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The Reform

14 October 2010

THE REFORM OF THE CUSTOMARY LAW OF SUCCESSION ACT, NO 11 OF 2009

Introduction
The Act was assented to on 19 April 2009 and came into operation on 20 September 2010. The main aim of the Act is to modify the customary law of succession so as to provide for the devolution of certain property in terms of the law of succession.

Heirs Who Are Entitled to Inherit
The estate of a person who is subject to customary law, defined as the customs and practices observed among the indigenous African people of South Africa which form part of the culture of those people, who dies after the 20th September 2010, without having a valid will, will devolve in terms of the Intestate Succession Act 81 of 1987, subject to the following:

  • where the deceased is survived by a spouse, as well as a descendant, including a spouse in a valid customary marriage, such a spouse must inherit a child's portion of the intestate estate or so much of the intestate estate as does not exceed R125 000,00, whichever is the greater; and

  • a woman, other than the spouse of the deceased, with whom he had entered into a union in accordance with customary law for the purpose of providing children for his spouse's house must, if she survives him, be regarded as a descendant of the deceased; and

  • if the deceased was a woman who was married to another woman under customary law for the purpose of providing children for the deceased's house, that other woman must, if she survives the deceased, be regarded as a descendant of the deceased (see section 2(a) - (c) of the Act).
Furthermore a descendant also includes a person who is not a descendant in terms of the Intestate Succession Act, but who, during the lifetime of the deceased person, was accepted by the deceased person in accordance with customary law as his or her own child (see the definition of "descendant" in section 1).

Such descendant is deemed to be a child for purposes of section 1(1)(c) of Act 81 of 1987.

Application of Section 1(1)(c) of Act 81 of 1987
For the purposes of this Act and in the application of section 1(1)(c) of the Intestate Succession Act, where the intestate estate is not sufficient to provide each surviving spouse and woman referred to in paragraphs (a), (b) and (c) of section 2(2) of the Act with R125 000,00, the estate shall be divided equally among such spouses.

Determination of a child's share
When determining a child's portion for the purposes of dividing the estate of a deceased in terms of the Intestate Succession Act, a child's portion, in relation to the intestate estate of the deceased, shall be calculated by dividing the monetary value of the estate by a number equal to the number of children of the deceased who have either survived the deceased or have died before the deceased, but are survived by their descendants, plus the number of spouses and women referred to in paragraphs (a), (b) and (c) of the Act.

Freedom of Testation
Property allotted or accruing to a woman or her house under customary law by virtue of her customary marriage may be disposed of in terms of a will of such a woman.

Proof of Heirs
The following two resolutions taken at the annual conference of registrars provide guidance as to the proof required to determine the wives and descendants as per the Act:


"RCR 44 of 2009: Proof of Heirs
What proof must a registrar of deeds insist upon to prove a descendant as defined in section 1 of the Reform of Customary Law of Succession and Regulation of Related Matters Act No. 11 of 2009 (i.e. a person not being a descendant of the deceased, but was accepted by the deceased person as his or her own child)?

Resolution:
An affidavit of next-of-kin, certified as a true copy by the Master, which makes reference to such "descendant".

RCR 45 of 2009: Proof of "Discarded Wife"
A "discarded wife" is deemed to be a surviving spouse for purposes of intestate succession. However, as such marriage was never registered, what documentation must a registrar of deeds insist upon as proof that such "spouse" can inherit in terms of Act No. 81 of 1987, read with Act No. 11 of 2009?

Resolution:
An affidavit of next-of-kin, certified as a true copy by the Master, disclosing such discarded wife."

Allen West
Deeds Training
Pretoria


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