LESSON 3

Lecture1
-Movable and Immovable things = Property
-Rights to property said to be ‘REAL RIGHTS’ and classified into different categories;
e.g Ownership, Servitude, pledge, mortgage, Quitrent tenure, Mineral rights etc
-African Customary law refers to ownership most of the time as a real right.
- Who is the bearer of right in customary law? Pointed out previously that the bearer of
rights is the agnatic group. However, the Head of the group exercise the right on the
group’s behalf.
NB: Modern customary law can vest real rights on the Individual.
Categories of property in customary law: To understand the classifications, picture a
polygamous family unit; that is one with several house units.
Thus, the property can be classified into:
- General property
- House Property
- Personal property
NB: As you study the above categories, make sure that you able to
 Define the property
 Give examples of each property type
 Who controls the property and how far they can alienate it.
Lecture 2
This lecture defines the rules of how property of a deceased person is dealt with,
particularly after the death of the family (agnatic group) head.
Firstly note:
1. The two concepts; INHERITANCE and SUCCESSION.
2. The difference between the concepts
Secondly note:
In customary law, the regulation of succession for a family head can be discussed under
two considerations; namely
 The General successor
 House successor
(Define each of the rules for succession under the two headings)
Customary law/rules of succession
Please take note of the following carefully
1. The underlying principles of the customary law of succession. These are
important to read and understand.

2. Order of Succession
 In a monogamous household
 In a polygamous household
In either household above, note the order of succession amongst the children on
page 98 of the study guide.

3. Distinguish between General and special succession

4. Powers and duties of the successor. These include succeeding to both Assets as
well as the duties of the successor. Also include;
Support to family members; payment and collection of debts; provision of lobolo
for sons of the family, and provision of Bridal goods for the female members of
the family.
Remember to compare these duties with the provisions of the law in KZN.

5. Disposition INTER VIVOS

The concept of executing wills as understood in the Western law is unknown in
original customary law. However a Family head could make certain allotments of
property to certain family members. Note carefully how these allotments could be
made by a family head on page 100 of the study guide.

Lecture 3
In this lecture, legal developments to the formal regulation of the customary laws of
succession are explored. These have occurred historically under three headings.
1. Testamentary dispositions
Recognition of testamentary dispositions in modern customary law initially provided
for under section 23(3) of the Black Administration Act 38 of 1927.
2. Intestate Succession
 Sections 23(1) and (2) of the BBA regulated the disposal of estates for Black
persons. The rule contained in Government notice R200 of 1987 confirmed section
23 provisions above and specifically recognized the principle of male primogeniture,
with regulation 2 specifically providing that in the absence of a valid will, property of
a Black person was to be regulated in accordance with the customary rules of those
black persons.
The rules were also seeking to distinguish between estates of black persons who
was a partner to a civil marriage.
3. Winding up and administration of a Black person’s estate
Two historical periods are distinguished:

(i) Prior to 6 December 2002

According to the BBA –Section 23 – estates of black persons were to be administered in
the Master’s offices if they had a valid will.
In the absence of a will, estates of black people were to be administered by a
magistrate in the Magistrates’ offices in the relevant jurisdiction.
Moseneke case in 2001. Please read a discussion of this case and make your own
notes in your prescribed book. Ascertain the facts, the relevant issues or questions
which were to be answered by the court and the decision of the court.
You will note that the court decision in that case ended up according a prerogative for
estates of black persons to either report an estate to the Master’s office to be
administered in terms of common law or report the estate to the magistrates’ court and
have the estate administered in terms of customary law.
NB: THE PRACTICE OUTLINED ABOVE WAS ALLOWED TO BE APPLIED ONLY
FOR 2 YEARS FROM THE TIME OF THE DECISION.
(ii) From 6 December 2002 to 15 October 2004
 Master of the High Court only empowered to administer all estates irrespective of
race and in terms of statutory law; I.e the Administration of Estates Act.
 Magistrate’s courts administered testate estates below a certain value subject to
the office of the Master’s supervision.
 Intestate estates of black persons who were all married in terms of customary
law or not married were still administered in terms of customary law in the
relevant jurisdictional magistrate’s offices.

