LECTURE 7

SUCCESSION & INHERITANCE UNDER CUSTOMARY LAWS

 SPOT TEST: GROUP 1 9 APRIL
2024
1. The RCMA prohibits parties married in terms of customary 7. Before the Gumede v President, section 6 of the
law to convert their marriage in terms of common law? RCMA excluded women married before the RCMA to
2. Customary law requires a lobolo agreement to be negotiated have equal capacity to acquire and dispose assets
by the bride’s father. X was married to Y in 2009. Y’s mother, during and after the divorce of a customary marriage?
instead of her father negotiated and received lobolo with
regard to her daughter’s marriage. According to the case of
8. In June 2001, John and Mary were married under
Mabena v Letsealo, this marriage is void? customary law. In January 2002, they converted their
marriage to a civil marriage. In terms of the RCMA,
3. The RCMA provides that the marriage must be negotiated and
entered into in accordance with customary law?
the effect of the civil marriage to the customary
marriage contracted in June 2001 is that the existing
4. Polygyny is one of the consequences of a valid customary
customary marriage is presumably also valid because
marriage that is also recognised under RCMA?
customary marriages are fully recognised?
5. The RCMA has changed the rules regarding marriages
9. Section 11 (3) of the Black Administration Act 1927
between cousins.
provided that a woman in customary law had full
6. Section 4 of the RCMA regulates the matrimonial property contractual capacity and locus standi?
system of a customary marriage.
10. According to the RCMA, monogamous customary
marriages concluded after 15 November 2000 are
automatically out of community of property?
 OBJECTIVES
 Distinction between Customary laws of succession & Common
Law
 Customary rules of succession:
• General principles of succession
• General order of succession

• Customary Law of Inheritance

• General rules
• Division of general and house property

• Division of personal property

• Judicial and statutory developments

 POSSIBLE TEST/EXAM Q

• What has been the impact of the Constitution on the institution of

succession and inheritance under Customary Law? In your answer
discuss:
• the general principles with regard to succession which were observed under
Customary Law before the Constitution;
• the changes which were brought by the advent of the constitution on the
customary laws of succession;
• relevant legislation;
• relevant case law; and
• Lastly, give your own opinion on the future of customary rules of succession in
South Africa.

(20 marks)
DISCUSSION Q

• Explain the three (3) main differences between

common law of succession and customary law
of succession?
 INTRODUCTION

What is law of succession?

• The law of succession includes those rules that
determine what must be done with the deceased
property or estate after his death
• Terms succession and inheritance are used in the
literature to describe the process by which a deceased
estate must be distributed amongst his heirs
• The SA law of succession consists of two branches,
• the common law and
• the customary law
 COMMON LAW
•
SUCCESSION
• mainly the division of the assets of a deceased among
his heir/beneficiaries
• Inheritance means transfer of property rights only
• Liabilities of the deceased are first set off against the
assets
• The balance is divided amongst his beneficiaries
• Should liabilities exceed the assets, the beneficiaries
inherit nothing
• There is no succession to the status of the deceased
• This division of property can take place in terms of:
• the provisions of a will (testate inheritance)
• or according to rules of common law where no will
exists (intestate inheritance)
CUSTOMARY LAW OF SUCCESSION
• generally intestate, governed by rules of customary law
• Not merely concerned with the inheritance of property
• but with succession to the status of the deceased
• succession means transfer of rights, duties, powers and
privileges normally associated with one’s status.
• The emphasis is not on division of property, but on the
continuation of status position.
• The successor steps in the shoes of the deceased and
gains control over the property and people over which
the deceased had control.
• Successor also succeeds to the liabilities of the deceased
• Should liabilities exceed the assets, the successor
succeeds to these as well
 CUSTOMARY CONT.
• Under customary law of succession, death of a family head had significant effect on the control
of property and members of the family group

• There may be one deceased but several successors

• Family head was succeeded by the general successor but
at the same time there was also succession to the
position of head of his various houses
• A distinction was thus made between general and special
successors in each house
• NB: Death of the family head brings in the division of
family (general) and house property
• Death of other members had no effect on control of the family group and its property

