The Constitutional Court began hearings on Tuesday into three cases challenging the customary law of inheritance. There were many frowns in evidence as advocates thrashed out the issues which could affect the lives of thousands of women and children living under customary law.
Two of the cases are brought by individual claimants who, in order to inherit property from their father and brother respectively, are seeking to have certain sections of the legislation declared unconstitutional.
The third is a class action, brought before the court by the South African Human Rights Commission and the Women’s Legal Centre Trust on behalf of women and children in similar situations.
Customary law follows the rule of primogeniture: the entire estate is given to the closest male relative who then has the responsibility of caring for the rest of the family and taking on all debts.
In the first two cases, the Pretoria and Cape High courts struck down the rule of primogeniture as unconstitutional because the only reason the plaintiffs had not inherited the estate was because they were female.
On Tuesday, advocates Wim Trengove, Vincent Maleka, and Matthew Chaskalson sought to have the High Court orders confirmed, and the Acts that processed black people under a separate legal system declared invalid.
On the face of it, the issue is simple, because the existing laws clearly discriminate in terms of race and gender, and are therefore unconstitutional.
However, the 11 Constitutional Court judges were concerned about undermining the importance of customary law and grilled the three advocates about the consequences of their applications.
”We should be mindful of undermining these institutions [of customary law] that have been recognised by the Constitution”, said Justice S Ngcobo. ”If we are to get rid of a justice system with the stroke of a pen I do not think that would be appropriate”.
Justice Albie Sacks mentioned that while it was clearly racist to apply different legal frameworks based on race alone, it was also racist to force people to process their affairs under a legal system that was alien to their culture.
The judges were also worried that the present Intestate Succession Act made no provision for polygamous marriages.
Trengove and Chaskalson argued that making everyone subject to the Intestate Succession Act would not deprive them of the option of disposing of their affairs in terms of customary law.
They said the Act allowed families to choose to arrange their affairs as they pleased, but also protected the rights of ”socially vulnerable” individuals such as their clients.
Maleka suggested that it could be possible to retain the rule of progenitor but to alter it so that it did not discriminate on the basis of gender or age. He ran into difficulties when asked to apply this idea to specific situations.
Outside the courtroom construction workers hammered out the shape of the new building on Constitutional Hill, while inside the Constitution continues to be hammered into shape.
The hearing will continue on Wednesday. – Sapa