Lecture 4
Section 23 of the BBA plus the Government regulations promulgated thereunder all
promoted the recognition of the principle of Male primogeniture.
Contesting the principle:
1. Mthembu v Letsela (not successful)
2. Bhe cases (successful)

Court reform of the principle of Male Primogeniture:

Read the case, Bhe and others v Magistrate Khayelitsha and others carefully, ascertain
the full facts of the case, the relevant issues that the court had to address and the final
decision of the court on the issues.
Legislative reform
 Resultant effect of all the above court decisions has been the need to reform
customary law principles of succession in conformity with the constitutional
human rights provisions.

 Reform of Customary Law Of Succession and Regulation of Related

Matters Act 11 of 2009
 Main aim of the legislation: to modify customary law of succession so to
provide for the devolution of certain property in terms of the common law
of succession.

 The Act proposes the application of the Intestate Succession Act as

applicable to all estates irrespective of the law to which a person is subject
to if they have no valid will.(but subject to its subsection 2)

 The intestate Succession Act spells that if a deceased person is survived

by a spouse and a descendant; the spouse is to inherit a child’s portion
or an amount to be determined and fixed by a cabinet member
responsible for justice administration in the gazette, whichever is greater.

 The RCSRMA above, goes on to offer the following definitions;

1. Definition of a descendant
2. Definition of a spouse
3. Woman to woman marriages
4. Property acquired by a traditional leaderes
NB: READ to understand all these above-mentioned definitions.
Possible Multiple Choice Questions:
1. Which of the following is NOT an example of house property?
a.Marriage goods (lobola) received for the daughters of the house
b.Compensation for the wife’s adultery or the seduction of any of the daughters
c. Crops from the fields belonging to the house
d.Property of the family head’s mother’s house to which he has succeeded

2.Which of the following statements is correct regarding the concept of

succession?

a.Succession is mainly concerned with the division of the assets of a deceased

person.
b.The division of assets can take place according to the provisions of a will.
c. The successor takes the place of the deceased and gains control over the
property.
d.If the liabilities exceed the assets, the heirs inherit nothing

3. Which of the following is NOT an example of general principles of the

customary law of succession in terms of original customary law?
a. Succession takes place only on the death of a predecessor.
b. Succession is a duty that cannot be relinquished or ceded.
c. A distinction is made between general succession and special succession
d. African people commonly disposed of their assets using a will.

4. In terms of the original customary law general property would include …

a. earnings of family members, including the earnings of a midwife and medicine

woman.
b. property of the family head’s mother’s house to which he has succeeded.
c. clothing, walking sticks, snuff boxes, necklaces and weapons.
d. property was given to a woman during her marriage, such as household utensils
and a certain beast that is given to her during her marriage, such as the
ubulungu beast.

5. The effect of the decision taken in the Moseneke case was that between 2002
and 2004, an intestate estate of a black person reported to the Master was
administered in terms of …

a. customary law.
b. native law.
c. common law.
 d. Zulu code.

6. In the case of Bhe and Others v Magistrate, Khayelitsha, and Others

(Commission for Gender Equality as Amicus Curiae) 2005 (1) BCLR 1 (CC), the
court declared the whole of section 23 of the Black Administration Act 38 of
1927 and the regulations promulgated thereunder to be unconstitutional and
invalid because…

a. the combined effect of section 23 and the regulations was to put in place a
succession scheme which discriminated on the basis of race and colour
applying only to white people
b. the Act was manifestly racist in its purpose and effect because it
discriminated on the grounds of race and colour
c. the discrimination it perpetrated was an affront to the dignity of both black
and Indian persons.
d. it was inconsistent with the right to life guaranteed in section 11 of the
Constitution.

