CUSTOMARY LAW OF

SUCCESSION
UNIT 3
LAW OF SUCCESSION

 A branch of law dealing with how a person’s estate is to be devolved after his/her death
 SA law of succession is hybrid i.e. it consist of common law and CUL
 The CUL succession deals particularly with the preservation and continuation of the
family name and unity after the death of a person, whereas common law mainly deals
with division of deceased estate.
 A successor in CUL takes over from the deceased and becomes responsible for
maintaining all the people who were under the care of the deceased.
 CUL distinguish between succession and inheritance: Succession deals with transfer of
status and duties, whereas inheritance deals with transfer of property.
RECOGNITION OF CUSTOMARY LAW IN SA

 s211(3) recognizes CUL as part of SA legal system and as source of law applicable in
courts of law
 CUL is defined as customs and practices observed among indigenous African people of
SA which forms part of the culture of those people
 CUL is divided into ‘LIVING’ and ‘OFFICIAL’ customary law
 LCUL is the original CUL as continuously used amongst indigenous people (not written)
 OCUL is codified in form of legislation and court precedents (written)
 Focus here is OCUL
GENERAL PRINCIPLES OF SUCCESSION IN CUL

 Succession takes place after death of the family head (there was no question of succession
so long as family head is alive).
 Distinction was made between general succession and special succession (for polygamous
households)
 Was limited to males only (male primogeniture) until the Bhe case
 Succession duty cannot be relinquished or ceded
 Descendants enjoy preference over ascendants
 Successor could, on good grounds, be removed from line of succession.
TYPES OF PROPERTY IN CUL HOUSEHOLDS

 Family/General property – property controlled and owned by family head for the
benefit of the whole family
 House property – property allotted and belonging to a specific house (often in
polygamous households), which was used to maintain wife and children of a household
e.g house and land on which it is erected, animals, furnisher, fields etc
 Personal property – personal belongings of parties (often spouses) such as gifts.
ORDER OF SUCCESSION IN CUL HOUSEHOLDS
General succession
 Concerned with control over the household
property of the general estate.
 General Successor is usually appointed from
the main house in polygamous households.
 General successor succeeds the place and
duties of family head
Special succession
 Concerned with control over the household
property of specific houses (especially in
polygamous households)
 House successor appointed from the house
and controls household affairs in consultation
with general successor
 House successors succeeds place of family
head in the household only
STATUTORY AND JUDICIAL AMENDMENTS

 Section 23 of the BAA 38 OF 1927 – declared unconstitutional in the Bhe case because of
principle of male primogeniture.
 Regulation of the Administration and Distribution of Estates of Deceased Blacks
(Government Notice R200 of 1987) – regulation 2 declared unconstitutional in Bhe case,
and replaced by application of Intestate Succession Amendment Act (irrespective of race or
gender of a deceased)
 The Codes of Zulu Law – repealed by section 53 (1) of the KZN Traditional Leadership and
Governance Act 5 of 2005
 Land Regulation Proclamations – due to changes in CUL of succession and repeals of most
statutes, land rights and ownership often lead to application of common law of succession
WINDING UP OF ESTATES AND ADMINISTRATION OF ESTATES

 Before December 2000, the Magistrate courts had jurisdiction over intestate estate of
Africans residing in their jurisdictions, whilst the Master had jurisdiction over all other
deceased estates including testate estates of an African
 This position was challenged in Moseneke v The Master of the High Court 2001(2) SA 18
(CC), court held that the differentiation discriminated based on race, ethnic origin and
colour. Therefore, beneficiaries of intestate estate governed by CUL had choice to report
to magistrate or Master.
 However, in Bhe there was further alteration to this position, it was held that all estates of
Africans must now be supervised by the Master like all other estates
REFORM OF CUL SUCCESSION

 Judicial Reform
Bhe case, declared section 23 of BAA and principle of male primogeniture unconstitutional and
invalid.
Its implications resulted in significant changes to the official CUL of succession
The decision in Bhe was interim remedy until legislation was promulgated to regulate CUL
intestate succession. Until then it provided that estates of Black person were to be devolved
according to the Intestate Succession Act
• Legislative Reform
As a result of decision in Bhe, the Reform of Customary Law of Succession and Regulations of
Related Matter Act 11 of 2009 (RCLSA) was enacted
PURPOSE OF THE RCLSA

• To modify the CUL of succession so as to provide for the devolution of certain property in
terms of the law of intestate succession
• To clarify matters relating to the law of succession and the law of property in relation to
property of persons subject to CUL
• To amend certain laws in this regard
• To provide for matters connected with it
IMPORTANT DEFINITIONS FROM RCLSA (s1)

DESCENDANT
as defined in the Intestate Succession Act, but includes:
• Any person who during life time of deceased person was accepted by the deceased according to CUL as
his/her own child
• a woman other than the spouse of the deceased, with whom he had entered into a union in accordance with
CUL for the purpose of providing children for his spouse
• Another woman, in a woman to woman marriage, entered under CUL for the purpose of providing children for
that woman
SPOUSE
as defined in the Intestate Succession Act, but includes
• A spouse in a customary marriage as recognized in the RCMA
HOUSE
Includes the family, property, rights and status which arise out of the customary marriage of a woman.
 APPLICATION OF THE RCLSA
S2

