Abstract
This article will concentrate on the development in the common law ofsuccession and administration of estates versus the customary law ofsuccession and inheritance as well as the winding up of estates pursuant toconstitutional tendencies, case law, and statutory reform over the last tenyears. The principles of customary law of succession and inheritance havebecome a contentious issue since the commencement of the Constitution and Bill of Rights which provide for a human rights dispensation in South Africa. As a pluralistic legal system was retained, the inevitable conflict between the principles of customary law of succession and the Constitution soon came to the fore. Although the South African Law Reform Commission reported on this issue and submitted their recommendations to the Minister of Justice and Constitutional Development, the report was never formally published. Aspects of intestate succession and the administration of estates of deceased blacks were challenged in court on constitutional grounds. This eventually lead to a number of principles of customary law being declared unconstitutional, and consequently invalid, by the Courts who had no choice but to provide relief until such time as the legislature enacted a lasting solution. As far as the intestate succession is concerned, the Intestate Succession Act 81 of 1987 was extended to all persons in South Africa, including those adhering to a system ofcustomary law. No distinction will, for purposes of succession, be made infuture between legitimate and illegitimate children, between a first born son and other siblings or between men and women. Notwithstanding several court judgments in this regard, the Intestate Succession Act has not been amended by the Legislature as yet. As far as the historical discrepancy in the winding up and administration of estates is concerned, all estates, including intestate estates of black persons that have to devolve under customary law, in the future will be administered by the Master. Magistrates no longer will be responsible for supervising and administering customary estates.
Highlights
Background to the South African lawSouth African law consists of the common law and statutory law.1 The law in general is not codified and, like English law, must be sought in court decisions and individual statutes
South African law is described by Palmer2 as follows: In the Cape Colony, a mixed jurisdiction came about after the Dutch — who had transplanted the law of the seventeenth-century Holland to the Cape of Good Hope soon after setting up a supply base there on 6 April 1652 — handed over authority in 1806 to the English who began introducing elements of their own legal system
Even though the South African Law Reform Commission15 (SALRC) had been considering the reform of customary law of succession and inheritance for more than a decade, nothing came of its proposals as a consequence of which the courts were forced to provide appropriate relief
Summary
South African law consists of the common law (rules set down by the old Roman-Dutch authorities as developed by court decisions) and statutory law (acts of the national and provincial legislatures as well as governmental regulations). The law in general is not codified and, like English law, must be sought in court decisions and individual statutes. South African law consists of the common law (rules set down by the old Roman-Dutch authorities as developed by court decisions) and statutory law (acts of the national and provincial legislatures as well as governmental regulations).. South African law is described by Palmer as follows: In the Cape Colony, a mixed jurisdiction came about after the Dutch — who had transplanted the law of the seventeenth-century Holland to the Cape of Good Hope soon after setting up a supply base there on 6 April 1652 — handed over authority in 1806 to the English who began introducing elements of their own legal system. During the later period of English governance a system of 'native administration' was established According to this policy, indigenous people could rule themselves according to indigenous law in certain matters, for example rules of marriage and succession. A group’s right to practice their culture may not be used as a reason to deprive an individual of his or her fundamental rights.
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