PROGRESS REPORT ON PROJECT 90:

PROGRESS REPORT ON PROJECT 90: CUSTOMARY LAW OF SUCCESSION

Introduction

The South African Law Commission briefed the Joint Monitoring Committee on the Improvement of Quality of Life and Status of Women on 29 August 2001. This input will therefore focus on events since the briefing.

2. CONSULTATION PROCESS

2.1 Sixteen written submissions have been received on the draft Bill and discussion paper and a few are still coming in. These submissions have been collated and considered with a view to formulate the Commission’s final recommendations in report form.

2.2 The Commission believes that the most effective way of securing the legitimacy of its recommendations is to ensure the widest possible consultation with the people likely to be affected by new laws, and to this end the Commission views the polling of opinions across the country as an important component of its working methods. The project committee therefore decided to consult with all relevant stakeholders through a series of workshops. Each workshop was conducted over the course of a single day in all the nine provinces as appears in the following table:

Province	Place	Date	Number

Western Cape	Cape Town	02 October 2001	69
Mpumalanga	Nelspruit	25 October 2001	140
Northern Cape	Kimberley	31 October 2001	57
Free State	Bloemfontein	01 November 2001	54
Eastern Cape	East London	08 November 2001	142
KZN	Durban	20 November 2001	134
Northern Province	Pietersburg	07 December 2001	79
North West	Mmabatho	13 March 2002	148
Gauteng	Pretoria	18 March 2002	58

2.3 The objective set for the workshops was to afford the Commission’s project committee on Customary Law the opportunity to present Discussion Paper 93 to all stakeholders, experts and supporters of customary law of succession and to subject the preliminary recommendations and the draft Bill to critical discussions, and to formulate proposals, recommendations and positions that would then be submitted to stakeholders so that they could assist the committee to tune/adjust them. Secondly the purpose was essentially information-collection on the part of the Law Commission. The workshops would also afford communities through their representatives the opportunity to address the issue of customary law of succession.

2.4 The Commission would like to extend its appreciation to the Provincial Parliamentary Programme in KwaZulu Natal which assisted in hosting a workshop at Umzinto with the communities of surrounding villages. The purpose was to give a more balanced picture of the realities in communities under the subjection of customary law of succession. This workshop was attended by Professor Maithufi, Ms Moloi and Ms Baqwa, who briefed the attendants about the Discussion Paper and draft Bill.

2.5 Professor Maithufi also attended a workshop at the Tonga Constituency Office, Mpumalanga on 02 to 03 February 2002 on customary law of succession and customary marriages. He also attended a briefing session at Mpumalanga Provincial Legislature on 22 May 2002.

2.6 In the initial stages of the consultation process the Centre for Applied Legal Studies and the South African Law Commission hosted an ‘expert meeting’ on 30 August 2001 to discuss the recommendations made by the Law Commission, to ensure that all the necessary measures were taken to make the reform of customary law of succession inclusive.

3. PARTICIPANTS AT THE WORKSHOPS

3.1 To maximize inclusivity and ensure that a diverse pool of knowledge and experience would be represented, invitations were extended to all parties with an interest in customary law, including the Commission on Gender Equality, Human Rights Commission, Lawyers for Human Rights, Legal Resources Centres, Provincial Offices on the Status of Women, traditional leaders through provincial Houses of Traditional Leaders, women’s organisations, members of the provincial legislatures, Provincial Women’s Caucus, labour movements, political parties, advice centres, academics, magistrates, law societies, local government representatives, Network on Violence Against Women, youth organisations, lay assessors, the relevant government departments, community networkers, social workers, churches, Non-Governmental Organisations (NGOs) dealing with women’s issues and Community Based Organisations (CBOs).

3.2 Attendance at all the workshops was excellent, with groups ranging between 100 - 160 in the Eastern Cape, KwaZulu-Natal, North West, and Mpumalanga, and 60 - 90 in Gauteng, Free State, Northern Province, Northern Cape and Western Cape.

4. RESPONSE FROM THE WORKSHOPS
4.1 Women

Most of the women in all the provinces spoke with one voice supporting the draft Bill and the preliminary recommendations in Discussion Paper 93.

