The Centre for Applied Legal Studies (CALS) is an applied human rights research institute at the University of the Witwatersrand. The Gender Research Project (GRP) was established in 1992. The GRP specialises in legal and socio-legal research in a number of areas of law and human rights, including constitutional issues, customary law, reproductive rights, employment, family law, violence against women and participation of women in governance. Our research is used in several ways:

To inform public policy and debate;

• To inform law reform processes;
• To ensure that policy and legislative processes are informed by the needs and positive experiences of disadvantaged groups;
• To enhance participation of marginalised groups like women and rural communities in policy and legislative processes;
• To develop and advocate for indigenous and gender sensitive jurisprudential frameworks which are relevant and appropriate for the advancement of gender equality in South Africa;
• To develop strategic public interest litigation; and
• To develop and teach a course and curriculum on Gender and Law.

As South Africa attempts to give life to its Constitution and promote equality and social justice amongst all of its people, it is seeking to develop indigenous rights frameworks, public policies and legislation. In doing this, it is important to understand South Africa’s unique circumstances and constraints while at the same time drawing from the experiences of the international community. Research permits us to do this. As one of the few socio-legal research institutions focussing on gender issues, GRP is able to produce quality research which enables us to participate effectively in policy making and law reform, as well as the development of legal and constitutional frameworks to shape these processes and their products. We have also developed both experience and a public profile, which allow us to engage in advocacy, education and strategic litigation in our areas of specialisation.

The work we have been doing can be categorised into phases corresponding to both political and the legal stages of transition into democracy:

1. Ensuring that women’s rights and gender equality are entrenched in the new Constitution (1992-1994).

1. The GRP predicted that the period between 1997-1999 would serve as a window of opportunity for gender issues as government sought to deliver on its election promises to women before the 1999 elections. We were correct in these predictions as policies and legislation in several key areas for women were finalised and passed during this period. Our research allowed us to inform debates around these processes.

During the second half of 1998 we embarked upon a strategic planning process to explore the context of a second democratic government and to identify issues for research, litigation and advocacy. Apart from research sites in Gauteng, North West and Northern Province we were working in partnership with the National Rural Movement in the area of customary law. We focused on the improvement of the quality of life of historically disadvantaged groups, especially poor, black women.

Succession under customary law follows rules of primogeniture (succession following the male line). It entrusts control and administration of family property to the heir. The heir is the person who steps into the shoes of the deceased head of the family as the administrator of family property. He is the first born son in a monogamous marriage. Polygynous households have a general heir and an heir for each house.

(i) Customary property types and their sources

Property is classifiable into personal property or family property, depending on the function of the property; the interests it serves (group or personal interests); and the family status of the person who has been allocated the property. Fields and livestock may be personal or family property depending on how they are acquired. If property is inherited, it becomes family property in which the whole family has an interest – not just the heir. Marital property for our purposes should be understood to be personal. Although there are female-headed houses, African societies remain patriarchal and believe that men are household heads. Customarily, women access land through husbands, sons and or brothers.

Depending on the status of the deceased man in the family, family property may have been accumulated with the assistance of other family members. Family members are under customary law socialised to participate in accumulating family property although the heir is expected to contribute more since he is groomed to take over family responsibilities on the death of the head of the family household. But due to the social and economic conditions within which the practices take place, the heir’s siblings are also socialised to take over family responsibilities to close the gap likely to be created by the heir’s inability to meet the needs of the deceased’s dependents.

Although family property customarily belongs to the whole family, statutory law allows the heir to alienate it and devolve it by will without recourse by family members.

The problem of succession under customary law results when the heir alienates family property (mainly residential homes, furniture and livestock), either by sale or refusal to use the property for the benefit of the family. In practice, the heir control the use of inherited livestock and the common home. Alienation and maladministration by the heir frustrates the legitimate expectations of siblings and other family members who have contributed to family property under customary practice. It also violates the rights of the deceased’s dependents to a home and maintenance. The reform process needs to protect access rights of the deceased’s dependents to the common home and family property. Further more, reforms should include remedies for beneficiaries against the heir for alienation and maladministration of family property.

A process of partial codification of customary law was embarked upon to make customary law readily ascertainable. The codified customary law does not reflect customary practices nor changes in society since the time of codification. Rather, customary succession rights can be traced back to the time when land was a major resource, easily accessible and subsistence farming was a popular mode of production for most traditional communities. Failure to succeed to the deceased parent’s rights over land did not always result in a court action because any individual male could ask to be allocated an additional piece of land regardless of status. However, the policies of the colonialists and apartheid regimes increased the pressure on black-occupied land by limiting how much land could be allocated to blacks. This together with problems of poverty, high unemployment rates, and other factors linked to the market economy continue to make residential sites a valuable but scarce commodity attracting the interests of all family members especially those with need.

