Khadija Magardie The South African Law Commission has proposed a radi-cal shake-up of customary laws of inheritance to bring them in line with the Bill of Rights. The Draft Bill for the Amendment of the Customary Law of Succession proposes that women, under-age heirs and illegitimate children be allowed to inherit from a relative who died without leaving a will. These groups were previously excluded in terms of the customary law legislation. Although the recommendations are couched in careful terminology like “reform”, “clarification” and “amendment”, the overriding principle is clear – scrap customary laws relating to inheritance and uniformly apply common law. The president of the Congress of Traditional Leaders of South Africa (Contralesa), Nkosi Patekile Holomisa, said his organisation is opposed to any such changes to the status of customary laws. However, he said Contralesa “would be amenable towards considering amendments to current customary law” to better serve the communities for which it was intended. “We reject the idea that our laws should be subjected to so-called common law – an imported white man’s law that has been systematically used to denigrate our traditional systems of law,” Holomisa said. The recent Mthembu v Letsela case, in which the Supreme Court of Appeal ruled that a widow and her daughter had no right to inherit from a late husband, highlighted the conflict between the Constitution and indigenous cultures. The court argued its decision not on the grounds that they were female, but because lobola had not been fully paid, rendering the daughter illegitimate.
The commission has recommended that a single law of succession should be followed, regardless of whether the deceased was married in terms of customary law. If the changes go through, the current common law legislation, the Intestate Succession Act of 1987, will be amended to incorporate marriages previously excluded in terms of the 1927 Black Administration Act. The customary law rule of succession, which will be effectively nullified, revolves around the rule of male primogeniture – effectively barring anyone but the most senior male heir from inheriting. Furthermore, only mature adults are allowed to inherit – the rationale being that only adults are capable of realising the deceased’s duty to maintain the family. Customary law bars women from inheriting. The rule has escaped constitutional scrutiny because of the legislated duty of heirs to maintain the deceased’s dependents. Despite this provision, widows and children frequently face neglect, eviction and destitution.
If customary marriages fall within the ambit of common law, the economic position of women, in particular, will be bolstered – if one considers that up to two thirds of South African households have women as the sole breadwinners.
South Africa is the only country in Africa where the customary law of the family is included in the Bill of Rights, and thus constitutionally protected. But while the Constitution requires respect for African legal heritage, it also expressly stipulates that customary law complies with constitutional guarantees against discrimination.
The commission has stated that it is “obviously reluctant to repeal laws that have been deeply imbedded in South Africa’s cultural tradition”, but adds that “any rules in the customary law of succession that seem to discriminate on grounds of age, sex, or gender must undergo constitutional scrutiny”.
This is not the first time attempts have been made to reform customary laws of inheritance. The draft Bill’s predecessor, The Customary Law of Succession Amendment Bill of 1998, was squashed in its infancy by traditional leaders who accused the commission of lack of consultation. In particular, they warned against any attempt to “Westernise” the customary law of succession.
Arguing that laws of succession are inextricably linked with the African concept of family and kinship, the majority of houses from Contralesa declared themselves “fundamentally opposed to the Eurocentric approach which is prevalent in [our] country”.