Reportable
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Case No: 71/98
In the matter between
MILDRED HLEZIPHI   MTHEMBU
Appellant
and
HENRY K   LETSELA
1  Respondent
st
The MAGISTRATE, Boksburg
2  Respondent
nd
Coram:
Smalberger, Marais, Zulman JJA, Mpati  and  Mthiyane AJJA
DATE HEARD:
4 May 2000
DATE DELIVERED:
30 May 2000
JUDGMENT
Mpati AJA

[1] This is an appeal against a judgment of Mynhardt J in the Transvaal
Provincial Division, which is reported as Mthembu v Letsela and Another  1998 (2)
SA 675 (T) (the 1998 judgment).
[2] Tebalo Watson Letsela (the deceased) died on 13 August 1993,
gunned down by an unknown person or persons.  At the time of his death he was
the holder of a 99 year leasehold title in respect of a fixed property known as Erf
822 Vosloorus Extension 2 Township, Registration Division I.R.,Transvaal, situate
at 822 Ditopi Street, Vosloorus, Boksburg  (the property).  He lived  on the
property with the appellant and her two minor daughters, one of  whom, Tembi
Mthembu (Tembi), was born of an intimate relationship between the appellant and
the deceased.   Tembi was born on 7 April 1988.  The deceased, a South Sotho,
had no other issue, but is also survived by his father, the first respondent in this
matter, mother and three sisters.  He died intestate.  His  parents,  together with one

of their daughters and her children, share the same house on the property with the
appellant and her two daughters.
[3] The magistrate, Boksburg (the second respondent) appointed the
appellant, in terms of regulation 4(1) of the regulations made in terms of the Black
Administration Act 38 of 1927 (the Act),  published under Government Notice
R200 of 6 February 1987, to administer the estate of the deceased.  He indicated in
a letter to the appellant’s legal representatives that the deceased’s estate was to
devolve in terms of  Black law and custom .   The first respondent claims that the
property has devolved upon him by virtue of the operation of the customary law
rule of succession.

[4] The appellant brought an application in the Transvaal Provincial
Division for an order, inter alia, declaring:
the customary law rule of primogeniture, which generally
excludes African women from intestate succession;   and

regulation 2 of the Regulations for the Administration and Distribution
of the Estates of Deceased Blacks,  made  in  term  of s 23(10) of  the
Act  and promulgated under Government Notice R200 of  6 February
1987, (the Regulations),
to be invalid on grounds of being inconsistent with the Constitution of the Republic
of South Africa, Act 200 of 1993 (interim Constitution).
Mynhardt J dismissed the application with costs, but granted the appellant leave to
appeal to this Court.
[5] In her founding affidavit the appellant alleges that on 14 June 1992 she
and the deceased entered into a customary union at Brakpan.  In support of this
allegation she has annexed to her founding affidavit a copy of an acknowledgment
of receipt of the first instalment of R900,00  towards her lobola of R2 000,00,
signed by her brother, Richard  Mtembu.  The balance was to be  paid soon
thereafter.  The deceased,  however, died before it was paid.  The appellant
accordingly claims, on the strength of the affidavits filed in the papers,  to be the

deceased’s widow.
[6] That an  amount of R900,00 was paid towards the appellant’s lobola
is not in dispute, but the first respondent denies that a customary union was ever
entered into as alleged and states  that certain essentials of a customary union were
not satisfied.
[7] The matter first came before le Roux J, who was unable to resolve the
factual dispute relating to the existence or otherwise of a  customary union between
the appellant and the deceased.  The learned judge referred that issue for oral
evidence.  The matter was accordingly postponed sine die. The judgment of Le
Roux J is reported as Mthembu v Letsela and Another 1997 (2) SA 936 (T) (the
1997 judgment).   When the case came before Mynhardt J, however , no evidence
was led and counsel were ad idem that the matter “stands to be determined on the
facts that are common cause”.  Counsel for the appellant (before Mynhardt J) went

