|
''Bhe and Others v Magistrate, Khayelitsha and Others; Shibi v Sithole and Others; SA Human Rights Commission and Another v President of the RSA and Another'',〔2005 (1) SA 580 (CC).〕 an important case in South African customary law, was heard in the Constitutional Court on 2 and 3 March 2004, with judgment handed down on 15 October. Chaskalson CJ, Langa DCJ, Madala J, Mokgoro J, Moseneke J, Ngcobo J, O'Regan J, Sachs J, Skweyiya J, Van Der Westhuizen J, and Yacoob J were the presiding judges. The court held that section 23 of the Black Administration Act, in applying the system of male primogeniture, was incompatible with sections 9 (equality) and 10 (dignity) of the Constitution. == Facts == There were two main issues: # the question of the constitutional validity of section 23 of the Black Administration Act;〔Act 38 of 1927.〕 and # the constitutional validity of the principle of primogeniture in the context of the customary law of succession. In the matter of ''Bhe and Others v Magistrate, Khayelitsha, and Others''〔2004 (2) SA 544 (C).〕 two minor children, both extra-marital daughters, had failed to qualify as heirs in the intestate estate of their deceased father. The father of the deceased was appointed representative and sole heir of the deceased's estate, in accordance with section 23 of the Act. Under the system of intestate succession created by section 23 and the regulations, particularly regulation 2(e), minor children did not qualify to be heirs in the intestate estate of their deceased father. According to these provisions, the estate was to be distributed according to "Black law and custom." The applicants challenged, in the High Court, the appointment of the deceased's father as heir and representative of the estate. After considering the opposed application, the High Court concluded that the legislative provisions that had been challenged, and on which the father of the deceased had relied, were inconsistent with the Constitution and therefore invalid. The court further declared that, until the defects were corrected by the legislature, the distribution of intestate black estates was to be governed by the Intestate Succession Act.〔Act 81 of 1987.〕〔s 1.〕 In the Shibi matter, the applicant's brother had died intestate. The deceased had not married, nor had he been a partner in a customary union. He had no children and was not survived by a parent or grandparent. His nearest male relatives were his two cousins. Since the deceased was an African, his estate fell to be administered under the provisions of section 23(10) of the Black Administration Act, resulting in first the one cousin being appointed as representative, and then, after protestations, the other cousin being appointed as sole heir of the estate. In terms of the system created by section 23 and the regulations made thereunder (in particular regulation 2()), the estate of the deceased fell to be distributed according to custom. Ms Shibi, in terms of that system, was precluded from being the heir to the intestate estate of her deceased brother. In the High Court, she challenged the magistrate's decision and the manner in which the estate had been administered. She sought and obtained an order declaring herself to be the sole heir in the estate of her deceased brother. Both the ''Bhe'' and ''Shibi'' matters were applications for confirmation of the High Court orders. In the matter of ''South African Human Rights Commission and Another v President of the Republic of South Africa and Another'', an application for direct access was brought by both the South African Human Rights Commission and the Women's Legal Centre Trust, acting in their own interest as well as that of the public. The relief sought was wider than that in the ''Bhe'' and ''Shibi'' matters. Apart from the provisions declared invalid by the High Court, the applicants contended that the whole of section 23, and alternatively subsections (1), (2) and (6) of section 23, had to be declared unconstitutional and invalid because of their inconsistency with section 9 (right to equality), section 10 (right to human dignity) and section 28 (rights of children) of the Constitution. 抄文引用元・出典: フリー百科事典『 ウィキペディア（Wikipedia）』 ■ウィキペディアで「Bhe v Magistrate, Khayelitsha」の詳細全文を読む スポンサード リンク
|