Constitutional Court Submissions

Constitutional Court Submissions
THE CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT49/03
In the matter between:
NONKULULEKO LETTA BHE First Applicant
ANELISA BHE Second Applicant
NONTUPHEKO MARETAHA BHE Third Applicant
THE WOMEN'S LEGAL CENTRE TRUST Fourth Applicant
and
THE MAGISTRATE, KHAYELITSHA First Respondent
MABOYISI NELSON MGOLOMBANE Second Respondent
THE PRESIDENT OF THE RSA Third Respondent
THE MINISTER OF JUSTICE AND
CONSTITUTIONAL DEVELOPMENT Fourth Respondent
APPLICANTS' SUBMISSIONS
TABLE OF CONTENT
INTRODUCTION.. 3
The essence of this application. 3
The statutory regime. 5
The scheme of our submissions. 6
The SCA judgment in Mthembu. 8
THE FACTS.. 10
The essential facts. 10
The girls are "illegitimate" 12
THE INDIGENOUS LAW OF INTESTATE SUCCESSION.. 15
The principle of primogeniture. 15
The position of the illegitimate child. 20
The rules have not kept pace. 21
Patriarchy is not peculiarly African. 24
THE INDIGENOUS LAW IS UNCONSTITUTIONAL. 27
Introduction. 27
The right to equality and the prohibition of discrimination. 27
The lines of differentiation. 30
The differentiation is irrational 31
The differentiation discriminates unfairly. 31
The obiter dicta of the SCA.. 34
The right to dignity. 38
Children's rights. 40
Conclusion. 41
THE STATUTORY REGIME IS UNCONSTITUTIONAL. 42
Introduction. 42
Regulation 2(e) 42
Section 23(10) of the Black Administration Act 45
Section 1(4)(b) of the Intestate Succession Act 49
Conclusion. 49
REPEAL BY THE EQUALITY ACT. 50
REMEDY. 53
LIST OF AUTHORITIES.. 55
INTRODUCTION
The essence of this application
1. The Cape Provincial Division of the High Court made an order on 25September 2003[1] in terms of which it inter alia declared,
- that ss23(10)(a), (c) and (e) of the Black Administration Act 38 of 1927 are unconstitutional and invalid and that regulation 2(e) of the Regulations for the Administration and Distribution of the Estates of Deceased Blacks is consequently also invalid;
- that s1(4)(b) of the Intestate Succession Act 91 of 1987 is unconstitutional and invalid insofar as it excludes from the application of s1, any estate or part of any estate in respect of which s23 of the Black Administration Act applies, and
- that, until the aforegoing defects are corrected by competent legislation, the distribution of intestate Black estates is governed by s1 of the Intestate Succession Act.
2. This is an application in terms of rule 15 of the Constitutional Court rules, s8 of the Constitutional Court Complementary Act 13 of 1995 and ss167(5) and 172(2) of the Constitution, for confirmation of the orders of constitutional invalidity.
3. The case concerns the distribution of the estate of the late Mr Vuyo Elius Mgolombane. He died on 9 October 2002. He did not leave a will.
4. The first and second applicants and the second respondent make competing claims to his estate:
4.1. The first and second applicants are the deceased's minor daughters, Nonkululeko and Anelisa. Nonkululeko was born on 18May 1994[2] and is now nine years old. Anelisa was born on 3August 2001[3] and is now two years old. They are assisted by their mother Ms Bhe who is the third applicant. She and the deceased were monogamous life partners for 12 years from 1990 until his death.[4]
4.2. The second respondent is the deceased's father. He lays claim to the deceased's estate under African customary law. The applicants acknowledge his claim under orthodox customary law but contend that the law is unconstitutional and invalid.
5. Ms Bhe does not lay any claim to the deceased's estate in her own right and does not advance any interest of her own in this application. She merely assists her two daughters as their mother and natural guardian.[5]
6. Ms Bhe and the Women's Legal Centre Trust also bring this application in terms of s38 of the Constitution,
- in the public interest and
- in the interest of the female descendants, the descendants other than the eldest descendant and the illegitimate descendants of African people who die intestate.[6]
7. The remaining respondents other than the deceased's father, are the Magistrate (Khayelitsha), the President of the RSA and the Minister of Justice and Constitutional Development. They were joined only because they had an interest in the application.