In the discussions woman participants noted that many problems faced in protecting women’s right to inheritance arose as a result of conflicts between cultural traditions and the law. It was discovered that women’s interests were usually sidelined and even compromised. Race, gender and culture interacted in a way that discriminated directly and indirectly against black widows. If the draft Bill was approved, women would no longer be subjected to differential treatment and they would be allowed to inherit their husbands’ estates.
They felt that in many cases, if not all, objection or resistance to change in customary law was usually based on vested interests by traditional leaders. In a traditional set up, there was no room for democracy or transparency - human rights defeated chieftainship. All objections to the importation of common law into customary law were simply a manifestation of male persons’ desire to perpetuate the subordination of women and the girl child.
Statutory protection of the deceased spouse and children should not be extended to include siblings or other relatives such as uncles but might be extended to parents and the definition of parent should include anyone who was responsible for the upbringing and education of the deceased.
Although women in most of the provinces spoke with one voice supporting the draft Bill and the preliminary recommendations in Discussion Paper 93, some of the women, mostly from rural areas in the Eastern Cape and Mpumalanga, argued that they were better served by customary law. They spoke nostalgically of the customary law of succession that had always protected them from the hardships of being widows. According to them customary law provided for the widow and the heir had to consult her when he performed anything for the house. The heir took care of the surviving spouse and the children with no problems encountered. The rules functioned well until foreign law was imposed on them.

4.2 Academics

According to most academics, the Law Commission proposes to extend rights of inheritance also to women and children and therefore to abandon the concept of male primogeniture. This is to be accomplished (under the Commission’s draft Bill) by modifying the Intestate Succession Act of 1987 to cater also for polygynous households while also awarding rights to the matrimonial home(s) to surviving spouse(s). They warn strongly against merely abandoning the customary system of succession in favour of a slightly modified version of the common law, as would seem to be the approach adopted in the Discussion Paper on these issues. It has the effect that little is left of the customary law system. According to them not all aspects of customary law are discriminatory and it seems grossly unfair to abandon even those aspects which do not discriminate and indeed fulfill important social functions, eg duty of an heir to support needy family members.
They feel that using a system of law that is wholly alien to regulate the lives of people who live customary lives carries with it the danger that the new system will simply be ignored and people will continue to apply customary practices among themselves.
According to them, while the current SALC recommendations superficially comply with the constitutional requirement for gender equality, by extending the common law rule of preferring the wife and children for inheritance purposes, it does so crudely, in that it fails to take account of the fact that the common law system was devised on the basis of a nuclear family, whereas customary law of succession is based on the traditional extended family with possibly more than one wife. The common law therefore "fits" badly into the customary law family structure, and leaves many members out in the cold. They feel dissatisfied with the Bill as it protects certain family members only. They would like customary law of succession to be expanded to include all family members with interest. The law reform must protect widows as well as all the dependants.

4.3 Magistrates

Magistrates in most provinces felt that the reform of the customary law of succession has been long awaited. The draft Bill answers most of the problems encountered in the administration of black estates by magistrates in practice. They do, however, urge all stakeholders concerned to allow speedy resolution of the problem of succession so that the surviving spouse and children are protected as is it their right in terms of the Constitution. The case of Mrs Mildred Mtembu and her daughter who were thrown out of their home by the father-in-law highlighted the plight of women and children, and this should never be allowed to happen again.

4.4 Traditional Leaders

4.1 Eastern Cape, Free State, Northern Province, North West and Mpumalanga

Some traditional communities, represented by their traditional leaders, did not accept the elimination of the principle of male primogeniture and rejected the draft Bill although some supported it. Some traditional communities critiqued the process of reform and the end product as a westernisation of customary law. In particular, the draft Bill was criticised for preferring common law over customary law. They were doubtful whether the traditional communities will accept the elimination of the principle of male primogeniture.

4.2 KwaZulu Natal

An entirely different position was, however, held by traditional leaders in KwaZulu Natal. At a workshop held in this province the project committee was informed that the proposed changes were long overdue. The recommendations relating to the amendment of the customary law of succession were welcomed.

5. CURRENT STATUS

5.1 The project committee considered the report of the consultation process at its meeting held on 22 June 2002. After a careful consideration of the report on the workshop process the project committee felt that the Commission should grant it the opportunity to consult further with the people that will be affected by the reform process.

5.2 The project committee gave the following reasons for the need to consult further:

The issues mentioned in the Discussion Paper and other options for the improvement of the law of succession need to be debated thoroughly with all stakeholders.