7. Which statement does NOT apply to The Reform of Customary Law of

Succession and Regulation of Related Matters Act 11 of 2009? The Act …

a. affords children adopted in accordance with customary law equal

treatment as children adopted under common law for inheritance
purposes.
b. amends rules of customary law that regulate the disposal of the property,
which a traditional leader held at death on behalf of a traditional
community.
c. affords a woman whom a deceased man entered into union with, for
purposes of providing children on behalf of his spouse to be considered a
spouse for inheritance purposes
d. defines a woman-to-woman marriage as a practice that affords a widow to
marry another woman to raise an heir for her late husband.

8. Which of the following is NOT an example of general property?

a. Property of the family head’s mother’s house to which he has succeeded

b. Property that the family head has earned through his occupation
c. Land that has been allocated to the family head by the tribal authority and which
has not been allotted to a particular house.
d. property was given to a woman during her marriage, such as household utensils
and a certain beast that is given to her during her marriage, such as the
ubulungu beast.
9. Which of the following is NOT an example of house property?

a. Marriage goods (lobolo) received for the daughters of the house.

b. Property that the family head has earned through his occupation.
c. Compensation for the wife’s adultery or the seduction of any of the daughters.
d. Crops from the fields belonging to the house.

10. Succession to traditional leadership in African customary law…

a. follows the principle of primogeniture.
b. is gender neutral.
c. is a hereditary system which follows the male patrilineage.
d. only happens where the traditional leader dies without brothers

11. In customary law, house property …

a. belongs to a particular house under the household.
b. is unilaterally controlled by the family head.
c. includes property of the family head’s mother’s house to which he has
succeeded.
d. may be defined as property that belongs to a person who has acquired it,
although it may be under the control of the family head.

12. Which of the following statements is true? According to the customary law of
succession in Kwa-Zulu Natal…

a. a successor succeeds to the assets and all the debts of his predecessor in
KwaZulu-Natal.
b. “succession” is a duty that can be relinquished or ceded.
c. a successor may never be removed from the line of succession.
d. succession can take place while the family head is still alive.

13. Which of the following statements is true regarding testamentary

dispositions in original customary law? .
a. All movable property allocated to a house or a wife in a customary
marriage was inherited in accordance with the rules of original customary
law and could be bequeathed using a will.
b. According to Section 23 of the Black Administration act, all movable
property belonging to a black person and allotted to him or accruing under
black law or custom to any woman with whom he lived in a customary
marriage, or to any house, shall upon his death devolve and be
administered under Black law and custom.
 c. Persons who had contracted a customary marriage, as well as unmarried
men and all women- in so far as they were individual holders of rights-
could dispose of their whole estate using a will.
d. Where the estate of a black person has been partially or totally
bequeathed by a will, it had to be administered in terms of the Black
Administration Act.

14. Before 6 December 2002, the estate of African persons who died intestate was
administered by the …

a. master of the High Court.

b. local magistrate in the area where the deceased lived.
c. local chief in the area where the deceased resided.
d. male elders of the family of the deceased.

15. The main aim of the Reform of Customary Law of Succession and Regulation
of Related Matters Act 11 of 2009 is to …

a. provide for the devolution of certain property in terms of the

common law of intestate succession.
b. regulate the devolution of the deceased’s estate married in terms of
common law.
c. provide for the devolution of certain property in terms of the
common law of testate succession.
d. ensure that matters of succession are handled in western courts of
law.

16. Which of the following statements is NOT applicable to defining a ‘seed raiser’
in African customary law?

a. A woman married by the mother of the deceased husband for the purpose
of raising an heir for her late son’s estate.
b. A woman with whom the man entered into the union for the purpose of
providing children for his spouse’s house.
c. The brother of the deceased husband who enters into union with the
deceased’s wife for the purpose of raising his children.
d. The elder male relative of the deceased who is taking financial care of the
deceased’s family.

17. Woman to woman marriages can be categorized as which of the following:

a. A homosexual union concluded under customary law.

b. Where a widow marries another woman to raise an heir for her late
husband.
c. A common occurrence in various communities in South Africa.
d. A woman married by a woman to raise children for her brother’s
house.