Law reform is therefore needed to enable family members to compete equitably over family resources during succession processes. Failure on the part of the legal system and policies to create equal opportunities to succeed to family property breeds jealousy and minimizes opportunities of harmonious coexistence among family members.

Distribution practices have also changed. In the past, family wealth was in the form of a homestead, house utensils and livestock. Cash economy has resulted in very little money getting invested to guard against hardships. The cash economy as affected by unemployment, migrancy, relocation, poverty, favouritism and changing priorities also makes it difficult for some parents to provide lobolo when sons marry. These conditions affect succession practices, including the cultural duties traditionally dischargeable by the heirs. Because of the emphasis on a cash economy, money given to the family as lobolo, for example, is used on other needs such as settling debts, education of siblings and pieces of furniture. Furthermore, homesteads are smaller and resources are decreasing. Few resources remain to support needy members of the family for the long term. When women return from unworkable marriages there is no money to cater for their needs.

The process of codification also distorted the rights available under customary law by reflecting certain groups as more privileged than others. In contrast with the individual rights created by civil law, customary law rights are classifiable as group rights. This is why access rather than ownership was the focus of customary law of succession. In practice, statutory customary law of succession enforces the rule of primogeniture without obliging the heir to take responsibility for the family as a whole. It also ignores the inclusive property accumulation processes. This interferes with family members’ opportunities to access property fairly and equitably as a group and enriches the heir unfairly at the expense of other family members who participated in family property accumulation. Codified customary provisions fail to reflect the impact of social and economic changes as a result of colonisation, apartheid, migrant labour and industrialisation on property accumulation practices and on the family. This situation threatens the welfare of the aged and the needy who depend on functional family networks. In our view, the primary value underlying customary succession is an egalitarian one to ensure the maintenance of the family. Originally this responsibility was vested in a single heir, but western interpretations of customary law and changing socio-economic circumstances mean that this no longer meets the original objectives.

African women married under customary law were minors under the guardianship of their husbands. This minority legal status disqualified them from being considered for the inheritance of family property. The above position is entrenched by s 23 of the Black Administration Act, which provides for all intestate estates of deceased blacks to devolve according to customary law. This means that only males are allowed to succeed to status and property in the family. This situation is no longer satisfactory first because heirs today tend to be interested in the property but not the responsibilities that go with it. Secondly, Western notions of property ownership have also influenced the interpretation of the heir’s property rights under codified customary law as individual and alienable. The fact that the widow is entitled to the enjoyment of property and might have helped amass the property is underplayed. Reform measures must advance the equality right of women and other family members.

2. Succession practices

Two research projects by the Gender Research Project of the Centre for Applied Legal Studies generate information on succession practices. Research confirms that families are changing their practices to ensure that the family rather than an individual heir is cared for.

In our research, the GRP came across community practices designed to make family property accessible by all in accordance with need, acknowledging that children contribute to the welfare of family members especially parents. In families without sons, parents typically preferred to leave their property to their daughters than to customary heirs. In families with sons and daughters, parents sought to ensure that both sons and daughters jointly qualified for the inheritance of their parents’ property. To meet these preferences, parents socialize children to jointly own family property.

Furthermore, our research showed a change in family expectations of the heir. Due to poverty and other factors, heirs are no longer expected to discharge family responsibilities alone. Family members provide the heir with necessary resources to close the gap between what the heir can provide and the family needs. The heirs we interviewed described how unemployment, migration and poverty make it difficult to shoulder some of the responsibilities. Those who felt ill-equipped to discharge such responsibilities refused to succeed to inheritable property under customary law.

When a woman dies, inheritance only involves her personal property, which gets divided between her female children and other female members of the family. No division of family property takes place. If her husband decides to marry again, he can continue to use the property with his second wife if there are no children from the first marriage. If there are children, the property from the first marriage is usually protected for inheritance by these children. Second wives are allowed to remain temporarily on the residential site allocated to the husband and his first wife until it is possible to establish a second homestead for the second family. Children of the deceased wife are brought up knowing what property belonged to their mother’s house.

The GRP recommends, which is supported by most respondents, that the devolution of customary intestate estates should vary depending on need. For example, if the property is used by the daughters of a deceased, the family should not reallocate it, the cultural value being to protect the homestead established to address dependents’ needs. It is only where a woman is married specifically to look after the deceased woman’s children and to continue her house that law should entitle the second wife to take over the deceased’s homestead without reservations.

