CH 10 The Customary Law of Succession

Question 1

The customary law of
succession

Answer 1

Testate succession
1) Deceased executed a valid will
2) Indicates how the estate must be shared
3) Must comply with the requirements set in the Wills Act 7 of 1953

Intestate succession
* Deceased did not execute a valid will

Question 2

Succession and inheritance in customary law

Answer 2

1) Successor takes the place of the deceased
2) ‘Steps in the shoes’ of the deceased
3) Becomes responsible for the deceased’s duties and obligations
4) Deceased’s debts must be settled by the successor
5) Successor could also inherit assets

Question 3

Customary law of succession

Answer 3

1) Recognises any allotment during deceased’s lifetime
2) Deathbed wishes also given effect to
3) Preservation and continuation of family name after the death
4) Also concerned with unity
5) Succession not only identifies heirs and beneficiaries

Question 4

Factors of law of succession

Answer 4

1) General/principal heir takes over the family headship
2) House heir inherits property in a particular house
3) Usually, the eldest son in a house of his mother
4) Common law is concerned with the acquisition of the rights to the property of the deceased
5) Customary law succession is concerned with preservation and continuation of the family name

Question 5

Official Traditional Customary law

Answer 5

1) Black Administration Act and the Regulations for the Administration
and Distribution of Estates of Deceased Blacks
2) Entrenched the principle of male primogeniture
3) Principle became official law
4) Eldest male relative succeeded status and estate of the deceased

Question 6

Official Traditional Customary Law Pt 2

Answer 6

5) No differentiation between successor and heir
6) Excluded children, wife or wives and other relatives or dependents
7) Declared unconstitutional in the Bhe v Khayelitsha Magistrate

Question 7

The Black Administration Act 38 of 1927

Answer 7

1) Regulated official customary law of succession for black people
2) Determined consequences of civil marriages of black people
3) In Sec 22(6), civil marriages by black people were OCOP
4) Spouses could declare intention to marry ICOP, a month before their
marriage
5) Could conclude an antenuptial contract

Question 8

Mosoneke v Master of the High Court

Answer 8

1) Declared Sec 23 in terms unconstitutional in regard to male primogeniture
2) Unfair discrimination on the grounds of race, ethnic origin and colour

Question 9

Sec 23(7) of BAA

Answer 9

1) Estate of deceased black people could not be administered by a Master
2) Estates of black people married by civil and customary rites
3) Master had jurisdiction over estates of whites, Indians and coloureds
4) Estates of black people were administered by a magistrate

Question 10

Timeline of concluding a marriage

Answer 10

1) In BAA, husband who is a party to a customary marriage could
conclude a subsequent civil marriage
2) Changed by the Marriage and Matrimonial Property Law Amendment
Act 3 of 1988 in 1988
3) Civil marriage was regarded as a customary marriage for succession
4) Civil marriage created a house

Question 11

Consequences of Civil Marriage

Answer 11

1) Civil marriage dissolved the customary marriage
2) Customary wife regarded as a ‘discarded spouse’
3) Discarded spouse had no right to the estate of the spouse
4) Only had a claim upon death of husband
5) Civil marriage wife had no greater rights than she would have had the
marriage been a customary marriage

Question 12

Testate succession in terms of BAA

Answer 12

1) S 23 of the BAA excluded certain property of black people from being
distributed in terms of a will
2) Male primogeniture applied
3) No distinction between successor and heir

Question 13

Judicial reform regarding Male primogeniture

Answer 13

1) Constitutionality of principle of male primogeniture
2) Initially challenged in Mthembu v Letsela
3) Held principle to be constitutional
4) Successor had a duty to maintain all the dependents of the deceased
5) Held principle can be discriminatory if applied in an urban setting

Question 14

Shibi v Sithole

Answer 14

1) Shibi challenged the constitutionality of s 23 of the BAA
2) Appointment of heirs by the magistrate in terms of s 23 of the BAA
3) Appointment followed the principle of male primogeniture

Question 15

Bhe v Magistrate Khayelitsa

Answer 15

Bhe case challenged the principle of male primogeniture ito s 23 of BAA

Question 16

The CC in the Bhe case held inter alia that:

Answer 16

1) S 23 of the BAA and its regulations were manifestly discriminatory in that they violated the s 9 right to equality, section 10 right to dignity and s 28 children’s rights
2) Principle was discriminatory against women, marital and extramarital children
3) Principle was declared unconstitutional
intestate estates to devolve in terms of the Intestate Succession Act

Question 17

When did CC Bhe case take force

Answer 17

1) CC order applied retrospectively to 27th of April 1994
2) Order was to remain in force until the matter was corrected by the legislature

Question 18

Retrospective application of the order had two exceptions:

Answer 18

1) Order of invalidity did not apply to completed transfers of ownership to heirs who had had no notice of the challenge to the validity of s 23 of the

2) BAA and the rule of male primogenitureorder did not apply to anything done pursuant to the winding-up of an estate in terms of the BAA

Question 19

Reform of Customary Law of Succession and Regulation of Related Matters Act

Answer 19

1) RCLSA introduced due to the invalidity of s 23 of the BAA and its regulations in the Bhe case.
2) Bhe case applied between the period of judgment and until the coming in to force of the RCLSA.
3) RCLSA applies to all intestate estates of people who live under customary law.
4) Ensures that intestate estates of black people devolve in terms of the Intestate Succession Act.

Question 20

Definition of ‘descendant

Answer 20

1) S 1 of the RCLSA defines a descendant as:
“…a person who is a descendant in terms of the Intestate Succession Act, and includes –
2) A person who is not a descendant in terms of the Intestate Succession Act … but who, during the lifetime of the deceased person, was accepted by the deceased person in accordance with customary law as his/her own child, and
3) A woman referred to in s 2(2)(b) or (c)”

Question 21

S 1(a) of the RCLSA

Answer 21

1) Includes individuals who are regarded as dependants in terms of customary law
2) Include individuals who are not the biological children of the deceased but were regarded as the children of the deceased
3) Reference to woman in s 1(b) of the RCLSA as dependants includes any woman whom the deceased had entered into a union with in order to provide children for his spouse’s house
4) Refers to a substitute wife/seed raiser/seantlo woman

Question 22

The RCLSA definition of ‘spouse’

Answer 22

1) “a partner in a customary marriage that is recognised in terms of s 2 of the Recognition of Customary Marriages Act”
2) Widows and widowers of customary marriages now regarded as intestate heirs
3) Widows and widowers of customary marriages concluded before 15 Nov 2000 are also regarded as intestate heirs