Primogeniture and ultimogeniture under scrutiny in South Africa and Botswana

Abstract

African customary law and customary law of succession have existed and been practiced in traditional communities throughout Africa for many years. These rules have had to endure changing community norms and values, as well as the drive by certain countries' to achieve equality, freedom and humanity. In many parts of Africa, customary law strives to co-exist with imported modern law that has drastically changed the viewpoint of legal systems in many countries. This co-existence unfortunately leads to conflict between the two systems which still persists today and will not disappear soon. Many African countries wish to encourage the practice of traditional customs and thus these countries recognise the importance of customary law and customary courts. Due to the importance of customary law structures it is imperative to find more creative ways of dealing with the underlying conflict between the two systems of law. This study follows the development of two customary law of succession rules (namely: male primogeniture and male ultimogeniture) as they adapt to the legal environment of two African democratic countries' with similar legal systems, namely South Africa and Botswana. The legal status of customary law and customary law of succession in both South Africa and Botswana is briefly addressed in this study. The main focus of this study is the judgements given by the highest courts in these two countries, pertaining to the practice and constitutional validity of the customary law of succession rules: male primogeniture and male ultimogeniture.

In this study it was found that South Africa followed a constitutional approach with regard to the implementation of the rule of male primogeniture in the Bhe v Magistrate, Khayelitsha case. The Constitutional Court held that male primogeniture was inconsistent with the principles of the Constitution of the Republic of South Africa, 1996 and was thus declared unconstitutional and invalid. Botswana on the other hand followed a customary law approach with regard to the implementation of the rule of male ultimogeniture in Ramantele v Mmusi (SCB). The Supreme Court of Botswana ruled that a court first had to develop the customary rule to ensure that it is not in conflict with the Constitution of Botswana. The rule of male ultimogeniture was first applied to the facts at hand and the Court held that no prejudice was present, thus it was not even necessary to dispute the constitutional validity of the case. South Africa and Botswana have very similar historical legal backgrounds as well as similar current legal principles. Both of these countries' are democratic states and strive to exhibit the principles provided for in their highest form of law, the South African and Botswana Constitution. It must however be kept in mind that African intestate succession is not primarily focused on the distribution of the deceased's estate assets, but it rather entails finding a suitable heir that can occupy the deceased's position to minimise disruption. Thus the continuation of the family and the family property is the main aim of customary law of succession. This principle might lose its effect if African customary succession rules are not adapted, but rather are struck down by courts.