Impact of the Intestate succession on the interests of women and children

Abstract

The African customary law,1 relating to the intestate succession has always been known to discriminate against women and specifically female children. We live in a developing country where the law is used as a tool to develop and transform the lives of the people. Legislation has previously failed to prohibit the discrimination against women and female children and my question is whether the law of our current times has succeeded to protect women and female children against the customary law of intestate succession in South Africa. The Constitution of South Africa 1996 is the supreme law of the country of South Africa and it provided the legal foundation for the Republic. In my dissertation I will be focusing on section 9 of the Constitution of South Africa 1996 which stipulates the following: ?Everyone is equal before the law and has the right to equal protection and benefit of the law. Being equal before the law means all laws may not unfairly discriminate against anyone. Everyone is entitled to equal rights and freedom. This also means there should be equal representation on legislative bodies (in other words, bodies that make our laws). In this way we can make sure that all the different needs of the people of the country are shown in the laws. The right to 'equal protection before the law' means people have a right to the same opportunities and to have equal access to resources, which would allow them to be equal in the future?.2 The question is whether section 9 of the Constitution is being promoted amongst the African people in South Africa who are still practicing and living according to customary law when it comes to issues of intestate succession.3 Amongst tribes in South Africa, succession to status in customary law is based on the principle of primogeniture4. According to that principle the eldest son is the only person eligible to succeed the deceased. The women and female children are excluded from succeeding the deceased. This means that the women and female children were excluded purely on the basis of gender. This dissertation will give a background of how the law previously failed to protect women and female children living according to customary law in South Africa on their rights to intestate succession. It will also show the revolution of our law, in discussing the law that is currently in place to protect women and female children and whether these law and legislation are enough to protect women and female children whom are still living according to the customary law in South Africa. Was the declaration of the male primogeniture principle as unconstitutional and the implementation of the Intestate Succession Act 81 of 1987 along with the Reform of Customary law of Succession and Regulation Matters Act 11 of 2009 enough tools to transform and protect women and female children form discrimination in the intestate succession in customary law?