Introduction:

• Legal pluralism is where multiple legal systems exist within one population . Plural legal systems are inherited from former colonies, where the laws of succession may exist with more traditional legal systems.

Many South African ethnic Groups base their lives on certain indigenous customs.  Although these customs are exercised freely, these customs are still subject to the Constitution of South Africa. The topic of discussion today is the administration and Distribution of deceased Black people’s estate assets. In particular we will discuss Section 23 of the Black Administration Act 38 of 1927, and the impact of the South African Constitution on the said act.

Succession in Polygamous Marriages

• Polygamous marriages can also cause devastation, if the the deceased husband did not have a will in place. Polygamous marriages are a very sensitive subject, although it remains a recognized practice in South Africa.

Should a person die Intestate, the eldest son from each house (the household of each wife) will inherit according to the share held by that house. If the eldest son of that house dies before his father, the assets shall devolve onto the next eligible male of such a deceased son. Should  a household, not have a Son or male heirs, such inheritance shall devolve onto the next eligible male person of another house or supporting family.

Section 23 of the Black Administration Act 38 of 1927.

• In 16 years of Estates administration I became familiar  with estates  distributed according to rules of the Intestate Succession Act 81 of 1987, when the deceased had no existing Will. The fascinating thing in these estates were when I was approached to administer an estate of a deceased black person, the whole family showed up, not just the heirs. Many times, a deceased’s wife and daughter consulted me to administer an estates of a husband or father. In many of these estate, the fahterh or brother of the deceased attempted to move into the deceased’s house, or collect the assets. What is the reason for such behavior by a family member, who according to the Intestate Act, is not the heir of the deceased? 

The answer lies within Section 23 of the Black Administration Act. Section 23 states that when a native Black African person dies, his fixed assets must be transferred to a male person determined by the tables of Succession. This male person referred to is also defined as the closest male relative to the deceased. The movables assets of the deceased will be distributed according to the Intestate Act to the Next of Kin of the deceased.

Bhe & Others v Magistrate’s Court Khayalitsha & Others

• In the groundbreaking case of BHE & OTHERS VS MAGISTRATE’S COURT KHAYALITSHA & OTHERS  a deceased left a Wife and two daughters behind. The deceased’s father disputed the marriage of the deceased and his wife. The deceased had no Will, and the Magistrates Court appointed the deceased’s father as sole heir of the estate. The father was the male, next in line to inherit from his son according to African Customs. The Father of the deceased declared that the deceased’s house will be sold, which will leave Mrs. Bhe and the two minor daughters without a home.

The High Court finally made the Ruling that Section 23 of the Black Administration Act 38 of 1927 was inconsistent with the Constitution of South Africa. Until these defects were corrected by a legislator, the administration and distribution of Black Estates were governed by Section 1 of the Intestate Succession Act 81 of 1987. This meant that a Surviving spouse, male or female, with Children will stand first to inherit before the parents of the deceased.

  The High Court case M & Another v M and Another.

In this case the deceased was a Venda native, married to two women in polygamous marriages. The deceased had two farm portions numbered as 302 for the one wife and 303 for the other wife, to reside and grow crops for sustenance.

The deceased died intestate and his estate was distributed according to African customs to the first male in line to inherit which was his eldest son. Both properties no. 302 and 303 was transferred to the eldest son, although the families each resided on their own farm portion. African customs ware still the norm, and we cannot help to wonder if the intention of the deceased was to ensure that both families would remain in two separate households after his death.

The Intestate Succession Act 81 of 87 and the  (RCLSA) in accordance with the Constitution.

• The Intestates Succession Act was subject to the Black administration Act when the estate of a black native deceased is divided. However the Reform of Customary Law and Succession Act (RCLSA) brought new regulations for the distribution of black deceased estates in 2012. This Act determined that woman and children are included in Section 1 of the RCLSA when a person who is descendant according to the Intestate Act.

This also includes a person who was not included as an heir in the Intestate Act, but accepted by the deceased person in accordance with customary law as his or her own child as well as a woman accepted as a wife.

Section 39 of the Constitution of South Africa

• Section 39 of the South African Constitution states that male primogeniture promotes both unfair discrimination to both Gender and the grounds of “birth” where a younger child is discriminated against for not inheriting from his/her parents. The court ruled that the land at portion 302 must be transferred to the children of the wife who resided at the said portion 302 before date of death. The eldest son, who received the land at portion 303, may retain that portion as he was the child of the 1rst wife who resided at portion 303 at time of death.

Conclusion 

•We cannot forget who we are and where we come from, and that these above customs of a multi-cultural South Africa, are still an inherent part of our lives. Therefore matters like the Bhe-case could have avoided thousands of Rands in legal fees, if the deceased had his Will in place before date of death. See my previous blog on Why it is important to review your Will.

The benefit of having a valid Will in place is that one can still give effect to African customs, as a testator/Testatrix has the right of testation. A person has the right to bequeath to whomever he chooses, as long as the bequest is not in contra to that of the Constitution. Therefore a person can give effect to his wishes by honouring his/her customs, and still promoting Human dignity, freedom and equality.