Die invloed van die swart gewoontereg op boedelbeplanning, boedelbereddering en erfopvolging in Suid-Afrika

Abstract

During the last few years tremendous changes took place in South Africa. Apartheid and all other statutes based on discrimination were abolished and a new Black middle class was established. The customary law is also recognised in the 1996 Constitution and a big section of the community abide by, and respect customary law Black people also have a choice between a marriage in terms of the common law, or in terms of the customary law. Before 2 December 1988 all Black common law marriages were out of community of property, unless otherwise determined by an ante-nuptial contract. Since the inception of the Marriage and Matrimonial Property Law Amendment Act 3 of 1988 all the differences between black and western civil marriages disappeared and all civil marriages were put on the same footing. The legislator also Save recognition to customary law marriages through the Recognition of Customary Marriages Act 120 of 1998. All these marriage systems also have a profound effect on estate planning, especially the customary law as it created new possibilities for inter alia the reduction of an estate through donations to and by spouses. Immovable property in tribal areas posed a problem as it is difficult to sell the land without the permission of the tribal authority, or minister. Black women also experienced trouble in obtaining rights in land. This situation is to be remedied. Succession in the customary law can lead to unfair results, especially as far as women are concerned, the need for a valid will therefor can't be stressed enough. The will is the most important estate planning instrument and must be utilised to ensure that assets are distributed as soon as possible after the death of the testator. The will is also an important instrument to ensure that the male successors are not prejudiced by the inception of the Amendment of the Customary law of Succession Bill 8109 of 1998 as culture determines that the male successor is also responsible for the payment of debts and the maintenance of the family, Through estate planning the estate planner must therefore give effect to the values of the 1996 Constitution and ensure that social order is maintained.