Page 11 - SAReform Book

Summary Research Report 9
divorce; the intervention of superior courts and regional courts, in divorce processes rather than divorce proceedings in traditional courts or in terms of private arrangements within the spouses’ family; and the rights and obliga- tions of spouses with regard to their children. Significantly, with regard to proprietary consequences, the Act extends the matrimonial property regimes of civil marriages entered into in terms of the Marriage Act of 1961 to customary marriages as well. Therefore a monogamous marriage has as its default matrimonial proprietary regime a marriage in community of property and of profit and loss, unless this regime is excluded by an antenuptial contract, while the accrual system also seems implicated where the marriage is out of community of property. The proprietary regimes of polygynous marriages are subjected to intense regulation with a view to protecting the interests of the co-wives.
In the field of customary succession, the alignment of customary law with constitutional rights resulted from changes introduced by the Constitutional Court in 2004, when it abolished the infamous principle of male primogeni- ture in official customary law on the ground that it was discriminatory and contrary to the Constitution. The Constitutional Court extended the applica- tion of the Intestate Succession Act of 1987 to estates previously regulated by customary law, with modifications aimed at accommodating polygynous mar- riages. The main feature of this Act for present purposes is provision for surviving spouses and children as priority heirs to the exclusion of other relatives of the deceased, who inherit only if the deceased is not survived by priority heirs. The Constitutional Court decision also introduced a uniform system of administration of estates for all estates under the control of the Master of the High Court. Previously, estates of black South Africans were administered separately under the inferior system managed by magistrates’ courts.
The Bhe rules were to remain in operation until Parliament enacted legisla- tion to regulate customary succession. In 2010, Parliament enacted the antici- pated legislation, the Reform of the Customary Law of Succession and Regulation of Related Matters Act of 2009, which provides for heirs to intestate estates and the distribution of these estates. The Act came into force on 20 September 2010. From that date, the rules technically ceased to exist. The 2009 Act has simply reproduced the Bhe rules, especially in its applica- tion of the Intestate Succession Act. For this reason the research findings on the operation of the Bhe system of intestate succession rules in this report are relevant as indicators of how certain aspects of the 2009 Act will operate in practice.
In sum, the roots of the enactment of the RCMA and the Bhe rules lie in the birth in 1994 of a new constitutional order with an expansive Bill of Rights. Apart from the recognition of customary marriages, the alignment of custom- ary law to constitutional principles, especially the principles of equality and non-discrimination, is a significant motivation for the reform of the laws regulating customary marriages and succession by the legislature and the courts. The new rules incorporated a large number of common-law principles.