SUMMARY OF COMMENTS ON THE REFORM OF CUSTOMARY LAW OF SUCCESSION AND REGULATION OF RELATED MATTERS
BILL, 2008 [B10B – 2008], AND RESPONSES OF THE DEPARTMENT OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT:
Clause no./
Theme
Clause 1
(Definition of
descendant)
Commentator/
Province
Comment
Response
1.1 The provisions are in general welcomed. However, the
following issues are raised:
KwaZulu-Natal
1.2 There should be certainty regarding the period that can be
regarded as “immediately before the death of the deceased”.
There is a possibility that unborn children and estranged
spouses who have been separated for a short period prior to
the death of the deceased could be excluded from inheriting.
Therefore the word “immediately“ should be omitted from the
definition of “descendant”, so that no time period is attached to
dependency.
1.2 Unborn children are, in terms of the law,
descendants of a deceased father and are
entitled to inherit from his estate, no matter
whether the parents were married, divorced,
separated or partners in a permanent or casual
relationship. The word “immediately” is
important and serves a specific purpose.
Failure to limit the definition to a period will
create difficulties of a too wide definition in
terms of which persons who used to be
dependants and are no longer dependants at
the time of the deceased’s death could claim
that they are entitled to inherit from the
deceased.
Mpumalanga
2.1 Adopted children should be included in the definition of
descendant; alternatively the definition of descendant should
differentiate between direct (biological) and indirect (adopted
child) descendants.
2.1
The Intestate Succession Act, 1987,
already recognises the right of adopted children
to inherit from adoptive parents and vice versa.
(See section 1(4)(e)). Formal adoption changes
the status of an adopted child in that such a
child becomes the child of the adoptive parents
Adoption terminates the link between the child
and his or her biological parents for purposes of
succession.
Section 242(3) of the Children’s
Act, 2005, provides that “an adopted child must
for all purposes be regarded as the child of the
2
Clause no./
Theme
Commentator/
Province
Comment
Response
adoptive parent and an adoptive parent must for
all purposes be regarded as the parent of the
adopted child.”. Section 1 of the Children’s Act,
2005, moreover defines “'adopted child” as “a
child adopted by a person in terms of any law”.
Likewise “adoptive parent” is defined as “a
person who has adopted a child in terms of any
law”.
North West
3.1 The following words should be added to the definition of
descendant:
“those conceived and or born subsequent to the
deceased’s death as well as those children who
may have been considered illegitimate (or born
out of wedlock) in terms of customary law, and
those children adopted by the deceased”.
3.1
See paragraphs 1.2 and 2.1 above.
Children born out of wedlock have the right to
inherit from their natural parents, despite their
status. They acquire the right to inherit from
their mother’s husband through formal adoption
Western Cape
4.1 Concern is expressed regarding the social impact the Bill
might have. The definition of descendants is too broad, it must
be limited to biological children.
4.1 See paragraphs 2.1 and 3.1 above.
Consideration could possibly be given to limiting
the scope of the definition, for instance to blood
relations or children adopted in terms of
customary law.
4.2 The extension of the meaning of adopted child to include
children adopted in terms of customary law must be
considered by the Select Committee.
4.2 In terms of the Intestate Succession Act,
adopted children have the right to inherit from
the adoptive parents. The definition of adopted
child is broadened in order to place children
adopted in terms of customary law on equal
footing with children adopted in terms of the civil
law and to dispel any perceptions that African
customs are undermined at the expense of the
civil law. Formally adopted children must be
distinguished from children in foster care.
Foster parenting does not change the status of
a child but adoption does. A child under foster
3
Clause no./
Theme
Clause 2
Clause 3
Commentator/
Province
Comment
Response
Gauteng
1.1 The Bill assumes that customary unions are heterosexual
in nature. It is a tradition of the Balobedu for the rain Queen to
enter a recognised union with a woman so that such a woman
can provide children to the Rain Queen. Children born out of
such a union are not provided for in the Bill.
care does not acquire the right to inherit from
the foster parent and vice versa.
1.1 While the Bill does not make provision for
any type of marriage, it recognises the right of
children born out of ancillary unions, including
those born out of customary unions between
women to inherit. Children from these unions
are entitled to inherit from the woman on whose
behalf they were raised.
Limpopo
2.1 The Bill should make provision for a single woman who
does not have children of her own to marry another woman for
the purpose of providing her with children. Children born out of
such a union should inherit from a woman on whose behalf they
were raised.
1.1 Despite the duration of the union/marriage, the deceased
spouse’s estate should be divided equally among all the
partners in a customary union.
Mpumalanga
1.2 Because small children have more needs for
maintenance than older and financially independent children,
the portion allocated to an heir should be determined by age.
The younger the child, the greater the share should be.
Clause 4
Limpopo
1.3 Senior spouses in a customary union should have a
greater share in the estate than junior spouses.
