Second Report of the Select Committee on Security and Constitutional Affairs on the Reform of Customary Law of Succession and Regulation of Related Matters Bill [B10B – 2008] (National Assembly – sec 76), dated 17 February 2009:

The Select Committee on Security and Constitutional Affairs, having considered the subject of the Reform of Customary Law of Succession and Regulation of Related Matter Bill [B10B -2008] (National Assembly – sec 76) referred to it, and having amended the Bill, reports as follows:

1. The Committee requests the Minister to direct that either the Department of Justice and Constitutional Development or the South African Law Reform Commission or both, conduct further research into the issues mentioned below and to report back to it within six months of the adoption of this report with appropriate legislative measures for consideration by the Committee, where appropriate. The Department/South African Law Reform Commission must, when undertaking the envisaged research, as far as is practicable, consult with traditional communities and traditional leaders. The research required relates to the following practical examples cited by the Committee. The outcome of the research must, where relevant, in each of the examples –

(a) indicate the lines of intestate succession in the examples cited;

(b) whether these examples find application in customary law and, if so, confirmation whether the Bill, as adopted by this Committee, adequately makes provision for them and, if not, provide legislative proposals to address them:

(i) The question of “marriages from the grave” which are known in some traditional communities.

(ii) In the case of two brothers who have children, where the one brother dies and the surviving brother takes on the responsibility of the deceased brother’s children, do the deceased brother’s children qualify to inherit from the estate of the surviving brother to the same extent as the children of the surviving brother?

(iii) What is the situation in the case of children who are not fathered by the deceased but who are accepted by him before he dies? Are they regarded as the deceased’s descendants and can they inherit along with his own descendants?

(iv) What is the situation where a child who is not the biological child of a person but who is accepted by the deceased as his or her own child before his or her death and the child decides to revert to the surname of his or her biological father or decides to go back to his or her biological father?

(v) How does customary law deal with children who no one knew about and who unexpectedly turn up after a person’s death, claiming that they are the biological children of the deceased? Who bears the burden of proving that they are indeed the children of the deceased in terms of customary law?

(vi) What is the situation of two women who were in customary marriages, who have children and who enter into same sex unions? What is the legal position of the children of these relationships? From whom are they entitled to inherit?

(vii) What is the position of children from a previous relationship who are accepted by the new spouse of their one parent? Can they, in terms of customary law, inherit from the deceased estate of their parent’s new spouse (Step parent)?

(viii) What is the position of children who are borne on behalf of a female traditional leader by another woman who is impregnated by a secret father identified by senior members of the royal family in question? From whom are they entitled to inherit in terms of customary law?

2. The Committee further requests the Department or South African Law Reform Commission to investigate the following issues:

(i) What the effect of the amendment proposed by the Committee, which narrows the definition of “descendant” in clause 1 of the Bill, will be on customary law, if any.

(ii) The existence of customary practices in terms of which married daughters are precluded from inheriting from the fathers’ deceased estates on the grounds that

they have already benefitted from lobola which was paid for them and the constitutionality of such practices.

(iii) The existence or not of adoption in terms of customary law and whether the Bill should cater specifically for this or whether the Bill as amended by the Committee in clause 1 (the amendment to the definition of “descendant”) addresses the concept of adoption in terms of customary law.

(iv) The manner in which extra-marital children generally are dealt with and regarded in terms of customary law and whether the Bill adequately takes care of all such children.

Report to be considered.