|2008 11 21 'Reforming the Customary Law of Succession'|
The LRC welcomes the new Reform and Customary Law of Succession and Regulation of Related Matters Bill.
The Bill, which targets the discriminatory customs excluding women and younger siblings of first-born males from sharing in their late father’s estate, has also been well received in communities around South Africa.
Traditionally, in accordance with the customary rule of primogeniture, the eldest male inherited all the resources left by his father, leaving his mother, sisters and brothers without any benefits from the estate.
The Bill seeks to address this discrimination particularly in situations where the father did not leave a will. Another aim of the Bill is to bring the customary law of succession in line with the Constitution and to give effect to the judgments of the Constitutional Court in the Bhe and Shibi cases.
In the Bhe case, a domestic worker, Nontupheko Bhe and her partner had been living in Khayelitsha, Cape Town with one of their two daughters. Her partner had obtained a state housing subsidy and bought the property that they were living on, as well as the building materials for a house. However, Ms Bhe’s partner died before the house was built and the court appointed his father as his sole heir, excluding Ms Bhe and their two daughters. When she realised that her father-in-law was going to sell the property, Ms Bhe decided to challenge the move.
In the Shibi case, the problems of Charlotte Shibi, an assistant nurse from Mamelodi near Pretoria, started when her single and childless brother died without leaving a will. With their parents dead, she believed that she would be the one to inherit his estate. However, in accordance with customary law two of her male cousins stepped in. One of them was appointed as representative of the estate. There were complaints about his handling of the estate, and the remaining money in the estate was awarded to his bother, the other cousin, leaving Ms Shibi out once again and forcing her to seek legal advice.
The Women’s Legal Centre in Cape Town and the LRC in Pretoria took up the cases and secured orders in the Cape and Pretoria High Courts to the effect that the laws allowing the eldest male descendant to inherit everything to the exclusion of women, girl children and all other siblings were inconsistent with the Constitution and invalid. Louise du Plessis, an attorney with the LRC at the time said: ‘We challenged the laws because if it wasn’t for their gender they would have inherited’. On appeal, hearing the two cases together, the Constitutional Court agreed.
The highest Court concluded that although the Constitution recognised customary law, it was subject to the Constitution and the values embodied in it. It ruled that the principal of primogeniture violated the Constitution on the grounds of gender equality and human dignity. The Court also struck down section 23 of the Black Administration Act of 1927, section 1(4)(b) of the Intestate Succession Act 81 of 1987 (the Intestate Act) and the Regulations for the Administration and Distribution of the Estates of Deceased Blacks.
Under the reformist legislation, the estates of all individuals subject to customary law will devolve under the law of intestate succession, as regulated by the Intestate Act, unless a will has been left behind. These are the rules that apply to all others in South Africa.
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