1.1 Children born out of wedlock should inherit from their
biological fathers only.
2.1 See paragraph 1.1 above.
1.1 Clause 3(2) makes provision for the equal
distribution of the estate between the spouses.
1.2 The provisions of the Intestate Succession
Act will be used in calculating the share of each
child. This Act treats all the children equally.
Unequal distribution of the estate between the
children could be challenged on the basis of
unfair discrimination. Nothing precludes the
older children from helping the younger ones in
the spirit of ubuntu.
1.3 See paragraph 1.2 above.
1.1 Children born out of wedlock have the right
to inherit from their natural parents despite their
status. They only acquire the right to inherit from
the mother’s husband through formal adoption.
4
Clause no./
Theme
Commentator/
Province
Mpumalanga
Comment
Response
1.2 Provision should be made in the Bill for the deceased’s
children who were excluded from the will who are 21 years
and older and who are still attending school, to inherit from the
estate.
1.2 Testate succession in terms of which the
deceased has left a valid will is regulated by the
provisions of the Wills Act. Provided it is valid,
the will of the deceased may not be interfered
with.
1.3 Children born out of wedlock in respect of whom a
fine/damages were paid should be entitled to inherit from their
deceased biological father.
1.3 Children born out of wedlock are entitled to
inherit from their biological parents even if
customary damages have been paid to the
mother’s parents.
1.4 Children born out of wedlock should inherit from their
biological father only, and not from the step father.
1.4 Children born out of wedlock have the right
to inherit from their biological parents despite
their status. They only acquire the right to inherit
from the mother’s husband if he adopted them
formally in terms of the civil law or customary
law. However, such children have the right to
inherit from their mother even if she married
someone else.
2.1 In order to protect spouses who enter into marriages with
individuals who already have dependants who may then
exploit the resources of the husband to the detriment of his
dependants and vice versa, the following provisions should
be added to clause 4:
“(4) Where a prospective partner to a
customary marriage already has minor children who
are dependants and where such a person wishes to
enter into a customary union and include children into
the prospective family then the prospective spouses
may negotiate the future proprietary rights of these
dependant children.
(5) These negotiations may be in writing or
verbal and on the death of any of the spouses in the
family unit that the dependant children were
2.1 Nothing precludes persons who are about
to marry or who marry, from negotiating the
proprietary consequences of their marriage. As
marriage is a contract, individuals are free to
negotiate the terms thereof within certain limits.
It is not desirable to enact legislate that cannot
be enforced. The parties are also free to make
individual or joint wills that will incorporate their
wishes with regard to their respective estates.
5
Clause no./
Theme
Clause 5
Commentator/
Province
Mpumalanga
Northern Cape
Clause 6
Clause 7
Comment
incorporated into effect must be given according to the
agreement that arose from the negotiations mentioned
in section 4(4).”.
1.1 Traditional leaders should be involved in the investigation
of disputes regarding the destination of family property. It is
proposed that, before making a determination regarding the
destination of family property, the matter should be referred to
a magistrate and a traditional leader in the area.
Response
1.1 The magistrate may call any person who
can assist in the enquiry as a witness, including
a traditional leader.
2.1 Before referring a dispute regarding the destination of
family property to a magistrate for an enquiry, the Master of
the High Court should refer the dispute to the traditional leader
of the area to resolve disputes relating to a will in a customary
marriage.
1.1 The Bill does not provide for what will happen when a
traditional leader dies intestate.
2.1 See paragraph 1.1 above. The magistrate
can call a traditional leader to testify regarding
any matter pertaining to the enquiry. (If there is
a will this legislation will not be applicable).
Limpopo
2.1 In order to avoid prejudicing the descendants of a
traditional leader in an intestate estate, there should be a clear
indication as to what constitutes communal property.
Gauteng
1.1 Concern is expressed regarding the proprietary rights in
2.1 What constitutes communal property will
differ from case to case. The examples of the
property a traditional leader may hold on behalf
of a community could include the leopard skin
worn by traditional leaders when they are
installed or a place where meetings of the
community are held. Providing an exhaustive
list could be problematic in cases where
specific property is not listed. This should be
determined by the facts and the customs of the
traditional community in question.
1.1 While the Bill does not deal with the validity
Gauteng
1.1 Clause 6 of the Bill deals with this issue and
makes an exception with regard to property that
is held by a traditional leader on behalf of the
traditional community. The personal property of
a traditional leader is dealt with under clause
2(1) of the Bill, and his or her property will
devolve in terms of the Intestate Succession
Act, unless he or she has left a will.
6
Clause no./
Theme
Commentator/
Province
Comment
Response
civil and customary marriages as well as the status of such
marriages.
or otherwise of one marriage over the other, the
Bill protects the proprietary rights of customary
marriage spouses and their issue whose
marriages were dissolved by the subsequent
civil marriages between their husbands and
other women during the period when this was
not regulated.
