JOINT MONITORING COMMITTEE

JOINT MONITORING COMMITTEE

ON THE IMPROVEMENT OF QUALITY OF LIFE AND

STATUS OF WOMEN:

14 NOVEMBER 2003

PROJECT 90

REPORT ON THE STATUS OF CUSTOMARY LAW OF SUCCESSION

Introduction

The investigation into this topic was launched formally with the publication, on 28 April 1998, of an Issue Paper entitled Succession in Customary Law under the auspices of Project 90: The Harmonisation of the Common Law and the Indigenous Law. The issue paper posed a number of questions about the extent and scope of the investigation, and about the substance of customary law in the area of succession. The closing date for comments was set for 30 June 1998.

The issue paper generated immediate public interest and elicited a steady trickle of oral and written responses. Among the most notable responses were those from Justice Albie Sachs (who expressed general concern over the approach of the Commission); the Houses of Traditional Leaders of the Free State, the Northern Province and the Eastern Cape. The Department of Justice stressed the urgency of the matter and the growing pressure for action, mainly from women’s groups.

Reading through the early responses, it soon became apparent that the area of succession raised serious, and potentially divisive, issues of constitutionality and of culture, issues in which the contending constituencies had invested a great deal of emotional capital.

The Houses of Traditional Leaders, for example, were unanimous in their view that this investigation was not a matter that could be resolved without bringing in the views of their subjects. In particular they warned against any attempt to "westernise" the customary law of succession. Representatives of the Department of Justice were equally adamant that it was unacceptable, four years after the elections, to apply a system in which women were routinely barred from inheriting property. Law reform would need to proceed in a sensible and sensitive manner and would have to take into account the somewhat conflicting needs of a speedy resolution, on the one hand, and broad consultation on the other.

The development of a discussion paper was receiving attention when the Department of Justice and Constitutional Development introduced the Customary Law of Succession Amendment Bill,1998, into Parliament. After public hearings by the Portfolio Committee on Justice on the Bill, it was decided that further consultation, particularly with the House of Traditional Leaders, should take place. The Bill was withdrawn and, at the request of the Director-General (with the approval of the Minister) was referred back to the South African Law Reform Commission on 14 September 1999.

2. Discussion Paper 93

2.1 The Discussion Paper had to be prepared in the context of an investigation which had been in a state of suspension since the publication of the Issue Paper almost a year and a half earlier. In the interim, several significant developments had taken place. Of the two main developments, one was the fate of the draft Bill and the debate it generated. The other was the case of Mthembu v Letsela. At the time of writing, the case had gone through three stages of adjudication, beginning with a judgment by Le Roux J in the Transvaal Provincial Division (reported in 1997). A further judgment by Mynhard J was recorded in 1998, and finally a ruling of the Supreme Court of Appeal was handed down in June 2000.

2.2 In all these hearings, the dispute revolved around the constitutionality of the customary law rule of succession which, on the basis of male primogeniture, prevents women from inheriting upon intestacy. In the 1997 judgment, Le Roux J, found that the rule was discriminatory, but not unfairly so, because of the concomitant obligations of the heir

towards the widow and the rest of the dependants of the deceased. The Mynhardt judgment in 1998 dealt with the question of fact regarding the existence or non-existence of a customary marriage between the applicant (Mthembu) and the deceased. There being no further evidence adduced, the matter was dealt with on the basis that the deceased and the applicant had not been married, and consequently that the applicant’s daughter had been excluded from the inheritance not because she was a girl, but because she was illegitimate. The judgment of the Supreme Court of Appeal, delivered by Mpati AJA, confirmed the reasoning of the court a quo and ruled the issue of sex, gender and age discrimination to be ‘academic’. Dismissing this and other arguments of a more technical nature, the court found for the first respondent (the deceased’s father), who was held to be entitled to inherit all of the deceased’s property. In declining an invitation by applicant’s counsel that the court should ‘develop’ the customary Law rule in terms of 35(3) of the interim Constitution in such a way that it did not differentiate between men and women, the judge observed:

"Any development of the rule would be better left to the legislature after a full process of investigation and consultation, such as is currently being undertaken by the Law Commission."