 RCLSA supplements the application of Intestate Succession Act to intestate estates of any person
who is subject to CUL and died after its commencement.
 Intestate estate of any person subject to CUL must devolve according to the Intestate Succession Act
 Exception to application of Intestate Succession Act and therefore application of RCLSA, is where
the deceased is survived by
(a) a spouse and a descendant as defined in the RCLSA
(b) a woman other than the spouse of the deceased, with whom he had entered into a union in
accordance with CUL for the purpose of providing children for his spouse
(c)Another woman, in a woman to woman marriage, entered under CUL for the purpose of
providing children for that woman
QUESTION FOR REFLECTION

 HOW DO WE DETERMINE WHETHER A PERSON LIVES OR IS SUBJECT TO

CUL? (FOR SUCCESSION PURPOSES)
INTERPRETAION OF THE RCLSA(s3)

Section 3 of the Act introduces special rules for interpretation of certain provisions of the
Intestate Succession Act
 Section 3(1) gives wider meaning to section 1 of the Intestate Succession Act with regards
to customary marriage spouses
 Section 3(2) must be added to section 1(1) (c) of the Intestate Succession Act with regards
to equal division of the estate amongst the surviving spouses where the amount fixed by
the minister is not sufficient to provide for each spouse
 Section 3(3) paragraph [f] must be added to section 1(4) of the Intestate Succession Act
when determining a ‘child’s portion’
FREEDOM OF TESTATION(s4)

 Section 2(1) of the Act makes it clear that customary law estate may be devolved in terms
of a will
 Although the RCLSA deals with intestate succession, section 4(1) of the Act introduces
freedom of testation for women living under CUL. This includes women in polygamous
marriages, that they can also dispose of the property allotted to them and their houses by
means of a will.
 Section 4(3) recognizes a person’s freedom to a will concerning his assets.
DESCENDANTS IN RELATION TO WOMEN

 Section 4(2) extends meaning descendants in relation to the will or intestate estate of a
woman to include:
I. Children born to a woman by her husband and another woman, for the purpose of giving
the first mentioned woman children in accordance with customary law.
II. Children born to a woman through woman-to-woman marriage in accordance with
customary law
DISPUTES

 Section 5 of the RCLSA provides that the Master of the High Court shall have jurisdiction
to resolve disputes arising from devolution of family property
 However, customary disputes may be referred to magistrates for inquiry in order to
provide the Master with recommendation.
 When making a determination, both the magistrate and the Master must take into account
the best interest of the family members and equality of spouses.
PROPERTY OF TRADITIONAL LEADERS

Section 6 provides that property held by a

traditional leader in his official capacity is
excluded from his estate
PROPERTY RIGHTS

 Section 7 serves to protect property rights for women in customary marriages entered into
before 2 December 1988 before the Matrimonial Property Act came into force.
 A civil marriages entered into before December 1988, but during subsistence of a
customary marriage does not affect the property rights of the customary spouse.
 The section protects the rights of the ‘discarded wives’ and their children from being
affected by the civil marriages entered into by their husbands and other women
 Section 7(2) affords equal rights in the deceased estate to the spouses and children of both
the civil and customary marriages.
 CASE STUDY

Aka dies intestate and is survived by his 3 wives and 6 children.

 B is his customary wife of 32 years, whom he paid lobolo for in 1986, she cannot give
birth to children.
 C is his civil wife whom he married in community of property in 1989 and they have 2
sons and a daughter from the wife’s previous marriage.
 And lastly D is his wife who was brought in the family in accordance with customary law
in order to provide children for his first wife B who cannot conceive. D bore 3 children
A is also survived by his parents, brothers and sisters.
QUESTION: HOW SHOULD A’s INTESTATE ESTATE BE DEVOLVED?
 CLASS TEST

 BHOMBA the Chief of Wakanda, was a 69 year old male who died in 2015. He is survived by three (3) wives and
seven (7) children. His first wife is BONI, whom he married in 1981 according to customary law and they had five
(5) children together. His second wife is DODO, whom he married in 1992 according to customary law as well, but
then entered into a civil marriage with her in terms of the Marriage Act of 1961 in 1998. He did not have children
with her. His third wife is BUYI, whom he married in 2005 according to customary law and they had two (2)
children together. BHOMBA also used to take care of his late brother’s wife and her children as is required of him
according to custom since he is the head of the clan. He was a successful business man, and owned several
businesses around the country which his wives helped him to run. Bhomba died intestate and his estate has not been
finalized as yet due to conflicts. His family comes to you for legal advice concerning the following aspects:
 Make reference to statutes and case law:
 3.1 His marital status. 10
 3.2 The proprietary consequence of his marriages.10
 3.5 How will his intestate estate be devolved? 10
THANK YOU!