• There was thus no question of succession in status to

their position on their death
• NB: Death of other members brings in the division of
personal property
LAW OF SUCCESSION: GENERAL PRINCIPLES

• Succession to status only takes place only when family head

dies
• Distinction between general succession and special succession
• Succession to status is limited to males, and as a general
principle a man cannot be succeeded by woman
• Succession follows the rule of male primogeniture, which
means that a man is succeeded by his first born son in a
particular house
• Succession is duty that cannot be ceded/ give up
• Male descendants enjoy preference over male ascendants
• A successor could, on good grounds, be removed from the line
of succession
• Universal succession
 GENERAL ORDER OF
SUCCESSION
• The order takes account of three
general principles:
• Succession on death of family head
• Male primogeniture
• Succession of males in the male line
of descent
• Succession in monogamous and
polygynous are distinguished
 SUCCESSION IN A
MONOGAMOUS MARRIAGE
• The heir is the eldest son, then his eldest son, etc.
• If the eldest son dies without a descendant, then the second
son or his descendant will succeed
• If family head dies without male issue, then his father
succeeds him,
• then eldest brother or his eldest brother’s descendants
• In default of any of the above, then the grandfather to the
family head
• Sometimes, the deceased great-grandfather is also
considered
• If no male descendant to succeed, then the traditional
authority succeed.
SUCCESSION IN A
POLYGYNOUS
HOUSEHOLD

• In simple polygyny, the eldest son in each

house succeeds in that particular house, then
his eldest son.
• If no son in the first house, then second house
• In complex polygyny, successor is first sought
from the first section and its affiliated house,
then right hand section and its affiliated house
 ORDER OF SUCCESSION
AMONG MALE CHILDREN
• Legitimate son procreated by the deceased himself
• A married man’s illegitimate son with unmarried or divorced woman
for whom isondlo has been paid
• Sons born out of ukungena relationships
• Adopted children or children born out of adulterous relationships with
his wife (NB Zulus and Swazis do not recognise adoption)
• Sons of a wife of a deceased who are not born out of ukungena
relations
• A premarital son born of unmarried woman. This is succession
through a woman and such a son can only succeed if the deceased
has no son
 GENERAL AND SPECIAL
SUCCESSION
• General succession is concerned with control over household and property of
the general estate
• Special succession is concerned with control over the constituent houses of
household and house property
• The successor to the main house is in most cases the general successor
• In the complex polygyny, the successor to the main house of the main
section (indlunkulu, among the Nguni groups) is the general successor
• There may be one deceased but several successors
• Each house successor succeeds to all the powers of the deceased in respect
of the members and property of the house
• But this control is exercised in consultation with adult members of the house
 POWERS AND DUTIES OF THE
SUCCESSOR
• Succession under CL was usually of a universal nature
• Meaning that the successor acquired benefits and duties
• General successor
• liable for debts of the deceased and also responsible to collect outstanding debts
• Liable for delicts of the deceased which is limited to actions instituted before his
death
• Or where deceased accepted liability during his lifetime
• NB: In Kwazulu-Natal, the general successor only liable to debts equivalent to
the assets
• Outside KZN successor liable to debts exceeding assets
• Special succession
• Each house successor acquire some degree of autonomy over the affairs of that
house.
• Duties include care and support of members of the house
 INHERITANCE
• When dealing with inheritance under CL,
• An assumption is mostly made that only a few males
acquired control over property to the exclusion of other
males and female members of the family
• To understand property that was inherited under CL, a
distinction between general (family property), house and
personal property is important
• Family (general) and house property were not usually
divided after the death of family head
• The formal division of property usually takes place
during a ritual signifying the end of the mourning period
 DISPOSITION OF PROPERTY:
GENERAL
• One of the general principles of succession under CL is that
succession (applicable to inheritance as well) only occurs on
the death of the family head
• In addition, order of succession followed clear general
principles as discussed
• Despite these principles, a FH could, during his life time make
certain allocations from the general property which would
remain valid after his death
 CONT.

