Title: OCR Document
Author: Readiris
Last saved by: PC10
Company: I.R.I.S.

NOTE ON -CUSTOMARY LAW OF SUCCESSION BILL:

Background information: Testate and intestate succession:

The law of succession (inheritance) deals with the devolution of the estate of a deceased person, that is, what happens to a person's estate after his or her death. The law of succession consists of rules that govern the devolution and administration of .a deceased estate. Succession can either be -testate or intestate. A person dies testate where he or she leaves a will, indicating what is to happen to his or her estate after his or her death. The devolution of the estate then takes place in accordance with the wishes of the deceased. Wills are administered in terms of the Wills Act No 7 of 1953. On the other hand, a person dies intestate, when -there is no will-, in which case, the estate will devolve in terms of the Intestate Succession Act 81 of 1987.

Intestate Succession

In broad terms, -the Intestate Succession Act sets out the following intestate rules of succession:

If a deceased is survived by a spouse and no descendants, the surviving spouse inherits the estate. If there is no surviving spouse, and there is a descendant or descendants, the descendants inherit the estate in equal shares. If there is a surviving spouse and descendants, the surviving spouse inherits a child's share or an amount determined by the Minister (currently this amount is set at R 125 000, 00), whichever is greater. The descendants inherit the rest in equal shares. If the deceased is not survived by a spouse or any descendants, but is survived by both parents, the estate is inherited by both parents in equal shares. If the deceased is survived by only one parent the surviving parent inherits half of the estate and the descendants of the deceased parent inherit the other half. If the deceased is not survived by a spouse, descendant or parent, the estate will be shared in equal shares between the descendants related to the deceased through his or her mother and those related to him or her through his or her father. The Act ensures that the estate is inherited by blood relations. The Act specifically states that a child born out of wedlock is also entitled to inherit in the same manner as children born in wedlock.

This is the way the Intestate -Succession Act works at present. The Bill aims to make the Act applicable- to customary law situations wher:e there- may be more than one spouse and where there are children which are born out of customary law relationships, eg ancillary unions (ukuvusa, ukuzalela and ukungena).

If there is more than one spouse as provided for in the Bill, the estate will be divided--by the number of spouses and descendants, and the spouses will each receive a child's -share or an amount determined by the Minister, depending on which amount is greater.

Customary law of succession:

The principle of male primogeniture only exists in customary law in South Africa. It does not exist at common law, Muslim law or any other religious. or personal law regime. The Law Commission in its investigation of Muslim marriages recommended that Islamic law of succession-should apply, in the case of Muslim persons dying intestate. On page 90 of the report the following is said:

"The Commission, however, agrees that there should be a proper but separate investigation into the recognition and application of the Islamic law of succession within the existing Constitutional framework, thereby providing substantive relief in this regard. Parties are free to leave a will in terms of which their estates will devolve according to Islamic law.".

Therefore, the Bill is aimed at bringing customary law of succession into line with the Bill of Rights, as set out in the Constitutional Court case of Bhe. Addressing this matter the Deputy Chief Justice Langa said the following:

"An appropriate order will therefore be one that protects partners to monogamous and polygamous customary marriages as well as unmarried women and their children. This will ensure that their interests are protected until Parliament enacts a comprehensive scheme that will reflect the development of the customary law of succession.".

The position of children born out of wedlock and women relating to inheritance, pension benefits and maintenance under civil and customary law:

,
Civil marriage | Customary marriage

succession:

1. (extra marital children)
Section 1 (2) of the Intestate Succession Act gives them the right to inherit from their blood relations. The Act specifically provides that the fact that a person was born out of an extra marital relationship does not affect that person's right to inherit from a blood relation who would include his or her biological father.

(b) Pensions benefits:
In terms of the Pensions Act 24 of 1956 as amended, a dependant is a person in respect of whom the member is legally liable for maintenance.

Succession is on the male -line, but in terms of the Bill, blood relations will be entitled to inherit because the Intestate Succession Act will be applicable to the estate.

Dependency is determined by the legal duty to maintain. The Act specifies that a child of the member, including a posthumous child, an adopted child and a child born out of wedlock are regarded as dependants. The spouse of a member is also regarded as a dependant. Customary marriage spouses are placed on the same level as civil marriage spouses

2. Maintenance of extra marital child:

There is a legal duty on both parents to
maintain a child regardless of whether
that child was born from an intra or
extra marital relationship.

Maintenance of surviving spouse:

The Maintenance of the Surviving Spouse Act 27 of 1990, entitles a surviving spouse to claim for maintenance from the estate-of the deceased where the marriage was dissolved by death.

The Maintenance Act 90 of 1998 applies to all persons, including persons subject to customary law.
Children born out of an extra marital relationship are also entitled to be maintained by both parents. 

The Customary Marriages Act 120 of 1998 has placed the status of spouses of customary marriages on the same level as civil marriage spouse.

Spouses of a customary marriage are entitled to maintenance where the marriage is dissolved by death.

Responsibility of eldest male to take care of the dependants of the deceased:

The Law Commission considered this matter and had the following to say:

"This situation is no longer satisfactory because heirs today tend to be interested in the property but not in the responsibilities that go with it.

Western notions of property ownership have also influenced the interpretation of the heir's property rights under codified customary -law as individual. By not emphasising that the enjoyment of inherited property belongs to the widow and other dependants, western interpretations of customary inheritance law allow the heir to control and alienate property without discharging his obligations to the deceased's family.".
This became evident in the case of She where the father of the deceased wanted to sell the property and leave the children of the deceased without accommodation.