Traditionally, women have been denied rights to property under the South African Customary Law of Succession as women were under the guardianship of the male in the family and did not have the legal capacity to either own or acquire property.
The customary rule was that succession is governed by the principle of male primogeniture, which meant that the eldest son of a family succeeded the entire estate after the death of a parent, to the exclusion of younger siblings, both male and female.
However, a lot of inroad has been made in improving the rights of women in this specific field.
This principle of primogeniture succession was brought to light in the cases of Bhe v Khayelitsha Magistrate; Shibi v Sithole; South African Human Rights Commission v President of the Republic of South Africa which were all heard together in the Constitutional Court. The court found that the principle, and the disputed sections of legislation, does not acknowledge women’s rights and further infringes upon the fundamental right to equality and human dignity, to the extent that it excludes or hinders women from inheriting property.
The Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009 came into operation on 20 September 2010, and now gives effect to the decisions of the Constitutional Court in the above cases.
Following the Bhe decision and with all the legal developments, it seems that, practically, it has virtually no impact even on the adjudication of disputes concerning inheritance rights. It is important for individuals to understand their rights when it comes to intestate succession and to seek legal advice when it is needed to enforce these rights.