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The common law gives individuals considerable freedom to decide on the devolution of their estates, regardless of the interests of intestate heirs.[15] This preference for testate succession is predicated upon individual ownership of property, a concept that is limited to only certain types of property in customary law. Hence, under customary law, transmission of property and status on death is controlled by predetermined rules of intestate succession, rules which family heads may not completely ignore if they seek to dispose of their property mortis causa.[16]
The first issue to consider in matters of succession is whether people subject to customary law may disregard their personal law by making wills. In view of the destructive effect that freedom of testation may have on a family's material security and social cohesion, many African countries restricted this power to persons subject to common law. The question has never been seriously debated in South Africa, where it has always been assumed that anyone may make a will.
Nevertheless, freedom of testation was subject to two statutory exceptions contained in s 23 of the Black Administration Act:
(1) 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.
(2) All land in a location 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).
(3) All other property of whatsoever kind belonging to a Black shall be capable of being devised by will.
(i) Movable house property
Under s 23(1) testators may not bequeath movable ‘house’ property.[17] The concept of ‘house’ property follows from the structure of polygynous households, whereby each wife creates an independent estate for herself and her children. Because the heir to each house is destined to inherit property in that house, it must be kept strictly separate from the property of other houses.
Section 23(1) may well not apply where the testator is a wife, since wives' property cannot strictly speaking be called house property. Similarly, because a civil or Christian marriage cannot technically create a house, the section does not apply if the testator had contracted this form of marriage. The most important objection to s 23(1), however, is that polygynous marriage is no longer a norm.
If this form of marriage (and thus household structure) is now the exception rather than the rule, then the rationale for s 23(1) has disappeared. Thus, if a man takes only one wife, 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 testation applies even to movable property in a monogamous union, but it is equally plausible to regard such property as ‘family’ property, and hence devisable by will.
(ii) Land held under quitrent tenure
When, in the nineteenth century, Africans were first given quitrent title to land, the authorities were concerned to prevent plots being fragmented into uneconomic holdings amongst a number of intestate heirs. Accordingly, succession was regulated by statutory provisions (currently contained in the Black Areas Land Regulations R188 of 1969) designed to approximate the customary order of intestacy.[18]
Quitrent is a colonial form of tenure, limited mainly to the former Ciskei and Transkei. New tenures are likely to be imposed on land restored to people under the Restitution of Land Rights Act.[19] If the land regulations specified in Proc R188 of 1969 are to be superseded, the reason for maintaining this particular exception to the rule of testamentary freedom may disappear.
(iii) Immovables and family property
It is implicit in s 23 that the two main categories of property amenable to disposition by will are immovables and ‘family’ property. Because neither of these categories is in the exclusive patrimony of the deceased, it is incongruous that the bequest of such property is allowed. The law in most African countries provides the reverse: only personal property may be willed.[20]
Intractable legal problems will be created if a person is permitted to bequeath property in which others have concurrent interests. With regard to land, under customary law a landholder's interests are extinguished on death and the land reverts to the traditional authorities for reallocation. If the landholder were to bequeath these interests under a will, what rights would the beneficiary receive?[21] Although the principle that one cannot give more rights than one has oneself is obviously relevant, South African law has no precedent for deciding this problem.[22]
(iv) Guardianship clauses
Guardianship clauses, ie directions in wills that guardianship of the testator's minor children should go to a named person, create a problem analogous to the bequest of land. In customary law, provided that bridewealth is paid, rights to children vest in the father's family, not in the father personally. Hence, it is uncertain what effect a will would have if the testator were to transfer these rights to a person outside the family (especially if the testator were the mother, who in customary law has no legal right of guardianship at all). Arguably, these dispositions are invalid, unless guardianship had been given to someone with an independent entitlement under customary law.[23]
A will is a juristic act peculiar to the common law. Hence, in keeping with the assumption that testators probably envisaged application of the common law, most issues connected with the will - such as capacity, formalities and modes of revocation or amendment - are governed by the same legal system.[24] By relegating these various issues to the common law, choice of law is both unified and simplified. If a testator used distinctively customary law terms in the will, however, that system should obviously govern their interpretation.
Common sense would dictate that, if only a portion of a deceased estate were disposed of by will, then the testator's personal law should apply to the intestate part of the estate. Section 23(9) of the Black Administration Act, however, allows a different approach.
Whenever a Black has died leaving a valid will which disposes of any portion of his estate, Black law and custom shall not apply to the administration or distribution of so much of his estate as does not fall under sub-section (1) or (2) and such administration and distribution shall in all respects be in accordance with the Administration of Estates Act, 1913 (Act No 24 of 1913).