The statutory regime
8. Intestate succession is generally governed by the Intestate Succession Act 81 of 1987. If it were applicable, Nonkululeko and Anelisa would have been their father's only heirs entitled to succeed to his entire estate in terms of s1(1)(b) read with ss1(2) and 1(4)(a).
9. Section 1(4)(b) however excludes any estate governed by s23 of the Black Administration Act 38 of 1927, from the operation of the Intestate Succession Act. The SCA held that it excludes estates governed by s23 itself and estates governed by the regulations made under s23(10).[7]
10. The regulations made under s23(10) of the Black Administration Act, are the Regulations for the Administration and Distribution of the Estates of Deceased Blacks promulgated by Government Notice R200 of 6 February 1987 and amended by Government Notice R1501 of 3 December 2002. It is common cause in this case, that the deceased's estate is governed by the default provision in regulation 2(e). It provides that the property in the estate "shall be distributed according to black law and custom".
11. The applicable rules of "black law and custom" are based on the principle of primogeniture. Under those rules, the deceased's father is his only heir and his daughters are excluded from participation.
The scheme of our submissions
12. We devote two chapters to a description of the facts of this case and the applicable indigenous law rules of intestate succession.
13. We submit that the indigenous law rules are unconstitutional and invalid because they violate,
- the right to equality in s9(1) and the prohibition of discrimination in s9(3);
- the right to dignity in s10, and
- the rights of children in terms of ss28(1)(b) and (d) and 28(2).
14. We submit that the statutory regime by which the indigenous law rules are made applicable to the deceased estates of certain Africans, is also unconstitutional and invalid. It comprises regulation 2(e), s23(10) of the Black Administration Act and s1(4)(b) of the Intestate Succession Act. This regime is unconstitutional and invalid insofar as it makes the indigenous law rules of intestate succession applicable to the estates of certain Africans. Each of the components of the regime is moreover also unconstitutional and invalid on a variety of grounds.
15. The indigenous law rules of intestate succession and regulation 2(e) by which they are made applicable to the deceased estates of certain Africans, have in any event been repealed by s8 read with s5(2) of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 with effect from its commencement on 16 June 2003. It occurred after the death of the deceased and accordingly did not in itself relieve his estate of the application of the indigenous law rules. It does however reinforce the applicants' submission that the indigenous law rules and regulation 2(e) by which they are imposed, are unconstitutional and invalid insofar as they clearly offend the provisions of the Equality Act designed to give effect to s9(3) of the Constitution.
16. We conclude by addressing the question of remedy. We ask that this court confirm the CPD's orders of constitutional invalidity.
The SCA judgment in Mthembu
17. The issues in this application are similar to those in the case of Mthembu.[8] However, the deceased in that case had died on 13 August 1993, before the Interim Constitution came into force on 27 April 1994. The SCA held that the deceased's father in that case had acquired a vested right to the estate before the Interim Constitution came into force and that it was consequently clear,
"… that there is no warrant in the Constitution for depriving a person of property which he lawfully held before the Constitution came into force by invoking against him a right which did not exist at the time when the right of property vested in him."[9]
18. In the present case, the deceased died only on 9 October 2002 after the Final Constitution had come into force. This application accordingly squarely raises the question of the impact of the Constitution on the applicable customary law rules of intestate succession and the statutory regime by which they are imposed on the deceased estates of African people.
THE FACTS
The essential facts
19. Ms Bhe and the deceased were monogamous life partners from 1990. He was a carpenter and she a domestic worker. They were very poor with few possessions between them.[10]
20. In 1991 they built themselves a shack on erf 39678 Khayelitsha, at 35 Jula Street, Makaza in the city of Tygerberg.[11] Over the years that followed, the deceased applied for and obtained state housing subsidies. He used them to acquire the property and planned to improve their house on it but died before he could do so.[12] They continued to live in their house on the property until the deceased's death last year.
