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5.1 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.
5.2 The common law used to allow all people complete freedom of testation, ie the power to transmit their property by will to whomever they chose.[1] This unrestricted freedom was based on an `absolute' notion of ownership: that owners of property had a full and exclusive power to dispose of their possessions in any way they wanted. Although a will disinheriting the testator's spouse and other intestate heirs could seriously prejudice the material security of surviving members of the family, complete freedom of testation persisted until legislative intervention in 1990.[2]
5.3 Customary law, by contrast, allowed only intestate succession.[3] According to predetermined rules certain members of the family succeeded to a deceased's property and status on the holder's death. That people were not at liberty to ignore these rules was due in part to the absence of any concept of individual ownership in productive resources (mainly land and cattle). In such property personal interests were subordinate to those of the family.
5.4 An issue fundamental to choice of law in succession is whether individuals subject to customary law may disregard their personal law by making wills. In South Africa, it has always been assumed that people are free to make use of any of the institutions of common law, in particular, of course, commercial contracts. Unlike a contract, however, which creates a new legal relationship, a will has the potential of violating existing relationships, namely, the interests of intestate heirs. In fact, wills may seriously upset the integrity of a surviving family.[4]
5.5 Section 23 of the Black Administration Act[5] restricted freedom of testation for Africans in two respects. It provided that movable house property and land held under quitrent tenure was to devolve under the customary law of intestate succession. The question now posed is whether these provisions serve any useful social purpose and whether they rest on a sound legal basis.
5.6 The Council of South African Banks stressed the importance of freedom of testation, and said that, because customary law will inevitably become less significant over time, there is much to be said for working towards a uniform system. Other submissions, however, indicated that the principle of freedom of testation is in practice very limited. For instance, the Zion Christian Church felt that, although individuals should be allowed the privilege of deciding the devolution of their estates (in terms of African law and within limits of the Constitution), families have interests in urban houses. Hence, while a son or daughter might be allowed to buy a house from the township council, other members of the family will claim that the property is communally owned.
5.7 The Gender Research Project (CALS) added a caveat that giving people the power to make wills does not ensure that women and other family dependants will gain access to property. Citing research conducted by the Women and Law in Southern Africa Project,[6] it said that men usually bequeath their property to other men.
5.8 Dr A M S Majeke (University of Fort Hare) felt that the introduction of testamentary succession would be problematic, for customary law has no concepts of testacy, whether partial or intestate, but only rules of succession. He said that a person who accepted a benefit under a will without the approval of the deceased's family would stand a good chance of forfeiting his life. The Committee on Constitutional Affairs for Northern Province House of Traditional Leaders also supported maintenance of the customary regime of intestate succession rather than a general freedom to execute wills.
5.9 None of the colonial administrations in southern Africa seems to have reflected on the question whether people subject to customary law should be permitted to make wills. The Cape was perhaps an exception, for here succession was regulated by customary law under the Native Succession Act.[7] In Transkei,[8] Natal[9] and the Transvaal,[10] however, those subject to customary law were simply assumed to have freedom of testation.
5.10 It could have been argued, of course, that the Wills Act,[11] which stipulates the method for executing an ordinary underhand will, superseded customary law. This argument was in fact the basis of a Bechuanaland decision,[12] where the court dismissed contentions that a testator had no capacity to make a will because he was bound by Tswana customary law and had shown no indication of abandoning it.[13] In a Southern Rhodesian case,[14] the court went a step further. It said that, because testamentary capacity was implicit in the Administration of Estates Ordinance, any rule of customary law prohibiting the execution of wills would be inconsistent with the implications of the legislation and therefore inapplicable.