• What are the different ways in which a FH could allocate property? These include:
• Allocation of property to a specific house or son
• Linking daughters to sons in a house as means of providing for the marriage
goods of these sons (mainly found among the Sotho groups)
• NB: These two methods of allocation are done in consultation with the wider family group

• In addition, FH and also other members of the family group can dispose of their
personal property by means of customary will
• This must be done in a formal manner in the presence of senior members of the family, also the
general successor and other children
• Among other people who should be present are a senior brother or sometimes a sister

• Another method of disposing property is deathbed wish of the person.

• Obviously certain people must be present.
• The wish is not often disputed provided it follows the general principles of inheritance
 DIVISION OF GENERAL
PROPERTY
• There is an assumption that family (general) and house property
are not divided,
• Such property is inherited by general and special (house)
successors respectively
• The following principles applied with regard to general property:
• General property was to be used during the life time of the
deceased for the benefit of all other members of the household
• This principle applies after the death of the family head
• After his death, such property is to be used to settle any debts
and maintain wife and dependent children of the deceased
 DIVISION OF HOUSE PROPERTY

• The following principles applied with regard to house property:

• This property is used to maintain wife and children after the FH
death
• The house successor may sometimes divide the estate among
his brothers and sisters after his mother’s death
• It is also customary for the younger son (brother) to receive the
house and its contents, as well as any fields for cultivation
which is called ‘ultimogeniture
DIVISION OF PERSONAL
PROPERTY
• Principles of division of PP varies among
various African speaking groups
• Among the Bafokeng half of property go to
deceased maternal uncle and the rest divided
among close relatives
• Personal property of the unmarried woman
reverts back to their parents and often divided
among their children
• Personal property of married woman is divided
among her children, especially daughters and
her sisters
REVISION Q

• According to customary rules of

inheritance, what are three (3)
different ways in which a FH could
dispose of property ?
(3 marks).
 STATUTORY & JUDICIAL
AMENDMENTS
The focus will be on:
• S 23 of the BAA 38 of 1927
• Regulations for the Administration and Distribution of Estates of Deceased Blacks
(Government Notice R200 of 1987)
• The Codes of Zulu Law, proclamation R151 of 1987and 16 of 1985.
• Land Regulations (self study)
• Mthembu v Lestela 1997 (2)SA936 (T)
• Bhe v Magistrate, Khayelitsha et al , 2005 (1) BCLR 1 (CC)
• Moseneke v The Master 2001 (2) SA 18 (CC)
• Zondi v President of the Republic of South Africa 2000 (2) SA 49 (N)
• Reform of Customary Law of Succession and Regulations of Related Matters Act 11 of 2009
• Bhe case
• Burial rights (self-study)
• Serole v Pienaar 2000 (1) SA 328 (LCC)
• Sokani v Sokani [2008] JOL 22085(Ck)
•
RECAP & DEVELOPMENTS

 As it was noted, the 2 basic principles of

succession in customary law are:
• male primogeniture (that excluded women
from succession and inheritance)
• and universal succession (Heir not only
succeeds to a deceased’s rights but also to his
duties, in particular, the duty to maintain all
surviving defendants)
CONT.

 These rules were entrenched in:

(a) S 23 of the BAA 38 of 1927

(b) Regulations for the Administration and Distribution of
Estates of Deceased Blacks (Government Notice R200
of 1987)
(c) The Codes of Zulu Law, proclamation R151 of 1987
and 16 of 1985.
(d) Inheritance of land (self study)
 Most of these have been amended by the Bhe case
and Reform of Succession Act 2009
 S23 OF BAA
• Commenced on 1 January 1929
• NB: Not applied in Kwa-Zulu Natal because of Codes
of Zulu law
• Section 23 (1) provided that
• ‘all movable property belonging to a Black [African] and
allocated by him or accruing under Black law or custom
to any woman… upon his death devolve and be
administered under Black law and custom’
BAA CONT

