Mthembu v Letsela and another (2000) 3 All SA 219 (A)

Main Issue: Succession/disinheritance/customary law/ right to inheritance of an illegitimate child (daughter)/discrimination/ challenging the rule of primogeniture as discriminatory on the basis of sex and race as it only applied against black women/girls

Findings: The Appellant and the deceased were cohabiting before his death and a child, Thembi, was born. As a result, Thembi was left without inheriting anything. The Applicant brought an application for an order, inter alia, declaring the customary law of primogeniture, which generally excluded African women from intestate succession and Regulation 2 of the regulations for the Administration of Estates of Deceased Blacks as inconsistent with the Constitution. Court held that Thembi was illegitmate because there must be marriage (customary union) in order for a child to be transferred into its father's family and set aside the argument of the applicant that she was not illegitimate. The Court also held that only a son born during the subsistence of a customary union between his mother and the deceased could succeed to the head of the household if there were no other male descendants and the argument that because the law recognizes the right of an illegitimate son, but not an illegitimate daughter to succeed to the intestate estate of a deceased is incorrect. It was also held that the existing law enabled black persons to avoid the application of customary law by drafting a will and accordingly if they took no steps to alter the devolution of their estates, the resulting consequence could not be assumed to be contrary to their wishes and as the wish of the deceased is of paramount importance in our law, it could not be see how a regulation respecting that right is unreasonable and untra vires in common law. Court dismissed appellant's argument.