This provision has been read to mean that common law must apply to the devolution of any property not governed by a will, but a more logical interpretation of s 23(9) would suggest application of customary law, for the section states only that administration and distribution of the estate be subject to the Administration of Estates Act (and thus common law), not the devolution of property.
Choice of law is governed by regulations promulgated in terms of the Black Administration Act.[25] These provide as follows:
(2) If a Black dies leaving no valid will, so much of his property, including immovable property, as does not fall within the purview of subsection (1) or subsection (2) of section 23 of the Act shall be distributed in the manner following:
(a) If the deceased was, during his lifetime, ordinarily resident in any territory outside the Republic other than Mozambique, all movable assets in his estate after payment of such claims as may be found to be due shall be forwarded to the officer administering the district or area in which the deceased was ordinarily resident for disposal by him.
(b) If the deceased was at the time of his death the holder of a letter of exemption issued under the provisions of section 31 of the Act, exempting him from the operation of the Code of Zulu Law, the property shall devolve as if he had been a European.
(c) If the deceased, at the time of his death, was -
(i) a partner in a marriage in community of property or under antenuptial contract; or
(ii) a widower, widow or divorcee, as the case may be, of a marriage in community of property or under antenuptial contract and was not survived by a partner to a customary union entered into subsequent to the dissolution of such marriage,
the property shall devolve as if the deceased had been a European.
(d) When any deceased Black is survived by any partner -
(i) with whom he had contracted a marriage which, in terms of subsection (6) of section 22 of the Act, had not produced the legal consequences of a marriage in community of property; or
(ii) with whom he had entered into a customary union; or
(iii) who was at the time of his death living with him as his putative spouse;
or by any issue of himself and any such partner, and the circumstances are such as in the opinion of the Minister to render the application of Black law and custom to the devolution of the whole, or some part, of his property inequitable or inappropriate, the Minister may direct that the said property or the said part thereof, as the case may be, shall devolve as if the said Black and the said partner had been lawfully married out of community of property, whether or not such was in fact the case, and as if the said Black had been a European.
(e) If the deceased does not fall into any of the classes described in paragraphs (a), (b), (c) and (d), the property shall be distributed according to Black law and custom.
(i) Foreigners
Regulation 2(a) governs the estates of Africans ordinarily resident in countries outside the Republic (except Mozambique). If the usual conflict principles were to apply, such cases would be dealt with according to choice of law rules supplied by private international law, under which the law of the deceased's country of domicile (not residence) would prevail.
(ii) Persons exempt from customary law
Because the exemption procedure contained in the Black Administration Act allows applicants to become subject to the common law, the estates of persons exempted devolve according to common law rules of intestate succession.[26]
(iii) Married persons
Movable house property must devolve according to customary law and the devolution of land held under quitrent tenure is governed by statutory tables of succession. In the absence of a will, all other property is subject to choice of law rules contained in regs 2(c)-(e). In broad terms, the relevant system is determined by the cumulative effect of the deceased's form of marriage and matrimonial property system, factors that are supposed to reflect what law the deceased would have expected to apply.
I Persons married by civil/Christian rites in community of property
According to general principles, the form of a marriage is usually sufficient to dictate application of the common law, but reg 2(c)(i) and (ii) requires an additional factor: the deceased's matrimonial proprietary regime. If common law is to regulate devolution of an estate, the deceased must have been married by civil or Christian rites, in community of property (or with an antenuptial contract) and he or she must not have been party to a subsisting customary marriage.
For purely legal reasons, few deceased estates can comply with all these requirements. Before 1988, Africans married by civil or Christian rites were deemed to be married out of community of property, unless they made a prenuptial declaration,[27] an option exercised by very few Africans. In 1988, the Marriage and Matrimonial Property Law Amendment Act[28] reversed this rule, with the result that all civil/Christian marriages are now in community of property. (And this regime may be varied only by antenuptial contract.) The amending legislation was not made retrospective, however, so most African marriages are still out of community of property. In consequence, most cases of intestate succession will still be governed by customary law.
Because a customary system of succession applies to nearly all existing civil/Christian marriages, and because the laws of succession complement the law of marriage, anomalies are bound to occur. Thus, even if the spouses deliberately married according to civil rites to escape the strictures of customary law, their estates will still devolve according to that system. Similarly, although the spouses may have lived their married lives according to common law, on the death of the husband, the surviving spouse is reduced to the position of a customary law widow, dependent for support on maintenance paid by the heir.[29]
II Persons married out of community of property or under customary law
Customary law applies to the estate of a person who is survived by a customary law spouse and children or a person who had married by civil rites but out of community of property. Despite its intricate wording, this regulation does not cover all the situations intended. What of a person who had married by customary law, but who died leaving no surviving spouse or children? Presumably, a contrario the terms of reg 2(d), the common law would apply. Another ambiguity is the position of a divorcée. Customary law will continue to apply to this person's estate, regardless of the absence of the critical choice of law factor: the customary marriage.