5.11 In Ghana and Nigeria, too, colonial enactments providing for the execution of wills were assumed to be applicable to everyone in the country,[15] although courts and writers were doubtful whether customary laws of intestate succession could be so lightly disregarded.[16] By contrast, the colonial governments of Kenya, Uganda, Northern Rhodesia and Nyasaland took a definite stand against extending the power of testation to Africans.[17] It was only after independence and a careful consideration of this policy, that the rule was reversed.[18]
5.12 The question whether the customary law of intestate succession may be disregarded by allowing all people to make wills must be assessed in social context. In this regard, the problem to be addressed is how to ensure material support for surviving members of a family when the breadwinner dies. Roman-Dutch common law was amended by the Maintenance of Surviving Spouses Act[19] in order to deal with the same problem.
5.13 It must be appreciated that the customary law of intestate succession puts widows in a precarious position. In the first place, because a woman cannot inherit from a man, she has no means of rearing dependants apart from a personal right to maintenance from the estate.[20] In the second place, because most of the property acquired by a wife is deemed to belong to her husband, it falls into his estate to be distributed amongst his male heirs.[21]
5.14 If people could dispose of their property by will, they might avoid customary law and make sensible provision for their families. At present, s 23 of the Black Administration Act allows persons subject to customary law to make wills in respect of all but two categories of property. We must ask whether excluding freedom of testation in these instances is an effective means of dealing with the social problem.
5.15 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 movable property spoken of in this section is more commonly known as `house property'.[22] On marriage, an independent establishment is created for the wife and her children, and, as a man takes second, third and subsequent wives, new houses are established. Acquisitions by inmates of a house or items allotted to the house by the head of the family unit accrue to the house estate. Each estate must be kept strictly separate from other estates, for the house heir is destined to inherit it.[23]
5.16 Because s 23(1) forbids testamentary disposition of property that would otherwise be inherited by house heirs in polygynous families, its main purpose is to protect their interests. There are three reasons why this provision does not meet its aim. 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. These marriages do not create `houses'.[24]
5.17 Secondly, the assumption underlying s 23(1) is that polygynous marriages are a norm in African society. In fact, they are exceptions. If polygynous marriage and its household structure is no longer the rule, then the section offers only slight protection for customary-law heirs. Where a man has taken only one wife, is it appropriate 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,[25] but such property could just as well be regarded as `family' property (a category considered below) and therefore devisable by will.[26]
5.18 Thirdly, if the Law Commission's proposals in its Report on Customary Marriages are accepted, the concept of house property will disappear. Monogamous marriages will be deemed to be in community of property and polygynous marriages will be out of community. In both cases, the proprietary regimes will be assimilated to those created by civil or Christian unions.
5.19 Finally, it should be noted that s 23(1) does nothing to alleviate the plight of widows. By preventing the head of a household from bequeathing an important category of property to his wife, a substantial part of his estate will continue to devolve under customary law. The point made by the Gender Research Project (CALS) - that extending testamentary capacity offers no guarantee that men will take care of their dependants - is accepted. Nevertheless, legally empowering men to take prudent action on behalf of their families would be the first step towards solving the problem.
5.20 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.[27]
5.21 These provisions, which are currently contained in the Black Areas Land Regulations of 1969,[28] were specially designed to approximate the customary order of intestacy. Hence, 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'.[29]
5.22 The 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. In 1991, the Upgrading of Land Tenure Rights Act[30] initiated the programme of land reform by converting any right (including quitrent)[31] over surveyed land into freehold tenure. Although the Act did not immediately apply to the then independent homelands,[32] the continued existence of quitrent tenures became precarious.[33]
5.23 If quitrent is replaced by full ownership, the reason for s 23(2) may disappear.[34] Nevertheless, an important question of policy, one harking back to the nineteenth century, should be reconsidered: should relatively small allotments of land (especially agricultural land) be devisable by will? As Professor Kerr points out, if landholders were given freedom of testation, their plots could be split up into holdings so small that they will become uneconomic.
5.24 Subsection 23(3) of the Black Administration Act provides that `[a]ll 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.
