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CHAPTER 2 INTESTATE SUCCESSION: GENERAL RULES, TERMS AND CONCEPTS
Introduction
“African customary law is a community-based system of law”.1 The family is therefore the most important social construct in African society. In western societies, the most common family form is the nuclear family i.e. a family consisting of a single husband, wife and their children. However, the traditional African family may consist of more than one nuclear family due to the polygynous2 nature of African customary marriages. This means that a traditional African family would usually comprise a husband, and his wife or wives and their children. Each customary marriage creates a separate household and several households together produce a family group, which is controlled by a family head (the common husband). The family is also the most important institution in matters of intestate succession, as it is they who are responsible for the appointment and sometimes even the choosing of the intestate successor.
In this chapter, the researcher defines some of the key terms and concepts relevant to the customary law of intestate succession, particularly pertaining to South Africa. Some of the terms and concepts described in this chapter also apply to the customary law of intestate succession in Ghana and Swaziland; however the general rules and concepts governing intestate succession in those countries will be discussed in chapters 4 and 5 of this thesis respectively.
Wicomb W and Smith H “Customary communities as ‘peoples’ and their customary tenure as ‘culture’: What we can do with the Endorois decision” (2011) African Human Rights Law Journal 427.
Polygyny refers to the situation whereby a man can be married to more than one woman at the same time.
The principle of male primogeniture
Amongst most tribes in Africa, succession to status in African customary law is based on the principle of male primogeniture.3 This principle may be expressed as follows:
On the death of a Native his estate devolves on his eldest son or his eldest son’s eldest male descendant.4 If the eldest son has died leaving no male issue, the next son, or his eldest male descendent inherits, and so on through the sons respectively.5
The effect of the rule of primogeniture means that African customary law does not permit women or females to inherit property or to succeed to positions of authority. This generic definition of male primogeniture is applicable to all of the countries under discussion in this thesis.
Polygamy
It is well known that African people practice polygamy. Polygamy is a collective term used to describe the phenomenon of entering into a marriage with more than one spouse simultaneously. Anthropologists distinguish between two forms of polygamy viz polygyny and polyandry.6 Polygyny refers to the form of marriage in which a man is married to more than one woman at the same time.7 Although polygynous marriages are no longer common, it must be noted that the African customary marriage is still a potentially polygynous one. Polyandry refers to a form of marriage in which a women is married to more than one man at the same time.8 Polyandry is uncommon amongst the indigenous African peoples.
The family head
The family head was responsible for all members of his family group and he also controlled its property. The property of the family group comprised of general (family), house or personal property. General property is: “property which has not been allotted to any house, or which does not accrue automatically to a house”.9 House property may be defined as: “… the property which accrues to a specific house, consisting of a wife and her children, and has to be used for the benefit of that house”.10 Personal property on the other hand may be described as: “the property belonging to a person who has acquired it, although it may be under the control of the family head”.11 The death of the family head therefore had significant consequences for the family group and its property. Rules and laws of succession were thus contrived in order to alleviate the burdens associated with death; to maintain the family’s honour and to safeguard the material interests of the deceased’s descendants.
Traditionally, the family head held the most power within the family group.12 This did not mean that he could act capriciously; but was supposed to confer with the other members of the family group when making important decisions.13 He was solely responsible for the support and maintenance of the entire family group. He was liable for their debts, for any fines imposed on them, or damages awarded against them.14 Members of the family group could only take legal action against other people if they were assisted and represented by the family head; and could also only be sued through him.15 The family head “is entitled to respect and obedience from the other members of his group, keeps them in order, and must be consulted by them in all their more important undertakings”.16
Factors affecting the order of succession
Sex or gender
Traditionally, sex played a definitive role in the determination of a person’s status.17 Women were considered as perpetual minors and either fell under the guardianship of their fathers (if they were unmarried or single), or husbands (if they were married), or his successor (if they were widows).18 Only male persons were eligible to succeed to positions of status. A woman was incapable of succeeding to the position of family head or to general or house property,19 on the sole basis of the fact that she was female. These positions have however changed and these changes will be discussed in the following chapters of this thesis.