further and said that “because no evidence has been tendered from either side the
[appellant] accepts that the matter is to be decided on the basis that there was
indeed no such marriage between the parties”.   The matter was accordingly decided
on the basis that Tembi is the deceased’s illegitimate child.  Counsel for the
appellant,  however, submitted in the court a quo  that on the facts which were
common cause Tembi is the only heir to the estate of the deceased.  That argument
was persisted in before us by Mr Gauntlett, who, together with Mr Chaskalson,
appeared for the appellant.
[8] The customary law of succession in Southern Africa is based on the
principle of male primogeniture.  In monogamous families the eldest son of the
family head is his heir, failing him the eldest son’s eldest male descendant.   Where
the eldest son has predeceased the family head without leaving male issue the
second son becomes heir;  if he be dead leaving no male issue the third son

succeeds and so on through the sons of the family head.  Where the family head
dies leaving no male issue his father succeeds.  Bekker:   Seymour’s Customary
Law in Southern Africa, 5 ed, p 274; Bennett:  A Sourcebook of African Customary
Law for Southern Africa, 1 ed (1991) p 399-400.  See also Kerr: The Customary
Law of  Immovable  Property and of  Succession, 3 ed, p 99.  It follows that in
terms of this system of succession, whether or not Tembi is the deceased’s
legitimate child, being female,  she does not qualify as heir to the deceased’s  estate.
Women generally do not inherit in customary law.  When the head of the family dies
his heir takes his position as head of the family and becomes owner of all the
deceased’s property, movable and immovable; he becomes liable for the debts of
the deceased and assumes the deceased’s position as guardian of the women and
minor sons in the family.  He is obliged to support and maintain them, if necessary
from his own resources,  and not to expel  them from  his home.  Kerr, op cit at

100-108.
[9] The customary law of succession, i.e. the principle of primogeniture,
also enjoys legislative  recognition.  It is embodied, for example, in regulation 2 of
the Regulations, which reads as follows:
“2 If a Black dies leaving no valid will, so much of his
property, including immovable property, as does not fall
within the purview of subsection (1) or subsection (2) of
section 23 of  the  Act  shall be distributed in the manner
following:
(a) ....
(b) ....
(c) ....
(d) ....
(e)
If the deceased does not fall into any of the classes described
in paragraph (a), (b), (c) and (d) the property shall be
distributed according to Black law and custom.” (My
underlining)
It is not in dispute that in casu regulation 2(e), if valid,  applies,  i.e. the deceased’s
estate  falls to be distributed according to Black law and custom.

[10] Both before Le Roux J and Mynhardt J,  as well as before this Court,
it was argued that the rule of customary law of succession, i.e. the principle of
primogeniture (the rule) is grossly discriminatory; that it discriminates against all
Black  women and girls and all Black children who are not eldest children by
excluding them from participation in intestate succession, while it does not visit the
same disability upon eldest sons or anybody who is not Black.
[11] In dealing with an argument that the rule is obviously unconstitutional
on the basis that it contravenes ss 8(1), 8(2) and 14 of the interim Constitution as
it  discriminates  between persons  on the grounds of sex or gender, Le Roux J said
the following in the 1997 judgment (at 945H-946C):
“ If one accepts the duty to provide sustenance, maintenance and
shelter as a necessary corollary of the system of primogeniture (a
feature which has been called ‘one of the most hallowed principles of
customary law - see  T W Bennett A Source Book of African
Customary Law for Southern Africa (Juta, 1991) at 400), I find it
difficult to equate this form of differentiation between men and women

with the concept  of  ‘unfair discrimination’ as used in s 8 of the
Constitution. ... In view of the manifest   acknowledgment of
customary law as a  system existing parallel to common law by the
Constitution (vide ss 33(3) and 181 (1)) and the freedom granted to
persons to choose this system as governing their relationships (as
implied in s 31), I cannot accept the submission that the succession
rule is necessarily in conflict with s 8.  There are other instances where
a rule differentiates between men and women, but which  no right-
minded  person considers to be unfairly discriminatory.  ...   It follows
that even if this rule is prima facie discriminatory on grounds of sex
or gender and the presumption contained in s 8(4) comes into
operation, this presumption has been refuted by the concomitant duty
of support.”

