Intestacy Rights of Widows in South Africa: Has Customary Law Been Oppressive?

Abstract

For centuries a hybrid of British and Roman-Dutch law peacefully co-existed with African Customary Law. However, there has been growing concern for women’s rights as opposed to cultural autonomy. This has resulted in the South African Constitutional Court finding that African Customary Intestacy Law contravenes with the South African Constitution which promotes equal rights for men and women. Accordingly, customary law is not permitted to be practiced. The first part of this thesis explores the difficulties of identifying who is a widow for the purposes of intestacy. Nonetheless, this thesis analyses how western scholars have misinterpreted the effect of male primogeniture and polygamy as oppressive against women. The second stage explores the practice of polygamy and male primogeniture and how it has ensured the maintenance and up-keep of widows, who otherwise may have been forced to live in austerity. These benefits arguably outweigh the few cases where women have been mistreated. Furthermore, the thesis sheds light upon how many tribes such as the Bantu and Kwa-Zulu tribes require the male heir to consult the widow on how the estate should be run. The underlying theme focuses on how South African judges from a British or Dutch background do not have the requisite knowledge to pass judgment on the impact of African Customary Law on widows. In the British or Dutch culture intestacy law aims to protect the individual. Contrary to this, customary intestacy law protects the whole extended family. The next stage of the thesis outlines how customary law is still practiced in most tribes today, as they are unaware of the implications of the Bhe decision. It is suggested that the legislature initiate collusion between anthropologists as well as men and women from various Black tribes to discuss how it can be ensured that African Customary Law can continue to exist.