Topic 5 — Customary law of inheritance
Prescribed: Himonga & Nhlapo Ch 10; RCLSA 11 of 2009; Intestate Succession Act 81 of 1987; Bhe. Story arc: a discriminatory official rule → constitutional demolition → a hybrid statutory rebuild.
Inheritance in 60 seconds
Official male primogeniture plus BAA s 23 gave the whole estate to one man. Bhe (CC 2004) struck that down: affected estates devolve under the Intestate Succession Act, backdated to 27 April 1994. The RCLSA (2010) rebuilds the system: wide definitions of descendant and spouse, a spouse takes a child’s portion or R250 000, house property is willable, and the Master settles disputes. The brother who claims “custom” loses.
1. Succession ≠ inheritance
The distinction examiners open with
Succession = taking the deceased's status: stepping into their shoes with rights, duties, maintenance obligations and debts. Inheritance = taking the property. Common law merges both; customary law separates them. Related pair: house heir (property of one house in a polygynous family) vs general/principal heir (status of the deceased overall).
2. The old order: male primogeniture + the BAA
Male primogeniture (official version)
Eldest surviving male relative takes both status and whole estate, excluding wives, daughters and younger children. In polygynous houses, the eldest son of each house succeeds to that house. Living-law scholarship stresses this "rule" was far messier in practice — but it was the version the statutes froze.
BAA s 23 — the three property baskets
| Basket | Rule |
|---|---|
| s 23(1): movables allotted/accruing to a customary wife or house | Devolve under customary law — not willable |
| s 23(2): quitrent location land | Devolves on one male person (tables of succession) — not willable |
| s 23(3): all other property | Willable |
Plus: the type of marriage chose the system (Regulations) — customary/out-of-community/putative/unmarried estates went customary; in-community/antenuptial civil estates went common law. The Minister could redirect an estate to common law where customary devolution would be inequitable. Magistrates, not the Master, administered black estates. Before 2 December 1988, civil marriages of black couples defaulted out of community (BAA s 22); a civil marriage during a customary one "discarded" the customary wife.
3. Judicial demolition
CaseMthembu v Letsela (SCA) — the wrong turn
Upheld primogeniture: no unfair discrimination because the heir must maintain dependants; added that urban application might differ; left reform to the legislature. Three flaws to recite: discriminatory result preserved, rural/urban split, judicial abdication.
CaseMoseneke v Master — administration falls
Race-based estate administration (magistrates for black estates) = unfair discrimination (s 9). Substance untouched — primogeniture survived this case.
CaseBhe v Magistrate, Khayelitsha (CC 2004) — the demolition
Facts: BAA s 23 made the deceased partner's father sole heir; he moved to sell the home of Ms Bhe and her two minor children for funeral costs. Held: s 23 + regulations + the primogeniture rule itself unconstitutional (ss 9, 10, 28; unjustifiable under s 36); ISA s 1(4)(b) exclusion struck down. Replacement: affected estates devolve under the Intestate Succession Act — customary wives and all children (any sex/age) are heirs. Retrospectivity: back to 27 April 1994, except completed bona-fide transfers without notice and completed windings-up (save heir identification).
4. The rebuild: RCLSA 11 of 2009
Scope (s 2)
Commenced 20 September 2010; covers customary-law persons dying intestate after commencement and after 27 April 1994. Core: such estates devolve under the ISA.
Who counts (ss 1–2)
Descendant = ISA meaning plus a child accepted under custom as the deceased's own, plus a surviving seed-raising wife (s 2(2)(b)) and surviving woman-to-woman wife (s 2(2)(c)) — with their children. Spouse = RCMA-recognised customary partner (including valid pre-2000 marriages). Scope note: whether a further customary marriage is valid at all (RCMA s 7(6) first-wife consent — Mayelane) is Topic 4/Test 1 ground; in Test 2 hypos, take validity as given unless the facts dispute it.
Shares (ss 2–3)
Surviving spouse takes a child's portion (estate ÷ [children + spouses + s 2(2) women]) or R250 000, whichever is greater. Estate too small for every minimum? Divide equally (s 3(2)).
House property, testation, disputes (ss 4–7)
s 4: property allotted/accruing to a customary wife's house is hers to will away; general freedom of testation for all (s 4(3)). Tension to flag: s 4 lets her dispose of house property unilaterally, while RCMA s 7(1) vests joint, equal ownership and control in both spouses — s 4 looks more generous than s 7(1) allows.
s 5: the Master resolves status/asset/family-property disputes justly and equitably (magistrate or traditional leader may enquire first). s 6: a leader's official community property is excluded. s 7: the "discarded spouse" (civil marriage contracted 1 January 1929 – 2 December 1988 during a subsisting customary marriage) inherits as if the marriage had been customary. Overlapping civil marriages from 2 December 1988 are void (confirmed by RCMA s 10) and get no s 7 shelter.
5. The critique to close essays with
Ngcobo J's family-home warning + the stewardship point
Partition under the ISA can force sale of the family home to pay out heirs, leaving minors and dependants shelterless with no duty on anyone to house them. Living law treats the "heir" as steward of communal family property, not owner — the RCLSA protects family property only half-heartedly (via s 5 disputes). Argue for amendment; that is your evaluation paragraph.