[12]   The learned judge found that the rule is not inconsistent with “the
fundamental rights contained in chap 3 [of the interim Constitution]  and  the
injunction found in s 33 (3) can accordingly be implemented,  namely to construe
the chapter in such a way as not to negate”  the rights conferred by the rule (at 946
C-D).  For convenience I quote  s 33 (3) of the interim Constitution.   It reads:
“The entrenchment of the rights in terms of this Chapter [Chapter 3]
shall not be construed as denying the existence of any other rights or

freedoms recognised or conferred by common law, customary law or
legislation to the extent that they are not inconsistent with this
Chapter.”
[13] In this Court (and before Mynhardt J) four grounds of attack were
advanced against the operation of the rule.  These are:
The regulation (regulation 2(e) of the Regulations) is ultra vires
at common law; it constitutes delegated legislation which may
not be partial and unequal in its operation unless specifically
authorized by the enabling Act.
The regulation has been impliedly repealed by s 1(1) read with
1 (4) (b) of the Intestate Succession Act 81 of 1987.
The rule is to be developed in terms of section 35 (3) of the
interim Constitution with due regard to the fundamental value of
equality, to avoid discrimination between children of a
deceased.
If  not so developed the rule would be repugnant to the
“principles of public policy or natural justice” within the
meaning of s 1 of the Law of Evidence Amendment Act 45 of
1988, and the courts will accordingly not apply it.

Mynhardt J dismissed all four grounds of attack.
[14] In their supplementary heads of argument  counsel for the appellant
(who are not the counsel who represented the  appellant before Le Roux and
Mynhardt JJ and who drafted the main heads of argument) state that the appellant
“will not advance oral  argument relating to the principal submissions” under the first
and second grounds of attack.  Mr Gauntlett stressed, however, that this did not
mean that they were abandoning the said two grounds,  but that their argument
would focus on the following propositions:
Tembi would have succeeded by intestate succession at
customary law to her deceased father’s estate but for the fact
that she is female.
The customary law rule of primogeniture is offensive to public
policy or natural justice (within the meaning of s 1(1) of the Law

of Evidence Amendment Act , 1988) because it is incompatible
with the value of equality which is a fundamental element of
public policy in this country and  this Court accordingly may
not give effect to it.
Section 35(3) of the interim Constitution applies to this case,
but even if it did not the argument in 2  above would hold true.
[15] Before I consider these submissions, it will be convenient to deal first
with a preliminary issue raised before us.  The court  a quo  held that Tembi was
not a victim of gender discrimination because any illegitimate child of the deceased
would have been disinherited.  The learned judge expressed himself thus
(at 686E-G):
“In the present case the applicant was not married to the deceased.
Her child, Tembi,  is therefore an illegitimate child vis - a - vis the
deceased and his family.  Tembi has no right to inherit intestate from
the deceased. That is so simply because she is not the legitimate child

of the deceased. It matters not that Tembi is a girl. Even an illegitimate
son would have had no right to inherit intestate from the deceased.
The disqualification of Tembi  ... flows, therefore, from her status as
an illegitimate child and not from the fact that she is a girl  and that the
system of primogeniture is applied in customary law.”
[16] Mr Gauntlett submitted that this reasoning by Mynhardt J is flawed.
First, it was argued that because there had been an agreement between the appellant
and the deceased to marry and bridewealth had been paid in part, Tembi was, at
customary law, the deceased’s legitimate daughter.  Mr Gauntlett sought support
for this proposition from an article by Sandra Burman:   Illegitimacy and the
African Family in a Changing South Africa, 1991 Acta Juridica, 36,  where the
learned writer says the following at p 41:
“In customary law a child born within a customary union is presumed
to be legitimate and thus part of its father’s family.  However, as
outlined above, the crucial element in the marriage which transfers the
child into the father’s family is not the ceremony, as in civil law, but
the payment of bridewealth, at least in part.”  (My underlining)

