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REPORT ON THE CUSTOMARY LAW OF SUCCESSION

REPORT ON THE CUSTOMARY LAW OF SUCCESSIONREPORT ON THE CUSTOMARY LAW OF SUCCESSIONREPORT ON THE CUSTOMARY LAW OF SUCCESSIONS outh african Law Reform commission : Project 90 CUSTOMARY Law of SuccessionReport: April 2004iiCustomary Law of SuccessionTO MRS BS MABANDLA, MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENTI am honoured to submit to you in terms of section 7(1) of the south african Law Reform commission Act 1973 (Act 19 of 1973), for your consideration the commission s REPORT on the CUSTOMARY Law of Justice Y Mokgoro Chairperson: south african Law Reform CommissionApril 2004iiiSouth african Law Reform CommissionSOUTH african LAW REFORM commission The south african Law Reform commission was established by the south african Law Reform commission Act 19 of 1973. The members of the commission were The Honourable Madam Justice Y Mokgoro (Chairperson) The Honourable Ms Justice L Mailula (Vice-Chairperson) Professor IP Maithufi (Full-time member) The Honourable Mr Justice CT Howie Adv JJ Gauntlett SC Professor CE Hoexter The Honourable Mr Justice W Seriti Ms Z Seedat The Secretary is Mr MF Palumbo.

The South African Law Reform Commission was established by the South African Law Reform Commission Act 19 of 1973. ... 1.4 The Discussion Paper and responses to it 3 1.5 Written comments: an overview 6 1.6 The consultation process: an overview 7 1.7 Conclusion 9

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Transcription of REPORT ON THE CUSTOMARY LAW OF SUCCESSION

1 REPORT ON THE CUSTOMARY LAW OF SUCCESSIONREPORT ON THE CUSTOMARY LAW OF SUCCESSIONREPORT ON THE CUSTOMARY LAW OF SUCCESSIONS outh african Law Reform commission : Project 90 CUSTOMARY Law of SuccessionReport: April 2004iiCustomary Law of SuccessionTO MRS BS MABANDLA, MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENTI am honoured to submit to you in terms of section 7(1) of the south african Law Reform commission Act 1973 (Act 19 of 1973), for your consideration the commission s REPORT on the CUSTOMARY Law of Justice Y Mokgoro Chairperson: south african Law Reform CommissionApril 2004iiiSouth african Law Reform CommissionSOUTH african LAW REFORM commission The south african Law Reform commission was established by the south african Law Reform commission Act 19 of 1973. The members of the commission were The Honourable Madam Justice Y Mokgoro (Chairperson) The Honourable Ms Justice L Mailula (Vice-Chairperson) Professor IP Maithufi (Full-time member) The Honourable Mr Justice CT Howie Adv JJ Gauntlett SC Professor CE Hoexter The Honourable Mr Justice W Seriti Ms Z Seedat The Secretary is Mr MF Palumbo.

2 The commission s offices are situated on the 12th floor, Middestad Centre, corner of Andries and Schoeman Streets, Pretoria (formerly the Sanlam Centre). Correspondence should be addressed to:The Secretary south african Law Reform commission Private Bag X668 PRETORIA 0001 Telephone: (012) 392-9540 Fax: (012) 320-0936E-mail: project leader responsible for this project was Professor IP Maithufi. The members of the Project Committee for this investigation were: Professor T W Bennett (University of Cape Town) Ms LG Baqwa (Attorney) (resigned) Professor CRM Dlamini (Department of Education: KwaZulu-Natal) Professor C Himonga (University of Cape Town) Professor RB Mqeke (Dean of Law, Rhodes University) Ms L Mbatha (Center for Applied Legal Studies, University of the Witwatersrand) Mr PR Mawila (University of Venda) The Honourable Madam Justice JY Mokgoro ( commission s representative) Professor S Rugege (University of the Western Cape) Ms MJ Mashao ( commission on Gender Equality) Professor JC Bekker (University of Pretoria)The researcher allocated to this project who may be contacted for further information is Ms GMB Law of SuccessionContentsSOUTH african LAW REFORM commission (iii)CONTENTS (iv)SUMMARY OF RECOMMENDATIONS (vii)BIBLIOGRAPHY (ix)LIST OF CASES (xii)TABLE OF STATUTES (xiii)CHAPTER 1.

