6 SUCCESSION TO WOMEN

(1) Rules regulating succession to women

In a patriarchal society, not only do men hold the positions of authority but they also control property. Hence succession to a deceased woman (who is unlikely to have a sizeable estate) is of less importance than succession to a deceased family head. It is probably for this reason that we have very little information on the customary rules governing devolution of women's estates. From the fragmentary data available, it seems that, if a woman died without having had children, her property would usually go to her father, brothers and sisters. If she had borne children, they would inherit.

Although in earlier times succession to women was obviously not a serious social issue, it is today. All women, to a greater or lesser extent, participate actively in the market economy. They are expected to run households and bring up children; sometimes they have the assistance of males and sometimes they have to operate alone. When such women die, clear rules of succession are obviously needed to determine who will take over their property and their responsibilities (especially for children).

While we obviously need to know more about the customary rules regulating succession to women's estates, we must ask ourselves whether different systems of succession, distinguished only by the deceased's gender, should be maintained. If it is felt that only one system of rules is now necessary, then further questions arise whether succession to women should be the same as succession to men or whether a new, different law should be formulated.

(2) Sororal unions

In customary law, a woman's death is particularly serious if she had not fulfilled her duty to procreate children. In some systems, the husband of a wife who died young (or proved to be barren) could demand that the deceased's family provide her sister as a replacement.^[16]

These sororal unions, like levirate unions, would not ideally have been forced onto unwilling women. None the less, women were still under considerable social pressure to comply. In accordance with their general policy about marriage, the courts refused to uphold any involuntary association.^[17]

Sororate unions are now obsolescent, if not entirely obsolete. They belong to a different era, when polygyny was more common and procreation the main object of marriage. The institution nevertheless lingers on, if only as a potential, offering the mercenary widower a pretext for claiming refund of his bridewealth.

Should the institution of sororal polygyny now be prohibited?

[16] Because Xhosa-speakers do not countenance sororal polygyny, if a wife in one of the senior houses died childless, her husband would be obliged to contract a new marriage.

[17] And they were reluctant to enforce any obligation to refund bridewealth. Section 66(3) of the KwaZuluNatal Codes (Proc R151 of 1987 and KwaZulu Act 16 of 1985) provides that, if a woman dies within 12 months of her marriage, without having had children, a maximum of half of the bridewealth may be recovered by the husband.

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