[17] In my view, counsel’s interpretation of this passage is incorrect.  The
learned writer speaks of the crucial element “ in the marriage” which transfers the
child into the father’s family as being payment of bridewealth or part of it.  There
must thus be a marriage (customary union) and not merely payment of bridewealth
or part of it for the child to be “transferred” into its father’s family.  The position
with regard to an illegitimate child is that he or she is legitimized by subsequent
payment of dowry or bridewealth and marriage of the parents.  Warner:   A Digest
of South African Native Civil Case law  1894-1957,  60 para 720 and the cases
there cited; Bekker, op cit,  232.  The position is the same in Sotho custom.
Bekker,  op cit, 233.
[18] In casu, it is common cause that no customary union existed between
the appellant and the deceased when Tembi was born.  It is also common cause that
no customary union was entered into subsequent to her birth.  It follows that

although part of the bridewealth was paid, without a customary union  between her
parents, Tembi  was not legitimized.   Mynhardt J was accordingly correct in
holding that Tembi is illegitimate.
[19] Second, Mr Gauntlett argued that if Tembi was the illegitimate daughter
of the deceased, she was still the victim of gender discrimination because in the
absence of any legitimate sons of a deceased Black person, customary law
recognizes the right of an illegitimate son, but not an illegitimate daughter , to
succeed to the intestate estate of the deceased. The causa causans of the fact that
she did not inherit was her gender, not her illegitimacy, so it was argued.  Her gender
and her gender discrimination in the primogeniture  rule are therefore determinative
of the result and not her illegitimate status.   For the proposition that an illegitimate
son of a deceased Black person succeeds to his estate in the absence of a legitimate
son,  Mr Gauntlett relied on a passage in Bennett,  op cit,  372, where the learned

author states that:
“Amongst the Southern Nguni ...  an illegitimate son may succeed to
the head of a household if there are no other male descendants.”
[20] I mean no disrespect to counsel when I say that he misread this
passage, which is immediately qualified by the following:
“. . . (and provided that he had not been repudiated by the deceased
or that his mother had not been driven away because of her adultery).”
Clearly the learned author refers to the illegitimate son of a married women, i.e. one
born during the subsistence of a customary union between his mother and the
deceased.    Baatje v Mtuyedwa 1 NAC 110 (1906); Ludidi v Msikelwa 5 NAC 28
(1926),  referred to in Bennett, op cit, 372 (footnote 158);  also in Warner, op cit,
paras 3167 and 3172. Mr Gauntlett’s second  proposition is thus also without
foundation.

[21] I now proceed to consider the grounds of attack against the rule.
Regulation 2(e) of the Regulations is ultra vires at common law.
[22] Section 23(10) of the Act empowers the State President to make
regulations, not inconsistent with the Act,  inter alia, “prescribing tables of
succession in regard to Blacks” (s 23 (10) (e)) . The Regulations are, therefore,  a
form of delegated legislation.  Joubert: LAWSA, Vol 25 at 197, para 264.  As such
they may be declared to be invalid “on the ground of unreasonableness ... if they
are found to be partial and unequal in their operation as between different classes,
unless of course the enabling Act specifically authorizes such partiality and
inequality”. R v Abdurahman 1950 (3) SA 136 (A) 143 C-H,  and the cases there
cited.  The question then is whether regulation 2(e) of the Regulations is
unreasonable for being partial and unequal. Said regulation  provides that if a Black
person dies leaving no valid will and without having lived with someone as his

putative spouse,  or a  partner in a marriage or customary union,  his estate “shall
be distributed according to Black law and custom”.   It is submitted in the
appellant’s main heads of argument that the regulation in issue  gratuitously
discriminates against  women and girls, children who are not eldest children and
illegitimate children.  The enabling provision in s 23 of the Act does not permit such
discrimination, so it was argued.
[23] What needs to be stressed from the outset is that the regulation in issue
did not introduce something foreign to Black persons,  as was the case in Machika
en Andere v Staatspresident en Andere 1989 (4) SA 19 (T).  It merely gave
legislative recognition to a principle or system which had been in existence  and
followed, at least, for decades.  It is not inconceivable that many Blacks, even to
this day, would wish their estates to devolve in terms of Black law and custom.
Section 23(3) of the Act provides that:  “All other property of whatsoever kind

