The judicial and legislative reform of the customary law of succession

7 2 1 Customary Law

“Customary law” is defined as meaning the customs and practices traditionally observed among the indigenous African people of South Africa, which form part of the culture of those people. It is only lately that customary law came to be defined in some laws in South Africa. Just as “common law” or “Roman-Dutch law” was never defined by statute, customary law was also not defined. Bekker23 contains a section under the sub-heading “customary law defined” but it is a description of customary law, not a definition.

Some African countries have definitions. Allott24 says about them: “Whether these definitions of customary law contribute anything by way of precision or facilitation of choice of laws is an open question.”

In view of the aforegoing there is a problem that might arise from the customs and practices traditionally observed among the indigenous African people of South Africa. The phrase seems to confine the operation of the law to South African Africans. By implication it excludes persons who are non-Africans and other people of mixed origin who entered into customary marriages. Some were legally married by customary law, because “Blacks” included “any person residing under the same conditions as a Black in a scheduled Black area or a released area”. In terms of the definition in the Black Administration Act,25 somebody who was in fact married by customary law could now on his or her death therefore be regarded as single with the result that a spouse would not reap the benefit of the estate devolving according to the common law of intestate succession. So much more, there has for some time been no longer a prohibition on inter-racial marriages.

One may ask: Who are the indigenous African people of South Africa? According to anthropologists the only true indigenous people of South Africa are the Khoi-San. If in any event African people are meant to be what is presently referred to as Africans or Blacks, what about the Nama and Griquas?

The Government has drafted the National Traditional Affairs Bill, 2011 to recognise Khoi-San communities and their leadership positions in the same manner as existing traditional leaders. The bill takes it for granted that the Khoi-San disposes of customs in principle akin to South African customary law. For instance, in terms of clause 35(1) a Khoi-San council and branch have a variety of functions including:

(a) Administering the affairs of the traditional or Khoi-San community in accordance with custom and tradition.

(b) Performing the functions conferred by customary law, customs and customary law consistent with the constitution.

These questions are not merely academic. When money is in issue, claimants will try to show that the deceased was, or was not, an indigenous person, depending on what is to be gained from either one or the other. We are being consulted on an ongoing basis by persons who want to prove that they were or were not married by customary law - depending on what is to gain from an estate.

We are of the view that intensive research and wide-ranging consultation could produce a less problematic ratio for applying customary law to some across the board.

7 2 2 Traditional Leader

In terms of the definition in section 1 of the Reform Act “traditional leader” means a traditional leader as defined in section 1 of the Traditional Leadership and Governance Framework Act.26 In section 1 of that Act “traditional leader” means any person who, in terms of customary law of the traditional community concerned, holds a traditional leadership position and is recognised in terms of that Act.

Other definitions in the Traditional Leadership Act define the whole range of traditional leaders, namely -

(a) Principal traditional leader;

(b) Regents;

(c) Senior traditional leader;

(d) King or queen;

(e) Headman or headwoman.

The Reform Act does not deal with succession to traditional leadership positions. But section 6 deals with “disposition of property held by traditional leader in an official capacity”, as follows:

Nothing in this Act is to be construed as amending any rule of customary law which regulates the disposal of the property which a traditional leader who has died held in his or her official capacity on behalf of a traditional community referred to in the Traditional Leadership and Governance Framework Act. 27

What the drafters had in mind was probably cases where communities acquired land and had it registered in the name of the traditional leader to be held in trust for the community. The land can obviously not devolve in terms of the Intestate Succession Act.28 It is now required to be disposed of in terms of the rule of customary law which regulates the disposal of such property. The rule is based on male primogeniture. The property would then have to pass on to the first-born son of the deceased chief’s wife, to be held in trust for the community. This was probably not intended. The incongruity, we suggest, should be rectified by statute.

Another matter that is more important is that the Reform Act implies that a traditional leader is just an ordinary person whose property on his death passes to his common law heirs. In our view it is wishful thinking. The succession to the office and inheritance of the property are intertwined. The idea is apparently that when a traditional leader dies his successor in title is recognised by the Premier of the province concerned,29 but his property must be turned into money and distributed among some common law heirs, including his wife or wives in terms of the Reform Act. That is unlikely to happen.

A traditional leader’s family home (homestead, if you wish to call it that) is a socio-political unit. That is where his spouses and children live. It is their home. It has no monetary value. This is the place from where he governs his nation. It would be the meeting place of the elders and the seat of the court. This is no small matter. The definition is so wide that even headmen are traditional leaders. Altogether there are about 1 640 traditional leaders.30

When a traditional leader dies, it is often not obvious who is to succeed him. If, for instance, he dies leaving no male offspring his wife may be engaged in an ukungena relationship to raise an heir. In such event the inheritance to property and succession to office may be in abeyance for many years - at least until the lineage successor reaches adulthood and is formally accepted by the royal council as successor and installed.