Mpumalanga
2.1 In order to protect women who enter into a customary
marriage with the deceased after he has already entered into
a civil marriage, protection should not be limited to any period
and references to older legislation should be omitted.
Therefore, clause 7 should be rephrased as follows:
“(1)
No person in any marriage will be
discriminated against in any manner with regard to
his or her proprietary rights and any issue thereof
purely due to the nature of the marriage or because of
the time at which he or she entered into such
marriage.
(2) Where a person has entered into a
marriage in terms of the Marriage Act, 1961, and
then entered into a customary marriage or where a
person has entered into a customary marriage and
subsequent to this union entered into a marriage in
terms of the Marriage Act, 1961, then the widow or
widower in the marriage constituted in terms of the
Marriage Act, 1961, will have no greater rights in
respect of the estate of the deceased spouse as he or
she would have had the marriage been under
customary law.”.
1. Although the Legislature resolved that the Bill be adopted
without amendments, the following comments were raised:
2.1 See paragraph 1.1 above. The Recognition
of Customary Marriages Act prohibits persons
from concluding both customary marriages and
marriage in terms of the Marriages Act at the
same time and vice versa. Providing a blanket
protection to such marriages would amount to
condoning an action which is prohibited by law.
It is, however, necessary to protect customary
marriage spouses whose customary marriages
were dissolved by subsequent civil marriages
between 1927 and 1988 because, during that
period, there was no statutory prohibition in this
regard.
Free State
1.1 The Bill is seems to favour women because they do not
accept children born out of wedlock/step children because
1.1 A child born out of wedlock has the right to
inherit from his or her natural parents, including
General
comments
7
Clause no./
Theme
Commentator/
Province
Gauteng
Comment
Response
such children stand to benefit from the estate of the father.
the father irrespective of whether the father’s
spouse has accepted the child or not, provided
paternity has not been denied and tested.
1.2 In order to avoid problems which are usually encountered
after the death of the husband, the Bill must make provision
for registration of customary marriages.
1.2 The registration of customary marriages is
dealt with in the Recognition of Customary
Marriages Act, 1998.
1.3 The law on polygamy should be revisited since it was
acceptable because people were well off and could
adequately provide for many families.
1.3 Noted. Polygamy is recognised by the
Recognition of Customary Marriages Act, 1998.
1.4 The customs should be restored to the way they used to
be, for example customary marriages, initiation schools, etc.
1.4 Noted.
1.5 There could be a problem if a girl child were to be
appointed as a traditional leader and she marries and changes
her surname to that of the clan into which she has married.
1.5 The Bill deals with intestate succession.
Traditional leadership and recognition as a
traditional leader is dealt with in the Traditional
Leadership and Governance Framework Act,
2003.
2.1 The Bill does not seem to provide recourse for children
born out of wedlock or out of a customary union the deceased
would have entered into, where the estate was divided only
among children born out of a civil marriage.
2.1 It would seem as if the commentator is
referring to children born out of a marriage
under the Marriages Act, 1961, who take
preference. Any person entitled to a share in an
intestate estate who has been deliberately or
otherwise excluded as an heir already has
remedies at his or her disposal: the Master of
the High Court and the High Court.
2.2 Customary law is not practised in urban and peri-urban
areas and there is no effort on government to educate
communities about customary law.
2.2 Noted. The Department of Justice and
Constitutional Development has included it in its
communication strategy, awareness
programmes in communities on the Bill and its
implications.
8
Clause no./
Theme
Commentator/
Province
Limpopo
Mpumalanga
Comment
Response
2.3 Do extra-marital children have the right to inherit from the
father or mother?
2.3 Children born out of wedlock have the right
to inherit from both parents. They can inherit
from step parents who have adopted them
formally, in which case they do not inherit from
the biological father or mother, as the case may
be, as their status would have changed.
2.4 The Bill needs to be popularised among communities.
2.4 See paragraph 2.2 above.
3.1 Customary law of succession should revisit the issue of
inheritance through the bloodline in order to accommodate the
situation where the deceased does not have direct
descendants.
3.1 Noted. In terms of the Bill and the Intestate
Succession Act, it is, however, possible for a
person who may not necessarily be related to
the deceased through the bloodline, to inherit
from his or her estate. Adopted children also
have the right to inherit from their adoptive
parents.
3.2 The Bill should embrace African values and customs.
This could be achieved by conducting an in-depth research
into traditional councils and communities.
3.2 Noted. The South African Law Reform
Commission consulted extensively with
communities during the investigation phase of
the Bill.
3.3 The Bill should address Euro-centric values and customs
which undermine African values and customs.