It is significant that Mynhardt J, in the 1998 judgment, had also noted the South African Law Commission’s work. He cited the discussion paper on Customary Marriages which was calling for comment, responses and debate from individuals and bodies interested in or affected by the customary law of marriage. He concluded:

"I believe that, that route should also be followed to reform the customary rules of succession."

2.3 These developments left the Commission in no doubt as to the twin pressures of this investigation: It’s urgency, and the need for genuine consultation. The discussion paper reflects these twin imperatives.

2.4 Prof Tom Bennett of the University of Cape Town was contracted to develop a discussion paper, which was considered by the project committee on 13 May 2000. A draft discussion paper was approved for publication on 5 July 2000. The Commission published a Discussion Paper on customary law of succession in August 2000 (Discussion Paper 93).

2.5 Discussion Paper requests comment on whether the Intestate Succession Act 81 of 1987 can be made a vehicle for improving the rights of dependants, especially widows and children, and for bringing certain rules of customary law in line with the Constitution. The Commission also requires input on other measures that might be taken to strengthen the existing provisions of the Act so that it can accommodate rules of customary law that do not raise constitutional difficulties. The question whether the statutory protection of the deceased’s spouse and children should be extended to include certain dependants, such as parents and siblings, who could expect support under customary law. Whether any other fundamental principles of customary law ought to be included in the statute?

3. Consultation Process

3.1 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:

Workshop Timetable

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

3.2 The objective set for the workshop 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, positions that will then be brought back to stakeholders so that they can help the committee tune/adjust them. Secondly the purpose was essentially information-collection on the part of the Law Reform Commission. The workshops would also afford communities through their representatives the opportunity to address the issue of customary law of succession.

3.3 In addition to the activities described in the preceding paragraph, other forms of discussion and consultation took place. The Commission sought to maintain close contact with organisations with special responsibilities or interests in customary law. The Commission briefed the Joint Monitoring Committee on the Improvement of Quality of Life and Status of Women on progress made in the investigation on 29 August 2001, 18 October 2002 and 4 April 2003.

3.4 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.

3.5 Professor Maithufi also attended a workshop at the Tonga Constituency Office, Mpumalanga on 02 and 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.

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

3.7 Written submissions and comments which were received after the consultation process have been collated and considered. These will be incorporated into the report.

4. Participants at the workshops

4.1 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 traditional leaders, through provincial Houses of Traditional Leaders, Provincial Offices on the Status of Women, women organisations, members of the provincial legislatures, provincial women’s Caucus, Commission on Gender Equality, Human Rights Commission, Lawyers for Human Rights, Legal Resources Centres, labour movements, political parties, Advice Centres, academics, magistrates, law societies, local government representatives, Network on VAW, youth organisations, lay assessors, the relevant government departments, community networkers, social workers, churches, Non-Governmental Organisations (NGOs) dealing with women issues and Community Based Organisations (CBOs).

5. Response from the Workshops

5.1 Women

Women in all the provinces spoke with one voice supporting the Draft Bill and the preliminary recommendations in Discussion Paper 93.

In the discussions some 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 discriminates directly and indirectly against black widows. It was clearly in the interest of justice that the crisis affecting the administration of intestate estates of blacks is resolved as quickly as possible. If the amendments are approved, women will no longer be subjected to differential treatment as the estates of their husbands will be administered in terms of the Intestate Succession Act of 1987.
In many cases if not all, objection or resistance to change in customary law is usually based on vested interests by traditional leaders. In a traditional set up, there is no room for democracy or transparency, human rights spoil chieftainship. All objections to the importation of common law into customary law are 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 may be extended to parents and the definition of parent should include anyone who was responsible for the upbringing and education of the deceased.