5.25 As the word suggests, `family' property is not in the exclusive control of the deceased.[35] For this reason most African countries allow testamentary disposition of only `personal' property.[36] In the circumstances, the South African legislature's decision to permit freedom of testation over family property seems anomalous.
5.26 The South African Council of Banks was against any restriction on the power to dispose of family property by will. It said that allowing only personal property to be devised by will would prevent people from choosing heirs to family houses, which are usually the most significant asset in any estate. Other respondents to the Issue Paper, however, indicated that members of a family are unlikely to support wills purporting to dispose of land or houses.
5.27 Formerly, any land subject to the Black Areas Land Regulations could not be disposed of by will.[37] In those areas where the Regulations did not apply,[38] however, it was an open question what effect a will bequeathing land would have, especially in view of the fact that, as Professor Kerr says, customary forms of land tenure have no concept of absolute ownership.[39]
5.28 It could always be argued, of course, that a beneficiary under a will cannot legally acquire more rights than the testator had. Admittedly, Roman-Dutch law allows testators to dispose of things they do not own,[40] but they still cannot create rights they never had.[41] Hence, a will does not have the effect of increasing or enlarging interests in land.[42]
5.29 In short, to permit persons in control of family property, whether land, livestock or cash, to dispose of that property by will is both a legal anomaly and potentially seriously disruptive for surviving family members.
5.30 Guardianship clauses, ie directions in wills that guardianship of a testator's minor children is to go to a particular person, create a problem analogous to bequests of family property. In customary law, rights to a child born in a valid marriage vest in the father's family, not in the father personally.[43] What if the father were to execute a will and transfer these rights to a person outside the family? What if the mother - who in customary law has no legal right of guardianship at all - were to purport to devise guardianship of her children?
5.31 It is arguable that these dispositions are invalid, unless guardianship had been transferred to someone who had an independent entitlement under customary law. The problem may well be solved, however, by the Law Commission's recommendations in its Report on Customary Marriage. On constitutional grounds, the Commission said that both mothers and fathers should be deemed to have rights of custody and guardianship over their children.[44] Once parents have a personal entitlement to guardianship, it follows that they can validly transmit it by will.[45]
5.32 The Law Commission's proposal in the Issue Paper preceding this Report - that guardianship clauses should be permitted - were supported by The Women's Lobby. The Gender Research Project (CALS) also said that parents should be entitled to name the guardian of their children but only if they acted jointly.
5.33 The general question of freedom of testation cannot be comprehensively answered by this Report, because the issues must be more fully canvassed with reference to broader policies governing succession and land tenure.
5.34 If freedom of testation is to be supported, however, there seems no sense in continuing to exempt the category of house property. Section 23(1) of the Black Administration Act should be amended to provide that only the testator's personal interests in property may be disposed of by will. Such a provision would solve the confusion inherent in permitting bequests of family property.
5.35 While more specific regulations may be necessary to govern the disposition of land by will, any reforms in this regard must defer to policies adopted by the Department of Land Affairs. In the interim, the current regulations on land held under quitrent tenure should be amended to remove elements of gender discrimination.
5.36 An express legislative provision to permit guardianship clauses in wills is unnecessary, if recommendations made by the Law Commission in its Report on Customary Marriage are accepted.
[1] See Glazer 1963 (4) SA 694 (A) and the Law Commission Review of the Law of Succession para 6.
[2] The Maintenance of Surviving Spouses Act 27 of 1990 gives a surviving spouse the right to maintenance from a deceased estate. According to current law, the Act does not apply to the spouses of a customary marriage, because the term `survivor' is defined to mean the spouse of a marriage dissolved by death, and, unless the Law Commission's proposals in its Report on Customary Marriages to give full recognition to customary marriages are accepted, customary unions are not included in the term `marriage'.
[3] It is true that the head of a household can make arrangements for the distribution of his estate by various types of oral disposition (Kerr Customary Law of Immovable Property 109-11), but these are not the same as wills, because he may not disregard the usual order of intestate succession.
[4] Bennett Sourcebook of African Customary Law 218-19.