If the application of customary law under reg 2(d) seems inappropriate or inequitable, potential beneficiaries can petition the Minister - it is obscure which Minister, since the Department of Development Aid is now defunct - for a directive that the common law be applied instead. This saving provision was hardly satisfactory. Choice of law is made an administrative process, and, although it may save the cost of litigation, argument from all interested parties is precluded.
III Discarded wives: the problem of dual marriages
Formerly, if a man married according to customary law and if he were then to marry another woman by civil or Christian rites, the second marriage automatically extinguished the first. To cure some of the inequities of allowing civil/Christian marriages to override customary unions, s 22(7) of the Black Administration Act provided:[30]
No marriage contracted after the commencement of this Act [1 January 1929] but before the commencement of the Marriage and Matrimonial Property Law Amendment act 1988 [2 December 1988] during the subsistence of any customary union between the husband and any woman other than the wife shall in any way affect the material rights of any partner of such union or any issue thereof, and the widow of any such marriage and any issue thereof shall have no greater rights in respect of the estate of the deceased spouse than she or they would have had if the said marriage had been a customary union.
By preserving the property rights of the customary-law wife, this provision had the effect of ranking civil and customary wives (and their progeny) equally for purposes of the devolution of an estate. Hence, on the death of a husband, customary law would revive as it were to govern both families' succession to his property. Section 22(7) continues to apply to the victims of dual marriages contracted between 1929 and 1988.
By subjecting the widow and children of the civil marriage to customary law, s 22(7) has the unfortunate side-effect of depriving them of their common law rights of succession. After the law had declared the customary spouse no longer married, she might (possibly many years later) regain her status as a wife. At the same time, however, the civil law spouse, who had enjoyed the benefits of common law (again possibly for many years), would find her position suddenly downgraded to that of a customary law widow.[31]
(iv) Unmarried persons
Because choice of law in reg 2(c)-(d) is predicated upon the form of a deceased's marriage, the rules do not cater for those who never married. Instead, reg 2(e) applies and customary law is deemed to govern devolution of the estate. Evidently it was assumed that all Africans should automatically be subject to customary law, and, if they wanted to avoid application of this law, they could make wills. While these assumptions may in some situations be appropriate, the common law will be more suitable where the deceased's lifestyle inclined to that system.
(v) KwaZulu/Natal and the former Bophuthatswana
The Natal and KwaZulu Codes enacted special provisions designed to override the Black Administration Act and the regulations described above. The Codes stipulate that estates of Africans married by civil rites, regardless of the matrimonial property system, are to devolve according to common law.[32] Bophuthatswana also enacted legislation designed to replace the customary law of intestate succession with the common law.[33]
A general code of succession law that sets standards applicable to all persons regardless of their personal law would obviously be desirable in a country striving for political unity and equality before the law, but such a project would involve difficult policy decisions. Instead of a thorough-going reform of the law of intestate succession, a code of testamentary succession aimed at solving conflict of laws problems in a manner that is sensitive to both customary and common law can be more easily achieved. In any event, the choice of law rules contained in the existing medley of anomalous rules and regulations need to be consolidated and amended.
Section 23(1) of the Black Administration Act should be amended to provide that a person may bequeath by will only personal property. (In view of the rarity of polygynous marriages, there would seem to be no sense in preserving the special status of house property.) This change will cure the various anomalies caused by permitting people to bequeath family property and land (which may in any event be dealt with later by separate legislation).
Consideration should be given to introducing an express provision to permit guardianship clauses in wills.
Regulation 2(a) should be deleted so that succession to the estates of all foreigners is now subject to the ordinary rules of private international law. The special provision in reg 2(a) was probably occasioned by the presence of a large number of foreign workers in South Africa (and it no doubt suited South African officials, who could avoid the complexities of administering estates under a foreign law), but it is undesirable that such people should be treated differently to persons subject to the common law.
Regulation 2(b) can be deleted, since the exemption procedure is so seldom used.
With regard to choice of law on intestacy, the position of the person who dies partially testate and partially intestate should be clarified. The poorly drafted s 23(9) of the Black Administration Act should be amended to provide that devolution of the intestate portion of an estate should be governed by the testator's personal law, unless it can be shown that the testator's lifestyle gave reason for application of another law.
Otherwise, the current choice of law rules need to be simplified and drafted in a more comprehensible style. There is obviously merit in retaining the form of marriage and the matrimonial property system as indications of the appropriate law, since together they provide simple, certain criteria for selecting the relevant law. Executors and others charged with administering and distributing deceased estates are not necessarily trained in the intricacies of the conflict of laws (and the choice of law process is potentially complex). In such circumstances, easily ascertainable guides to choice of law are always welcome.
