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Customary inheritance laws ruled invalid


"Sjoe!" was Charlotte Shibi's reaction when she heard the Constitutional Court had changed the customary law of inheritance law because of her case.

"Now I am so happy and I thank God because the black women are going forward," Shibi said.

The quietly spoken Shibi is one of two women and two young girls who set South Africa's customary laws onto a new course when they decided to challenge being left out of inheritance.

Shibi sat quietly with a friend, while nearby a throng of legal experts and gender- and human rights observers hugged each other.

Earlier the court had ruled that primogeniture when applied to succession - which allows the eldest male descendant to inherit everything and cuts out children whose parents were not married - is unconstitutional and invalid.

The judgment also provided a formula for calculating inheritances, including children of unmarried parents and partners in polygamous unions.

"They hurt me very much. When my brother died and went to see his corpse at the mortuary suddenly they started treating me like a child," Shibi said.

Shibi's problems started nine years ago when her single, childless brother Daniel Sithole died without a will. With their parents dead Shibi believed she should inherit her brother's estate.

However, in accordance with customary law cousins Mantabeni Sithole and Jerry Sithole stepped in.

A magistrate later appointed Mantabeni Sithole as representative of the estate.

There were complaints about his handling of the estate and a remaining R11 000 was awarded to Jerry Sithole, leaving Shibi out again.

"When he died I thought we were going to work together, but the family said I must get nothing, so I was forced to go the Black Sash," Shibi said.

The SA Human Rights Commission's Jody Kollapen said: "For some years the commission has been receiving complaints from partners in customary unions who were being evicted by their families and had to rely on the generosity of brothers and nephews who were next in line.

"This was clearly a major inequity," said Kollapen explaining why the commission chose to also go to the Constitutional Court for a class action ruling on the matter.

"There was clearly a need to test the constitutionality of those provisions on customary law which would assist in the law reform process," Kollapen said.

"It is not a full frontal assault on customary law - on the contrary we recognise its richness, but we have to realise that the law is not static and it must evolve because equality is the foundation of our constitution."

Meanwhile, in Khayelitsha a similar dispute was unfolding, this time over a stand bought with a housing subsidy.

Domestic worker Nontupheko Bhe and her carpenter partner Vuyo Elius Mgolombane had been living in an informal shelter in Khayelitsha, Cape Town with the youngest of their two daughters. Their older daughter lived with Mgolombane's father.

Her partner obtained a state housing subsidy and bought the property that they had been living on, and the building materials for a house.

However, he died before the house was built leaving an estate of the informal shelter, the property and various items they had bought over the years.

However, after his death, relations soured between Mrs Bhe and her father-in-law Maboyisi Mgolombane and even though he lived far away, a court appointed him representative and sole heir of the estate.

When she realised her father-in-law was going to sell the property to offset her partner's funeral costs, she decided to challenge the move.

The Women's Legal Centre Trust in Cape Town and the Legal Resources Centre (LRC) in Pretoria took on the two cases and secured orders in the Cape and Pretoria High Courts that the laws which allowed these events were inconsistent with the Constitution and therefore invalid.

"We challenged the laws because if it wasn't for their gender they would have inherited," said Louise du Plessis of the LRC.

In giving judgment the court said although the constitution recognised customary law and the role it played in consensus seeking and nurturing traditions like ubuntu, customary law was subject to the constitution.

It noted studies that primogeniture was evolving and that different rules were developing, with official customary law as it stands in text books a distortion of the true customary law.

The court ruled that primogeniture violated the constitution on the grounds of gender and human dignity.

It struck down Section 23 of the Black Administration Act of 1927 agreeing that it was a "racist provision" which was "fundamentally incompatible" with the constitution.

Section 1(4)(b) of the Intestate Succession Act was also found to be unconstitutional and invalid and the Regulations for the Administration and Distribution of the Estates of Deceased Blacks were declared invalid.

The court provided a formula for calculating how the estates must be divided and ordered Bhe's father-in-law to transfer her husband's estate to her and that the Khayelitsha Magistrate's Court must help her and that Shibi be the sole heir of her brother's estate and paid the R11 000.

It declared male primogeniture inconsistent with the Constitution and invalid because it excluded or hindered women and extra-marital children from inheriting property. The order was retrospective to April 27, 1994 but would not apply to completed transfers of ownership, except where the heirs were challenging them.

"In future, such estates must be administered by the Master of the Supreme Court (under) the Administration of Estates Act," said the judgment.

Ten judges concurred and one dissented on certain points.

After the judgment Kollapen said he was "very pleased".

The judgment noted that the House of Traditional Leaders did not take up an offer to respond. - Sapa


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