IN August 2006, Zanele’s* husband was gunned down in the driveway of his simple Edendale home by rival taxi owners. He died two weeks later, without a will, leaving the unemployed Zanele with a household of four children.
The traumatic event was the start of Zanele’s arduous and at times life-threatening journey to claim from the deceased estate that which she believes she and the children are entitled to.
After the shock of being introduced to her husband’s “other” [customary law] wife, and having her husband’s four taxis and personal documents taken away by his brothers, Zanele has endured a one-and-a-half-year journey of financial insecurity and contorted bureaucracy.
Along the way, she has been misrepresented by an unscrupulous lawyer appointed by the Master of the High Court and viciously attacked with a bush knife by her sister-in-law and her deceased husband’s customary wife, while her husband’s mother tried to strangle her.
Despite being “close to suicide” at times, Zanele is determined not to give up her claim to the estate, which is valued at over R125 000 and is thus prescribed by the Administration of Estates Act.
While the Master’s office, which oversees all deceased estates and controls the Guardian’s Fund — which administers funds due to minors and mentally disabled people — has been involved in the matter and, according to Zanele, has been “helpful”, it has been unable to resolve the issue. Zanele says the last she heard, her husband’s family were preparing to challenge her claim and that of the children in court.
“I know that I mustn’t keep quiet,” she says. “This matter will come to an end and I have to be strong.
“The interests of the children are paramount.”
Zanele’s confidence hinges heavily on the ally she has found in local NGO Justice and Women (JAW). “I was going back and forth,” she says. “JAW is helping me. Whenever I don’t know what to do, I go there. I was amazed that there was such an organisation for women.”
According to JAW manager Jenny Bell, the NGO is increasingly being asked to help women and families deal with inheritance-related or estate problems, many of which conflict with traditional practices.
Bell says because few attorneys in KwaZulu-Natal take up estate matters pro bono, there is limited legal support available to women who spend their meagre resources travelling to and from the Master’s office or its service points in the Magistrate’s Court trying to sort things out. Not only are they at the mercy of complex bureaucracy and legal processes, but there is often intense inter-family conflict around inheritance, frequently resulting in physical violence against a claimant.
For Bell, the problem of physical violence is rooted in poverty, which pits family members against each other. “Sometimes it’s over small amounts like R5 000 or an RDP house,” she says. Often, the dead person supported a whole web of family members, which intensifies the conflict.
Adding to the problem is the gap which still exists between civil and customary law. JAW’s research suggests that while traditional leaders accept that violence against women is wrong, there is no widespread acceptance of the notion that women can inherit property. This is despite a Constitutional Court ruling (Bhe vs Magistrate) in 2004 which declared unconstitutional the customary rule of male primogeniture (inheritance to the male line).
“It’s a race to the Master’s office,” is how JAW’s Amber Howard describes the pressure which exists on female spouses — both customary and civil — to register the death of their partner and, in the absence of a will, exercise some influence over who is registered as a beneficiary.
According to Anneke Meerkotter of the Johannesburg-based Tshwara-nang Legal Advocacy Centre, problems do arise when there is both a civil and a customary wife.
“The second wife will usually not have any claim to her deceased husband’s estate since that marriage is not legally recognised (irrespective of whether it is a civil or customary marriage).” However, the children of the second marriage would still have both claims as intestate heirs and maintenance claims, says Meerkotter. “It is important to look after their interests since the first wife might not disclose that there are children born outside of the marriage ...”
According to Howard, customary rights depend on when a marriage was entered into — before or after December 1, 1988, when the Recognition of Customary Marriages Act came into effect — and whether it is registered. “So under certain circumstances the law won’t recognise a customary marriage. Thus, there’s a breakdown between customary and civil law and the master’s office is caught it the middle of it.”
The result, says Howard, is a system that is Kafka-esque in its opacity and complexity. “Even if the women involved are organised, articulate and clear, they will still need help.”
Part of the problem lies in under-capacity in the Master’s office. In July 2006, an audit by the Auditor General revealed serious financial and administrative problems in the management of maintenance and inheritance moneys intended for the poor, particularly women and children. Last month, The Witness reported that the Pietermaritzburg Attorneys’ Association had organised for professionals from local firms to provide basic services to relieve a critical staff shortage in the Master’s office.
Bell says while the Master’s office does give useful information to women, it cannot give sufficient attention to small estates. “From a cost-benefit analysis point of view, it’s expensive. So there’s a two-tier system in operation, with small estates not being offered the same protection as bigger estates.”
A long-term solution, according to JAW, lies in helping communities broach the sensitive subject of death and prepare for it. This involves drawing up wills which meet the needs of rural families and make provision not only for the disbursal of assets, but the guardianship and care of children.
Bell says that children sometimes become contested terrain because of the grant or maintenance money that comes with the child. But there have also been cases where children have been orphaned and left destitute because the guardianship of the person making the claim against provident funds, trusts and other employee benefit programmes could not be established. And there is often little co-operation from the fund administrators.
“We want to help explain the process to communities and encourage people to write their wishes down or set up family meetings to witness the dying person relay his wishes,” says Bell. “We need to raise awareness of different kinds of wills, which may not be as formulaic as a white person’s will, where the assets are more conventional. In more rural families, the assets are the fridge, the stove and often the children.”
That customary attitudes and behaviour still prevail in relation to inheritance suggests the need to narrow the gap between the law and people’s lived experience, says Bell. “We need to listen to the value system of the particular person, which is more powerful in rural areas and quickly becomes a political issue.”
JAW also believes there is a need, not yet met by government or civil society organisations, for an external body, which can inform families about external support systems, so if conflicts arise, these can be mediated and families can be kept intact.
Until then, JAW does what it can. “The women we see are numb emotionally,” says Bell. “We try to rekindle their sense of ownership and energise them, and this takes time. We have meetings and build trust.
“But we do not view the women who come to us as clients. We view them as rightsholders who we try to empower with knowledge and capacity. We try to help women re-engage with their own energy.”
JAW also offers practical advice, such as advising women to hold on to documents such as IDs, death and birth certificates. According to Bell, inefficient state departments have become a tool for abuse, because replacing vital documents is such an arduous process.
JAW advises when it is appropriate to secure a domestic violence protection order in order to protect a spouse who faces physical violence or eviction from her home by the deceased’s family.
According to Meerkotter, the Domestic Violence Act also recognises financial abuse as a form of domestic violence. This, says Meerkotter, includes the “unreasonable deprivation of economic or financial resources to which the complainant is entitled to under law or which the complainant requires out of necessity, or the unreasonable disposal of household effects or other property in which the complainant has an interest”.
In order to start addressing the issue of access to inheritance rights JAW is planning a “listening day” which will bring women together to talk to each other and the Master’s office about their experiences. “In reality, people live in a world of two systems: one civil and one customary. We must engage with that reality and let people come up with workable solutions, rather than having NGOs speak for them,” says Bell.
“If we don’t, we risk the dismantling of society and democracy. In the eyes of the people, the law becomes an ass, and the anger grows.”
* Not her real name.
• Contact JAW at 033 394 9949 or 072 879 3570 or go to Room 35 Tembalethu Community Centre, 206 Burger Street.
