This judgment constituted three related cases (Bhe, Shibi and SAHRC), which were decided together and concerned the African customary law rule of primogeniture. In Bhe, a mother brought an action to secure the property of her deceased husband for her daughters. In Shibi, the applicant was denied the right to inherit from her deceased brother’s intestate estate under African customary law.
The applicant was a woman married according to Muslim rites and whose husband had died intestate. The marriage was not solemnized by a marriage officer under the Marriage Act 25 of 1961. The house in which the applicant and her husband had lived was transferred to the deceased’s estate. The applicant was told that she could not inherit from the estate of the deceased because she had been married according to Muslim rites, and therefore was not a “surviving spouse.” A claim for maintenance against the estate was rejected on the same basis.
The applicant was in a polygamous Muslim marriage. After her husband died intestate, the respondent, the executor of the deceased’s estate, refused the applicant’s claims on the basis that polygynous Muslim marriages were not legally recognised under the Intestate Succession Act. The court held that precluding the applicant from an inheritance unfairly discriminated on the grounds of religion, marital status, and gender, and was therefore inconsistent with section 9 of the Constitution.
