A few comments on the (possible) revival of the customary law rule of male primogeniture: can the common-law principle of freedom of testation come to its rescue?

Authors Christa Rautenbach

ISSN: 1996-2088
Affiliations: Professor, Faculty of Law, North-West University (Potchefstroom Campus)
Source: Acta Juridica, 2014, p. 132 – 159


The customary law rule of male primogeniture has been declared unconstitutional and invalid, and legal sources of the common law of succession have been tailored to provide for the devolution of estates which were formerly regulated by the customary law of succession. Two questions are addressed in this contribution. Firstly, has the legal development over the last few years left us with a unified system of succession or do we still have parallel systems of succession laws which necessitate the application of choice of law rules to determine which system is relevant where a testator was subject to customary law during his lifetime? The evidence seems to suggest that the law of succession remains, at least in theory, a combined system which will require a choice at some time or other, especially when the applicable legal rules must be determined. When one has to deal with public policy issues, the interaction between the common and customary law of succession brings us to the second question, viz. the scope and application of freedom of testation in customary law and, more particularly, the question whether or not a testator living under a system of customary law can revive the rule of male primogeniture by exercising his or her right to freedom of testation. A cursory perusal into this issue reveals that the law as it stands is anything but clear. The application of common-law principles in the customary law of succession and vice versa leads to interesting results and anomalies which will challenge future approaches to the law of succession in general and the customary law of succession in particular.