Rank
Due to the polygynous nature of the customary marriage, African customary law distinguishes between “family rank” and “house rank”. Each of these categories of rank will be discussed individually immediately hereunder.
Family rank
Family rank refers to the status of family members within the family group.20 In customary law, males held a higher rank than their female counterparts. A person’s rank was ultimately determined by the principle of primogeniture. On the basis of that principle, oldest sons always had a higher rank than younger brothers and all sisters. That meant that females were always subjected to the authority of males and males alone were allowed to become family heads.21
In the extended family group however, the rank of a child was determined by the rank of their father within his family of origin.22 So, for example, if the father was the first born son in his family group that would mean that his children would hold a higher rank than any of the other children born of his siblings. This may be illustrated as follows:
For purposes of simplicity, only males have been represented in this diagram. K, L and M are three brothers, whereby K is the oldest and M is the youngest. They are all married and they each have two sons. The sons of K, namely S and T, will have a higher rank than the sons of L and M, irrespective of whether they are older or younger than the sons of L and M. We could go further and say that the sons of L, namely U and V will then rank higher than the sons of M and so on.
CHAPTER 1 INTRODUCTION, OBJECTIVES AND FRAMEWORK OF THE STUDY
1.1 Introduction
1.2 The legal framework
1.3 Research methodology
1.4 Organisation of the thesis
1.5 Summary of the chapter
CHAPTER 2 INTESTATE SUCCESSION: GENERAL RULES, TERMS AND CONCEPTS
2.1 Introduction
2.2 The principle of male primogeniture
2.3 Polygamy
2.4 The family head
2.5 Factors affecting the order of succession
2.6 General and special succession
2.7 The powers and duties of the successors
2.8 The order of succession
2.9 The provision of a successor in a house in which there is no successor.
2.10 Other methods used for the provision of a successor
2.11 Disposition of assets by the family head before death (disposition inter vivos)
2.12 Disinheritance
2.13 Summary of the chapter
CHAPTER 3 THE RECOGNITION, APPLICATION AND DEVELOPMENT OF THE CUSTOMARY LAW OF INTESTATE SUCCESSION IN SOUTH AFRICA.
3.1 Introduction
3.2 Historical context
3.3 Legal dualism
3.4 Constitutional recognition of customary law
3.5 The role of the South African Law Reform Commission (SALRC) in the development of the customary law of intestate succession
3.6 The role of the judiciary in the development of the customary law of succession
3.7 The role of the legislature in the development of the customary law of intestate succession
3.8 Conclusion
3.9 Summary of chapter
CHAPTER 4 INTESTATE SUCCESSION IN GHANA
4.1 Introduction
4.2 Intestate succession under customary law
4.3 Legislation governing intestate succession in Ghana
4.4 The Intestate Succession Law, 1985
4.5 The Intestate Succession Bill
4.6 The Constitution of the Republic of Ghana, 1992.
4.7 The Property Rights of Spouses Bill
4.8 Conclusion
4.9 Summary of chapte
CHAPTER 5 INTESTATE SUCCESSION IN THE KINGDOM OF SWAZILAND.
5.1 Introduction
5.2 Swazi customary law
5.3 The Swazi legal system
5.4 Intestate succession under Swazi customary law
5.5 Intestate succession under the general law of the land
5.6 The impact of constitutionalism on the customary law of intestate succession in the Kingdom of Swaziland
5.7 Field research
5.8 Conclusion
5.9 Summary of the chapter
CHAPTER 6 CONCLUSIONS AND RECOMMENDATIONS
6.1 Introduction
6.2 Changing the traditional concept of the African family
6.3 The non-recognition of tribal differences
6.4 The disregard of African society as community orientated
6.5 Replacing customary law with the common law
6.6 Transformative constitutionalism
6.7 People are ignorant of the law.
6.8 The changing role of women in African society and the rule of primogeniture
6.9 Final comments and conclusions
6.10 Summary of the chapter
BIBLIOGRAPHY
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