| dc.description.abstract | This article will concentrate on the development in the common law of
succession and administration of estates versus the customary law of
succession and inheritance as well as the winding up of estates pursuant to
constitutional tendencies, case law, and statutory reform over the last ten
years. The principles of customary law of succession and inheritance have
become a contentious issue since the commencement of the Constitution and
Bill of Rights which provide for a human rights dispensation in South Africa. As
a pluralistic legal system was retained, the inevitable conflict between the
principles of customary law of succession and the Constitution soon came to
the fore. Although the South African Law Reform Commission reported on this
issue and submitted their recommendations to the Minister of Justice and
Constitutional Development, the report was never formally published. Aspects
of intestate succession and the administration of estates of deceased blacks
were challenged in court on constitutional grounds. This eventually lead to a
number of principles of customary law being declared unconstitutional, and
consequently invalid, by the Courts who had no choice but to provide relief until
such time as the legislature enacted a lasting solution. As far as the intestate
succession is concerned, the Intestate Succession Act 81 of 1987 was
extended to all persons in South Africa, including those adhering to a system of
customary law. No distinction will, for purposes of succession, be made in
future between legitimate and illegitimate children, between a first born son and
other siblings or between men and women. Notwithstanding several court
judgments in this regard, the Intestate Succession Act has not been amended
by the Legislature as yet. As far as the historical discrepancy in the winding up
and administration of estates is concerned, all estates, including intestate
estates of black persons that have to devolve under customary law, in the
future will be administered by the Master. Magistrates no longer will be
responsible for supervising and administering customary estates. | en |