None the less, the form of marriage and the matrimonial property system are not infallible manifestations of the parties' expectations. By participating in a culturally marked ritual (the marriage ceremony) the deceased is deemed to have intended a particular law to apply to all the rights and duties (including succession) related to that act. Many people who marry by Christian rites may have no intention of living under common law, and, whatever justification the rule may find in a deceased's presumed intention, it seems arbitrary in relation to the spouses' children and family, who had nothing to do with the decision to marry according to a particular rite. Thus the choice of law rules must make allowances for exceptional cases and for succession to the estates of unmarried persons.
Consideration should be given to introducing two additional factors as guides to vary the basic choice of law rules: the financial position of the surviving spouse and children and the deceased's lifestyle. Hence, the more closely aligned the deceased was to the common and the larger the estate, the more relevant application of the common law would be. Once exceptions of this nature have been established, the existing provision allowing an appeal to the Minister may be deleted. The courts, rather than administrative officials should have control over choice of law.
The problem of the so-called ‘discarded’ wife - the victim of a dual marriage - will unfortunately not disappear until all the survivors of customary unions terminated by civil and Christian marriages have died out. When this long-standing inequity has completely vanished, the anomalous provisions of s 22(7) of the Black Administration Act may obviously be repealed. In the interim, it is debatable whether the section serves any useful purpose. It seems unlikely that discarded wives would know about or act on their rights, and, if they do, the surviving families of civil marriages are likely to suffer prejudice.
[15] A surviving spouse can of course claim maintenance from a deceased estate under the Maintenance of Surviving Spouses Act 27 of 1990, but the Act does not apply to spouses of customary marriages, because the term ‘survivor’ is defined to mean the spouse of a marriage dissolved by death, and marriages do not normally inlcude customary unions.
[16] Before he dies, the head of a family may make arrangements for the distribution of his estate, but his instructions must be approved by the family and they may not depart too far from the usual order of succession.
[17] Section 35 of the Black Administration Act defines the term ‘house’, and the Natal and KwaZulu Codes, Proc R151 of 1987 and Act 16 of 1985, respectively, give specific definitions of ‘house property’. Section 23(1) of the Act also applies to property accruing to the wife of a customary marriage that was automatically terminated by a later civil/Christian marriage by the husband to another woman. Such property is protected by s 22(7) of the Act.
[18] Annexure 24.
[19] 22 of 1994.
[20] Admittedly Roman-Dutch law does allow testators to dispose of things they do not own, but the testator cannot create rights he never had and the rule is exceptional.
[21] Regulation 53(5) of Proc R188 of 1969 provides that land subject to the Black Areas Land Regulations may not be bequeathed, but in those areas where the regulations do not apply, ie where land is held subject to customary law, it is an open question what the effect of a will would be.
[22] It seems inequitable to allow a landholder to convert a precarious interest into something more permanent simply by willing the land to a named beneficiary.
[23] This proposition does not apply in the case of civil or Christian marriages, where custody and guardianship are governed by the common law.
[24] Most systems of customary law permit disinheritance and the disposition of property mortis causa. These practices, however, are not the same as wills, for they are oral and require approval of the family, and they do not permit the deceased to stray too far from the established order of intestate succession.
[25] Section 23(10) of Act 38 of 1927. The current regulations are contained in GN R200 of 1987. The Intestate Succession Act 81 of 1987 is excluded, for s 1(4)(b) provides that: ‘Intestate estate includes any part of an estate which does not devolve by virtue of a will or in respect of which s 23 of the Black Administration Act does not apply.’
[26] Regulation 2(b) gives the misleading impression that exemption can be claimed only from the provisions of the Natal Code, whereas s 31 of the Black Administration Act allows any person in the country to apply for exemption.
[27] Before a magistrate, commissioner or marriage officer: s 22(6) of the Black Administration Act.
[28] 3 of 1988 repealed s 22(6) of the Black Administration Act.
[29] Presumably the widow would qualify under the Maintenance of Surviving Spouses Act 27 of 1990 to apply for maintenance from the estate, however, and in doing so she would be free from whatever restrictions are imposed on her right by customary law.
[30] This is the version substituted by s 1 of Act 3 of 1988.
[31] It is questionable whether a man, who terminated his customary marriage by a civil/Christian union, can protect his second spouse by making a will to bequeath her property acquired during the civil marriage. It is also questionable whether the widow can appeal to the Minister under reg 2(d) for an order that the common law apply.
[32] Namely, the Succession Act 13 of 1934, as amended. See ss 79(3) and 81(5) of the Natal and KwaZulu Codes, Proc R151 of 1987 and Act 16 of 1985 respectively.
[33] Intestate Succession Law Act 13 of 1990.
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