5.2 Academics

According to a majority of academics, the Law Reform 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 that system are discriminatory and it seems grossly unfair to abandon even those aspects which do not discriminate and indeed fulfil important social functions, eg duty of an heir to support needy family members.
They felt 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 SALRC 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 therefor "fits" badly into the customary law family structure, and leaves many members out in the cold. They felt 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. According to them it is not fair to one child to take over family property. The law reform must protect widows as well as all the dependants.

5.3 Magistrates

Magistrates in most provinces felt that reform of 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 Mthembu 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.
They also believe that African citizens need to be informed and encouraged to draw up wills particularly in the rural areas. They therefore support the suggestion that oral dispositions should be reduced in writing and copies given to the family. Perhaps such a rule could be incorporated in a statute.
They feel that cultural values of western law are highly individualistic. There is a need to accommodate communitarian values. People have to be explicit about maintaining customs, if not, western values will fill the gap. Individuals who are not satisfied with the customary law can opt to be part of western law.
The right to decide burial and funeral ceremonies ideally should be the decision of the widow of the deceased. They, however, warn that problems may arise where lobolo is involved.

5.4 Traditional Leaders

5.4.1 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 replacing customary law of succession with common law, with minor amendments aimed at accommodating customary marriages. They alert the project committee that this gives the impression that customary law is incapable of dealing with succession matters that are consistent with human rights norms and values.

Rather than merely imposing the common law of succession on people who are subject to customary law, it is vital to investigate the possibility of incorporating those aspects of customary law and its values that are consistent with the Constitution in the reform of the law of succession. People should stop the distortion of customary law. They argued that they were doubtful whether the traditional communities will accept the elimination of the principle of male primogeniture.

5.4.2 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.

6. Need to consult further

6.1 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 of 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.

6.2 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 in the more remote communities.
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 3.1) by approximately hundred and twenty stakeholders per workshop, the law that will come out of this process is going to affect thousands of people.
The committee is also aware of the country’s international obligation, pressure, and need for speed and urgency in curing the constitutional defects and the reform of customary law of succession, but the committee stresses the need for caution and wide consultation. ‘We should not be rushed by time so that we do a flimsy job that has to be done over again with consequent waste of time and money’.
The committee further recognised 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 before the bill became an Act.

6.3 The Commission approved the request to extend the consultation phase in principle. At its meeting on 23 September 2002 the project committee decided to request traditional leaders to assist with the mobilisation of participants in their areas for the Commission to address these communities on customary law of succession. It also decided that further consultation will start at the end of February 2003 as it was difficult to get people together during the festive season.

7. Extended/further consultation

7.1 While waiting for the Provincial Houses of Traditional Leaders to arrange imbizos for the Project Committee other activities took place. The Commission did not have the resources to undertake definitive or exhaustive consultations. However, its program of seeking information has been extensive. The Consultation was organized with the collaboration and assistance of the leading community workers, magistrates who liaised with the researcher to arrange some of the meetings. A word of thank you is extended to all who have assisted the Commission in this venture. Although the meetings did not attract masses, they were very beneficial in the sense that everyone participated actively. The following meetings were held in the following places:

7.1.1 Gauteng

Alexandra ADAPT 26 October 2002
Dobsonville 9 November 2002
Katlehong 2 February 2003

Pimville on 8 August 2003

7.1.2 Limpopo

Vivo farm (Ga-Maphoto) on 21 December 2002
Seshego on 22 December 2002
Ga-Matlala on 25 January 2003
Ga-Mothiba on on 14 June 2003
Schoonveldt-Bochum on 19 July 2003
Mohodi on 25 October 2003

7.1.3 North West

Zeerust ANCWL Ikageleng on 14 December 2002
St Augustine Anglican Church on 15 December 2002
Anglican Church-Braaklaagte on 16 December 2002
Community hall on 29 December 2002
Lomanyaneng on 18 October 2003

7.1.4 Western Cape

Gugulethu-Uluntu Centre on 8 February 2003

7.1.5 Mpumalanga

Daantjie-Kanyamazana on 8 March 2003

Some of the meetings were held at the invitation of community members who heard about the meetings from their neighbouring villages.