3. Research findings and respondent’s recommendations

Apart from collecting information on customary succession practises in the Northern, North West and Gauteng Provinces, since the publication of the Draft Bill on Amendment of Customary law of Succession, more information has been collected from the Eastern Cape in partnership with locally based organisations. The last of our series of workshops will take place in KwaZulu Natal on the 2^nd August 2001. The purpose of the research is to collect information on succession practices, while workshops generate views on the provisions of the Amendment Bill.

The information we collected indicates family members’ dissatisfaction with the law that protects certain family members only. Respondents in our research would like customary succession law to be broadened to include all family members with interest. Our respondents would like courts to stop implementing customary succession rules without adjusting them to reflect changed circumstances. Respondents argue that it is no longer fair for the law to allow one child to take over family property. They would like the law devolving customary estates to be reformed so that it protects widows and all dependants. Our respondents would like the reform process to protect family property presently under the control of the customary heir. Our respondents would like the reform process to draw from the rationale of fusing rights over property with ritual responsibilities to be able to cater for all family members. They are concerned about reforms that use marriage as a reference point when there are women whose husbands died before the introduction of the reforms and would not benefit from them. They would like special protection to be extended to existing widows whose properties are under the control of the heir.

Respondents would like the reform process to legalise a widow’s control and administration of marital property. Respondents from polygynous households, where inheritance problems are complex, also support this position. They would like reformers to engage more with restatement of group rights as individual rights while at the same time capturing the cultural value of catering for the needy.

While the respondents are clearly not against women inheriting property, their views are mixed with regard to allowing a woman to succeed to the status of the family head. This is so because they still believe that the ritual responsibility is dischargeable by men only; they prefer succession to status to follow the rules of primogeniture. Respondents reserved the status of head of the family for the heir - for the purpose of discharging family responsibilities.

4. Legislative needs

There are different views and interpretations on the relationship between the cultural and equality rights provisions in the 1996 Constitution, which have implications for the reform of customary succession law. One interpretation argues for applying codified customary succession law as it is, even during implementation of the Constitution although it subordinates and discriminates against women. The Case of Mthembu v Letsela upheld the rule of primogeniture which justified the deceased=s father=s claim to his son=s property. According to Le Roux J, if

Supporters of this view argue that constitutional drafters should not have protected cultural rights if the equality provision would be allowed to override them.

Others view cultural rights in ss 30 and 31 differently. They want the applicable customary law to change and distribute privileges and benefits created for men by patriarchy since these are no longer justifiable even if codified as customary law. For this group the 1996 Constitution provides a framework within which the applicable customary law can be improved. Their point is that the Constitution does not only protect and promote different cultural practices but it also standardizes them since cultural rights are not a licence to infringe on other rights protected by the Constitution. According to this group, the Constitution also sets out conditions under which cultural practices may be enjoyed.

Enforcing a law that gives family property to one person under today=s circumstances enriches the heir unfairly and encourages him to use the inherited property to serve his own interests. Customarily, the heir is a trustee who may be disqualified if he acts contrary to that position. But many heirs have realised that their individual interests in family property will be protected under codified customary law. Codified customary law has changed the heir’s trustee position into a right to property. The inheritance claims made by male family members, especially where there is no son, are often selfish and negate women=s use rights of property under customary law. The gap between the law and practice has thus created opportunities for heirs to reap fruits where they have not sown. These heirs rely on the official form of customary law to claim property for themselves at the expense of the intended beneficiaries under the living customary law.

5. Possibilities for reform

The provisions of customary succession law (a) denies the dependants of the deceased person access to and enjoyment of inheritable property; and (b) discriminates unfairly on the basis of gender and status by preferring the heir to any other family member.

(i) Implement constitutional provisions on customary law

Give customary law an opportunity to grow during this constitutional era by construing adequately s 211(3) of the 1996 Constitution. According to this provision, the state has a duty to improve the content and application of customary law. In the past, customary law rules were developed on case by case basis. Because formal recognition of customary law required the custom to be readily ascertainable, recognition, application and development of customary law was restricted. Furthermore, while the customary law system remains patriarchal, traditional courts that hear most of the customary law cases do not have jurisdiction over the rules of application or issues of constitutionality. Where customary law cases go to government courts with jurisdiction over rules of application and constitutionality, they are dealt with in an unsatisfactory manner. Both the content of codified customary law and the rules for applying it are flawed and need to be brought in line with the Constitution. This requires the law reform process to incorporate customary practices and not to ignore them.

(ii) Develop a customary law framework

There is an urgent need for courts to develop the customary law jurisprudence that reconciles the equality right and cultural rights in the Constitution. This is important because the state is bound by the Bill of Rights. Since the constitutional protection of customary law includes both codified and uncodified customary law, both of these must comply with the Bill of Rights if they are to be applied. The state, therefore, cannot continue to rely on codified customary law to legalise its discrimination against women and other family members when it comes to customary succession. The Bill of Rights should be used to condemn discriminatory customary law provisions, codified and uncodified as unconstitutional.

