Chapter 11 - Introduction to the customary law of succession and inheritance Flashcards
What is the law of succession?
The law of succession falls under private law and, in terms of customary law, includes those rules that determine what happens to the estate of a deceased person and who controls the agnatic group’s property after the death of a deceased person.
What is inheritance?
it is mainly concerned with the division of the assets of a deceased person among his or her heirs.
What is succession?
Strictly speaking, there is no division of property but rather the successor takes the place of the deceased and gains control over the property and people over which the deceased has control.
List the general principles of succession.
- Succession only takes place after the death of the predecessor
- In original indigenous law, succession was related solely to status, but modern indigenous law does acknowledge the notion of individual inheritance to some extent.
- In original indigenous law, there was no such thing as total disposition of property by means of a will. Today, however, it is not uncommon for African people to dispose of their assets by means of a will.
- A distinction is made between general, special, and house successions.
- in original indigenous law, the successor succeeded to the deceased’s assets and liabilities; in modern indigenous law, the position differs between groups. In KZN, a successor succeeds to the assets of the estate and only those debts that emanate from marriage contracts. In the rest of the Republic of South Africa, a successor succeeds to the assets and all the debts of his predecessor.
- Succession in status is limited largely to males.
- Succession follows the principle of primogeniture.
- Succession is a duty that cannot be relinquished or ceded.
- Male descendants enjoy preference over male ascendants; male ascendants, in turn,, enjoy preference over collateral male relatives or relatives in the lateral line.
- Disposal among the living is possible, provided the usual formalities are complied with.
- A successor may, on good grounds, be removed from the line of succession.
List the general order of succession.
- Succession through death
- Primogeniture
- Succession by males in the male line
List the rules of succession in a monogamous house.
- The eldest son or , if deceased, his eldest son succeeds
- If the eldest son died without male descendants, the second son or his male descendants would succeed, in their order of birth.
- Should the deceased die without male descendants, or if he has survived all his male descendants, the deceased’s father is the successor.
- If the deceased has survived all his male descendants and his father, he is succeeded by his older brother or his male descendants, this is how the brothers of the deceased and their male descendants are considered in terms of succession.
- Should the deceased’s father or the deceased’s bothers have no male descendants to succeed him, the grandfather of the deceased or one of his male descendants succeeds to his estate, according to seniority.
- In the same manner, the deceased’s great-grandfather and his male descendants are considered in terms of succession.
- Where there are no male descendants to succeed, the traditional ruler of the deceased’s traditional authority succeeds t his estate.
- Where there is no traditional ruler, the President of South Africa is supreme chief.
Explain succession in a polygynous household
The eldest son in each house succeeds in that particular house. If he is deceased, first all his male descendants are considered, and thereafter, his younger brothers and their descendants. Should a particular house have no male descendent, a successor is obtained from the house in the next rank.
List the ranking order of succession among male children
- A legitimate son procreated by the man himself
- A married man’s illegitimate son by a virgin, widow, or divorced woman for whom Isondlo has been paid.
- Ngena children
- Adoptivi (adopted children) or adulterini (adulterous children) of the wife (unless the latter have been repudiated) according to the chronological order in which they became attached to the late husband’s family.
- Sons of a widow who are not born out of a ngena union.
- A premarital son of an unmarried woman or the extramarital son of a divorced woman for whom no isondlo has been paid
Explain General succession
General succession is concerned with control over the household and property of the general estate, that is property belonging to the agnatic group as a whole. We can therefore, deduce that the general successor obtains overall control over all the various houses, and in most cases,, the general successor would be the successor to the main house.
Explain Special succession
Special succession is concerned with control over the house and house property, and there are, therefore, as many house successors as there are houses.
What are the powers and duties of the successor in KZN?
- The successor is generally liable only for debts equivalent to the assets of the estate.
- The successor is, however, fully liable for lobolo debts contracted with another house in order to establish his own house.
Explain the disposition inter vivos
A family head could make certain allotments during his lifetime, which would remain valid after his death. The methods of making allotments are as follows:
- Allotment of property to a specific house or son
- Adoption, which influences the normal order of succession
- Transfer of a younger son from one house to another house without a son and such a son succeeds the latter house.
- Seed-raising is an alternative means of trying to ensure a successor in a house without a son.
- Allocation of daughters to sons in a house as a means of providing for the marriage goods of these sons
- Ukungena, or the procreation of a successor for a deceased man by his widows
- Disinheritance as a means of eliminating a potential successor from the order of succession.
