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Should succession replace customary law in townships?

People are still facing the repercussions of apartheid laws, which impact inheritance claims and relationships.

RIGHT OR WRONG? For some, customary law discriminates on the grounds of status or gender.

Owning a home is a significant milestone. It transverses many societal layers and offers homeowners and their families security, emotional and financial stability and spiritual while allowing them to build up generational wealth to create a solid foundation for future generations’ success. But in SA’s historical dispensation, a huge portion of the population was denied property rights because of apartheid laws. These included the Black Land Act, Group Areas Act and Black Administration Act.

While we understand laws ensure fairness and safety and are meant to uphold people’s rights, these laws served to control where black people could reside. Township homes during this era were “rented” to families. The property rights of these homes were transferred to owners at the end of apartheid on the basis of permits that listed the family members connected to the home, creating the concept of the collective family home.

Today, black communities are facing the repercussions of these racialised and exclusionary laws as the first generation of township homeowners begin to pass the torch to the next generation. The question of who should inherit ownership of these homes is leading to heated disputes in families still required to battle out customary inheritance claims under the framework of apartheid-era bureaucratic processes and legislation. 

Because SA’s postapartheid laws are built on apartheid-era laws — with only those that do not abide by the constitution being struck — disputes of customary inheritance are still handled under the framework of the Black Administration Act. This can be seen in the paperwork claimants are required to use, where Afrikaans appears before English and no other language is used.

Initially called the Native Administration Act of 1927, the Black Administration Act asserted that black Africans be governed by custom and positioned the governor-general, labelled the “Supreme Chief of all natives”, as the sole authority on the matter. This was deemed discriminatory after 1994. Yet today, customary inheritance disputes are decided only within the Office of the Master of the High Court, which is eerily reminiscent of the old order. Anthropologist Maxim Bolt points out in a recent research paper that many aspects of the Master’s Office, as well as the process of claiming inheritance through customary law, continue to act as a reminder of apartheid. 

While the intestate law of succession is recognised by the Constitutional Court as the common legal recourse in determining inheritance, SA retains a pluralistic legal system wherein customary law is legally recognised as a system to which those who wish to be subject can. For many people in the country, customary law is the most important law in their lives, controlling issues such as marriage, property and their right to inherit.

These opposing laws governing inheritance and the entanglement of the official law of succession with segregationist legislation has called into question the need to perhaps bring townships communities into existing succession law rather than applying customary law reminiscent of apartheid. 

For customs and traditions to become law they must be known to the community, followed by the community and be enforceable.

For example, under customary law, when a man dies a valid claim on the inheritance of the property can be recognised to belong to either his eldest son or his siblings who have ties to the home — it’s the home they grew up in, after all. However, customary law can be discriminatory towards family members on the grounds of their status in the family or gender.

What makes this situation even more complex and frustrating for claimants is that they only have a single avenue from which to receive judgment on their claims of inheritance.

These opposing laws governing inheritance and the entanglement of the official law of succession with segregationist legislation has called into question the need to perhaps bring township communities into existing succession law rather than applying customary law reminiscent of apartheid.

Doing this will bring inheritance claims into the 21st century and begin the process of removing all traces of inaccessibility and exclusion created by the old regime.

Doing so will also reduce complexities in the process of inheritance, as there will be a clear line of succession. Under intestate succession rules, an individual’s estate will be divided according to a set formula, with the beneficiaries (in order of preference) the spouse of the deceased, descendants of the deceased, parents of the deceased, if the deceased died without a surviving spouse or descendants, and finally the siblings of the deceased if one or both parents are predeceased.

However, it is important to note that the formula for succession under common law is based on the Eurocentric idea of the nuclear family, which does not necessarily align with South African family dynamics. According to the 2018 Children, Families and State report by the Children’s Institute at the University of Cape Town (UCT), only 25% of children are part of a two-parent and biological household. The largest single-household type in the country is an extended family arrangement and we’re experiencing a reported increase in three-generation households. These family dynamics present complications to succession when examined under common law.

Though reforms to customary law seek to ensure judgments made within its authority are not discriminatory and in line with the constitution, they have often been difficult to understand for those trying to claim inheritance.

So the question remains: can we really do away with customary law in a country in which customs are intrinsically linked to who we are and what we own, considering we are burdened by the legacy of the old regime’s interpretation of customary practices? And if not, is there a way for the common law of succession and customary law to coexist in a way that reconciles the latter with the constitution, without imposing western ideals on customary practices or beliefs?

 

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Should succession replace customary law in townships?
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Portrait ofKagiso Mahlangu
Kagiso Mahlangu
Partner
Johannesburg