AFRICAN CUSTOMARY LAW

LCL 201

Customary Law of Succession

 Section 1(1)(c)(i) and (ii) of Intestate
Succession Act 81 of 1987
Deceased is survived by spouse(s) and descendant(s)
The general rule is that the surviving spouse inherits WHICHEVER IS THE GREATER of either a
child’s portion/share or an amount of R 250 000 – 00 fixed by the Minister of Justice. A child’s share is
calculated by dividing the value of the estate by the number of descendants plus the surviving spouse(s). The
descendants shall share the residue IF ANY.
A further aspect to consider here is the proprietary regime regulating the marriage between the deceased and
the surviving spouse. This is particularly important because different rules applies to the different
matrimonial regimes. The recognised matrimonial regimes are as follows;
Marriage in community of property;
Marriage out of community of property with the accrual; AND
Marriage out of community of property without the accrual (complete separation).
NB: Our scope didn’t cover Marriage out of community of property with accrual.
 Marriage in community of property
Koketso and Lebohang are married in community of property. Koketso
(husband) dies without leaving a valid will. He is survived by Lebohang
(wife) and 2 kids, Tshego and Tsholo. He left an estate of R100 000.
From this scenario we first divide R100K/2 in terms of the matrimonial
property regime between Koketso and Lebohang.
100 000/2 = 50 000. This means that only R50 000. 00 is available for
distribution.
50 000 (value available for distribution) divide by 3 (descendants plus
wife) equals 16 666. Therefore, the amount of 250 000 is greater than
the 16 666. In essence, Lebohang will inherit the entire R50 000 – 00 in
terms of section 1(1)(c)(i). The kids will get nothing because section
1(1)(c)(ii) provides that the descendants shall share the residue IF ANY.
 Marriage in community of property
However, assume that Koketso had amassed 1.8 million worth of estate at the time of his
death. The capital amount ought to be divided into 2 ito the proprietary regime. Thus
1.8 million/2 = 900 000. Lebohang is entitled to R900 000 – 00 whilst the remaining 900 000 is
what is available for distribution.
900 000 (value available for distribution) divide by 3 (descendants plus wife) equals 300 000. As
this amount is greater than R250 000, Lebohang is entitled to R300 000 in terms of Section
1(1)(c)(i). The remaining amount is R600 000. This is shared equally by the descendants in
terms of Section 1(1)(c)(ii). Tshego and Tsholo shall get R300K each.
Distribution:
Lebohang get R900K in terms of the matrimonial property regime.
Lebohang gets R300K in terms Section 1(1)(c)(i) Intestate Succession Act.
Tshego gets R300K in terms of Section 1(1)(c)(ii) Intestate Succession Act.
Tsholo gets R300K in terms of Section 1(1)(c)(ii) of the Intestate Succession Act.
 Marriage out community of property
Thabo is an African male adult who is married to Mosima in terms of Customary
Law. The couple is married out of community of property without accrual. They
spend most of their time encouraging their four children namely Katlego,
Kabelo, Malesela and Napjadi to work hard in order to have a bright future.
Thabo is a prominent businessman who likes to travel the world with his family.
Lately, his businesses were not doing well and he was always stressed. He decided
to embark on a solo trip to Dyubyai. He believed that a solo trip would afford
him time and space to deal with his business issues. Upon his return, with his
spirit rejuvenated and ready to conquer the world, he started feeling unwell. He
visited a hospital and tested positive monkey pox, which subsequently reunited
him with his maker. He died intestate having amassed an estate worth of R 1 000
000.00 ( One Millions Rand).
Based on the above set of facts, distribute Thabo’s estate accordingly.
 Marriage out community of property
The complete separation of the matrimonial estate mean that there are no special assessment arrangements to be
adhered to before the final distribution. Thabo and Mosima have 4 kids, Mpho, Kabelo, Malesela and Napjadi.
R1 000 000-00 (value available for distribution) divide by 5 (descendants plus wife) equals to R200 000-00.
Therefore, the amount determined by the minister is greater than the child share. This means the surviving spouse is
entitled to an amount determined by the minister which is R250 000.00. This is according to section 1(1)(c)(i).
R1 000 000-00 – R250 000-00 = R 750 000-00.
R750 000-00 is the residue, this amount is to be shared amongst the descendants equally. Therefore, R750 000-
00/4= R187 500.00. This means each descendant will inherit R187 500-00 from the deceased estate in terms of
section 1(1)(c)(ii).
The distribution will be as follows:
Mosima- R250 000-00 in terms of section 1(1)(c)(i) of the Intestate Succession Act.
Katlego- R187 500-00 in terms of section 1(1)(c)(ii) of the Intestate Succession Act.
Kabelo- R187 500-00 in terms of section 1(1)(c)(ii) of the Intestate Succession Act.
Malesela- R 187 500-00 in terms of section 1(1)(c)(ii) of the Intestate Succession Act.
Nepjadi- R187 500-00 in terms of section 1(1)(c)(ii) of the Intestate Succession Act.
 Polygynous marriage out community of
property
Thabo is an African male adult who practice polygynous marriage as recognised
by the Recognition of Customary Marriage Act 120 of 1998. He is married to
Mosima and Mologadi out of community of property without accrual. His wives
spend most of their time encouraging their four children namely Katlego,
Kabelo, Malesela and Napjadi to work hard in order to afford a polgynous
marriage in future. Thabo is a prominent businessman who likes to travel the
world with his family. Lately, his businesses were not doing well and he was
always stressed. He decided to embarked on a solo trip to Ithalhy. He believed
that a solo trip would afford him time and space to deal with his business issue.
Upon his return, with his spirit rejuvenated and ready to conquer the world, he
started feeling unwell. He visited a hospital and tested positive for monkey pox,
which subsequently reunited him with his maker. He died intestate having
amassed an estate worth of R 10 000 000.00 ( Ten Millions Rand).
Based on the above set of facts, distribute Thabo’s estate accordingly.
 Polygynous marriage out community of
property
The complete separation of the matrimonial estate mean that there are no special assessment arrangements to be adhered to before the final
distribution. Each spouse in a polygynous marriage is independent, which means that Mologadi and Mosima will be treated independently and
equally in terms of section 1(1) (c) (i) Therefore;
R10 million/6 (4 descendants plus 2 wives) = R 1 666 666.66 The child’s share is clearly above the threshold of R250 000. As a result, each of the
surviving spouses will get R 1 666 666.67 in terms of the above mentioned section. Therefore;
R 10 000 000.00 – R 1666 666,67 (Mologadi) = R 8 333 333,33
R 8 333 333,33 - R 1666 666,67 (Mosima) = R666 666,66
R666 666,66 is the residue
Since we have a residue, the descendants will equally share on it. This is in terms of section 1(1)(c)(ii)
R666 666,66/4 = R 1666 666,67 which will be given to each descendant.
Distribution
Mosima- R1666 666,67 in terms of 1(1)(c)(i) of the Intestate Succession Act.
Mologadi- R 1666 666,67 in terms of section 1(1)(c)(i) of the Intestate Succession Act.
Katlego- R 1666 666,67 in terms of section 1(1)(c)(ii) of the Intestate Succession Act.
Kabelo- R 1666 666,67 in terms of section 1(1)(c)(ii) of the Intestate Succession Act.
Malesela- R 1666 666,67 in terms of section 1(1)(c)(ii) of the Intestate Succession Act.
Nepjadi- R 1666 666,67 in terms of section 1(1)(c)(ii) of the Intestate Succession Act.