At any given time there are dozens of disputes about appointment, removal and settlement of disputes about traditional leaders. In that regard a Commission on Traditional Leadership Disputes and Claims established by sections 21 to 26A of the Traditional Leadership and Governance Framework Act31 is engaged in resolving disputes.

Thus, we submit, the Act is not worth a straw in bringing intestate succession to traditional leaders within its ambit. It will be well-neigh impossible for them to comply.

7 2 3 Descendant

“Descendant” is defined as a descendant in terms of the Intestate Succession Act,32 but who, during the lifetime of the deceased person, was accepted by the deceased person in accordance with customary law as his or her own child.

This is an all-embracing provision. It is necessary to express the situation that Africans have an accommodating view in respect of children. They always “belong” to some or another person or family. The children that the legislature had in mind would include the following:

(a) Children of a spinster - they belong to the house to which their mother belongs at her father’s family home, and so to her father or his heir.

(b) Children of a wife - children born of, or conceived by a wife during the course of her marriage, whether legitimate or adulterine, belong to her house and so to her husband, except those conceived before the marriage. The husband may claim damages for adultery in respect of adulterine children, but that is not a matter of succession.

(c) Children born of a widow (ukungena unions) - the widow of a deceased may enter into an ukungena relationship with one of her husband’s male relatives to raise children. They are legitimate and belong to her house and so to her late husband’s heir. This poses a problem because the husband on whose behalf they were raised is dead. In the light of the unconstitutionality of the rule of primogeniture the deceased customary law heir has no status. Odd though it might seem, the children would be entitled to inherit from their mother and maybe also from their biological father, the ukungena partner. In terms of the Intestate Succession Act33 a child would be entitled to share in his or her biological father’s estate. We have recently made enquiries and were told that these ukungena relationships still occur. One spokesperson added that in his community the widow may choose a consort. This has all along been done among the Xhosa who frown upon the idea of a woman being taken over by the deceased’s brother or any relative; the Xhosa prefer a stranger and if the child is born “on the mat” where the widow used to sleep with the deceased, the child is legitimate and can inherit. 34

(d) Children of a widow - children born of a woman from her extra-marital intercourse whether while staying at her husband’s home or elsewhere, belong to her house. The husband may claim damages for adultery, but that is not an issue of succession.

(e) Adopted children - children may be adopted in terms of customary law either by a man or a woman. Our courts have in several cases confirmed that such adoptions are valid.35 As may be expected in the case of Africans, the two families must be involved and the matter must be reported to the traditional leader.

(f) Seedraisers - to the aforegoing we must add seedraisers. It is quite in accordance with custom36 for a man to marry a seedbearer for either of his two principal wives who, owing to either death or barrenness, produces no heir. Bekker37 summarises these marriages as follows:

In the majority of the Cape Nguni tribes, if the wife of a main house, that is, of the great or right hand house, without having borne a son, has died, or been divorced, or has absconded and refused to return, or if it appears that she is barren, the family head may marry a new wife for the purpose of raising seed to the main house; since it is the special function of this woman to bear a heir for the house, she creates no house of her own, but is merely an auxiliary wife of the house into which she has been placed, and all her children belong to that house as if they were the children of the main wife; if the main wife has died or has been divorced, the seed-raiser takes her place in all respects.

This should pose no problems if these unions are simply regarded as customary marriages. However, the drafters of the Reform Act got their lines crossed. In terms of section 2(2)(b) of the Reform Act:

[a] woman, other than the spouse of the deceased, with whom he had entered into a union in accordance with customary law for the purpose of providing children for his spouse’s house must, if she survives him, be regarded as a descendant of the deceased.

Thus the seedraiser becomes a descendant. But section 3(1) provides that:

For the purposes of this Act, 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 paragraphs (a), (b) and (c) of section 2(2).

Which means that a seedraiser is a descendant as well as a spouse. The anomaly is surely an oversight. The Reform Act has not yet been amended, but heads of offices of the Masters of the High Courts decided at a meeting during November 2010 that they would interpret the contradiction in the provisions of sections 2(2)(b) and (c) and section 3(1) of the Reform Act as follows: “The women referred to in these sections are regarded as spouses of the deceased in terms of section 1 of the Intestate Succession Act but not as his descendants.” This conclusion was reached to ensure that the seed-raising women are placed in the best possible position, which, in this case, is being regarded as a spouse instead as a descendant. Evidently depending on the form of the marriage, a spouse shares in the deceased estate before the residue is divided between the remaining descendants.38 This may be fair, but the Act should surely be amended to make it clear what the legislature had in mind.

There is another anomaly in regard to these seedraising unions and the application of the Intestate Succession Act39 in respect of the childbearers being spouses or descendants. In a seedraising union:

(a) a married man dies (so he is out of the picture);

(b) his widow (a woman past childbearing age) marries another woman after paying lobola;

(c) to provide children for her late husband.

But the late husband is dead and his estate would be finalised by the time this type of union is entered into so the female wife (the childbearer) cannot be said to be his descendant nor spouse for purposes of sharing in his estate.