[5] 38 of 1927.
[6] Namely, Widowhood, Inheritance Law, Customs and Practices in Southern Africa (1995).
[7] 18 of 1864. See Quvana v The Master & another 1913 CPD 558.
[8] By s 37 of Procs 110 and 112 of 1879, s 36 of Proc 140 of 1885 and s 8 of Proc 142 of 1910. See Nomveve v Mapini (1892-93) 7 EDC 3, Sigidi's Executors v Matumba (1899) 16 SC 497 and Mayekiso v Hermanus 1908 EDC 53.
[9] In Zikalala 1930 NAC (N&T) 139, however, the court held that it was permissible to dispose of `kraal' (or family) property only, because the deceased was absolute owner of it.
[10] By implication of s 70 of Proc 28 of 1902.
[11] 7 of 1953.
[12] Fraenkel & another v Sechele 1964 HCTLR 70 (reported in (1967) 11 Journal of African Law 51). See Himsworth (1972) 16 Journal of African Law 12. See, too, the Nigerian case of Idehen [1991] 6 NWLR 382 (SC), where the Supreme Court upheld freedom of testation in the face of a proviso to the local wills legislation. The court held that the phrase `[s]ubject to any Customary Law relating thereto ...' serves only to qualify what property may be disposed of by will (namely, the testator's own property). See Sagay (1995) 39 Journal of African Law 173.
[13] And therefore did not fall within a proviso to s 3(b) of the Administration of Estates Proc Cap 83. This argument was dismissed on the ground that the Proclamation dealt only with the narrow issue of collecting the deceased's assets, paying his debts and then distributing his estate, which had nothing to do with the power to make wills.
[14] Komo & another v Holmes NO 1935 SR 86.
[15] See Allott Essays in African Law 262-4.
[16] Morris (1970) 14 Journal of African Law 5. See the Gambian case Saidy v Saidie (reported in (1974) 18 Journal of African Law 183-98) and the Nigerian cases Yunusa v Adesubokan (reported in (1970) 14 Journal of African Law 56-64 and (1972) 16 Journal of African Law 82-8) and Idehen [1991] 6 NWLR 382 (SC).
[17] Regarding the position in Zambia, see Colson (1950) 2 J of African Administration 24ff and the Report of the Zambian Government Law Development Commission on the Law of Succession (1982).
[18] In Kenya, following the 1968 Government Commission of Inquiry into Succession (for which see Ollennu (1969) 5 East African LJ 98-102), in Zambia by the Wills and Administration of Testate Estates Act 6 of 1989 and in Malawi by the Wills and Inheritance Act 25 of 1967.
[19] 27 of 1990.
[20] This right is so hedged round with restrictions that its value is considerably diluted: Bennett Sourcebook of African Customary Law 418-19. Xulu 1938 NAC (N&T) 46 at 48 and Macubeni 1952 NAC 270 (S) were careful to point out that a widow has no proprietary right in the estate. Cf Dr A M S Majeke's (University of Fort Hare) submissions below at para 6.21.
[21] See Bennett Sourcebook of African Customary Law 325ff. The latter problem can only be finally cured by reforming the wife's proprietary capacity, ie, by giving her real rights in the property she acquires that can be asserted against her husband and his family.
[22] Section 35 of the Black Administration Act 38 of 1927 defines the term `house', and the KwaZulu/Natal Codes (Proc R151 of 1987 and Act 16 of 1985, respectively) give specific definitions of `house property', ie, any `property vested in and pertaining specially to any house in a family home; such property is acquired by donations, earnings or apportionment and by receipt of lobolo in respect of the girls of the house.'
[23] See Sijila v Masumba 1940 NAC (C&O) 42 at 44-7.