• Section 23(7)(a) of the Black Administration Act (section

23(7)) provides:
• “Letters of administration from the Master of the Supreme Court shall not be necessary in, nor shall
the Master or any executor appointed by the Master have any powers in connection with, the
administration and distribution of—
• (a) the estate of any Black who has died leaving no valid will”. (Moseneke Case)

• Related to the above, is Regulation 3(1) promulgated under

the Black Administration Act and deals with the
administration of “the estates of deceased blacks”. It reads:
• “All the [designated] property in any estate [of a black person who dies leaving no valid will] . . .
shall be administered under the supervision of the magistrate in whose area of jurisdiction the
deceased ordinarily resided and such magistrate shall give such directions in regard to the
distribution thereof as shall seem to him fit and shall take all steps necessary to ensure that the
provisions of the Act and of these regulations are complied with.” (Moseneke Case)
 BAA CONT.

• What happened in the Moseneke case?

• The court found that section 23(7)(a) and regulation 3(1)
impose differentiation on the grounds of race, ethnic origin
and colour and as such constitute unfair discrimination as
envisaged in terms of section 9 of the constitution
• and the limitation imposed by the relevant legislative
provisions were not reasonable and justifiable in an open and
democratic society based on equality, freedom and dignity
 REGULATIONS FOR THE ADMINISTRATION AND
DISTRIBUTION OF THE ESTATES OF DECEASED
BLACKS (GOVERNMENT NOTICE R200 OF 1987)

• Was issued in terms of the repealed section 23 (10) of the BAA

• It gave legislative recognition to the rule of male primogeniture
• And described how estate of the deceased African blacks was to
devolve if s 23 of BAA was not applicable as provided under
regulation 2
• Among others, regulation 2 provided that if the deceased
concluded only a common law marriage, his or her estate had to
devolve in terms of common law succession
 CONT.

• What happened in Zondi Case?

• In Zondi v President of the RSA, 2000 (2) SA 49 (N) the court
declared regulation 2 to be unconstitutional to the extent that
it distinguishes between partners who are in marriage of ICOP
and OCOP (the cases was not binding on other provinces since
was from Natal Provisional Division)
• However, the Bhe case declared regulation 2 to be
unconstitutional and invalid
 CODES OF ZULU LAW

• Applicable to all African people living in

KwaZulu-Natal
• The Act partly referred to s23 BAA as the
principal Act
• Both codes stand to be repealed by section
53(1) of the KwaZulu-Natal Traditional
Leadership and Governance Act 5 of 2005
which has not yet been published
 INTESTATE SUCCESSION ACT
33

81 OF 1987
 The Intestate Succession Act 81 of 1987 did
not apply to estates that devolve according
to customary law
 Section 1(4) (b) of Act 81 of 1987 provides
that the Act applies only to an estate which
does not devolve by virtue of a will or in
respect of section 23 of BAA does not apply.
BAA CONT

• Section 23 of the BAA was found to be

unconstitutional and invalid by the Bhe
case on 15 October 2004
• What happened in Bhe case?
 THE BHE CASE

• The CL of succession came under constitutional attack in the Bhe case

• In a nutshell, the cases concern the rights of daughters and sisters to a
deceased African male to succeed such a deceased male person.
• In the Bhe matter, the right is asserted by two minor daughters of the
deceased.
• In the Shibi matter, the right is asserted by the sister of the deceased
• Two main issues before the court
• The constitutional validity of section 23 of BAA; and
• The constitutional validity of the principle of male primogeniture in
the context of customary law of succession:
• This rule was challenged on the basis that it discriminates unfairly on
grounds gender, age and birth
• Women do not inherit in customary law
 WHAT WAS THE MAJORITY
JUDGMENT IN THE BHE CASE?
• The court held that:
• Section 23 of the BAA and its Regulations contravenes sections 9 (3) 10
and 28 of the constitution;
• And that the discrimination was not justifiable in terms of section 36 of
the 1996 Constitution;
• The rule of male primogeniture, in its current application to customary
law of succession is unconstitutional and invalid
• Section 23 of the BAA and its Regulations declared unconstitutional
• Section 1(4)(b) of the Intestate Succession Act 81 of 1987 is declared
to be inconsistent with the Constitution and invalid
 WHAT WAS THE MINORITY
JUDGMENT IN THE BHE CASE?
• The minority found that the limitation imposed by entrusting the
responsibilities of a family head to the eldest child is reasonable
and justifiable under section 36(1) of the Constitution.
• And that the rule is not inconsistent with section 9(3) of the
Constitution by reason of discrimination based on age and birth
• Where possible, courts should develop, rather than strike down the
rule of indigenous law
• The rule of primogeniture must be developed so as to bring it in
line with Bill of Rights. This can be achieved by removing the
reference to a male so as to allow an eldest daughter to succeed
to the deceased estate
 WHAT IS THE IMPLICATION OF THE MAJORITY
BHE JUDGMENT ON THE EXISTING CUSTOMARY
LAW OF INTESTATE SUCCESSION?

