Chapter 1 Introduction: What is the nature, scope and application of

the law of succession in South Africa?

1. General background to the law of succession.

The law of succession is a branch of private law that governs the distribution of a deceased person's
estate. It establishes the beneficiaries who will inherit from the deceased and the nature and extent
of their inheritances. Additionally, it defines the rights and obligations of beneficiaries and creditors
concerning the estate. Succession can occur in three ways:

1. Testamentary succession, where a valid will dictates the distribution of the estate (discussed
in Chapter 3).
2. Intestate succession applies when there is no valid will and is governed by statutory laws
(discussed in Chapter 2).
3. Succession by contract, where the distribution is determined by a contract or agreement
(discussed in Chapter 14).

The law also includes rules for the administration of deceased estates, covered in Chapter 16. Key
Acts related to succession and estate administration include:

 The Administration of Estates Act 66 of 1965.

 The Black Administration Act 38 of 1927.
 The Children’s Act 38 of 2005.
 The Children’s Status Act 82 of 1987.
 The Civil Union Act 17 of 2006.
 The Constitution of the Republic of South Africa 200 of 1993 (Interim) and 1996.
 The Immovable Property (Removal or Modification of Restrictions) Act 94 of 1965.
 The Intestate Succession Act 81 of 1987.
 The Law of Evidence Amendment Act 45 of 1988.
 The Maintenance of Surviving Spouses Act 27 of 1990.
 The Marriage Act 25 of 1961.
 The Matrimonial Property Act 88 of 1984.
 The Recognition of Customary Marriages Act 120 of 1998.
 The Reform of Customary Law of Succession Act 11 of 2009.
 The Trust Property Control Act 57 of 1988.
 The Wills Act 7 of 1953, incorporating amendments by the Law of Succession Amendment Act 94 of
1992.

2. Law of succession in the legal system.

The material rules of the law of succession define how a person's estate is distributed after death,
who the beneficiaries are, and what they will inherit. They also outline the rights and duties of
beneficiaries and other involved parties. The formal rules for administering a deceased estate are
known as the administration of estates. While the Master of the High Court oversees this process, it
remains a matter of private law.
-

3. Dual character of the law of succession.

Colonialism significantly influenced the development of law, including the law of succession. During
the early Dutch occupation (1652–1795 and 1803–1806) and the initial British occupation (1795–
1803), customary law was not recognized. It was only after the second British occupation in 1806
that customary law began to receive some recognition, with the British adopting a policy of
noninterference as long as customs did not conflict with public policy or natural justice.

In 1927, the Black Administration Act (Act 38 of 1927) consolidated colonial laws related to
indigenous affairs, but it was eventually deemed unconstitutional and largely repealed. Today,
customary law is an integral part of South African law, on par with common law. South African law is
a mixed system combining Roman-Dutch law, influenced by English common law, and indigenous
customary law.

The Recognition of Customary Marriages Act (Act 120 of 1998) defines customary law as the
traditional customs of indigenous African people, while the Law of Evidence Amendment Act (Act 45
of 1988) and other sources provide definitions and guidelines for its application.

South African succession law comprises two main branches: common law (including testamentary
and intestate succession) and customary law (focusing on intestate succession). While both
branches are of equal status, there are key considerations:

 Customary Law Compatibility: Customary law must align with the Constitution and can be
amended by legislation.
 Choice of Law: Determining whether common or customary law applies depends on the
choice of law rules, influenced by statute or judicial precedent.
 Conflict of Customary Laws: Customary law is not unified; different traditional communities
have distinct laws. Section 1(3) of the Law of Evidence Amendment Act (Act 45 of 1988)
addresses conflicts between these laws, stating:

"In any suit or proceedings between Blacks who do not belong to the same tribe, the court shall
not in the absence of any agreement between them about the particular system of indigenous law
to be applied in such suit or proceedings, apply any system of Indigenous law other than that
which is in operation at the place where the defendant or respondent resides or carries on
business or is employed, or if two or more different systems are in operation at that place (not
being within a tribal area), the court shall not apply any such system unless it is the law of the
tribe (if any) to which the defendant or respondent belongs."

 Differences in Succession: Common law succession focuses on transferring wealth and allowing
freedom in property disposal, while customary law emphasizes preserving the family unit and
community by transferring all rights and obligations to the heir.

4. Choice of law rules.

a. The problem of conflicting rights and obligations.
  The dual South African legal system can lead to overlapping or conflicting rights and obligations.
 Courts use choice of law rules to determine which legal system applies, based on statutes and
precedents.
 Before 1994, common and customary succession systems were separate.
 Section 23 of the Black Administration Act prohibited black persons from bequeathing certain
properties (movable house property and quitrent land) by will; these had to follow customary
law or special statutory rules.
 Only family property and other immovable property not classified as house property could be
bequeathed by will under common law.
 The Intestate Succession Act excluded black persons' intestate estates, which were governed by
the Black Administration Act's regulations.
 Succession rules depended on the deceased's marital or matrimonial property system: civil
marriages followed common law, while customary marriages followed customary law.
 There were also differences in the administration of estates between black persons and others.
 These historical differences and developments will be discussed in chapters 2 and 15.

b. Testate law of succession.

