An analysis of the abolishment of the principle of male primogenitutre using western values

Abstract

Male primogeniture is deeply rooted in South African tradition, it was central to Customary Law of Intestate Succession where the first-born son or the closest male related to the deceased will succeed in the role and position of the decedent This practice perpetuated gender inequality by discriminating against female heirs and younger sons, limiting their rights to inheritance and succession to property and leadership roles. Resistance movements and advocacy efforts emerged over time to challenge male primogeniture, aiming to promote gender equality and the rights of all family members, in particular women. The end of apartheid in 1994 marked a significant turning point, as South Africa adopted a new, more inclusive constitution that sought to address discriminatory practices like male primogeniture. Undoubtedly, post-1994 constitutional democratic South African legislative and judicial arms of government seemed to have made frantic efforts to distort, eliminate and abolish the principle of male primogeniture which was practiced in terms of customary law of succession by the indigenous African people in South Africa. Even though there is a need for the judiciary to develop customary law in line with the Constitutional values especially in the areas of the equal right to equality and dignity for all including women, the process of legislating and adjudicating customary law was the reliance on common law and western ideas. These ideas are being used to measure and ascertain the validity and recognition of customary law, and as such, the courts usually reach decisions and conclusions based on the values of common law instead of harmonizing customary law to meet the lived experiences without necessarily incorporating western ideas in Customary Law. Regarding succession, this is wider in scope than the concept of inheritance, which referred to the transfer of properties. Male primogeniture is indigenous customary practice, but it is currently being negatively regulated through statutory legislation and judicial pronouncements. Hence, the need for the examination of the practical problems associated with the abolishment of the principle of male primogeniture due to the use of western values to interpret customary law of succession. The paper emphasizes that even though legislation is necessary for regulating customary law, it should be done in line with the constitutional values with the aim for customary law to be more accurate and administered properly not to distort customary law.