Scorpion Legal Protection tells the story of Ms Bhe and her daughters, who would have lost everything – including the roof over their heads – if their father’s estate had been handled according to traditional customary law. They changed the entire law around how customary union estates are handled now.

What happens in a customary union when your spouse dies?

When a spouse alleges that he or she is a partner in customary union, they need to provide proof of this by lodging a certificate of registration as per section 4(5)(b) of the Recognition of Customary Marriages Act 120 of 1998. You can apply for a registration certificate at the Department of Home Affairs. The service point of the Master can assist with advice.

If you can’t provide this, an enquiry can be called where witnesses from the family of the deceased and the surviving spouse confirm the existence of a customary marriage according to section 5 of the Reform of the Customary Law of Succession and Resolution of Related Matters Act.

However, there were cases where, if the deceased’s estate was handled strictly according to customary law, the surviving wife and children would be left destitute, sometimes with no place to live even. This is the story of Ms Bhe and her two daughters.

The case of Ms Bhe

While he was still alive, the deceased lived with Ms Bhe and one of their two daughters in Khayelitsha. There was some doubt about whether or not Ms Bhe and the deceased were married or not. Their second daughter lived with the father of the deceased in Berlin, Eastern Cape. The deceased died without a will, and his estate was to be distributed in terms of customary law. This meant that the father of the deceased would have inherited the estate as a close male relative, leaving Ms Bhe and her two daughters out of it. Customary law follows the principle of male primogeniture, which means only the eldest legitimate son can inherit. Children born outside of marriage, as well as daughters and wives, cannot inherit.

The estate consisted of a shack and the property on which the shack was built, and the father wanted to sell the property to pay for his son’s funeral. If the father went ahead with his plans, Ms Bhe and her children would have been destitute. Ms Bhe applied to court to have her two daughters declared the only beneficiaries of her husband’s estate.

The Constitutional Court held that the customary law of succession was constrained by Section 23 of the Black Administration Act, and was not allowed to develop to meet the changes in the society that it was meant to serve. As a result it became out of touch with the realities of urbanization and changing family relationships. The Court ordered that estates (where the deceased leaves no will, as with Ms Bhe) must now be handled according to the Intestate Succession Act. This will help assist widows and children from being evicted from the family home upon the death of a husband or father.

How are estates distributed now?

The beneficiaries in order of preference are: the spouse of the deceased; the descendants of the deceased; the parents of the deceased (only if the deceased died without a surviving spouse or descendants); and the siblings of the deceased (only if one or both parents are predeceased). The Intestate Succession Act should be read in such a way that it accommodates cases where the deceased was a husband in a polygamous customary union.

When the deceased leaves only spouses and no descendants, the wives will inherit the estate in equal shares. When the deceased leaves spouses and descendants, the spouses and descendants will inherit the estate in equal shares but each wife shall inherit at least R250 000. When the estate is not large enough to allow each wife to inherit the R250 000, the spouses will inherit the estate in equal shares while the descendants will not receive anything.

Source: Department of Justice and Constitutional Development, https://www.justice.gov.za/master/deceased.html

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* This is only basic paralegal advice and cannot be relied on solely. The information is correct at the time of being sent to publishing.