After years of deliberation and judicial activism, the South African legislature in September 2010 brought into force the Reform of Customary law of Succession and Regulation of Related Matters Act 11 of 2009 (the Reform Act). The Act regulates the devolution of property of individuals who live according to customary law and die intestate. The notorious customary law principle of male primogeniture, according to which males inherited to the exclusion of females, has been abolished and replaced with the common law system of intestate succession. It has been nine years since the enactment of the Reform Act. This thesis investigates the implementation of the Act to understand its application by officials and people’s experiences thereof. It is a qualitative study that draws upon doctrinal and empirical research to address its objectives. The theoretical concepts of deep legal pluralism and the semi-autonomous social field are employed as the analytical prism through which the administration of customary law estates is investigated. The findings are based on a comprehensive case study conducted in a rural village in the Eastern Cape of South Africa. Individuals, the traditional leader, the headman and state officials were interviewed to understand how estates are reported and the devolution of benefits. The interviews were augmented by an analysis of a sample of case files drawn from the Master’s Office responsible for the administration of estates. The findings revealed the resilience of living customary law in the administration of estates, particularly in respect of homes situated in rural areas. In this regard, living customary law has evolved to allow women and daughters greater rights to property but it still displays patriarchal overtones as males are considered the true owners of homes. The Reform Act regulates more effectively the devolution of assets found in the formal sector, such as financial assets. The case study found most estates were valued at less than R250 000, with the result that deceased’s surviving spouse and children were the primary beneficiaries of the estate. However, a statutory right of inheritance is no guarantee that beneficiaries enjoy their rights as there is a significant risk of property grabbing. While much has been done to reform the customary law of succession, there is room for improvement in securing the rights of dependents of the deceased, facilitating the reporting of estates and ensuring the implementation of mediated solutions in communities. The thesis thus offers practical recommendations to improve the system of administration. First, the thesis recommends a move towards a functional, fact-based approach to inheritance which extends inheritance rights to individuals supported by the deceased while alive, regardless of whether they constitute a spouse or a descendant as statutorily defined. This addresses the lack of protection for unmarried partners and the broader notions of family found in customary law. Second, it advocates for the greater leveraging of traditional institutions such as chiefs and families in the reporting of estates and resolution of disputes. Third, the dissemination of information through state and non-state institutions is promoted. Fourth, it advocates for the explicit condemnation of corrupt state practices which exploit vulnerable individuals. Finally, the thesis recommends further research into practices such as the existence of family property and administration of estates in urban areas. Understanding the nuanced manner in which administration is experienced is argued to be necessary for successful reform.

Customary law existed before the enactment of formal laws to govern the affairs of Nigerians. It started as behavioural norms that grew to be widely accepted by the community and became law. Inheritance rights are recognised under Nigerian customary law. Most customs provided for a way in which a person's properties could be distributed upon his death. However, most of these customs did not make provision for women in the distribution of a deceased estate. This disparity between the inheritance right of a man and woman was very prominent in the distribution of landed properties. Upon the demise of a man, his estate becomes family property and his eldest male child inherits it on behalf of other male members of the family. Where the deceased dies without a son, his brother inherits the estate. Notably, the Constitution did not abolish laws that existed prior to its enactment. It provides that these laws shall continue to exist subject to its provisions, the Constitution provides for its supremacy over every other law, and that the court has a duty to invalidate any law that is inconsistent with its provisions. The Court found the opportunity to alter the unfair discriminatory position against Nigerian women and develop customary law in line with Constitution in the case of Anekwe v Nwekwe. Here, the defendant (brother of the deceased) sought to evict the plaintiff (widow of the deceased and her female children) from the property of the deceased because she had no male child. He claimed that based on their customary law female children are excluded from inheriting property. The Supreme Court then invalidated this customary law of male primogeniture for being repugnant to natural justice, equity and good conscience. Although the decision of the court solved the problem of discrimination, it failed to develop customary law by invalidating only the discriminatory aspect of the customary law. Lessons can therefore be drawn from the minority decision of the South African Constitutional Court in the case of Bhe v Magistrate of Khaylistha, where recourse to developing the customary law was posited. This study will examine to what extent the court has applied customary law to bring it to conformity with the Constitution, drawing from other African countries especially South Africa. It utilises literature review and case law analysis, arguing that the court needs to review the Anekwe v Nwekwe case and make a more declarative position that brings customary law up to date with modern realities. It will recommend that the courts should in consultation with the people develop the customary law of inheritance.