21. Nonkululeko was born on 18 May 1994 and Anelisa on 3 August 2001. They lived with Ms Bhe and the deceased. He supported them and they were dependent on him.[13]
22. The deceased died on 9 October 2002.[14] He died intestate.[15] Nonkululeko and Anelisa are his only descendants.[16] They still live in the house.
23. The deceased's estate comprises the house and miscellaneous items of movable property that he and Ms Bhe jointly acquired over the years.[17]
24. Since the deceased's death, Ms Bhe's relationship with his family and his father in particular, has deteriorated and become acrimonious.[18] The deceased's father lays claim to the house and has made it clear that he wishes to sell the house to defray the deceased's funeral expenses.[19] If that should happen, Ms Bhe and her daughters would be destitute.[20]
The girls are "illegitimate"
25. The SCA held in Mthembu that under indigenous law, a child is "legitimate" only if its parents are married and lobolo is paid. Unless both requirements are fulfilled, the child is regarded as "illegitimate".[21]
26. According to Ms Bhe, she and the deceased wanted to get married and intended to do so but never did because he could not afford to pay lobolo and never did.[22]
27. The deceased's father denies these allegations in the baldest possible terms and asserts that,
- "It was never my son's intention to marry the applicant"[23] and
- "By reason of the fact that my son had paid lobolo, I am in a rightful possession to have custody over the child".[24]
28. The CPD held that this issue had to be resolved in favour of the deceased's father under the Plascon-Evans rule and that it meant that the deceased's two daughters were "legitimate" under indigenous law.[25]
29. We submit with respect that the CPD erred for the following reasons:
29.1. It is common cause that Ms Bhe and the deceased never married. Her evidence is that they wished to get married and intended to do so but never did. The deceased's father disputes her evidence and asserts that the deceased never intended to marry Ms Bhe. It is clear that he does not contend that they were married. He denies that his son ever intended to do so. His case cannot be that his son never intended to marry but in fact did so. It is accordingly undisputed that Ms Bhe and the deceased never married. For this reason alone, their daughters are "illegitimate" under indigenous law.
29.2. There is a superficial dispute between Ms Bhe who says that the deceased never paid lobolo and his father who asserts that he did. His father's assertion cannot however be taken seriously. First, it is irreconcilable with his earlier assertion that the deceased never intended to marry Ms Bhe. Secondly, he does not identify the source of his information. He is unlikely to have personal knowledge of it because he lived in the Eastern Cape while they lived in Cape Town. Thirdly, he does not give any particulars of what was paid, when, by whom and to whom. His bald assertion that "my son had paid lobolo", does not raise "a real, genuine or bona fide dispute of fact" within the meaning of the Plascon-Evans rule.[26] Ms Bhe's evidence that the deceased never paid lobolo, must accordingly be accepted. Their daughters are for this reason also "illegitimate".
30. The CPD was correct however that nothing turns on this point.[27] The deceased's two daughters are already disqualified from participation in his estate because they are female. It does not matter to the outcome of the case whether they are also disqualified because they are "illegitimate".
THE INDIGENOUS LAW OF INTESTATE SUCCESSION
The principle of primogeniture
31. The rules of indigenous law of intestate succession, are well known.[28] Women do not participate in the intestate succession of deceased estates. Intestate succession is based on the principle of primogeniture. The general rule is that only a male who is related to the deceased through a male, qualifies as intestate heir. In a monogamous family, the eldest son of the family head is his heir. If the eldest son does not survive his father, then his (the eldest son's) eldest male descendant is the heir. If there is no surviving male descendant in the line of the deceased's eldest son, then an heir is sought in the line of the second, third and further sons, in accordance with the principle of primogeniture. If the deceased is not survived by any male descendants, his father succeeds him. If his father also does not survive him, an heir is sought in the father's male descendants related to him through the male line.