Law of Succession:

ERF 222
Ms. Kgopotso Maunatlala

Lectures 3 & 4: Chapter 2 Part 1

July 2023
SYLLABUS THEME 2 (CHAPTER 2):
LAW OF INTESTATE SUCCESSION
1. INTRODUCTION

• What happens to the assets of the deceased since he/she died without
expressing his/her wishes regarding his estate?
• How will the estate devolve?
• How will the intestate assets be distributed and to whom will these assets be
distributed?
2. DETERMINATION OF INTESTATE HEIRS
(E) = Deceased
V = Spouse (E)) or permanent life
partner (Bwanya case)
A&B= Children ((A) predeceased)
C&D= Grandchildren
M&P= Parents of (E)
S= Brother/sister
K&L= Grandparents (mother’s side)
G&H = Grandparents (father’s side)
R= Uncle/Aunt
Z= Ex partner of M
T= Half-blood brother/sister
3. DEFINITION OF CONCEPTS: Blood Relations
3.1 Blood relations into the following categories:

3.1.1 Descendants: Those who descend directly from the deceased (e.g. children, grandchildren,

great-grandchildren etc.)

3.1.2 Ascendants/Ancestors: Those ascending or those who came before the deceased. The ancestor/s from

whom the deceased comes (e.g. Parents and grandparents)

3.1.3 Collaterals: Relations who are not a person’s ancestors or descendants but are related to
the

deceased through the same ancestor

• Half blood – Related to (E) through ONE common ancestor

E.g. Half-brothers & Half-sisters

• Full blood – Related to (E) through TWO common ancestors

E.g. Brothers & Sisters

(E.g. Brothers, sisters, nieces, nephews, uncles and aunts)

 4. DEFINITION OF CONCEPTS: Parentela/parental

4.2 Parentela consists of a parental group and its descendants:

4.2.1 First parental: Deceased and spouse including their descendants of the deceased (Rule 1 – 3) Always inherits first
4.2.2 Second parental: Deceased’s parents and their descendants (first line collaterals), excluding E (Rule 4 – 7)
4.2.3 Third parental: Deceased grandparents and their descendants
Blood relations who are closely related in degrees to the deceased (Rule 8)

Why is it important to understand parental groups?

Because S 1(4)(a) stipulates that in the first and second parental, distribution takes place “per stirpes” and “representation”

In the third parental distribution takes place “per capita” distribution (s 1(1)(f))
4. DEFINITION OF CONCEPTS
4.3 Degree of relationship (per capita beneficiaries)
• This will be dealt with in greater detail when we deal with the third parental group or rule 8 as dealt with in section 1(1)(f) of
the Intestate Succession Act
• In this parental group the intestate estate is not divided per stirps or via representation but is divided per capita according
to the principle that the nearest blood inherits the estate
• It is thus important to calculate the degree of relationship properly so as to ensure that the closest blood relative inherits the
estate

4.3.1 Calculation of degrees:

• Ascendants or descendants: count from the deceased (without including him) to the

ascendants (up) or descendants (down)

• Collaterals: count from the testator (without including him) through the common ancestor

to the relation
POINT OF DEPARTURE

(a) Start with dividing estate of (E) in 1st PARENTAL

(b) If there are NO descendants or spouse or permanent life partner of (E) then move to 2 nd
PARENTAL

(c) If there are NO surviving blood relations in 2nd then move to 3rd PARENTAL

NB!! ⸫ Division cannot take place in more than one parental

But
in 3rd and 4th parentals division takes place per capita!
5. CONCEPT OF SPOUSE

• Previous position: narrow interpretation – Survivor of a lawful marriage between one “husband” and one “wife”
• Post Constitutional era – a wider interpretation of spouse is preferred

Currently, the definition of spouse for the purpose of the Intestate Succession Act includes:

A. Survivor of monogamous Muslim marriage – Daniels v Campbell 2004 (5) SA 331 (CC)
• Juliega Daniels married her (now) deceased husband by Muslim rites in 1977. The marriage, which was at all times monogamous, was not
solemnised by a marriage officer appointed in terms of the Marriage Act. The deceased died intestate in 1994.
• Court: the word “spouse” as used in the Intestate Succession Act 81 of 1987, includes the surviving partner to a monogamous
Muslim marriage

B. Survivors in a Polygamous Muslim marriage – Hassam v Jacobs 2009 (5) SA 527 (CC)
• Fatima was married to Ebrahim (the deceased) in accordance with Muslim rites. Ebrahim married a second wife, Mariam, also in
accordance with the Muslim rites, without Fatima’s knowledge or consent. Ebrahim died intestate. His death certificate stated, “never
married”. The executor refused to accept Fatima as a spouse.
• Fatima: relied on the principles of equality in the Constitution and questioned whether the exclusion did not amount to unfair discrimination.
• Court: exclusion of widow in polygamous Muslim marriage is unconstitutional – unfair discrimination
5. CONCEPT OF SPOUSE
C. Monogamous Hindu marriage – Govender v Ragavayah 2009 (3) SA 178 (D)
• Saloshinie and the deceased were married on 22 August 2004 in accordance with Hindu rites (ceremony and traditions of the Hindu
religion). Marriage not registered. The deceased died intestate on 1 January 2007. Executor refuses to accept Saloshinie as “spouse”
• Court: Even though the marriage is invalid, Saloshinie is still a “spouse” for purposes of intestate succession

D. Partner in a permanent same-sex life partnership relationship in which the partners have undertaken reciprocal duties of support –

Gory v Kolver 2007 (4) SA 97 (CC)

The Court held that the Intestate Succession Act was to be read as though the following words appear after the word ‘spouse’ whenever it
appears in the section: ‘or a partner in a permanent same-sex life partnership in which the partners have undertaken reciprocal duties of
support’.
But Not: Persons of the opposite sex who lived together who do not wish to formalise their relationship in the recognised
ways

I.e. permanent life partners – Volks v Robinson 2005 (BCLR 446 (CC)
5. CONCEPT OF SPOUSE
E. Partner in a permanent heterosexual life partnership relationship in which the partners have undertaken
reciprocal duties of support – Laubscher N.O. v Duplan and Another 2017 (2) SA 264 (CC)
• Mr Duplan had lived in a same-sex permanent partnership with the deceased from 2003 until the deceased
passed away in 2015. They had undertaken reciprocal duties of support. However, Mr Duplan and the deceased
never solemnised and registered their same-sex permanent partnership under the Civil Union Act. The deceased
passed away without leaving a will.
• The majority judgment: found that the enactment of the Civil Union Act did not have the effect of specifically
amending section 1(1) of the Intestate Succession Act – new category of beneficiaries = same-sex partners who
had entered into registered civil unions.
• As a result, the Court’s earlier inclusion of permanent same-sex partners within the definition of “spouse” was
still operative. The majority assessed this Court’s earlier decision in Volks NO v Robinson(Volks), where an
opposite-sex permanent partner was refused the right to claim for maintenance from the intestate estate of her
deceased partner.
5. CONCEPT OF SPOUSE

• In finding that the right to claim maintenance and the right to form an intestate estate each warranted different
considerations, the majority held that the facts did not call for a reconsideration of Volks because the legal mechanism was
distinguishable.
• The majority found that overturning Volks would not offer relief to the same-sex permanent partners in the case before it,
nor would it afford opposite-sex partners the right to inherit intestate –therefore it was an immaterial consideration. The
majority noted that an inequality may exist, in that heterosexual partners currently do not benefit under the Intestate
Succession Act, but held that it was for the Legislature to decide whether to afford heterosexual partners the same rights or
to limit the rights of same-sex permanent partners under the Intestate Succession Act.
• The appeal was dismissed

