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.
