2 SUCCESSION TO THE HEAD OF A FAMILY

Customary-law systems of succession in southern Africa are usually described as intestate, universal and patrilineal. They are `intestate' because individuals are not entitled to establish by wills how and to whom their estates devolve. They are `universal' because all a deceased's rights and duties are transmitted to the heir (who, as it were, `steps into the shoes of the deceased'). They are `patrilineal' because heirs are determined by their relationship to the deceased through the male line. Finally, customary systems of succession are guided by a principle of male primogeniture: a deceased's heir is his oldest son, failing whom, the oldest son's oldest male descendant.

If the head of a family had only one wife, the rules of succession for all systems of customary law in South Africa are more or less the same. A deceased is succeeded by his oldest son; if that son is already dead, the oldest surviving grandson succeeds. Failing any male issue in the oldest son's family, succession passes to the deceased's second son and his male descendants and so on through all the deceased's sons and their male offspring.

Customary law never discriminated against illegitimate children in the way common law did, and in fact it is often said that the concept of illegitimacy is irrelevant to customary law.^[2] None the less, preference is generally shown for sons who are related to a deceased by blood. Thus, although a man might accept any child born to his wife as a member of his family, if that child had not been fathered by a kinsman, it would have only an ultimate right to succeed. It follows that legitimate sons are ranked above the illegitimate.

If a deceased has no male descendants, his father is heir. If the father is dead, the deceased's oldest brother is next in line of succession, and if he is also dead, the oldest brother's oldest son (or oldest surviving male descendant) is heir. Failing the oldest brother and his male descendants, the next brother in order of seniority and his descendants are in line.^[3]

In polygynous families, these rules of succession are modified to take account of the fact that the household is divided into separate units or `houses'. According to all the systems of customary law in South Africa, each of a man's marriages establishes a new and independent house. The property in these houses is kept strictly separate, for each estate is inherited by the heir to the house.

A further consideration to determine the inheritance of house property is whether the system of polygyny is `simple' or `complex'. According to the simple system, the heir is the first-married wife's oldest son, or, if that person is already dead, his oldest son.^[4] Failing any male descendants in the first house, the next in order of succession is the oldest son of the second-married wife and his male descendants, and so forth.

When homesteads are divided into two (or even three) different sections, the system of polygyny is termed `complex'. With Xhosa-speaking peoples, for instance, the homestead of a man with two wives is divided into great and right-hand sides. The oldest son of each house becomes heir to that house; if one house has no male issue, the eldest son of the other inherits both. Where the deceased had married a third wife, she would be affiliated (as a qadi or support) to the great house.^[5] If one of the houses has no heir, it is inherited by the most senior heir of the section of the homestead to which it was attached. In other words, the heir to a qadi of the great house would be the eldest son of the great house. Conversely, if the great house had no heir, it would be inherited by the heir of its qadi.

Zulu homesteads may be divided into three sections: a great house (indlunkulu), a right-hand house or support (iqadi) and a left-hand house (ikhohlwa). As with the Xhosa, junior houses are affiliated to one of the senior houses, and, if there are no sons in the iqadi (or any of its affiliated junior houses), recourse is had to the indlunkulu, and vice versa. Where the ikhohlwa and its junior houses have no heir, this section is inherited by the heir of the indlunkulu.^[6]

If a polygynous household produced no male descendants, the order of succession follows the same principles that apply to a monogamous marriage. Succession passes to the deceased's father, failing whom, to the deceased's brothers and their descendants in order of seniority.

This description of the order of succession is the theory. In reality, different rules may well be developing. If the extended families of earlier times have been replaced by nuclear, or other family forms, and if polygyny is no longer a norm, customary law is bound to change to reflect new social patterns. Unfortunately, we have very little published evidence of current trends in customary succession, but, from the limited material available, it seems quite clear that new trends are emerging.

The principle of primogeniture, for instance, has long been assumed to be the keystone of customary law; but in certain situations it appears that this principle is being discarded. Several studies have shown that last born sons generally inherit land. Economic pressures and changes in family structure account this shift towards what could be called a principle of `ultimogeniture'. Because the youngest son is the last to leave home, he is the most readily available to take over the care of his parents in their old age. His inheritance of land gives him both the means and an incentive to do so.

Another rule that is probably changing is the preference for only male heirs. Formerly, women could not exercise power and authority over men, so there could be no question of wives or daughters succeeding a family head.^[7] Where women are family breadwinners and where they manage households on their own, however, we can expect corresponding changes in the rules of succession. Evidence in fact shows that widows often take over their husbands' lands and other assets, especially when they have young children to raise.

The Constitution now provides a legal foundation for these changes in practice. Section 9 of the Bill of Rights prohibits any discrimination on grounds of age or gender, which might suggest that the rule of male primogeniture is invalid and that descendants of whatever age or gender should be entitled to succeed.^[8] A further constitutional prohibition on discrimination by birth or social origin might suggest that any prejudice against illegitimate children is also invalid.

The Law Commission would be interested to know whether the description here of rules of succession to the head of a family still holds true. Have any new rules emerged? Should the traditional rules be changed to take into account the principle of equal treatment in the Bill of Rights?

[2] Partly because a child's legitimacy was not defined simply by its parents' marriage, but rather by payment of bridewealth.

[3] Failing any male issue in the first order of male ascendants, the deceased's grandfather succeeds, failing whom, the deceased's oldest paternal uncle or his oldest male descendant. Failing the paternal uncles, in order of seniority, or any of their descendants, the estate would pass to the next order of male ascendants.

[4] If he has no male descendants, the first wife's second son is heir, or, failing him, his son.

[5] A fourth wife would be attached to the right-hand house, the fifth wife to the great house, and so on.

[6] If there is no heir in both the indlunkulu and iqadi, the heir of the ikhohlwa becomes heir to both sections.

[7] Section 81(5) of the Natal and KwaZulu Codes (Proc R151 of 1987 and KwaZulu Act 16 of 1985), on the other hand, provides that, if there is no male heir, any property in the estate devolves according to the rules of intestate succession applicable to a civil marriage, which would allow inheritance by the deceased's wife and/or daughter(s).

[8] A recent decision in Mthembu v Letsela & another 1997 (2) SA 936 (T), however, found that female dependants suffer no discrimination (ie no prejudice), because, although they do not inherit property, they are entitled to maintenance out of the estate.

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