[excluding property referred to in ss (1) and (2)] belonging to a Black shall be
capable of being devised by will”. The existing law therefore enables Blacks to
avoid the consequences of the application of the customary law of succession if
they so wish.  It is therefore within the power of Blacks to choose how they wish
their estates to devolve.  If they take no steps to alter the devolution of their estates
(as is their right), the resulting consequences cannot be assumed to be contrary to
their wishes .
[24] As the wishes of the deceased are still paramount in our law, it is
difficult to see how a regulation which respects that right can be said to the
unreasonable and ultra vires at common law.
Regulation 2(e) has been impliedly repealed.
[25] The argument on behalf of the appellant is that there is an apparent
conflict between regulation 2 (e) of the Regulations and section 1 of the Intestate

Succession Act  81 of 1987 (the Intestate Succession Act),  and that being so the
Intestate Succession Act, being an act of Parliament, must prevail over the
regulation, which is subordinate legislation.
[26] The Intestate Succession Act came into operation on 18 March 1988.
Section 1(1) prescribes how the estate of a  person who, after the commencement
of the said Act, dies intestate,  either wholly or in part, shall devolve.   Section 1(4)
(b) is in the following terms:
“(4) In the application of this section [s 1]  -
(a) ...
(b) “ intestate estate” includes any part of an estate which does not
devolve by virtue of a will or in respect of which section 23 of the
Black Administration Act 1927 (Act No 38 of 1927) does not apply;
(c) ....
(d) ....
(e) ...
(f) ...”
[27] Mynhardt J  agreed with counsel’s submission that the word “or” in

ss (4) (b) of s 1 means “and”. He agreed further that an “intestate estate” is thus an
estate which devolves neither under a will nor under s 23 of the Act.  In my opinion,
this interpretation is correct.
[28] A law (which includes subordinate or delegated legislation) may be
impliedly repealed “by a later repugnant law of the same or a superior legislature”.
R v Sutherland 1961 (2) SA 806(A) 815 A; New Modderfontein Gold Mining Co
v Transvaal Provincial Administration 1919 AD 367 at 397.  If the later law
“professes, or manifestly intends, to regulate the whole subject to which it relates,
it necessarily supersedes  and repeals all former acts, so far as it differs from them
in its prescriptions”.  New Modderfontein Gold Mining Co v Transvaal Provincial
Administration, supra, at 397.  What is necessary, then, is to ascertain the “true
interpretation” of the Intestate Succession Act,  so as to establish its ambit.
[29] Section 1(4) (b) of the Intestate Succession Act excludes from its

operation, inter alia, that part of the estate of a deceased which falls under s 23 of
the Act.   Section 23 (1) of the Act makes provision for the devolution and
administration, by Black law and custom on the death of a deceased, of property
which, for present purposes, may conveniently be termed “house property” .  Such
property devolves according to Black law and custom, i.e. in terms of the rule,
whether or not the deceased dies intestate. If he dies intestate, house property will
not devolve in terms of the Intestate Succession Act, but in terms of Black law and
custom.  That being the case it cannot be said, in my view, that the Intestate
Succession Act “professes or manifestly intends to regulate the whole subject to
which it relates”, i.e.  intestate succession.  I am in any event of the view that the
court  a quo  was correct in holding (at 683 J - 684 A of the 1998 judgment),  that
once it is accepted , as it must be,  that  ss (10) of s 23 of the Act is included in the
reference thereto in s 1 (4) (b) of  the Intestate Succession Act, it follows that the

Regulations are also included in that reference.   By excluding   s 23 of the Act from
the operation of the Intestate Succession Act, the legislature  clearly intended  to
preserve the rule.
[30] I am accordingly satisfied that regulation 2(e) of the Regulations has
not been impliedly repealed by the Intestate Succession Act.
Development of the rule in terms of s 35 (3)  of the interim Constitution.
[31] Section 35 (3) of the interim Constitution enjoins courts to develop the
common law and customary law.  It reads:
“In the interpretation of any law and the application and development
of the common law and customary law, a court shall have due regard
to the spirit, purport and objects of this Chapter”.
(See also s 39(2) of the final Constitution, Act 108 of 1996).
[32] Mr Gauntlett submitted that the rule is inconsistent with the value of
equality enshrined in s 8(1) of the interim Constitution.  Equality is one of the core
values embodied in the Constitution.  (See   Fraser v  Children’s Court , Pretoria