3 ORIGIN OF INVESTIGATION AND SOME INTRODUCTORY REMARKS The Issue Paper The CUSTOMARY Law of SUCCESSION Amendment Bill 1995 The investigation revived The discussion Paper and responses to it Written comments: an overview The consultation process: an overview Conclusion 9 CHAPTER 2: THE PURPOSE AND NATURE OF RULES OF CUSTOMARY LAW OF SUCCESSION The purpose Nature of rules of CUSTOMARY law of SUCCESSION CUSTOMARY law of SUCCESSION : the official and living versions Reform of the CUSTOMARY law of SUCCESSION in Africa Conclusion 21 CHAPTER 3: CUSTOMARY LAW OF SUCCESSION AND THE BILL OF RIGHTS CUSTOMARY law, culture and the Bill of Rights Horizontal application of the Bill of Rights, limitation and interpretation Conclusion 31 CHAPTER 4: THE DUAL NATURE OF SUCCESSION Legal dualism and the principle of equal treatment Choice of law rules in south Africa Discarded wives: the problem of dual marriages Conclusion and recommendation 41 CHAPTER 5: LEGISLATION REGULATING THE APPLICATION OF THE CUSTOMARY LAW OF SUCCESSION Introduction The Black Administration Act Sections 79-82 of the Codes of Zulu Law Marriages between Blacks and the Administration and Distribution of Estates (Cape) The Recognition of CUSTOMARY Marriages Act Section 1(4)(b) of the Intestate SUCCESSION Act Conclusion 51 CHAPTER 6.

4 COMMENTS AND RECOMMENDATIONS Any rules of the CUSTOMARY law of SUCCESSION that discriminate unfairly on the grounds of sex, gender, age or birth must be changed Reforming the CUSTOMARY law of SUCCESSION Taking care of the needs of persons subject to CUSTOMARY law A need for a statutory protection of dependants (parents and siblings) The Right to Decide Burial and Funeral Ceremonies Variation of the order of SUCCESSION : disinheritance and distribution of property Related and supporting marital unions The levirate (ukungena) ukuzalela Ukuvusa Ancillary unions entered into by women Children adopted in terms of CUSTOMARY law. Children of a woman with a man other than the husband as premarital progenitor SUCCESSION to traditional leaders Family and house property 61 CHAPTER 7: SUMMARY OF PROPOSED DRAFT BILL Long title 66viCustomary Law of Preamble Definitions: Clause 1 Reform of CUSTOMARY law of SUCCESSION : Clause 2 Disposition of property allotted or accruing to a wife in a CUSTOMARY marriage: Clause 3 Property rights relating to certain CUSTOMARY marriages: Clause 4 Dispute or uncertainty in consequence of the non-specialised nature of CUSTOMARY law: Clause 5 Disposal of property of a traditional leader: Clause 6 Amendment of section 1 of the Intestate SUCCESSION Act: Clause 7 Amendment of the Maintenance of Surviving Spouses Act: Clause 8 Repeal of laws: Clause 9 67 ANNEXURES 69 ANNEXURE A: PROPOSED DRAFT BILL 70 ANNEXURE B.

5 DRAFT BILL AS PROPOSED IN discussion PAPER 93 74 ANNEXURE C: LIST OF BODIES OR PERSONS WHO RESPONDED IN WRITING TO discussion PAPER 93 76 ANNEXURE D: WORKSHOPS SCHEDULE 77 ANNEXURE E: LIST OF PARTICIPANTS IN PROVINCIAL WORKSHOPS 78 ANNEXURE F LIST OF PARTICIPANTS AT THE WORKSHOP HELD AT THE UNIVERSITY OF THE WITWATERSRAND 88 ANNEXURE G: IMBIZOS/MEETINGS 89viiSummary of RecommendationsSummary of RecommendationsA summary of the recommendations contained in this REPORT is given below. In this summary, reference is made to relevant paragraphs of the REPORT where each recommendation is to be found, as well as to the relevant clauses of the proposed draft Reform of the CUSTOMARY Law of SUCCESSION Bill. These recommendations relate to the following issues:1. Any rule of the CUSTOMARY law of SUCCESSION that discriminates unfairly on the grounds of sex, gender, age or birth must be changedThe commission recommends that the CUSTOMARY law rule of male primogeniture that discriminates on the grounds of gender, age or birth must be changed to give the deceased s family members more secure rights.

