Page 28 - SAReform Book

26 Reform of Customary Marriage, Divorce and Succession in SA 3.6 Intestate succession
The study found both positive and negative practices about the administration and distribution of estates in cases of intestate succession. While Bhe is no longer enforced, the rules of the Reform of the Customary Law of Succession and Regulation of Related Matters Act of 2009 are framed in a similar way, and the discussion of the shortcomings of the Bhe rules may assist with better implementation of the new Act.
3.6.1 Positive findings
Several positive findings on practices in the Master’s Offices and in the communities on the ground affirm the implementation of the Bhe rules, as well as the enhancement of the aims of the rules. The Master’s offices, including the service points at the magistrates’ courts, now administer estates of black persons, thereby attaining one of the major goals of the Bhe decision. Our findings also confirmed the existence of procedures for the administration of large and small estates. The procedure for the latter recognises the reality of widespread poverty in rural areas where most black people who are subject to the Bhe rules live. The findings furthermore show that the Master’s office is appointing the correct people (ie the beneficiaries of the estate or their guardians or care-givers in the case of beneficiaries who are minors) as administrators of estates. This practice promotes the implementation of the new rules although it does not guarantee their application to the benefit of the beneficiaries in practice, as this may depend on other factors.
In the light of the widespread ignorance of law and legal procedures noted in this report, people’s recourse to the Master may be attributed to the publicity this office has given to the Bhe rules in the form of information posters in public spaces in some of the Master’s offices. This is a good practice which the Master’s office should be encouraged to continue and which other state institutions responsible for the application of the new laws should emulate.
The study also found that family members conduct the administration of estates in a way that reflects the aims of the Bhe rules, even though the actual administration of the estate takes place outside the framework of the Bhe rules. For example, there is some support for all children inheriting equally, regardless of sex, age or birth status, contrary to the principle of male primogeniture abolished by Bhe. Similarly, in specific areas of the country, for example, in some parts of the Eastern Cape, widows inherit the umzi even when adult sons are present (often with the active support of the husband’s relatives). These practices demonstrate developments on the ground that acknowledge the new law. We recommend that these good practices be widely publicised throughout the country, in order to stimulate and inspire the devel- opment of a Constitution-aligned living customary law from the ground. Such a development would reduce, if not remove, the dependence on state institu- tions for the implementation of egalitarian principles and values in the area of succession.