North and Others 1997 (2) SA 261 (CC) para 20;  President of the RSA  and
Another v Hugo 1997 (4) SA 1 (CC) paras 41, 74 -76, 92; Prinsloo v Van der
Linde and Others  1997 (3) SA 1012 (CC) para 31-33.  Mr Gauntlett contended
that the rule is based on “inequality, arbitrariness, intolerance and inequity”, all of
which are repugnant to the new constitutional order.  He urged us to develop the
rule, as we are enjoined to do by s 35 (3) of the interim Constitution, so  as to allow
all descendants, whether male or female, legitimate or illegitimate,  to participate in
intestacy,  which will enable Tembi  to inherit from the deceased’s estate.   It would
be a great injustice, so the argument continued,  if Tembi is disinherited and “thrown
out of her home”  simply on the basis of her gender or illegitimacy.
[33] As the court a quo held, Tembi, of course, is  excluded  from
inheriting because she is illegitimate. The question of  gender discrimination is not
reached in this case and it is not desirable to address a question of such

constitutional importance in a case in which it is academic.   She would be in the
same position as, for example, illegitimate male children.  What requires
consideration,  however, is whether the interim Constitution applies in the present
matter,  since it only came into operation on 27 April 1994, which was after the
death of the deceased on 13 August 1993.  Mr Tee, who, with Mr Carrington,
appeared for the first respondent, submitted that the first respondent has a vested
right in the estate of the deceased, which he acquired before the interim Constitution
came into effect.
[34] In intestate succession the inheritance vests immediately upon the death
of the deceased.  Corbett et al: The Law of Succession in South Africa (1980),  at
134.  The first respondent thus acquired a right to claim ownership of the property
upon the death of the deceased.   Tembi had no right to succeed the deceased as
his heir.  This is so because as an illegitimate child in customary law she belongs to

her mother’s family.  Bekker, op cit,  233.
[35] The Constitution (both interim and final) does not operate
retroactively.  Du Plessis and Others v De Klerk and Another 1996 (3) SA 850
(CC) para 13.  At page 866 para 19 of that judgment Kentridge AJ said the
following:

“ ... What is clear is 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.”
In my view this statement clearly applies to the present matter.
[36] Mr Gauntlett, however, referred us to the following passage in the Du
Plessis v De Klerk judgment (para 20):
“...we leave open the possibility that there may be cases where the
enforcement of previously acquired rights would, in the light of our
present constitutional values, be so  grossly unjust and abhorrent that
it could not be countenanced, whether as being contrary to public
policy or on some other basis.”

This appeal, so it was argued, concerns such a case.
[37] I do not agree.  An illegitimate child in customary law “belongs”  to the
maternal grandfather or his successor, who is obliged to provide for him or her.
Such child may ultimately have rights of succession in the mother’s family. Bekker,
op cit, 296.  There can thus be no question of Tembi  being “ thrown out of her
home” ( and by implication virtually left destitute)  simply on the basis of her
illegitimacy as was contended by Mr Gauntlett.
[38] We were referred to the decision in Amod v Multilateral Motor
Vehicle  Accidents  Fund  1999  (4)  SA 1319 (SCA), where this Court , at para 30,
left open the question as to whether s 35(3) of the interim Constitution, or s 39 (2)
of the final Constitution “can properly be  applied in respect of a  cause of action
which arose before the commencement of the interim Constitution”.   In that case
the issue for determination was whether the respondent was legally liable to

compensate the appellant for loss of support of her deceased  husband to whom
she was married by Islamic rites. Their marriage was potentially polygamous.  The
appellant’s husband had died in a motor collision on 25 July 1993, i.e. before the
coming into operation of the interim Constitution.  The court below had answered
the question in the negative; this Court in the affirmative.  At para 20 of the judgment
the Chief Justice held that to deny the appellant compensation only on the basis that
the only duty of support which the law will protect is that flowing from a marriage
solemnized and recognized by one faith or philosophy,  to the exclusion of others
,is an untenable basis  for the determination of the   boni mores of society.   He
further held that such basis for determination of the  boni mores of society “is
inconsistent with the new ethos of tolerance, pluralism and religious freedom which
had consolidated itself in the community even before the formal adoption of the
interim Constitution on 22 December 1993".  “ The new ethos” , he said, “was

firmly in place when the cause of action in the present matter arose on 25 July
1993.”
[39] The Amod case was not about potentially competing rights.  It does
not assist the appellant in this matter.
[40] In my opinion, the present is not a  case where the recognition and
respecting of previously acquired rights would be so grossly unjust and abhorrent,
in the light of the present constitutional order, that they cannot be countenanced;
nor is this an appropriate case, on the facts, to entertain an invitation to develop the
rule.  In any event, we would be ill-equipped to develop the rule for lack of relevant
information.  Any development of the rule would be better left to the legislature after
a process of full investigation and consultation, such  as is currently being
undertaken by the Law Commission.

