7 WILLS

(1) Freedom of testation

South Africa recognizes and enforces two major systems of private law: Roman-Dutch law and African customary law. Hence people who are generally deemed to be bound by customary law are free to make use of the institutions of Roman-Dutch law. The exact scope of that freedom, however, has never been prescribed. In the context of succession, for instance, it is not clear to what extent people are free to execute common-law wills and thereby ignore the customary rules of intestate succession.

Under Roman-Dutch law, at least until legislative intervention in 1990,^[18] all people used to have complete freedom of testation, ie, the power to bequeath their property by will to whoever they chose. This freedom was based on an `absolute' notion of ownership: owners of property had a full and exclusive power to dispose of that property as they wished, even though a will disinheriting the testator's spouse and other intestate heirs could seriously prejudice the material security of surviving members of the family.

Customary law, on the other hand, allowed only intestate succession. That people were not at liberty to disregard these rules was due in part at least to the absence of any concept of individual ownership in productive resources (mainly land and livestock). In such property personal interests were subordinate to those of the family.

Whether people subject to customary law may ignore the customary rules of intestacy has never been properly debated in South Africa. It could be argued that the Wills Act,^[19] which stipulates the method for executing an ordinary underhand will, supersedes customary law as a statute of general application.^[20] We should not be too quick to accept this argument, however. Not only have other African countries have been reluctant to do so, but we should also be asking whether it would be a retrograde step to allow testators freedom to neglect the needs of surviving family members.

Any assessment of the merits of freedom of testation must take into account the principal social problem: when a family breadwinner dies, the surviving spouse is in immediate need of material support to raise dependent children.^[21] People who have the power to dispose of their property by will may, of course, provide for their families, but there is no guarantee that they will use this power so sensibly. Conversely, by insisting that testators pay due regard to the interests of their intestate heirs, the law could guard against imprudent wills.

As it happens, South African law imposes two limitations on an African's freedom of testation. Section 23 of the Black Administration Act^[22] provides that movable house property and land held under quitrent tenure must devolve by the customary law of intestate succession. It is debatable, however, whether these statutory restrictions are legally sound or whether they serve any useful social purpose.

(2) Property that may not be devised by will

Section 23(1) of the Black Administration Act provides that.

`All movable property belonging to a Black and allotted to him or accruing under Black law or custom to any woman with whom he lived in a customary union, or to any house, shall upon his death devolve and be administered under Black law and custom.

The main purpose of this section is to protect the interests of house heirs in a polygynous family. (The `movable property' spoken of in s 23(1) is more commonly known as `house property'.)

This provision does not meet its aim on two counts. First, for purely technical reasons hinging on the concept of `house property', the protection it offers is not available if the testator had contracted a civil or a Christian marriage. Because these marriages do not create `houses', they fall outside the purview of the section.^[23]

Secondly, s 23(1) is predicated upon the existence of a polygynous marriage. Where a man has taken only one wife, which nowadays is the more likely situation, it seems inappropriate to speak of the creation of a `house' and thus `house property'. A literal reading of s 23(1) might suggest that the prohibition on bequeathing movable house property includes property that accrues or is allotted to the wife of a monogamous marriage, but such property could just as well be regarded as `family' property (a category considered below) and therefore devisable by will.

Thirdly, it should be noted that s 23(1) does nothing to protect widows. The section in fact deprives them of the potentially beneficial effects of a will, since it insists that a substantial portion of the estate devolves under customary law. Husbands are thereby prevented from making testamentary provision for their wives.

Section 23(2) of the Black Administration Act provides that:

`All land in a tribal settlement held in individual tenure upon quitrent conditions by a Black shall devolve upon his death upon one male person, to be determined in accordance with tables of succession to be prescribed under sub-section (10).'

This provision dates from the second half of the nineteenth century, when colonial administrations allowed certain Africans to acquire land under quitrent title. (Most of this land was situated in the former Ciskei and Transkei.) In order to prevent plots from being fragmented into uneconomic holdings amongst a number of customary-law heirs, succession was legislatively regulated.

These statutory provisions (now contained in the Black Areas Land Regulations)^[24] were specially designed to approximate the customary order of intestacy. Accordingly, title to land held under quitrent was to be inherited in the first instance by `the deceased's eldest son of the principal house or, if he be dead, such eldest son's senior male descendant, according to Black custom'.

The Land Regulations are now of dubious validity. In the first place, they are likely to fall foul of s 9 of the Constitution, which prohibits discrimination on grounds of sex or gender. In the second place, they seem destined to become redundant in view of the land reforms that have been underway since the early 1990s. Under the Upgrading of Land Tenure Rights Act,^[25] any right, including quitrent, granted over surveyed land was automatically converted into freehold tenure. Once quitrent tenure is replaced by full ownership, the reason for s 23(2) may disappear.

Notwithstanding the defects in s 23(2), an important question of policy remains to be considered: should relatively small allotments of agricultural land be devisable by will? If landholders are given freedom of testation, their plots could be split up into holdings so small that they will become uneconomic.

(3) Property that may be devised by will

Subsection 23(3) of the Black Administration Act provides that `all other property of whatsoever kind' may be devised by will. It is implicit in this section that the two main categories of property amenable to disposition by will are immovables and what is usually called `family' property.

As the word suggests, `family' property is not in the exclusive control of the deceased. (For this reason most African countries allow testamentary disposition of only `personal' property.) Similarly, it would be wrong to consider land held under customary law as in the `ownership' of the holder. In the circumstances, the legislature's decision to permit freedom of testation over these two categories of property seems inexplicable.

(4) Guardianship clauses

Guardianship clauses are directions in wills that guardianship of a testator's minor children is to go to a particular person. Such clauses create a problem analogous to bequests of land and family property, because in customary law rights to children normally vest in the father's family, not in the father personally.

What if a testator were to exercise a freedom of testation and transfer these rights to a person outside the family? A more serious problem would arise if a mother were to purport to devise guardianship of her children, since under customary law she has no legal right of guardianship at all. It is arguable that these dispositions are invalid, unless guardianship had been transferred to someone who had an independent entitlement under customary law.

Problems with guardianship clauses could be solved if the Law Commission's recommendations in its Discussion Paper on Customary Marriage are accepted.^[26] On constitutional grounds, the Commission felt that both mothers and fathers should be deemed to have rights of custody and guardianship over their children. Once both parents have personal entitlements to guardianship, it follows that they can validly transmit it by will.

Whether people subject to customary law should have the power to make wills needs to be carefully reconsidered in light of broader policy questions concerning freedom of testation. Should individuals be entitled to disregard the interests of their intestate heirs? Particular attention should be paid to the validity and efficacy of s 23(2) and (3) of the Black Administration Act.

[18] When the Maintenance of Surviving Spouses Act 27 of 1990 was passed to give surviving spouses a right to maintenance from a deceased estate. The Act does not currently apply to the spouse of a customary marriage, because the term `survivor' is defined to mean the spouse of a marriage.

[19] 7 of 1953.

[20] The argument in a leading Bechuanaland case, Fraenkel & another v Sechele 1964 HCTLR 70.

[21] It was for this reason that Roman-Dutch common law was amended by the Maintenance of Surviving Spouses Act 27 of 1990.

[22] 38 of 1927.

[23] According to several decisions of the former Black Appeal Court. See, for example, Tonjeni 1947 NAC (C&O) 8.

[24] Annexure 24 of Proc R188 of 1969.

[25] 112 of 1991.

[26] Discussion Paper 74 ***.

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