Effects of the eradication of the rule of male primogeniture on the customary law of succession

Abstract

This article discusses the consequences of the abolition of the rule of male primogeniture by closely and critically discussing the outcome of the Bhe v Magistrate Khayelitsha case. Therefore, exposing the effect of implementing and extending common law solutions as a means of bringing customary law in line with the Constitution to achieve the right of equality. Thus, the author advises that courts and the legislature should have employed a different method rather than one of extending the application of the Intestate Succession Act 81 of 1987, which subsequently led to the promulgation of the Reform of Customary Law of Succession and Regulation of Related Matters Act11 of 2009, to customary law of succession. Summarily, this article cautions against imposing common law solutions, directly or indirectly, on customary law challenges and advises on utilising customary law institutions, mechanisms and/or remedies to bring customary law in line with the Constitution.