Abstract:
The traditional customary law is concerned with the preservation and continuation of the family name and unity within the household, with the successor succeeding to both the status of the family head and inheritance. One of the principles that forms part of the DNA of the traditional customary law of succession, is the patriarchal rule of male primogeniture, which roots for the eldest sons as successors. This rule became part of the statutory law such as the Black Administration Act. Women and younger girls were thereby explicitly disregarded in the issues of intestate succession. This rule was declared invalid and unconstitutional by the Constitutional Court in Bhe v Magistrate, Khayelitsha as it is in conflict with the provisions of the Constitution. The Court constructed its decision around the fact that the primogeniture rule precluded widows from inheriting intestate from their deceased husbands’ estates, daughters, younger male children as well as extra-marital children from inheriting from their deceased fathers’ estates. The Court then gave the legislature the mandate of enacting legislation that will align the traditional customary law with the Constitution.
It is then that the Reform of Customary Law of Succession and Related Matters Act (hereinafter RCLSA) was introduced, so as to deal with certain aspects that the Intestate Succession Act failed to attend to. Whether or not the RCLSA is legislation that specifically deals with the living African customary law of intestate succession and protects the rights of women and female children is the main objective of this research.
