1 THE PURPOSE AND NATURE OF RULES OF SUCCESSION

In all legal systems, rules of succession are designed to establish in advance who will take over the property and responsibilities of a deceased person.^[1] The function of the law of succession is therefore to counteract the disruptive effect of death on the integrity of a family unit. In doing so the law asserts the family bloodline by prescribing which of the deceased's immediate kin qualify as potential successors to the deceased.

Rules of succession are inevitably shaped by the type of society in which they are supposed to operate. It comes as no surprise, then, to find that the various systems of customary law in this country bear the imprint of family and social structures prevalent in precolonial Africa. Customary rules of succession assumed, for instance, that families were typically `extended', both through polygynous marriages and especially through connections with ascending and descending generations in the male line.

The economy is another significant influence on the law of succession. In the predominantly subsistence economies of precolonial Africa, each family was more or less self-sufficient. Food production, whether herding or farming, was the main activity, and livestock and land were the major assets. Because all members of a family had an immediate concern with the husbandry of these assets, no one person could claim full rights and powers over them. Thus, although the head of a family was overall manager of the family estate, his powers were in practice less important than his responsibilities to care for dependants.

From the last paragraph it will be apparent that in customary law individual ownership was limited. All members of a family had an interest in the major productive assets. Full ownership could only be asserted over specifically personal property, such as wearing apparel, tools of trade or the livestock that for ritual reasons was regarded as an individual's.

When the head of a family died, rules of succession were needed to determine who would take over the powers associated his position, since someone had to take over the responsibility of managing the family estate and caring for surviving dependants. (Rights to the deceased's personal property were less significant.) Because the position as family head was socially so important, rules governing succession to this position were at their most elaborate. Succession to women and unmarried sons could be dealt with in a more perfunctory way.

The socio-economic order which produced the customary law described above has, of course, changed. Diverse forces associated with colonialism, apartheid and the cash economy have had a profound effect on the economy and African family structures. A major question to be posed in this Issue Paper, therefore, is whether the customary rules of succession are appropriate to modern social conditions. In other words, can these rules serve the social purposes expected of a law of succession?

Another major question arises from South Africa's new constitutional order. The promulgation of a justiciable Bill of Rights has affected all branches of the law, including succession. This Issue Paper therefore considers whether customary law now meets the standards set in our new Constitution, in particular the prohibition contained in s 9(2) on unfair discrimination on grounds of age, sex or gender.

[1] The words `succession' and `inheritance' are often used interchangeably, but strictly speaking they should be distinguished. `Succession' means transmission of all the rights, duties, powers and privileges associated with a social position, while `inheritance' means transmission of property only.

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