The committee is of the view that there might be embarrassment when the Bill has to be implemented if most of the ordinary people affected are not consulted. Although the project committee is satisfied with the attendance at the workshops (as indicated in paragraph 2.2) the law that will emanate from this process is going to affect thousands of people.
The committee is also aware of the country’s international obligations, pressure, and the need for speed and urgency in curing the constitutional defects and the reform of customary law of succession, but it stresses the need for caution and wide consultation.
The committee further recognises that in terms of the Commission’s policy on consultation, the Commission regards itself as a bridge between the people and the law and it envisages consultation on a broad base, beginning at grassroots level, which will give effect to the principle of participatory democracy in developing the law and ensure that the law evolves in a manner that is in tune with society. The Commission recognises that laws that are derived from consultation are more likely to function effectively and to be accepted by the community. It is therefore imperative that the community should become involved in the Commission's activities at grassroots level.
The committee is convinced that an imposed solution to the problem of reforming customary law of succession is unlikely to be a good or lasting solution. It is therefore imperative that the Commission grant the project committee the opportunity to consult further with the people that will be affected by the reform process.
Extensive consultation is necessary to avoid a recurrence of the situation following the Recognition of Customary Marriages Act 120 of 1998 where people were raising concerns on the subject long after the Bill became law.

5.3 The Commission approved the request to extend the consultation phase in principle. The project committee is preparing for the extended consultation process.

5.4 The project committee envisages to have a draft report ready during the first half of 2003.

FACTORS THAT INFLUENCED THE DELAY

6.1 Professor Thandabantu Nhlapo, the full-time member of the Commission, who was the project leader, resigned with effect from 1 October 2000 leaving the position of project leader vacant. Professor IP Maithufi, who replaced Professor RT Nhlapo as full-time member of the Commission, was appointed as the new project leader in March 2001.

6.2 At the end of August 2001 the project committee, which originally consisted of six members, had only two active members, the new project leader, Prof Maithufi, and

Ms LG Baqwa. The researcher, who was responsible for the project, also resigned and the new researcher, Ms GMB Moloi, was assigned to take the investigation over. At it’s meeting on 17 September 2001 the Working Committee of the Commission reconsidered the constitution of the project committee and was of the view that the project committee should be extended by the appointment of additional members. The Commission then requested the Minister to appoint new members to the project committee. The project committee now consists of the following members:

Professor IP Maithufi (Full-time member and project leader)

Judge JY Mokgoro (requested that she be released from the duties of the project committee due to her work at the Constitutional Court)

Professor T W Bennett (University of Cape Town)

Ms LG Baqwa (Attorney)

Professor CRM Dlamini (Department of Education: KwaZulu Natal)

Professor Chuma Himonga (University of Cape Town)

Professor RB Mqeke (Dean of Law, Rhodes University)

Ms Likhapha Mbatha (Center for Applied Legal Studies)

Mr Perry Mawila (University of Venda)

Professor Sam Rugege (University of the Western Cape)

Ms Mmathari Mashao (Commission on Gender Equality)

The committee met for the first time on 22 June 2002 and the second meeting was on 13 September 2002.

Investigation of administration of estates

7.1 The Commission is busy with an investigation of the administration of estates, in particular harmonising the customary and common law rules for the administration of estates.

7.2 In December 2001 the Commission considered a report on the administration of estates, but was not prepared to finalise the report before the Department of Justice had taken a stand on the manner to deal with the Moseneke decision with its deadline of 6 December 2003. At a briefing of the Portfolio Committee on Justice and Constitutional Development (House of Assembly) by the Business Unit: Master of the High Court, it was decided to deal with the Moseneke decision only and not to promote other proposals regarding the administration of estates at this stage.

7.3 The Moseneke decision did not deal with estates that devolve according to customary law. Under customary law, where a beneficiary steps into the shoes of the deceased, there is no clear distinction between the rules for the administration of estates and the law of succession. Pending the finalisation of the Commission’s review of the customary law of succession no changes are proposed to the administration of estates devolving according to customary law.

7.4 The Administration of Estates Amendment Bill 54 of 2002 has been introduced in the National Assembly and the Portfolio Committee has been briefed on it. It provides that all estates which do not devolve according to customary law will be administered under the jurisdiction of the Master of the High Court. In order to reap the benefits of accessibility by and assistance for people at grassroots levels, the Bill provides for the designation of service points where staff will exercise functions on behalf of and under the direction of the Master. Based on statistics and information of officers who at present fulfill functions regarding the administration of estates at magistrates’ offices, service points and staff of the Department of Justice will be designated by the Minister

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