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The Right to Equality - The Law

Important changes to the laws of succession mean that women are now entitled to inherit property under customary law.

Important changes to the laws of succession mean that women are now entitled to inherit property under customary law. The Customary Law of Succession is now subject to The Intestate Succession Act [81 of 1987], which protects the rights of women and children to inherit. Traditionally, because of the rule of primogeniture, women were not entitled to inherit property under the Customary Law of Succession. The Reform of Customary Law of Succession and Regulation of Related Matters Act [11 of 2009] reforms the customary law of succession by finally prohibiting the principle of primogeniture and recognises that widows and children of a customary marriage were not adequately protected under the customary laws of succession.

DOMESTIC LAWS AND POLICIES

  • South African Constitution
  • Reform of Customary Law of Succession and Regulation of Related Matters Act (11 of 2009)
  • Civil Unions Act (17 of 2006)
  • Recognition of Customary Marriages Act (120 of 1998)
  • Promotion of Equality and Prevention of Unfair Discrimination Act (4 of 2000)

INTERNATIONAL FRAMEWORK

  • Universal Declaration of Human Rights
  • International Convention on Economic, Social and Cultural Rights
  • International International Covenant on Civil and Political Rights
  • Convention on the Elimination of all Forms of Discrimination Against Women
  • African Charter on Human and Peoples' Rights
  • Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa
  • SADC Protocol on Gender and Development

Case Law

  • In Bhe and Others v Khayelitsha Magistrate and Others (CCT 49/03) [2004] ZACC 17; 2005 (1) SA 580 (CC); 2005 (1) BCLR 1 (CC) the Constitutional Court suspended customary law rules of male primogeniture until such time as Parliament could redress them.
  • In the Constitutional Court Judgment of Shilubana and Others v Nwamitwa (CCT 03/07) [2008] ZACC 9; 2008 (9) BCLR 914 (CC) the court clarified the relationship between the living customary law and the Constitution. The Constitutional Court argued that customary law – like the common law – is adaptive by its very nature and that courts should recognise changes in customary law, especially where such changes bring the customary law in line with the values and spirit of the Constitution.