) at 400), I find it difficult to equate this form of differentiation between men and women 10.

8 With the concept of unfair discrimination' as used in s 8 of the Constitution.. In view of the manifest acknowledgment of customary law as a system existing parallel to common law by the Constitution (vide ss 33(3) and 181 (1)) and the freedom granted to persons to choose this system as governing their relationships (as implied in s 31), I cannot accept the submission that the succession rule is necessarily in conflict with s 8. There are other instances where a rule differentiates between men and women, but which no right- minded person considers to be unfairly discriminatory.. It follows that even if this rule is prima facie discriminatory on grounds of sex or gender and the presumption contained in s 8(4) comes into operation, this presumption has been refuted by the concomitant duty of support.. [12] The learned judge found that the rule is not inconsistent with the fundamental rights contained in chap 3 [of the interim Constitution] and the injunction found in s 33 (3) can accordingly be implemented, namely to construe the chapter in such a way as not to negate the rights conferred by the rule (at 946.)

9 C-D). For convenience I quote s 33 (3) of the interim Constitution. It reads: The entrenchment of the rights in terms of this Chapter [Chapter 3]. shall not be construed as denying the existence of any other rights or 11. freedoms recognised or conferred by common law, customary law or legislation to the extent that they are not inconsistent with this Chapter.. [13] In this COURT (and before Mynhardt J) four grounds of attack were advanced against the operation of the rule. These are: 1 The regulation (regulation 2(e) of the Regulations) is ultra vires at common law; it constitutes delegated legislation which may not be partial and unequal in its operation unless specifically authorized by the enabling Act. 2 The regulation has been impliedly repealed by s 1(1) read with 1 (4) (b) of the Intestate Succession Act 81 of 1987. 3 The rule is to be developed in terms of section 35 (3) of the interim Constitution with due regard to the fundamental value of equality, to avoid discrimination between children of a deceased.

10 4 If not so developed the rule would be repugnant to the principles of public policy or natural justice within the meaning of s 1 of the Law of Evidence Amendment Act 45 of 1988, and the courts will accordingly not apply it. 12. Mynhardt J dismissed all four grounds of attack. [14] In their supplementary heads of argument counsel for the appellant (who are not the counsel who represented the appellant before Le Roux and Mynhardt JJ and who drafted the main heads of argument) state that the appellant will not advance oral argument relating to the principal submissions under the first and second grounds of attack. Mr Gauntlett stressed, however, that this did not mean that they were abandoning the said two grounds, but that their argument would focus on the following propositions: 1 Tembi would have succeeded by intestate succession at customary law to her deceased father's estate but for the fact that she is female. 2 The customary law rule of primogeniture is offensive to public policy or natural justice (within the meaning of s 1(1) of the Law 13.)


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