REPORT ON THE CUSTOMARY LAW OF SUCCESSION REPORT ON THE CUSTOMARY REPORTREPORT ON THE ON THE CUSTOMARY CUSTOMARY LAW LAW OFOF SUCCESSION SUCCESSION South African Law Reform Commission: Project 90 Customary Law of Succession Report: April 2004 ii Customary Law of Succession TO MRS BS MABANDLA, MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT I 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 Succession. Madam Justice Y Mokgoro Chairperson: South African Law Reform Commission April 2004 South African Law Reform Commission iii SOUTH 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 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) 320-0936 E-mail: [email protected] Internet: http://salawreform.justice.gov.za The 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 Moloi. iv Customary Law of Succession Contents SOUTH AFRICAN LAW REFORM COMMISSION (iii) CONTENTS (iv) SUMMARY OF RECOMMENDATIONS (vii) BIBLIOGRAPHY (ix) LIST OF CASES (xii) TABLE OF STATUTES (xiii) CHAPTER 1: ORIGIN OF INVESTIGATION AND SOME INTRODUCTORY REMARKS 1 1.1 The Issue Paper 2 1.2 The Customary Law of Succession Amendment Bill 1995 2 1.3 The investigation revived 3 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 CHAPTER 2: THE PURPOSE AND NATURE OF RULES OF CUSTOMARY LAW OF SUCCESSION 11 2.1 The purpose 12 2.2 Nature of rules of customary law of succession 13 2.3 Customary law of succession: the ‘official’ and ‘living’ versions’ 15 2.4 Reform of the customary law of succession in Africa 18 2.5 Conclusion 21 CHAPTER 3: CUSTOMARY LAW OF SUCCESSION AND THE BILL OF RIGHTS 23 3.1 Customary law, culture and the Bill of Rights 24 3.2 Horizontal application of the Bill of Rights, limitation and interpretation 25 3.3 Conclusion 31 CHAPTER 4: THE DUAL NATURE OF SUCCESSION 33 4.1 Legal dualism and the principle of equal treatment 34 4.2 Choice of law rules in South Africa 36 4.3 Discarded wives: the problem of dual marriages 40 Contents v 4.4 Conclusion and recommendation 41 CHAPTER 5: LEGISLATION REGULATING THE APPLICATION OF THE CUSTOMARY LAW OF SUCCESSION 43 5.1 Introduction 44 5.2 The Black Administration Act 44 5.3 Sections 79-82 of the Codes of Zulu Law 49 5.4 Marriages between Blacks and the Administration and Distribution of Estates (Cape) 50 5.5 The Recognition of Customary Marriages Act 50 5.6 Section 1(4)(b) of the Intestate Succession Act 51 5.7 Conclusion 51 CHAPTER 6: COMMENTS AND RECOMMENDATIONS 53 6.1 Any rules of the customary law of succession that discriminate unfairly on the grounds of sex, gender, age or birth must be changed 54 6.2 Reforming the customary law of succession 55 6.3 Taking care of the needs of persons subject to customary law 56 6.4 A need for a statutory protection of dependants (parents and siblings) 57 6.5 The Right to Decide Burial and Funeral Ceremonies 58 6.6 Variation of the order of succession: disinheritance and distribution of property 58 6.7 Related and supporting marital unions 59 6.7.1 The levirate (ukungena) 59 6.7.2. ukuzalela 59 6.7.3 Ukuvusa 59 6.7.4 Ancillary unions entered into by women 59 6.8 Children adopted in terms of customary law. 60 6.9 Children of a woman with a man other than the husband as premarital progenitor 60 6.10 Succession to traditional leaders 60 6.11 Family and house property 61 CHAPTER 7: SUMMARY OF PROPOSED DRAFT BILL 65 7.1 Long title 66 vi Customary Law of Succession 7.2 Preamble 66 7.3 Definitions: Clause 1 66 7.4 Reform of customary law of succession: Clause 2 66 7.5 Disposition of property allotted or accruing to a wife in a customary marriage: Clause 3 66 7.6 Property rights relating to certain customary marriages: Clause 4 66 7.7 Dispute or uncertainty in consequence of the non-specialised nature of customary law: Clause 5 67 7.8 Disposal of property of a traditional leader: Clause 6 67 7.9 Amendment of section 1 of the Intestate Succession Act: Clause 7 67 7.10 Amendment of the Maintenance of Surviving Spouses Act: Clause 8 67 7.11 Repeal of laws: Clause 9 67 ANNEXURES 69 Annexure A: Proposed draft Bill 70 Annexure B: 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 89 Summary of Recommendations vii Summary of Recommendations A 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 changed The 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. (Paragraph 6.1.4 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 6.2.6 and clause 2 of the draft Bill) 3. Disposition of property allotted or accruing to a wife in a customary marriage It 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 5.2.7 and clause 3 of the draft Bill) 4. Property rights relating to certain customary marriages:”discarded wives”: the problem of dual marriages It 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. The discarded widows of such marriages should inherit on par with the civil marriage widows. (Paragraphs 4.4 and 5.2.1-5.2.6 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 6.3.3 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. This is an inexpensive enquiry which avoids protracted litigation. (clause 5 of the draft Bill) viii Customary Law of Succession 6. 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’.