In section 2(2)(c) of the Reform Act the drafters got their lines entangled. It provides that:

(2) In the application of the Intestate Successions Act -

(c) if the deceased was a woman who was married to another woman under customary law for the purpose of providing children for the deceased’s house, that other woman must, if she survives the deceased, be regarded as a descendant of the deceased.

A description of the nature and occurrence of these marriages is not necessary for present purpose. Suffice it to say that Bennet40 briefly refers to them as follows:

In this type of marriage, an older woman of wealth and status provides lobola in order to acquire a younger woman as her “wife”. The “wife” is expected to have sexual relations with a selected male consort so that she can produce children for the “husband’s” house. Women-to-women marriages were never common, but they were fully recognised by various systems of customary law in South Africa, notably Venda, Lovedu, Pedi, Sotho and Zulu.

Note that they are independent marriages - not extensions of existing marriages.

Bearing that in mind we return to section 2(2)(c) of the Act. It provides that:

(a) a deceased woman;

(b) who was married to another woman under the customary law;

(c) for the purpose of providing children for the deceased’s house

(d) that other woman, if she survives the deceased;

(e) must be regarded as a descendant of the deceased.

There are rare cases of female-female marriage. They are not entered into for the main purpose of providing children for the deceased’s (female husband’s) house. In such cases: “Often such women are traders, political leaders, or religious leaders who seek the social recognition only husbands get”.41

Oomen42 shows that all women-to-women marriages may fall within the ambit of the Recognition of Customary Marriages Act.43 However, she fails to define “marriage”. As pointed out all the ancillary unions are not marriages; only those we call “true” women to women marriage.

One would add that if all these unions were marriages the provisions of the Recognition of Customary Marriages Act44 would apply to them, including patrimonial consequences as well as the rules of succession in terms of the Intestate Succession Act.45 They would furthermore have to be registered.

7 2 4 Disposal of Property Allotted or Accruing to a Woman in a Customary Marriage

In terms of section 4(1) of the Reform Act such property may be disposed of in terms of a will. There has never been any limitation on anybody’s testamentary capacity, except that in terms of section 23(a)(i) of the Black Administration Act46 a family head could not dispose of:

[m]ovable property belonging to him and allotted by him or accruing under customary law to any woman with whom he lived in a customary marriage, or to any house, such property devolves in terms of customary law.

This Act has been repealed.

Moreover, in terms of section 6 of the Recognition of Customary Marriages Act: 47

[a] wife in a customary marriage has, on the basis of equality with her husband and subject to the matrimonial property system governing the marriage, full status and capacity, including the capacity to acquire assets and to dispose of them, to enter into contracts and to litigate, in addition to any rights and powers that she might have at customary law.

Thus there seems to be no reason why an enactment was necessary to enable her to dispose of her own property (assets) by will.

More importantly, it is unlikely that a woman would ever make a will to dispose of property allotted to her or accrued to her under customary law. Except in rare cases the property would be a family home property to be used to fulfil the needs of the inmates.

In terms of section 7(1) and (2) of the Recognition of Customary Marriages Act:48

(1) The proprietary consequences of a customary marriage entered into before the commencement of this Act continue to be governed by customary law.

(2) A customary marriage entered into after the commencement of this Act in which a spouse is not a partner in any other existing customary marriage, is a marriage in community of property and of profit and loss between the spouses, unless such consequences are specifically excluded by the spouses in an antenuptial contract which regulates the matrimonial property system of their marriage.

In Gumede v The President of the Republic of South Africa49 section 7(1) was declared unconstitutional as far as it relates to monogamous customary marriages. All monogamous customary marriages entered into before the Act came into operation are, as from 8 December 2008 (the date of the judgment), in community of property and of profit and loss between the spouses. The court order has no bearing on customary marriages which had been terminated by death or by divorce before the date of the judgment. Section 7(2) was also declared unconstitutional insofar as it distinguishes between a customary marriage entered into before and after the commencement of the Act. The words “entered into after the commencement of the Act” where therefore declared unconstitutional. The patrimonial consequences of monogamous customary marriages entered into before and after the commencement of the Act, are now the same.

All this means that whatever property allotted to or accrued by the wife becomes assets in the joint estate of the marriage in community of property. In fact the woman would have acquired the property by virtue of it being allotted to her by her husband. On the one hand one may speculate whether he, no longer being the general heir and by implication the pater-familias, may distribute (allocate) property. On the other hand all the assets belonging to the spouses prior to the conclusion of the marriage as well as assets subsequently accumulated fall into the joint estate.

This means that a house is a homestead allotted to a woman or something accruing to her, such as an ubulungu beast to be pooled in the joint estate, so that she could dispose of only her share by will. All this will be preposterous in real life situations.

We may emphasise that all monogamous customary marriages, except polygynous marriages entered into after September 2008 when the Gumede judgment came to apply, are in community of property.

Taking all the aforegoing into account we daresay that section 4(1) purporting to allow a woman to dispose of property allotted or accruing to her in a customary marriage is meaningless.