South Africa: Bhe and Others v Khayelitsha Magistrate and Others

Published: 15/Oct/2004
Source: Constitutional Court of South Africa

Bhe and Others v Khayelitsha Magistrate and Others (CCT 49/03) [2004] ZACC 17; 2005 (1) SA 580 (CC); 2005 (1) BCLR 1 (CC) (15 October 2004)

Summary from AfricanLII:

The cases brought with Bhe concern a constitutional challenge to the rule of male primogeniture as it applies in the African customary law of succession, as well as constitutional challenges to section 23 of the Black Administration Act, 38 of 1927, regulations promulgated in terms of that section and section 1(4)(b) of the Intestate Succession Act, 81 of 1987. The CC today struck down strikes the impugned statutory provisions and regulations, and put in place a new interim regime to govern intestate succession for black estates.

Read complete summary here:

Extract from judgment:

[53] Two prohibited grounds of discrimination are relevant in this case.  The first relates to sex, something that I need not discuss further here, except to remark that the importance of protecting children from discrimination on the grounds of sex is acknowledged in the African Charter on the Rights of the Child.

[54] The second relates to the prohibition of unfair discrimination on the ground of “birth” in section 9(3).  To the extent that one of the issues that arises in this case is the question of whether the differential entitlements of children born within a marriage and those born extra-maritally constitutes unfair discrimination, the meaning to be attributed to “birth” in section 9(3) is important.

[55] In interpreting both section 28 and the other rights in the Constitution, the provisions of international law must be considered.  South Africa is a party to a number of international multilateral agreements designed to strengthen the protection of children.  The Convention on the Rights of the Child asserts that children, by reason of their “physical and mental immaturity” need “special safeguards and care”.  Article 2 of the Convention requires signatories to ensure that the rights set forth in the Convention shall be enjoyed regardless of “race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.”  Article 24(1) of the International Covenant on Civil and Political Rights (1966), also provides expressly that:

Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.”

Similarly, article 3 of the African Charter on the Rights and Welfare of the Child provides that children are entitled to enjoy the rights and freedoms recognised and guaranteed in the Charter “irrespective of the child’s or his/her parents’ or legal guardians’ race, ethnic group, colour, sex, . . . birth or other status.”

Read judgment on SAfLII here:

Themes: Discrimination, Sexuelle
Regions: Afrique du Sud
Year: 2004