6 (Paragraph and clause 2 of the draft Bill)2. Reforming the CUSTOMARY law of SUCCESSION It is recommended that all intestate estates of Africans, who were previously excluded from the application of the Intestate SUCCESSION Act of 1987, should devolve in accordance with the proposed Reform of the CUSTOMARY Law of SUCCESSION . (Paragraph and clause 2 of the draft Bill)3. Disposition of property allotted or accruing to a wife in a CUSTOMARY marriageIt is recommended that property allotted or accruing to a woman or her house under CUSTOMARY law by virtue of her CUSTOMARY marriage be protected at the death of such wife in that only her descendants may inherit this property. (Paragraph and clause 3 of the draft Bill)4. Property rights relating to certain CUSTOMARY marriages: discarded wives : the problem of dual marriagesIt is further recommended that the protection afforded by the amended section 22 (7) of the Black Administration Act of 1927 to a widow whose CUSTOMARY marriage was dissolved by the entering into of a civil marriage by her husband with another woman be retained.

7 The discarded widows of such marriages should inherit on par with the civil marriage widows. (Paragraphs and and clause 4 of the draft Bill)5. Taking care of the needs of persons subject to CUSTOMARY law It is recommended that a definition of CUSTOMARY law used in the Recognition of CUSTOMARY Marriages Act 120 of 1998 be used for purposes of reforming the CUSTOMARY law of SUCCESSION . (Paragraph and clause 1 of the draft Bill)In Western societies law emphasises the interests, rights and liberties of individuals. On the contrary, african CUSTOMARY law is general, more concrete and aimed at preserving group interests. In the circumstances it is foreseen that the rigid application of rules of SUCCESSION will not always meet the needs of the persons concerned. In the event of a dispute or uncertainty concerning the distribution of the intestate estate of a person subject to CUSTOMARY law, it is proposed that an enquiry should be held to determine such dispute.

8 This is an inexpensive enquiry which avoids protracted litigation. (clause 5 of the draft Bill)viiiCustomary Law of Succession6. Related and supporting marital unions It is recommended that the female partners to and children born from related and supporting marital unions be deemed to be the spouses and children of the deceased who was notionally their husband and father . (Paragraph and clause 2(2) of the draft Bill)7. Children adopted in terms of CUSTOMARY lawIt is recommended that children adopted in terms of CUSTOMARY law inherit on the same basis as children adopted in terms of statute. (Paragraphs and and clause 7(2) of the draft Bill)8. SUCCESSION to traditional leadersIt is recommended that SUCCESSION to property acquired or held by a traditional leader in his official capacity be excluded from the operation of the Intestate SUCCESSION Act.

9 (Paragraph and clause 6 of the draft Bill)9. Family and house propertyIt is recommended that the family home and family property should be kept intact in some way. Since it is problematic to create a substantive rule of SUCCESSION which provides that a specific person should inherit family property, it is recommended that the destination of family property be made the subject of an enquiry in appropriate circumstances. The inquirer should have regard to the best interests of the family, and to the equality of the spouses in CUSTOMARY and civil marriages. (Paragraph and clause 5 of the draft Bill)10. Choice of law rulesIt is recommended that the statutory provisions governing the choice of law rules in intestate SUCCESSION be repealed. (Paragraphs , and clause 9 of the draft Bill)11. Amendment of Act 27 of 1990It is recommended that the definition of surviving spouse be amended to include a spouse of a CUSTOMARY marriage.

10 (Clause 8 of the draft Bill)12. Repeal of lawsThe laws which presently regulate the CUSTOMARY law of SUCCESSION , namely the relevant provisions of the Black Administration Act, 1927, and the regulations promulgated thereunder as well as the KwaZulu-Natal Codes, have to be repealed. There would be no reason for their existence Bill proposed by the commission is adopted. (Chapter 5 and clause 6 of the draft Bill)ixBibliographyBibliographyAlbertyn C in the Gender Research Project Bulletin (Centre for Applied Legal Studies) Vol 2/97 Spring, commenting on the judgment in Mthembu v Letsela and Another 1997(2) SA 936 (TPD).Armstrong A and Ncube W K (eds) Women and Law in Southern Africa Zimbabwe Publishing House Harare (1987) Banda R Changing the face of CUSTOMARY law in Zimbabwe: Inheriting trouble? (1997) International Survey of Family Law 525 Bekker JC& De Kock PD Adaptation of the CUSTOMARY law of SUCCESSION to changing needs (1992) 25 CILSA 366 Bekker JC Children and young persons in indigenous law in Robinson JA (ed) The Law of Children and Young Persons in south Africa (1997)Bekker JC Seymour s CUSTOMARY Law in Southern Africa Juta Cape Town (1989)Bennett T W A Sourcebook of african CUSTOMARY Law in Southern Africa Juta Cape Town (1991)Bennett TW The conflict of personal laws: wills and intestate SUCCESSION (1993) 56 THRHR 50 Bennett TW and Pillay A The Natal and KwaZulu Codes.


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