TO DEVELOP OR NOT TO DEVELOP THE CUSTOMARY LAW: THAT IS THE QUESTION IN BHE

Abstract

The decision of the Constitutional Court in Bhe v Magistrate, Khayelitsha, Shibi v Sithole, South African Human Rights Commission v President of the Republic of South Africa (2005 1 SA 580 (CC)) refers. In this important decision, the Constitutional Court in its majority judgment, delivered by Langa DCJ, struck down the male primogeniture rule in the customary law of succession as unconstitutional. In considering the various remedies available to the court, it chose not to develop the offending customary law rule in terms of section 39(2) of the Constitution. In his minority judgment Ngcobo J, however, did opt for the development of the customary law, as a
means to prevent the (permanent?) abolition of the rule. In this discussion the court’s different approaches to the question whether or not to develop the customary law of succession will be assessed, with a view to placing into perspective the court’s approach to the application of the Bill of Rights to customary law generally. A discussion of the constitutional viability of the male primogeniture rule, as well as the relation between the particular facts of Bhe and the rule, falls outside the scope of this discussion. Of particular
importance is our viewpoint that, whereas at a cursory glance the decision seems to impact significantly on the constitutionality of a particular customary rule only (that is, the male primogeniture rule), it has more significant and far-reaching implications for the recognition and application of customary law as a system generally.