Thesis (doctoral)--Friedrich-Alexander-Universität zu Erlangen.

Thesis (Ph. D.)--Université de Paris, 1905. / Includes bibliographical references (p. [1-2] (1st group)).

Inaug.-Diss.--Marburg. / Vita. Includes bibliographical references.

Thèse--Algiers. / "Bibliographie sommaire": p. [157]-158.

MA (Tshivenda) / MER Mathivha Centre for African Languages, Arts and Culture

This thesis addresses the question: How do customary legal frameworks impact the status, rights and treatment of persons with disabilities? It is motivated by two underlying premises. First, customary legal frameworks are highly consequential in Sub-Saharan contexts. Second, human impairments are likely to impact status, rights and treatment in customary legal scenarios. In addition, the reality of deep legal pluralism and an anthropologically versed conception of customary law inform the research design. Customary legal content is rightly discerned by researching its substance and application within the lived environment. The researcher gathered input and stories of 63 persons with disabilities and conducted interviews of 23 community members with heightened knowledge of cultural matters in order to discern the experiences of persons with disabilities in non-formal legal contexts. In her semi-autonomous social field approach, Sally Falk Moore considers diverse and layered sources of law when determining the normative legal content in lived contexts. However, this research uncovered little in the way of normative principles specially pertaining to persons with disabilities within lived environments. Instead, legally consequential occurrences take place in customary scenarios that are largely autonomous from formal actors and institutions. The perceived normative substance of formal and customary law can influence the outcome of customary scenarios, but the decision makers' working knowledge of this legal content as it pertains to people with human impairments is limited and disparate. Decision-making family, clan and community members take various factors into consideration when determining rights, status and treatment in customary scenarios. Suppositions about the capacity and functionality of persons with disabilities are particularly influential. Thus, human impairments can be consequential factors in these decisions. This thesis demonstrates that customary scenarios are highly significant forums for establishing customary rights and status in the contexts of marital relations, clan leadership, customary guardianship, customary succession and land rights. Moreover, it indicates that effectual social and legal influences in these scenarios are multi-sourced, multi-layered and dynamic. Finally, the thesis offers practical change strategies suggested by the research for those seeking to improve the status, rights and treatment of persons with disabilities in Mukono District and similar settings.

This study looks into the ways in which official customary law addresses succession complexities and legitimacy in woman-to-woman marriages. The social, political, cultural and legal background against which these marriages are concluded show the history of succession in woman-to-woman marriages and the position of women and children. The thesis highlights provisions of customary succession laws legislators sought to redress through the Reform of Customary Law of Succession and Related Matters Act 11 of 2009 and the Recognition of Customary Marriages Act 120 of 1998, which affect widowed spouses and certain children in customary marriages. The study uses literature review, case analysis and interviews to investigate the operation and legitimacy of woman-to-woman marriages, the benefits or harmful effects thereof, the background, context and history of the customary law of succession and acceptance of children in Bolobedu, and the application of living customary law. The study finds that woman-to-woman marriages are legitimate customary marriages under Lobedu customary law. It also finds that customary succession laws in such marriages have traces of patriarchy, although the community is under a matriarchal system of governance. It finds that the rule of male primogeniture is still applicable, and that women do not have a right to inherit from their deceased parents except at the discretion of the male heir. It finds that the acceptance of children in woman-to-woman marriages includes the performance of ceremonies symbolising the female husband's acceptance, and the child's use of her surname. It further finds that the application of official customary laws in Bolobedu is negligible, with the living customary law being the applicable law for all succession disputes. A further finding is the general lack of knowledge and understanding of succession rights under official customary laws by the community and their traditional leaders, who are aware only of provisions of the Lobedu living customary law which they readily provide. The study concludes that the legislators, judiciary and policy makers' lack of knowledge and understanding of woman-to-woman marriages and its accompanying succession laws inhibits and limits the adequacy of official customary law to regulate succession complexities. Rural communities' perceptions of their rights and knowledge of customary laws of succession, the practicality of provisions of official customary laws of succession, and their relatability to lived realities of rural communities further add to the inadequacy of official customary law.

