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Customary law can pose problems for widows

‘I am not the first that this has happened to. Which is why I am fired up and encouraged by the spirits of all the widows who have been marginalised by patriarchal in-laws in moments of grief and stripped of their dignity and the very basic need to grieve.”

These were the words of Lerato S, who, in a recent urgent court application, was recognised as customary wife to Jabulani T. The judge found that Jabulani and Lerato had entered into a customary marriage, despite the husband’s family disputing this. The court ordered the family to return all of Jabulani’s documents, hard drives and the keys to his home to Lerato.

This case reminds us of the plight of many women (and children) who can be denied inheritance rights, particularly when the existence of a customary marriage is denied by in-laws after death or divorce.

In these cases, the woman who claims to have been married to the deceased must prove that a customary marriage existed before the distribution of the estate can be addressed.

Once a customary marriage is proved to have existed, the widow and children are legitimate heirs under the reformed customary laws of succession (the Constitutional Court decision in Bhe vs Magistrate, 2004 and the Reform of Customary Law of Succession Act, 2010).

Research conducted by the authors relating to such matters found that practices on the ground did not always comply with the Act. In cases when the new laws of succession were flouted, widows’ legitimate control of inherited property was often contested by members of the deceased husbands’ families.

“My husband died in 2007,” one of the widows interviewed said. “I have four children with my husband. After his death, I did not know what to do in order to claim his inheritance money. When my husband’s brother heard that I would be receiving money from his brother’s estate, he demanded that he also receive a share.

“My husband’s family became hostile towards me because of the inheritance issue; they are angry that I have power over my late husband’s money. We are constantly fighting with the deceased’s brothers and family.

“Even yesterday, we were having an argument about my husband’s second house … My brother in-law has reregistered the house under my mother in-law’s name. When I heard about the reregistration of the house, I was very upset because, if my mother-in-law should die, her children would claim the house as their inheritance. At the moment there is nothing I can do about the title deed; the process is irreversible. My brother-in-law wanted half of the R200 000 I received from my husband’s estate. I told him that I have children that I need to look after.”

There are different reasons widows can be disinherited. As the authors outline in the South African Child Gauge 2018, the concept of family property can be used to exclude women and their children from inheritance. In these cases, the estate is not inherited but given to a family member as a custodian for the rest of the family.

The custodian of the property, the “heir”, has a customary obligation to keep the property for the extended family of the deceased. But in practice the women, as daughters or sisters, and their children are often left without support.

The exclusion of widows from inheritance also arose in cases where there was a belief that a widow could not inherit in her own right because her role was perceived as that of guardian of the children’s interests. Thus, although the mother is placed in a position of power and control over the estate, she herself has no recognised interest in the estate.

Children can also lose out on inheritance whether they are born in marriage or out of it. Given the low rates of marriage and the ways in which the validity of a customary marriage can be questioned, the number of extramarital children who are denied access to their deceased father’s property is a deep concern. The right of extramarital children to inherit is often questioned and must be negotiated with the deceased’s family members.

Another participant in the study said: “There was a son from outside the marriage. When his father died, he came to claim his father’s inheritance from his stepmother. That caused a quarrel because, although some members of the deceased’s family wanted the extramarital child to succeed, others were saying he was not a child of the marriage and that only the child of the marriage could be head of the house. The matter ended with them sharing the inheritance with the child from outside the marriage.”

Before the new law, customary law discriminated against children’s inheritance rights on the basis of their birth order, sex and status as marital or extramarital children. In the authors’ study, the participants supported the inheritance rights of children, without discrimination on these grounds.

Half of those spoken to were in favour of all children inheriting from the deceased parent (specifically, the father) regardless of the children’s age, sex or birth status. 

But some (both men and women) suggested there should be some conditions to the inheritance right of extramarital children, including: the father should have agreed with his surviving wife that the child would inherit; the child must have been recognised or acknowledged by the deceased man and surviving wife as a child of the family; the young child must have lived with the father and his surviving wife in their home until the death of the father; the father must have paid damages for the child before he died; the child should get a smaller share of the estate than the marital children; and the child should inherit at the discretion of the widow.

This shows that many participants still drew a distinction between marital and extramarital children. Their rationale was to protect widows from being surprised by claims of inheritance by extramarital children whose existence her husband had concealed, although some of the qualifications could limit the right of a child whose paternity was not in dispute.

Despite the new laws of succession, practices under customary law could still deny inheritance rights to some legitimate heirs, particularly widows and extramarital children. The non-registration of customary marriages and the lack of information about the new laws and procedures undermine the fair administration of an estate. Lerato’s court case has highlighted an important matter that affects many women and children in South Africa.

Elena Moore is in the University of Cape Town’s sociology department and is the director of the Families and Societies Research Unit at the Centre for Social Science Research as well as the National Research Foundation’s acting chair in customary law, human rights and indigenous values. Chuma Himonga is the dean of law at the University of Zambia and professor emeritus of private law at UCT

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