sexual health and human rights in the african region - The ICHRP

one or more persons who are not Africans where such persons have consented to
the application of African customary law in that case.
The potential of a clause such as section 23 of the Constitution of Zimbabwe to
operate in such a way as to impact negatively on the protection of human rights and
equality in particular through granting immunity to customary law from the reach
of the equality clause of the constitution can be illustrated by the decision of the
Supreme Court of Zimbabwe in Magaya v Magaya.
Magaya v Magaya 1999 (1) ZLR 100 (S)
In this case, the plaintiff, a female, challenged the primogeniture rule under Zimbabwean
African customary law. The plaintiff’s father had died and she sought to inherit
his estate. It was held unanimously by the Supreme Court of Zimbabwe that
because she was a woman, she did not have a right to inherit her father’s
property because the customary law of the group to which she belonged
determined the eldest son as the rightful heir. Section 23(3) of the Constitution
operated to shield customary law from the non-discrimination clause of the
Constitution, and by extension any human rights treaties that Zimbabwe had
ratified but had not specifically incorporated into domestic law with the
intention, inter alia, that they prevail over any inconsistent law.
The approach of the Supreme Court of Zimbabwe in Magaya can be contrasted with the
approach of the South Africa Courts in Bhe v The Magistrate, Khayelitsha and
Others.
Bhe v The Magistrate, Khayelitsha and Others 2005 (1) BCLR 1 (CC),
In this case, the plaintiff, a mother of two daughters, brought an action on behalf
of her daughters to challenge a primogeniture rule that stood against her
daughters inheriting their father’s estate. The primogeniture rule had been
consolidated into a statutory law. 161 She was successful. It was held that the
161 Section 23 of the Black Administration Act No 38 of 1927 and section 1(4)(b) the Intestate Succession
Act No 81 of 1987.
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