3.3 The Bill which, in essence, gives effect to a
Constitutional Court judgment, attempts to do
this, despite the conflict that exists between the
civil and customary law. The broadening of the
definition of adopted child to include adoptions
under customary law and allowing children born
out of supporting/ancilliary unions to inherit,
reflect this.
4.1 What happens in the case where a step child or a child
born out of wedlock demands to take his or her biological
father’s name once he or she has grown up because the
4.1 The name of a child does not affect
inheritance. Children have a right to inherit from
their parents. Adopted children also have a
9
Clause no./
Theme
Commentator/
Province
Comment
Response
father is wealthy?
right to inherit from their adopted parents. If a
step child has been formally adopted by the
step father or mother, the status of that child
changes to being a child of the adoptive parent
for all intents and purposes and such child can
inherit. It is possible for a child who has not
been formally adopted to take the father’s name
whether the father is wealthy or not. Whether a
child takes the biological father’s name or not,
the child is entitled to benefit from the biological
father’s intestate estate.
4.2 Will a child born out of wedlock inherit from the estate of
his or her biological father? Will the estate be accepted in the
new family of such a child?
4.2 See paragraph 4.1 above.
4.3 According to IsiNdebele customs a child born out of
wedlock takes the biological father’s surname. Why is such a
child entitled to an inheritance from a different surname?
4.3 See paragraph 4.1 above.
4.4 If lobolo is paid for an extra-marital child that child is
accepted into the family into which the mother is married.
4.4 If in the traditional practices of the particular
community the payment of lobolo signifies(a) the customary law adoption, and
(b) that the child is accepted as the adopted
child of the mother’s husband or of the adoptive
family, such a child will inherit from the mother’s
husband and from not the biological father.
4.5 Is an extra-marital partner entitled to a share of a former
partner’s estate?
4.5 There is no provision for an “extra-marital
partner” in the law of intestate succession.
4.6 The Bakgatla practise a custom in terms of which the
youngest male child remains in the family home.
4.6 The Bill abolishes the rule of primogeniture
on the grounds of unfair discrimination on the
basis of birth. The same argument will hold in
respect of ultimogeniture. It is vital that there is
10
Clause no./
Theme
Commentator/
Province
Comment
Response
equal treatment of heirs.
4.7 Married female children should not benefit from the estate
because the lobolo paid for her is part of that estate.
4.7 See paragraph 4.6 above.
4.8 When a male child marries the father gives him his share
of the estate to establish a house. Therefore married children
who are financially independent should not participate in the
estate of the parents.
4.8 See paragraph 4.6 above.
4.9 A child born out of wedlock should be entitled to benefit
from the estate of his or her mother
4.9 The Intestate Succession Act already
makes provision for a child to inherit from its
natural parents.
4.10 A child born out of wedlock should not be entitled to
benefit from the estate of the head of the family. Only
biological children may benefit from the estate of the family
head.
4.10 Children born out of wedlock are not
entitled to inherit from the head of the family
unless such a child has been adopted. They
inherit from their natural parents.
4.11 A child born out of wedlock should benefit from the
estate of its grandparents only and not that of the step father.
4.11 In terms of the Intestate Succession Act, a
person is entitled to inherit from grandparents if
those grandparents do not have direct
descendants. In terms of the Bill a grandchild
could inherit if he or she is a dependant of a
grandparent. A child will not inherit from a step
father unless the step father has adopted the
child.
4.12 All children irrespective of status in the family must be
entitled to an equal share in the estate of the family head
4.12 The Intestate Succession Act makes
provision for inheritance through the bloodline.
Because of this, children born out of wedlock
inherit from their biological fathers even if the
father is not married to the mother. The Bill
extends the definition of descendant by
including dependants of the deceased. Only a
11
Clause no./
Theme
Commentator/
Province
Comment
Response
child born out of wedlock who has been formally
adopted may inherit from the stepfather
because the adoption has changed his or her
status. A step father who wishes that a step
child inherit from him can ensure this by making
a will.
Northern Cape
4.13 In order to avoid double benefit to an heir, the Bill should
distinguish between an orphan and a child born out of wedlock
whose biological father is still alive.
4.13 Nothing entitles an orphan who has not
been formally adopted to inherit from the
intestate estate of a person who is not its
biological parent. Such a child would inherit
from his or her (biological) parents. A child born
out of wedlock also inherits from biological
parents. Therefore there is no possibility of
double benefit to either an orphan or a child
born out of wedlock.
5.1 While the Bill is supported, it excludes men as
dependants or possible heirs, it only covers women.
Clause 2(1) of the Bill provides for the estate of
any person which does not devolve in terms of a
will to be regulated in terms of the Intestate
Succession Act. The Intestate Succession Act
applies to any person. Clause 2 makes
reference to women in order to cover women
who have entered into customary unions with
men or other women for purposes of providing
them with children while they are currently not
regarded as spouses for purposes of
succession.