CHAPTER 9 THE CUSTOMARY LAW OF SUCCESSION Flashcards
Distinguish the concept of ‘succession’ as it is understood in both
common law and customary law. (4)
The common law recognises succession as the acquisition of property and
rights of a deceased person (1). This is understood commonly as inheritance
(1). Under customary law, however, succession details the acquisition of not
only rights and property, but also the duties and obligations of the deceased
(1). Essentially, the successor steps into the shoes of the deceased, acquiring
their status (1)
- Before Tumelo’s passing, he expressed to his son Asante that he wishes
for his estate to be divided among all his grandchildren. Asante believes
this does not amount to a valid testamentary succession as nothing was
ever written down in a will. Advice Asante on the validity of his father’s
wish. (2)
A deathbed wish is seen as a valid allotment of property by a deceased person
(1). This type of allocation is known as tshwaiso (1) and is a valid form of
customary law of succession.
- Distinguish between a house heir and a principle heir. (2)
A house heir is someone who inherits property in a particular house within a
polygamous family (1). A principle heir, on the other hand, is someone who
steps into the shoes of the deceased and who then acquires the status of the
deceased (1).
- Upon the death of her husband, Tumelo, Mary acquired her child portion
share of the estate as entitled to her under the Intestate Succession Act.
Her son, Asante, believes this is wrong as his family was married under
customary rites and thus his father’s estate should have dissolved
entirely to him, including acquiring the status and obligations as the
eldest surviving male relative of the deceased. Advise Mary and Asante
as to the correct position. Use all applicable authority in your answer. (10)
The principle of male primogeniture was codified within section 23 of the Black
Administration Act 38 of 1927 (1). This meant that all property was allocated to
the eldest surviving male relative (1). The status and obligations of the
deceased likewise fell upon the eldest male relative, who then had a duty to
maintain the deceased dependents. (1). This principle was first challenged by
the Supreme Court of Appeal in Mthembu v Letsela where it was held that it did
not amount to discrimination of the basis of age and gender as the duty to
maintain dependents still existed (1). The Constitutional Court, however, later
held a different opinion in both the cases of Bhe v Khayelitsha Magistrate (1)
and Shibi v Sithole (1). Both cases held the principle of male primogeniture to
be unconstitutional in that it unfairly discriminates against women, children and
extramarital children (1). Section 23 of the Black Administration Act was
therefore unconstitutional as well (1). The Constitutional Court ordered that
intestate estates previously devolved in accordance with customary law were
now to devolve in terms of the Intestate Succession Act (1). Asante is therefore
incorrect in his opinion and Mary is entitled to her child’s portion of the deceased
estate (1).
- Mary and Tumelo entered into a polygamous customary marriage on 17
November 2011. Sadly, Mary suffered a stroke two months after the
wedding and passed away. No children were born from the marriage.
Mary’s younger sister, Linda, was introduced into the union through the
sororate custom for the sole purpose of bearing children for Mary’s
house. 4 years and 3 children later, Tumelo suffered a fatal injury and died
intestate. Linda is of the opinion that she is entitled to her share of the
estate as Tumelo’s spouse. Tumelo’s other wives disagree. Advise them
as to how the estate will be divided among Linda and Tumelo’s other
surviving wives. (7)
The Reform of Customary Law of Succession and Regulation of Related
Matters Act 11 of 2009 holds that a descendant includes a women referred to
in section 2(2)(b) of the Act (1). Section 2(2)(b) of the Act refers to a woman
who has entered the union in accordance with customary law for the purpose
of providing children for the spouse’s house (1). She will therefore be a
descendant (1). However, a woman described above is also regarded as a
spouse if she survives the deceased husband (1). Since Tumelo died intestate,
his estate must be divided in terms of the Intestate Succession Act which
entitles all surviving spouses to a child’s portion of the intestate estate (1). Since
Linda survived Tumelo, she will be held to be a spouse and NOT a descendent
(1). This means that the determination of the child’s portion will be calculated
with the inclusion of Linda as a spouse (1)
what is a discarded
spouse?
a woman whose subsisting customary marriage was dissolved
by a civil marriage of her husband and another woman
contracted on or after 1 January 1929 but before 2 December
1988
what does the RCLSA protects?
the proprietary rights of the spouse of such a
dissolved customary marriage and her children in providing that ‘the widow
of the marriage under the Marriage Act, 1961 … and the issue thereof have
no greater rights in respect of the estate of the deceased spouse than she or
they would have had if the marriage under the Marriage Act, 1961 had been a
customary marriage
a person who is a descendant in terms of the Intestate Succession Act, and
include?
Section 2(2)(b) and (c)
what are the rights of an owner in a sisa contract?
(a) The owner retains his ownership of the stock and its offspring, and may
vindicate it against even bona fide third parties. The stock may not be attached
in the payment of the debt of the sisa holder.
(b) The owner has the right to inspect the stock at any reasonable time and to
earmark it.
(c) The owner is entitled to terminate the agreement at any time.
(d) Subject to what is said above, the owner runs the risk of loss not caused
through the sisa holder’s negligence.
(e) If the sisa holder unlawfully alienates the stock for his own benefit, the owner
has a claim for damages