[24] Tonjeni 1947 NAC (C&O) 8, Ngcwayi 1950 NAC 231 (S) and Thekiso v Mogorosi 1951 NAC 17 (C). Cf Francis 1967 Acta Juridica 150. Section 23(1) of the Black Administration Act does apply, however, to property accruing to the wife of a customary marriage that was automatically terminated by a later civil or Christian marriage by the husband to another woman. Such property is protected by s 22(7) of the Act, which is discussed below at para 6.28.
[25] A construction supported by the definition of `house' in the KwaZulu/Natal Codes as `the family and property, rights and status which commence with, attach to and arise out of the customary marriage of any Black woman'. Cf the definition of `house property' in the Codes given above (n228).
[26] Moreover, where the testator happened to be a married woman, s 23(1) is also unlikely to be apply. A wife's personal assets cannot strictly speaking be categorized as `house' property. Customary law seldom allows wives outright ownership in property, but when it does such property is not invariably inherited by the house heirs. See Francis (n230) 150.
[27] See s 23 of Proc 227 of 1898.
[28] Annexure 24 of the Black Areas Land Regulations R188 of 1969.
[29] This provision was prima facie not applicable where a deceased quitrent holder had married according to civil or Christian rites, because such marriages do not create houses. The Appellate Division, in Ex parte Minister of Native Affairs: In re Magqabi v Magqabi & others 1955 (2) SA 428 (A), however, held that sons of these marriages were not excluded from the terms of the regulations. Hence, a deceased's oldest son would inherit, and, in the event of competition between the sons of more than one marriage (of whatever form), it would simply be the deceased's oldest son. See the discussion by Kerr Customary Law of Immovable Property 158ff and Visser (1981) 14 De Jure 326ff.
[30] 112 of 1991.
[31] Namely, a quitrent title defined in reg 1 of the Black Land Regulations Proc R188 of 1969.
[32] And it became applicable in the self-governing territories only after consultation between the State President and the cabinet of the relevant territory: s 25(1) of the Upgrading of Land Tenure Rights Act (now itself repealed by s 10 of Act 11 of 1995).
[33] According to s 39 of Proc 23 of 1993 (the legislation repealing the Black Land Regulations), the proclamation also did not apply to the self-governing territories, nor, of course, would it apply to the independent homelands.
[34] Especially when new tenures become applicable to land, such as those contemplated in s 8(2)(d) of the Communal Property Associations Act 28 of 1996, as read with the Schedule to the Act.
[35] For a definition, see Bennett Sourcebook of African Customary Law 237-8.
[36] See, for instance, Idehen [1991] 6 NWLR 382 (SC) and Okoro Customary Laws of Succession in Eastern Nigeria 226.
[37] Regulation 53(5) of Proc R188 of 1969.
[38] Especially, of course, urban land. See Prinsloo (1990) 107 SALJ 494. Most (if not all) urban titles were converted to full ownership under the Upgrading of Land Tenure Rights Act 112 of 1991, and hence could be disposed of by will.
[39] Although he says that this is the correct term to use for rights to residential and arable land. In general, however, customary law does not have a technical vocabulary of ownership to describe land tenure: Bennett 1985 Acta Juridica 173.
[40] Even property belonging exclusively to a third party may be bequeathed, provided that a testator was aware, when he or she made the will, that it belonged to someone else: Receiver of Revenue v Hancke & others 1915 AD 64 at 73, Estate Brink 1917 CPD 612 and Attridge NO v Lambert 1977 (2) SA 90 (D).
[41] A will disposing of someone else's property merely obliges the executor to acquire or pay over the value of the property bequeathed: Hancke's case above at 73.
[42] Courts in West Africa, on the other hand, simply bowed social pressure and allowed wills to create new titles. See Park (1965) 9 Journal of African Law 15 and 16 and, more generally, Lloyd (1959) 3 Journal of African Law 105.
[43] Provided, of course, that bridewealth was paid.
[44] Para 7.5.16.
[45] Subject, of course, to the principle that the child's best interests are an overriding consideration. See Stewart in Armstrong Women and Law in Southern Africa 94.
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