Submitted to the Faculty of Arts in fulfillment of the requirements of the Master of Arts in the Department of African Languages at the University of Zululand, South Africa, 2000. / Lolu ewaningo Iwenzelwe ukuqhakambisa iZinga lenhlonipho elitholakala esithenjini. Kuzovela ukuthi amadoda, abafazi, izinsizwa, izintombi ezisesithenjini zithi zihlonipha zibe zizihlonipha. Yilowo nalowo akafuni ukuphoxa umuzi wakwabo. Izintombi zomuzi, azifuni ukushiya imilanjwana ngoba ziyazi ukuthi yephuca onina inkomo yohlanga. Lokho kumenza Iowa onentombazane ezalele ekhaya, ezizwe ejezisekile emehlweni kaSokhaya kanye nawesigodi sonke jikelele. Yingakho amantombazane esigodi aye athi athukiwe nxa kukhona insizwa ekhulelise intombazane yesigodi, bese efuna ukugezwa ngembuzi ezobulawa engayidli nokuyidla, ngoba eyithatha njengento edala amashwa namashangusha. Kwamuzi onale ntombazane uze ugcine ugezwe ngenkomo okuthiwa ngeyombhubuzo. Ngamantombazane ehlelwe yilo mshophi agcina eganiselwe amakhehla, ayokwandisa izithembu zamakhehla, ezingatholi ngisho isikhundla sokuba indlu yokugugela ngenxa yokuthi eze ngesijeziso. Lesi sihloko sikhethwe nangenxa yokujula kwaso ekuvezeni amagama ezindlu emzini onesithembu. Kulolu khalo siqonde indlunkulu, ikhohlo, iqadi, isokanqangi kanye namabibi. La magama nje ewodwa ayalwandisa ulimi IwesiZulu. Inhlonipho kankosikazi wasendlunkulu ithe thuthu ngezinga kuneyasekhohlo. Inkosikazi yaseqadini ingena endlunkulu. Kuzocaciswa inzululwazi nezinjulamqondo eziqukethwe yisithembu. Lolu Iwazi luzokwelekelela luthandaniswe nezinsalela zesithembu ezisekhona ukuze kujeqezwe emuva kubuye kugqolozelwe phambili. Lokhu kuzogcina kuveze isithombe sokuthi izolo, inamuhla nekusasa kungenziwa kufane uma ulwazi 4 olugoliwe lufakwe emiqingweni yamabhuku. Bese kuthi zonke izizukulwane eziyolandela. ziluthole lolu Iwazi lukhweziwe Iwalondolozeka kahle. Kumele ukuba abacwaningi balwenze lube ugume kumbe ukhothe Iona olungaboli izizukulwane ngezizukulwane. Lokho kuyokwenza ukuba umuntu athele esandleni afumbele emlonyeni, ashaye esentwala qede ashaye amanhlakomuzi. Ngalokho sihlose ukuveza iqiniso lokuthi lolu cwaningo akulona olokugcina kepha wumzamo wokuthundlaza indlela eyohamba abafowethu nodadewethu abayolandela ukuze bavule 10 mendo ube umgwaqo.