Customary law not for an unwed partner

2013-08-11 10:00

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A landmark ruling raises the issue of a woman’s right to inherit outside of wedlock, writes Mkhululi Ngxumza

A married woman inherits all kinds of assets from her husband, her children, who may die before her (if childless) and from anyone from whom her husband would have been entitled to inherit as a result of primogeniture.

This is however, the only time a woman may inherit under the Nguni Law of primogeniture which states that only the eldest son can inherit.

Under Nguni Law this inheritance only relates to a recognised spouse. However, a ground-breaking case shows how the law is evolving along with our changing society.

In the matter of Bhe and Others vs Khayelitsha Magistrate and Others, the father of the late boyfriend of Miss Bhe wanted to evict her and her children from the house owned by his deceased son in order to defray the burial costs of his son.

In order to achieve this he had to evict his own granddaughters, along with their mother.

He justified his decision by the fact that his son was not married to Miss Bhe and that she was not entitled to inherit in terms of the Nguni Customary Law and that lobola was never paid.

Indeed, Miss Bhe and her daughters were not legally entitled to inherit.

However, in terms of the changing society and the economic challenges, cohabitation has become a common trend.

Miss Bhe and her late boyfriend lived as a family unit and the Nguni Customary Law should have been developed to cater for these new challenges of life and the changing society.

The Constitutional Court looked at humanitarian grounds and that it would place an unfair burden on Miss Bhe if it allowed the eviction and would be unconstitutional to not allow Miss Bhe to inherit.

How financial planning would have solved the dispute

Although in this case Miss Bhe was fortunate to have this decision taken to the Constitutional Court, there are many women who have not been in a position to challenge the legality of customary law and need to be aware of their vulnerable position when co-habiting.

In this case a financial plan could have ensured that Miss Bhe received the proper financial protection while still meeting the requirements of Nguni law.

A will can protect family members as it would supersede Nguni customary law. In this case a will by the deceased clearly stating that his partner was to inherit his house, would have protected her and their children.

In a will the testator (the person writing the will) may include all his assets, but it is important to note that some assets cannot be disposed in terms of the will as they are regulated by some other law.

For example, when married in community of property the surviving spouse is entitled to 50% of the estate.

Arable land and livestock is regulated in terms of Nguni Law, which in turn applies the doctrine of primogeniture (inheritance to the eldest son).

What is most important is for the testator, when nominating his beneficiaries, is to put a clause in the will that will prohibit the benefits received from his estate from forming part of any marriage of the recipients.

This will be a good protection for the Nguni woman because, if she should remarry, the assets from her late husband or father could never be claimed by her new husband, irrespective of their marriage contract.

Through taking out an insurance policy (life cover) the deceased could also have ensured that there were funds to take care of his children adequately.

As mentioned previously, the intention of primogeniture, where the son who inherits will take care of his family, is not always adhered to.

By having separate life cover where the wife and other children are provided for would ensure their financial security.

Why primogeniture matters

The old-age Nguni Customary Law of primogeniture, where only the eldest son can inherit, excludes women from inheriting certain assets, such as arable land, the rural home and livestock. This unless the woman inherits in her capacity as a surviving spouse of her deceased husband.

Keeping the clan name is an important issue for the Nguni people and only men can serve this function.

As envisaged above, a certain group of men are at an advantage by virtue of their birth.

This group is the chosen one, chosen through the doctrine of primogeniture.

Not all men are entitled to inheritance or rather, not all men are entitled to become custodians.

The intention is to keep the clan name. As this is not codified, it is abused more often than not.

It is clear from the above that only married women are entitled to be custodians. And that unmarried women cannot become custodians in terms of Nguni law.

» Mkhululi Ngxumza is a Cape Town-based financial adviser specialising in Nguni Customary Law

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