Practices on the ground reflect women as competent administrators of marital property on the death of their husbands. Since control rather than access is a major issue for women married under customary law, the reform process should aim at advancing the social status of women and other family members previously marginalized under the system of customary inheritance law. This is possible if competing practices are viewed as different implementation strategies.

(iii) Unpack group rights

Group rights may be unpacked to make them realizable individually or the property of heirs who have benefited under the system of customary law can be dealt with differently from the property of other male family members. Treat customary succession cases according to their merits and prevent heirs from enjoying family property alone. The process includes identification of the members of the group that are entitled to benefit from the intestate estate as well as determining the responsibilities attached to the inheritable property. While this might be time consuming and cumbersome, it is likely to result in a law that will not be blamed as ‘westernisation of succession processes under customary law. Any adaptation of the system should be based on customary law entitlements. It is not fair to have the property of the heir who benefited under customary devolve on the widow and the children alone. The reform process should avoid an approach that ignores where property to be inherited by the wife of the heir comes from, and the contributions made by other family members.

Caution is required when unpacking group rights. We are against an approach that simply reverses the status quo by replacing heirs with customary wives, because this oversimplifies the extent of the problem. The changes in customary succession practices as a result of heirs= failure to discharge their responsibilities, demonstrate that family members would like group rights to be unpacked.

(iv) Close the gap between codified customary law and practice

The information at hand justifies incorporation of positive practices of succession into law. There is an urgent need to promote and improve family support networks that are being weakened by the application of statutory customary law of succession. Rural community members and their leaders are aware of the impact of the erosion of family support networks on their communities, especially given the HIV/AIDS epidemic. Compensating family members who look after the sick with part of the family=s inheritable property is a positive cultural practice, which, in my view, amounts to enabling family members to access family property on merit rather than on status or gender. It indicates that customary practices are compatible with the 1996 Constitution.

Two Bills proposing amendment of the Intestate Succession Act 81 of 1987 so that it applies to parties to a customary marriage have been introduced. The first Bill was tabled before Parliament without success by the Department of Justice in November 1998. This Bill was critiqued as undermining the consultative process already embarked upon by the SALC, which had published an Issue Paper. The Discussion Paper >Customary Law: Succession= and the Draft Bill 2000. The Customary Law of Succession Amendment Bill 2000 allows women and their children to succeed to the intestate estate of their husbands. The GRP supports this recommendation for women and men who are responsible for amassing their marital property. This is why it recommends different treatment based on the status of the male in the family.

(i) Scope of recommendations

The main recommendation is to amend the Intestate Succession Act (according to which an estate must be liquidated and distributed in accordance with the Administration of Estates Act 66 of 1965) to include the estates of customary law subjects. This recommendation is mainly intended to bring intestate estates administered by customary law (s 23 of the Black Administration Act) into the mainstream of civil law. Improving the social status of women with regard to inheritance plays an important role although it will not, however, address all succession problems under customary law. Its enforcement is likely to interfere with some of the working practices on the ground since these cannot translate easily into legislation but are reflective of positive cultural values. The difficulty, in my view, is to make customary succession law inclusive of all family members rather than fully extinguish the customary law system.

(ii) Issues raised by the Discussion Paper

The SALC invites public comment on whether there is a need for a statutory protection of other dependants (namely parents and siblings) who otherwise would be looked after by the heir under customary law. Years of field work show that there is indeed such a need. Amending the Intestate Succession Act to include all family members under customary systems of law is necessary.

The reforms introduced by the Recognition of Customary Marriages Act 120 of 1998 are capable of allowing a woman who marries a customary heir to access a half share of the heir’s parents’ property on marriage. The only way to avoid this is to ascertain the social status of bridegrooms with the view to excluding family property from forming part of community of property on marriage. This approach can also be adapted to exclude customary ‘family property’ under the administration of the heir, from forming part of the community of property on the marriage of the heir.

We need to separate principles from practices, devise long and short term measures. The long term processes should separate the notion of family property which underpins the customary succession from individual property. Short term measures should include enforcing existing rights like the Widow’s Servitude and the Maintenance of Surviving Spouses Act, 1990. The question is whether under the new regime contemplated by the Amendment of Customary Succession Bill 2000 we can infer that the Maintenance Act applies in tandem with the Intestate Succession Act or whether application of the Maintenance of the Surviving Spouse Act needs specific mention in the draft Bill. The reform process focuses on property (tangibles) to the exclusion of rituals (beliefs) discharged using property. Special protection for needy family members is not mentioned.