The First Born Takes

South Africa's Constitution has a fantastic Bill of Rights. But sometimes a series of injustices, already transpired, cannot be completely cured.

The rule of primogeniture (Latin: primus, first + genitus, born) is the exclusive right of inheritance belonging to the eldest son. This was the system of intestate succession followed in African customary law before the Constitution. The rule was overturned by the South African Constitutional Court in a case called Bhe and Others v Khayelitsha Magistrate and Others, [2004] ZACC 17 as discriminatory against women. However, the law could only be declared unconstitutional retrospective to 27 April 1994, which was when the interim South African Constitution came into effect at the end of apartheid.

Enter our client, Mr. X, a black man. He was dealt one of the many injustices under apartheid when his land was expropriated by the state in the 1980s. The apartheid government implemented systematic racial segregation by declaring specified areas “Indian”, “White”, or “Coloured” areas and establishing Bantustans, or black homelands. The LRC was assisting Mr. X with his claim for restitution of the property to the Commission on Restitution of Land Rights, which was set up in the spirit of the new South African Constitution.

Mr. X inherited the land in the 1950s from his father under the rule of primogeniture. However, Mr. X has two sisters -- whose existence the LRC only learned of last year. The Commission has generally taken a firm position that it will not exclude women from the restitution of land. Thus our conundrum.

Legally, the Commission may have little basis for insisting that Mr. X share the property with his sisters since he inherited the land in the 1950s, long before women had equality rights under the Constitution. However, the LRC would be in an uncomfortable position if we had to argue in court against the Commission that his sisters should be excluded from sharing the land based on the archaic and unconstitutional rule of primogeniture. The spirit of the LRC is to work for the mistreated and excluded. That is why we took Mr. X’s case over 10 years ago. But that is also why we now had to give it up.

It was sad to give up Mr. X’s case after the LRC had spent over 10 years working on it and was just reaching the exciting stage of court application against the Commission. It is even sadder that Mr. X would rather pay a private lawyer rather than share the property with his sisters. But I can understand his position as the original dispossessed. And that is his legal right.