 When there is a valid will, choice of law rules are straightforward, as the common law of succession
applies due to the absence of wills in customary law.
 The common law notion of freedom of testation allows a testator to specify which law should apply,
as discussed in Chapter 8.
 Determining whether common or customary law of succession applies can be complex, particularly in
cases involving deathbed wishes or vague clauses in a will.
 Customary law, as defined in the Recognition of Customary Marriages Act (Act 120 of 1998) and the
Law of Evidence Amendment Act (Act 45 of 1988), recognizes deathbed wishes and allocations by a
family head, which can conflict with common law wills.
 For example, interpreting a clause like "my children" can be problematic, as it may include
dependents under customary law, not just biological children.
 The armchair evidence rule, an elementary principle of common law, requires that documents be
interpreted in light of the circumstances at the time of drafting. This includes considering the
customs and culture of the testator, as stated in Section 1(3) of the Law of Evidence Amendment
Act (Act 45 of 1988), potentially bringing customary law principles into play.

c. Intestate law of succession.

 Where a deceased dies without a valid will, the choice of law rules are complex.
 Historically, Section 23 of the Black Administration Act (Act 38 of 1927) prohibited black persons
from making wills regarding certain property, and Section 1(4)(b) of the Intestate Succession Act
(Act 81 of 1987) confirmed that estates falling under Section 23 were outside the Act's scope.
 Regulations under the Black Administration Act provided a choice of law rules for those living
under customary law who died without a valid will.

Bhe v Magistrate, Khayelitsha Case

 -

 The Constitutional Court's decision in Bhe v Magistrate, Khayelitsha (Commission for Gender Equality
as Amicus Curiae); Shibi v Sithole; South African Human Rights Commission v President of the
Republic of South Africa (2004) led to significant changes.
 The Court declared Section 1(4)(b) of the Intestate Succession Act, Section 23 of the Black
Administration Act, and related regulations unconstitutional and invalid.
 As of 15 October 2004, the Intestate Succession Act applies to all intestate estates, regardless of
cultural affiliation.
 The customary law of succession can now only be applied if specified in a will through freedom of
testation.

Reform of Customary Law of Succession Act (RCLSA)

 The RCLSA (Act 11 of 2009) was promulgated to amend the customary law of succession, effective
from 20 September 2010.
 The RCLSA states that the estate of any person subject to customary law without a will must devolve
according to the Intestate Succession Act.
 Despite this, there are key differences between the devolution of customary law estates and
common law estates.
 The RCLSA gives the Master of the High Court jurisdiction over disputes regarding the devolution of
family property and allows the Master to refer matters to a magistrate for enquiry and
recommendations.

Practical Application

ractice, families typically distribute the estate of a deceased person under customary law informally.
horities like the Master of the High Court or designated officers are usually consulted only in cases of serious family
putes.
extent to which the rules of intestate succession from the Intestate Succession Act are applied in practice requires
pirical research to determine.

d. Administration of estates.

 Before December 2000, the liquidation of deceased estates had different administrative systems
based on race.
 Black persons' intestate estates were administered by a magistrate, while the Master of the High
Court administered the estates of all other race groups and the testate estates of black persons.
 In Moseneke v Master (2001), the Constitutional Court declared any legislation creating different
systems of estate administration based on race to be unconstitutional.
 Despite this, estates still had to devolve in accordance with the customary law of succession where
applicable.
 Subsequent legislative measures applied to all estates except those devolving under customary law.
 On 15 October 2004, the Constitutional Court in Bhe v Magistrate, Khayelitsha further amended the
position, ordering a unified and unbiased system of estate administration under the Master's
supervision, as per the Administration of Estates Act (Act 66 of 1965).
 Since 2004, a unitary system of estate administration has existed for all South Africans.
 The choice of law rules now only determine whether a deceased estate must be administered by the
Master of the High Court or a designated Magistrates' Office, depending on the estate's value.

5. Ground rules of succession

 a. Person must have died

Succession Prerequisites in Common and Customary Law

 Both common and customary laws require the owner of the estate to be deceased for
succession to occur.
 In customary law, succession to status positions happens only upon the death of the family
head, not other family members.

Case: Estate Orpen v Estate Atkinson

 Facts: The Atkinsons massed their estates in a joint will, creating a trust. Upon Mr. Atkinson's death,
the income of the trust was to be shared equally between Mrs. Atkinson and their daughter. The
daughter, Mrs Orpen, was given a "power of appointment" over 20% of the trust capital.
 Issue: Mrs. Orpen exercised this power in favour of her husband before her father died. The legal
question was whether her exercise of the power was valid and whether her husband's estate had
vested rights in the 20% trust capital.
 Holding: The court held that since Mrs. Orpen predeceased her father, she could not exercise
the power of appointment. Her husband’s estate had no rights to the 20% trust capital.

Exceptions to the Rule of Death for Succession

1. Presumption of Death by Court Order

 Courts can pronounce a presumption of death when a person is missing, allowing estate
administration.
 Factors considered include the length of absence, age, health, and circumstances of
disappearance.
 Notable cases: Re Beaglehole, Ex parte Engelbrecht, Ex parte Rungasamy, Ex parte
Govender, Ex parte Pieters, Ex parte Stoter.