The Law of Evidence Amendment Act, 1988.
[41] Section 1(1) of the Law of Evidence Amendment Act provides that any
court  may take  judicial notice  of  indigenous  law in  so  far  as  it  can  be
ascertained  readily and with sufficient certainty, with the proviso that such law shall
not  be  opposed  to the  principles  of  public  policy  or  natural  justice.
“Indigenous law” means customary law as has been referred to throughout this
judgment (see s 1(4) of the Law of Evidence Amendment Act).
[42] The argument advanced under this ground of attack is that if the rule
were retained in its present form and not developed to permit female participation
in intestacy, then it would be profoundly offensive to  public  policy.    Invoking a
decision of this Court in Sasfin  (Pty)  Ltd  v  Beukes  1989 (1) SA 1 (A)   13 J,
Mr Gauntlett submitted that the rule, which he contended  has an arbitrary and
unjust effect, is clearly “unconscionable and incompatible with the public interest”,

and therefore contrary to public policy.
[43] This Court  has held that the interests of the community or the public
are of  paramount importance in relation to the concept of  public  policy (Sasfin
v Beukes, supra, at 8C-D, and that public policy “reflects the mores and
fundamental assumptions of the  community”; it is “the general sense of justice of
the community, the boni mores manifested in public opinion”.  Longman Distillers
Ltd v Drop Inn Group of Liquor Supermarkets (Pty) Ltd 1990 (2) SA 906 (A)  913
G-H;  Schultz v Butt 1986 (3) SA 667 (A)  679 C-E.
[44] As was said in Schultz v Butt, supra, at 679, questions of public policy
may be important in a particular case, e.g. in matters such as where  the validity of
a contract is in issue.   In my view, the present is not such a case.  If , for  example,
the deceased had made a will in which he bequeathed the whole of his estate to his

father, the first respondent, such bequest could not have been challenged on
grounds of public policy.   The deceased would have been perfectly entitled to
bequeath his entire estate to his father.  It  cannot now be said,  in my view, that the
consequences of his dying without a will are contrary to public policy.  The
deceased may well have known what such consequences were and have been
content not to alter them.
[45] Further, and as has been mentioned above, the rule is embodied in
statute  (s 23 (1) of the Act and also regulation 2 (e) of the Regulations).  It cannot
successfully be argued, in my view, that a statute can be struck down on grounds
of public policy, which would be the effect if the rule were  held to be invalid for
being contrary to public policy as that concept is understood and applied in the
common law.
[46] In the course of his argument Mr Gauntlett referred us to a judgment

of Levinsohn J in Zondi v President of the Republic of SA and Others 2000 (2) SA
49 (N),  where the learned judge held certain provisions of regulation 2 of the
Regulations to be inconsistent with the equality provision in the Constitution and
therefore invalid.   In my opinion, the facts of the present matter do not permit of
a consideration of the correctness or otherwise of that decision.
[47] In conclusion, a caveat from Mr Tee for the first respondent:
To strike down the rule would be summarily  to dismiss an African institution
without examining its essential purpose and content.  “Decisions like these can
seldom be taken on a mere handful of allegations in a pleading which only reflects
the facts on which one of the contending parties relies”,  per Hefer JA in Minister
of Law and Order v Kadir  1995 (1) SA 303 (A) 318 H.

[48] The conclusion is that on all four grounds the appellant must fail.
[49] We were informed by counsel that irrespective of the result,  neither

of the parties would seek a costs order.  Mr Tee also placed on record that the first
respondent abandons the costs awarded in his favour in the court a quo.
[50] The appeal is dismissed.

MPATI AJA