PROJECT 90:

CUSTOMARY LAW OF SUCCESSION

1 Introduction

1.1 The South African Law Reform Commission briefed the Joint Monitoring Committee on the Improvement of Quality of Life and Status of Women on progress made in the investigation on customary law of succession on 18 October 2002 and this input will therefore focus on events following that briefing.

1.2 The Project Committee will be considering the first draft report on Customary Law of Succession at its meeting scheduled for 24 April 2003. In the meantime, additional submissions that have been received are being collated as part of the process of the report. Again, the aim is to have the draft report with draft legislation ready for consideration at the end of July 2003 to enable the Minister for Justice and Constitutional Development to introduce the Bill in Parliament later this year should he so wish.

2 Extended/Further consultation

2.1 In the initial stages of this further consultation process the Commission sought to maintain close contact with organisations with special responsibilities or interests in customary law. Agisanang Domestic Abuse Prevention and Training (ADAPT) in Alexandra, arranged a seminar on Customary Marriages Act and Succession on 26 October 2002 and invited the Commission as a partner. The purpose of the seminar was ‘to educate and empower the seriously disadvantaged sector of our society ‑ African women’.

2.2 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.

2.3 Household surveys ( field trips) have been conducted in about twelve sections in the following townships:
Atteridgeville, Leondale, Thokoza, Katlehong, Mabopane, Letlhabile 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 just going to result in mere 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.

2.4 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. The following meeting were held in the following provinces:
Province Place Organisation/Person Date Gauteng Alexandra Dobsonville Katlehong Atteridgeville, Leondale, Katlehong,Thokoza ADAPT Mrs Shelley Bosielo Ms Susan Valley Mrs Molatela Sefatsa House‑to‑house consultation 26/10/2002 2/11/2002 2/2/2003 28,29,30,31Jan 2003 Limpopo Ga‑Maphoto Seshego Ga‑Matlala Kgotla Dutch Reformed Church Zone 2 Anglican Church Zone 1 Mrs Johanna Thupana 21/12/2002 22/12/2003 22/12/2003 25/01/2003 North West Zeerust ANCWL‑Community Hall ‑Ikageleng St Augustine Anglican Church Anglican Church‑Braaklaagte Community Hall Zeerust 14/12/2002 15/12/2002 16/12/2002 29/12/2002 Western Cape Gugulethu‑Uluntu Centre Sipho Citabatwa 8/2/2003 Mpumalanga Daantjie‑Kanyamazana Mrs Motha 8/03/2003

Response from the meetings

Participants raised a concern that it is widows who usually have to shoulder the burden of the maintenance of children and the whole family that was depended on the deceased. Children are indirectly affected by any difficulty experienced by widows. According to them it is obvious that customary law provides insufficient protection to the most important family members , that is widows and children (except the male first born). There have been many complaints of property being grabbed by heirs, who are assisted by the deceased’s family. It was further pointed out that heirs neglect to support surviving dependants and in most cases they even order the wife and children out of the house.

The participants suggested that the new law that is being proposed by the Commission should try to protect only the wife and all her children. Beneficiaries should be persons falling within commonly accepted family unit.

Women were not comfortable to speak on issues of customary inheritance in the presence of men, but as discussions continued they voiced their concerns and even later had separate discussion with the researcher. They explained that women's rights to land are especially insecure. They are threatened by chiefs, the rules and practice of customary law, and patriarchal household and community relations. Nevertheless, large numbers of women do have access to land and work on it daily. They protested that inheritance rights for women are limited under customary law. Where women inherit, they may find it difficult to keep control over their land. They come under pressure to sell land, or hand over their rights to others, usually male relatives. Often, but not always, widows continue using the land of their deceased husbands, but they still do not have the same rights and control over it as men do. They revealed that a few chiefs have started to promote gender equality under customary law while most chiefs continue to interpret customary law in the old way which privileges men. Women’s voices are usually absent in traditional decision‑making structures. In some areas this is changing as rural women organise themselves, younger men unite with women against older men, or as new attitudes are introduced from urban areas.

It was pointed out that property in townships should be differentiated from property in rural areas. This property belongs to the family (husband, wife, children, grandparents , brothers and sisters staying with the family‑the relatives). This property cannot be sold on the death of the father. It is the family’s house and the only asset that they have. In the rural areas the uncles and brothers will grab the property and cheat the dependants. In the townships most of the widows are assisted by municipal officers who refuse to change the name and require that the children of the deceased be given the house. This only happens if the official knows the people otherwise the relatives cheat the children out of their inheritance. It is revealed that property cheating/grabbing is not as prevalent here as in the rural areas.

Again they were informed about the disparities between urban and rural areas, with customs and traditions retaining most of their force in rural areas, and is discernible in many areas. Beliefs, such as accusations of witchcraft against the widow, most strongly impede women’s inheritance in rural areas, higher prevalence of polygamous marriages in rural areas and lower education levels among rural women have contributed to the greater incidence of unequal inheritance in these areas. A widely‑shared factor that explains this rural‑urban divide is the separate existence of customary and statutory systems of marriage and inheritance.

The Project Committee will be considering the draft report at its meeting scheduled for 24 April 2003. In the meantime, submissions on the discussion paper are being collated as part of the process of report writing. Again, the aim is to have the amended report with draft legislation ready for consideration at the end of July 2003 to enable the Minister for Justice and Constitutional Development to introduce the Bill in Parliament later this year should he so wish.

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