Reflection on Bhe v Magistrate Khayelitsha: In Honour of Emeritus Justice Ngcobo of the Constitutional Court of South Africa

Abstract

This article highlights the major areas of convergence between Justice Ngcobo’s judgment and living customary law as revealed in the findings of recent empirical research. Its purpose is to enhance the confidence of the courts and inform their interpretation of the Reform of the Customary Law of Succession and Regulation of Related Matters Act 11 of 2009 by drawing on the minority opinion. Put differently, the article seeks to vindicate the minority opinion in Bhe & Others v Khayelitsha Magistrate & Others with regard to its reflection of the grounded realities of succession under living customary law, using the findings of recent empirical research. In this way, the article highlights the contribution that Justice Ngcobo’s constitutional jurisprudence can make to the interpretation of legislation dealing with the reform of the customary law of succession—subject, of course, to the fact that any precedent has inherently limited value for understanding a dynamic and ever-evolving system of law such as living customary law. Needless to say, the courts must continually be alert to this caveat when interpreting and applying any legislation that deals with customary law.