5 THE WIDOW

(1) Levirate unions

Because a customary marriage involves two families, not simply the individual spouses, the union does not automatically end when a husband dies. His widow remains with the deceased's family under the protection of his heir.

When a man dies without an heir or when his wife is still young and capable of bearing more children, the widow is expected to enter a levirate union (ngena in Zulu/Xhosa and kenela in Sotho) with one of the deceased's brothers.^[12] While a major purpose of this arrangement is to bear children, levirate unions also ensure a widow's continued protection within her husband's family.

Forced marriage was never considered optimal in customary law, and levirate unions were generally arranged to suit all parties. Nevertheless, widows could be subject to considerable social pressure to acquiesce. (If a woman refused to stay with her husband's family, the marriage would strictly speaking have to be dissolved, which would mean that her guardian would have to refund bridewealth.) The courts and colonial governments were prepared to be tolerant: they did not outlaw levirate unions, but they did insist that widows freely consent.^[13]

Today, it seems as if levirate unions are obsolescent. They unpopular with women and certain churches have condemned them as adulterous.

Should an attempt be made to prohibit levirate unions?

(2) Inheritance and maintenance

Although customary law does not allow wives to inherit from their husbands, widows are not left destitute. The deceased's responsibilities towards his dependants, including his wife, are transmitted to his heir. Hence, although a widow has no inheritance out of the estate, she can claim maintenance from the heir. Even so, widows are placed in a vulnerable position, in part because the social basis for customary law has changed and in part because their rights have not been fully developed.

In the first place, a widow's right to support is considered to be conditional upon her residing at her late husband's homestead. Not only does this rule assume the ready practice of levirate unions, but also a particular residential pattern (isolated, self-sufficient homesteads) and a particular type of estate (land and livestock).

None of these assumptions are borne out by modern social conditions. As we have seen, levirate unions are now uncommon. In the overcrowded cities of southern Africa, it may be physically impossible for a widow to remain living with the heir. And, where cash is the main asset, the need for a widow to remain with the estate disappears: cash must be invested and money can be drawn from financial institutions anywhere in the country.

In the second place, the legal implications of the widow's interest in the estate have not been fully explored. The courts have been careful to point out that she does not have a right of ownership. It is the heir, as successor to the deceased, who is generally considered owner of the estate. Admittedly, he must consult the widow before disposing of assets, but we have little indication of what a widow could do if he mismanaged the estate or failed to consult her.

In the final analysis, the widow's right to maintenance is effective only if she and can preserve a good working relationship with the heir (not to mention her husband's family generally). Unfortunately, circumstances do not favour this relationship. Widows are all too often kept on at the deceased's homestead on sufferance or they are simply evicted. They then face the prospect of having to rear their children with no support from the deceased's family.

In KwaZuluNatal an attempt has already been made to alleviate the position of widows.^[14] They may request a district officer to initiate an inquiry into a deceased estate. If the officer is satisfied that application of customary law would be unjust to the widow, taking into account the assets and liabilities of the estate and the extent of the widow's and the heir's contributions to it, he may order that the estate devolve according to common law.

Whether widows can find a more immediate remedy in the constitutional principles of equal treatment and non-discrimination is questionable.^[15] The customary order of succession, which prefers the deceased's oldest male descendant as heir, clearly constitutes discrimination against females (daughters, granddaughters, sisters and mothers). Widows, on the other hand, are not members of their husbands' families, and hence could be said to experience no discrimination.

One of the most important questions in this Issue Paper is whether a widow should be entitled to inherit at least portion of her deceased husband's estate. If widows are not allowed to inherit, should they none the less be given greater rights in the estate and better powers to control the heir's management of estate assets?

[12] Although most systems of southern African customary law recognize levirate unions, Xhosa-speakers regard intercourse between the widow and one of her deceased husband's relatives as incestuous.

[13] And, if a widow refused to enter into a levirate union, the courts held that her guardian would liable to return bridewealth only when she remarried.

[14] Section 81(6)(a) of the Codes. Subsection (b) has a similar provision in favour of `any child of the deceased'.

[15] Especially in view of the decision in Mthembu v Letsela & another 1997 (2) SA 936 (T).

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