• The court abolished the customary law of succession as codified

in the BAA and its regulations
• Court ordered that estates that would previously have devolved
according to the customary law of intestate succession must now
devolve according to the rules provided for in the Intestate
Succession Act
• In order to protect spouses involved in polygynous customary
marriages, the court expanded the Intestate Succession Act to all
the spouses and children (irrespective of their gender) of the
deceased
NEXT CLASS: RCLSA 2009

• Over the years, rules of CL of succession have

been subject to judicial and legislative changes
• Some of these changes led to the abolishment
of customary rules of succession to a large
extent
 GROUP 2: SPOT CLASS TEST ON SUCCESSION AND
INHERITANCE- 16 APRIL 2024 6. The majority court in Bhe case declared section
1(4)(b) of the Intestate Succession Act 81 of 1987 to
1. In Bhe case the case was about the rights of the two
be inconsistent with the Constitution and invalid
brothers to an African male to succeed such a
deceased male person.
7. The majority court in Bhe case found that the
limitation imposed by entrusting the responsibilities of
2. Special succession is concerned with control over
a family head to the eldest child is reasonable and
the constituent houses of household and house
justifiable under section 36(1) of the Constitution.
property

8. The majority court in Bhe case held that the rule of

3. Male primogeniture under customary succession
primogeniture must be developed to bring it in line
laws means that a man is succeeded by his first
with Bill of Rights by removing the reference to a
born son in a particular house
male so as to allow an eldest daughter to succeed to
the deceased estate?
4. Universal succession means that the heir only
succeeds to a deceased’s rights and not the duty to
9. The minority court in Bhe case ordered that estates
maintain surviving defendants?
that would previously have devolved according to the
customary law of intestate succession must now
5. The constitutional validity of the principle of male
devolve according to the rules provided for in the
primogeniture in the context of customary law of
Intestate Succession Act?
succession was challenged in the case of Fanti v
Boto?
10. The majority judgment also protects spouses
 SPOT TEST 4- GROUP 1 17 APRIL

1. The rule of male primogeniture means that a 6. Customary succession rules allow sons born out of

man is succeeded by his brothers from the ukungena relationships to succeed their father?

same house? 7. In simple polygyny, each subsequent wife is

subordinate to her predecessor?

2. Under Common law succession, beneficiaries 8. The minority court found that the limitation
inherits both the liabilities and assets left by imposed by entrusting the responsibilities of a family

the deceased person? head to the eldest child is reasonable and justifiable
under section 36(1) of the Constitution?

3. General succession is concerned with control 9. The majority court held that the rule of
primogeniture must be developed to bring it in line
over the house property
with the Bill of Rights by removing the reference to a
male so as to allow an eldest daughter to succeed to
4. The constitutional validity of the principle of
the deceased estate?
male primogeniture in the context of customary
10. The majority judgment in the Bhe case only
law of succession was challenged in the case of
protects spouses involved in monogamous customary
Mayelane v Ngwenyama?
marriages?

5. The Black Administration Act, 1927 was found

to be unconstitutional and invalid by the Bhe
case?