• Since Civil Union Act a “surviving spouse” who was in a civil union with a deceased person, whether of the same, opposite or
other sex, whether in the form of a marriage or civil partnership-considered a “spouse” for intestate succession
5. CONCEPT OF SPOUSE

E. Partner in a permanent heterosexual life partnership relationship in which the partners have undertaken reciprocal
duties of support – Bwanya v Master of the High Court, Cape Town and Others (20357/18) [2020] ZAWCHC 111; 2020 (12)
BCLR 1446 (WCC); 2021 (1) SA 138 (WCC) (28 September 2020)

• The applicant and the deceased were living together in a permanent opposite-sex relationship for over two years before the
deceased's death.

• The two had a very traditional arrangement pertaining to the management of their household, whereby they had undertaken
reciprocal duties of support, with the deceased providing financial support and the applicant providing love, care, emotional
support and companionship.

• They were committed to marrying each other and would have been so married, had it not been for the practical challenges
regarding the negotiation and payment of lobolo to the applicant's family in Zimbabwe. The deceased passed away
unexpectedly in 2016 before he and the Applicant could travel to Zimbabwe to finalise the lobolo arrangements with the
applicant's family after which they would have been married.
5. CONCEPT OF SPOUSE: Bwanya case

•
The CC declared that:

• The Applicant and the deceased were, at the time of the deceased's death, partners in a permanent opposite-sex life
partnership, with the same or similar characteristics as a marriage, in which they had undertaken reciprocal duties of support;

• Section 1(1) of the Intestate Succession Act is unconstitutional and invalid insofar as it excludes the surviving life partner in a
permanent opposite-sex life partnership from inheriting in terms of this Act;

• the omission in section 1(1) of the Intestate Succession Act of the words “or a partner in a permanent opposite-sex life
partnership in which the partners had undertaken reciprocal duties of support, after the words “spouse”, wherever it appears in
the section, is unconstitutional and invalid;

• the Intestate Succession Act is to be read as though the following words appear after the word spouse, wherever it
appears in the section -” or a partner in a permanent opposite-sex life partnership in which the partners had
undertaken reciprocal duties of support.
6. CONCEPT OF SPOUSE: RCLA, ACT 11 OF 2009

Bhe v Magistrate, Khayelitsha

• Spouse includes surviving partners in a customary polygamous marriage
• The CC declared section 23 of the Black Administration Act and the regulations thereto unconstitutional and held that
section 23, the regulations and the rule of male primogeniture amounted to unfair discrimination in terms of section 9(3) of
the Constitution.

• The Court held that the principle of male primogeniture, which favoured certain legitimate male heirs over women, certain
male heirs and extra-marital male heirs, violated the right of women to human dignity as guaranteed in section 10 of the
Constitution because it implied that women were not fit or competent to own and administer property.
• Extended application of the Intestate Succession Act to the customary law of intestate succession, resultantly
leading to the promulgation of the RCLSA.
6. CONCEPT OF SPOUSE: RCLA, ACT 11 OF 2009

• The BAA was repealed and RCLSA was promulgated and it must be read and applied together with the ISA.
• Also read: Ramuhovhi v President of the Republic of South Africa 2018 (2) SA 1 (CC) (not for assessment purposes)

• Section 3(1) of RCLSA – Interpretation of spouse for ISA: any reference in section 1 of the Intestate Succession Act to a
spouse who survived the deceased must be construed as including every spouse and every woman referred to in sections
(2)(2) (b) (substituted marriage) and (c) (woman-to-woman marriage).

•
8. CONCLUSION
• Familiarise yourself with the concepts discussed above and ensure that you understand them well enough to identify
when they are used in different scenarios.
• Also, ensure that you understand and are able to apply the concepts in given in a given set of facts

• Next week we will deal with the applicable intestate succession laws.

• Prepare: Section 1(1)(a) and 1(1)(b) of the ISA for next week