2. Estate Massing

 Estates of multiple testators are consolidated for testamentary disposal.

 The surviving testator's estate dissolves according to the will of the first dying while they
are still alive.

Case: Ex parte Graham

 Facts: A testatrix and her adopted son died in a plane crash. The testatrix’s will left her estate to
her son but stipulated that if he predeceased her, the estate would go to her mother.
 Issue: The court needed to determine who died first to execute the will properly.
 Holding: The court concluded simultaneous death, as there was no presumption as to who
predeceased whom. The estate was awarded to the testatrix’s mother.

Case: Greyling v Greyling

 Facts: A husband and wife died in a car accident. Their joint will specify different dispositions
depending on who died first or if they died simultaneously.
 Issue: Determining the order of death to ascertain the proper beneficiaries.
 Holding: The court interpreted "to die simultaneously" as death resulting from the same
incident, regardless of the exact times. The estate was administered as if both died
 -

simultaneously, benefiting one son with the immovable property and the rest of the children
equally with the residue.

Additional Considerations in Commorientes (Simultaneous Death)

 In cases where family members die in the same disaster, determining the order of death affects
beneficiaries.
 Example: If Xavier and his daughter Brenda die in a plane crash, and Brenda’s estate is wealthier,
proving who died first determines whether her wealth is inherited by Xavier's heir (Casper) or
not.
 South African courts avoid presumptions of predeceasing each other, focusing on factual
determinations in each case.

b. Transfer of rights and/or duties with regard to assets and/or the status of the deceased

Ground rule in law of succession:

 Ensures transfer of rights and duties regarding bequests and status of the deceased.

Common law succession:

 Clear transfer of ownership and responsibilities to heirs.

 The deceased's rights and responsibilities are passed on.

Customary law succession:

 More complex; depends on property type and deceased's status.

 Succession follows social customs and traditions.
 Different rules for various types of property: communal, personal, family.

Succession to status positions:

 Occurs after the death of a family head.

 General succession: overall status and responsibilities of the deceased.
 Special succession: leadership of the deceased's various houses.
 Both general and special succession are critical for maintaining social structure and continuity.

Male primogeniture:

 Primarily limited to males.

 The firstborn son of a particular house typically succeeds as family head.
 Ensures continuity of lineage and preservation of family heritage.

Exceptions to male primogeniture:

 Although male primogeniture is standard, there are exceptions.

 Certain customs or specific circumstances may lead to different succession practices.

Transfer of rights and duties:

 Involves both tangible property and intangible status/social roles.

 Ensures continuity and stability within the family and community.
 Heirs assume the social and familial duties of the deceased.

Importance of status in customary law:

  Status is often linked to the ability to make decisions and manage family affairs.
 Includes responsibilities towards family members and community obligations.
 Status succession is vital for maintaining order and respect within the community.

Impact of customary law on modern legal systems:

 Customary law often intersects with statutory law, creating a complex legal landscape.
 Modern legal systems may incorporate customary practices, especially in regions with strong
traditional roots.

Role of courts:

 Courts sometimes intervene to resolve succession disputes.

 May involve interpreting customary practices within the framework of statutory law.
 Ensures fair and just application of both common and customary law principles.

c.Beneficiary should at the time of dies cedit be alive or have been conceived
 The transfer of rights (and occasionally responsibilities) is essential for succession; there must be
someone to whom these can devolve.
 If a beneficiary has predeceased the testator, there can be no succession unless the will or
antenuptial contract provides for this, or if ex-lege substitution applies.
 An exception is made for unborn children conceived but not yet born when the benefit vests.
The nasciturus fiction allows an unborn child to inherit, provided they are born alive and were
conceived before the testator's death.
 Section 2D(1)(c) of the Wills Act codifies the nasciturus fiction in testate succession, stating that
benefits vest in children who are alive or conceived at the time of devolution and are later born
alive.
 Customary law does not have a similar fiction, but some customs exist to produce heirs
posthumously, such as ukungena and ukuvusa.
 Ukungena requires a widow to marry one of her deceased husband's brothers to continue the
family line if the husband dies childless.
 Ukuvusa allows the deceased's natural heir (like a brother) to inherit property and take a wife,
who is regarded as the deceased's wife, with her children considered the deceased's children.
 The extent to which indigenous communities still follow these customs is unclear.
d. Beneficiary must be competent to inherit
 Being named as an heir or legatee in a will or under intestate succession does not guarantee the
right to the benefit.
 While most people are competent to inherit, some may not be eligible to take up a benefit
under a specific will.
 Certain individuals may also be ineligible to benefit intestate from a specific deceased.
 These situations are covered in chapters 2 and 7.
 In customary law, beneficiary competence is often linked to the rule of male primogeniture.
 The rule of male primogeniture was declared unconstitutional by the Constitutional Court in Bhe
v Magistrate, Khayelitsha.
 This case led to significant changes in the customary law of succession and estate
administration.
 Details of these changes are discussed in chapters 2 and 15.
-