7.2 Household surveys (field trips) have been conducted in about twelve sections in the following townships between January 2003 and February 2003:

Atteridgeville, Leondale, Thokoza, Katlehong, Mabopane, Letlhabile, Ikageleng and Seshego.

The household survey were undertaken principally to gain as much information as possible on succession practices in different sections of these townships. The committee is planning later trips which will allow tentative proposals to be put to the people who were interviewed. The most common incidents in these townships is that when the husband dies the eldest son succeed to the deceased and he is instructed to take care of the beneficiaries. This does not happen as most of theses heirs do not live in the townships. What they do is collect whatever the deceased saved and abandon the widow and children.

Most of the people interviewed believed that the implementation of new succession rules is simply going to result in plain paper law. They questioned the effectiveness of this law. On the other hand they were also hopeful that it will come to their rescue in dealing with these discriminatory practices.

7.3 As one of the methods of soliciting more input from stakeholders recommendations on Discussion Paper 93 were sent again to magistrates for comment. Telephonic comments were received from Chief Magistrate Nelspruit, Mr Ngobeni, Mr Mahapa, Magistrate Bochum and Mr Kgati, Magistrate Maclear. Translated copies of the discussion paper have also been sent to the Provincial Houses of Traditional Leaders to be distributed to rural communities to complement the submissions that we have received. Written response to the discussion paper was quite disappointing, however, the position was improved after the consultation process when the Project Committee received additional comments.

7.4 The extended consultation was organized with the collaboration and assistance of the leading community workers and magistrates who liaised with the researcher to arrange some of the meetings, and committed ordinary people.

7.5 The project committee met with Traditional Leaders at the National conference of Traditional Leaders which was held at Benoni on 24 July 2003. The House welcomed the proposals that were put before traditional leaders.

8. Regional Interaction

8.1 On 26 March 2003 the researcher met with Emilia Muchawa and Ruvimbo Masungure of the Zimbabwe Women Lawyers Association. Although they wanted to learn about the process that led to the Recognition of Customary Marriages Act, the researcher had the opportunity to ask them about their customary law of succession. They told the researcher that every day in the rural and urban areas of Zimbabwe, men die without leaving wills. More often than not, the grief of the widow and children quickly turns to despair, as the relatives take his house, land and property, leaving his own family homeless - as those who have seen the film ‘Neria’ will be all too aware. People who had been able to cope are thrown into grinding poverty, while others get rich.

8.2 But things do not always have to be this way. In 1997 the Zimbabwe Government made an enlightened move. It recognised that Zimbabwean culture should protect the weakest in a family. Legislation was passed that protects widows and allows them to keep the property they had worked with their husbands to acquire, for the benefit of their children. This is easier if the man leaves a will, but is now possible even if there is no will.

8.3 The Law Reform Commission could learn something from Zimbabwe by looking at this information on the work being done by their government and civil society to address problems faced by women in the exercise and enjoyment of inheritance rights.

9. Factors that influenced the delay

9.1 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.

9.2 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)

9.3 The appointment of the project committee members was effected on 6 December 2001. The committee met for the first time on 22 June 2002 and the second meeting was on 13 September 2002.

10. Current Status

10.1 The project committee met on 23 July 2003 and reconsidered its working method in relation to the draft report on customary law of succession. Arrangements have been made with Prof Bekker and a consultant to assist with the drafting of Bill. On 30 September the revised draft Bill was discussed. On 10 October 2003 the revised draft Bill was considered and approved and it will serve before the Project Committee on 21 October 2003.