Inheritance law to ConCourt

2003-10-01 19:43

Cape Town - A ground-breaking Cape High court decision which ruled African customary law of inheritance unconstitutional will be sent to the Constitutional Court for confirmation, the Women's Legal Centre said.

"It is possible that the Constitutional Court will confirm this decision by the end of the year or early next year," said Michelle O'Sullivan of the centre, which acted as attorneys for the applicants, on Wednesday.

According to O'Sullivan they were advising clients who were African women and children - other than the eldest male child - and who were currently involved in the winding up of family estates where there was no will, to delay the conclusion of the proceedings pending the Constitutional Court's decision.

"In practice, if confirmed, it will mean that women and girl children, illegitimate children, and children other than the eldest male can inherit from their parents' estates - regardless of the nature of their parents' relationship.

"It will also bring an end to discrimination against these groups on the basis of race, sex, gender, social origin and birth and will respect and protect their rights to equality and dignity," she said.

The precedent-setting case concerned two girls - aged nine and two - from Khayelitsha near Cape Town, who challenged the rule that in the absence of a will stipulating the girls inherit their deceased father's estate, they could not inherit the property on the grounds that they were female and illegitimate.

The estate in question was the girls' home in Khayelitsha where the girls had been living with their parents until their father died last year.

Since the parents were never married, even though they had been cohabiting for 12 years, the mother had no legal claim to the house.

Under African customary law the house was therefore deemed to be the property of the eldest male relative of the father's children, which meant the house thus fell to the father's father, who planned to sell it.

The two judges presiding over the case, Judge President John Hlophe and Justice Jerome Ngwenya, declared the African customary law of succession unconstitutional since the only reason the two girls had not inherited their father's estate was because they were black females. They further ordered that the law be struck down.

O'Sullivan said the judges' decision will hopefully set a precedent to be followed on the African continent.

- SAPA