My uncle took everything when my dad died because my parents were in a customary marriage. Is that right?

The long answer

Your uncle probably sees himself as being entitled to take control of all his brother’s property and affairs, because he is the oldest surviving male member of the family. That was the way it used to work in customary marriages: the oldest male relative would act as the family guardian when a man died without making a will. Women could not inherit. But in 2004 the Constitutional Court found in the case of Bhe vs Magistrate that it was unconstitutional to discriminate against women and changed the law. The court said that if a man died intestate (without making a will), his property must be distributed in terms of the Intestate Succession Act of 1987.

The Intestate Succession Act lays down the order in which property is inherited when someone does not leave a will. This is the order:

• The spouse of the deceased

• The descendants of the deceased

• The parents of the deceased (Only if the deceased died without surviving spouse or descendants)

• The siblings of the deceased (Only if one or both parents are predeceased).

The Intestate Succession Act should be read in such a way that it can accommodate cases where the deceased was a husband in polygamous customary union:

• When the deceased left only spouses and no descendants, the wives will inherit the estate in equal shares.

• When the deceased left spouses and descendants, the spouses and descendants will inherit the estate in equal shares, but

  • Each wife should inherit at least R250,000

  • When the estate is not large enough to allow each wife to inherit R250,000, the spouses will inherit the estate in equal shares while the descendants will not receive anything.

The law does not discriminate against children born outside the marriage. In your case, it seems that your mother and all the children must inherit the estate equally. 

The 2020 amendments to the Recognition of Customary Marriages Act means that a woman in a customary marriage is legally equal to her husband and has the right to inherit and sell assets, in addition to any rights or powers that she has in customary law. All customary marriages are considered to be marriages in community of property now.

You and your mother will need some legal help and advice to deal with the situation of your uncle taking control of your father’s estate.

You could approach the Women’s Legal Centre which took part in the constitutional court case on behalf of women. These are their contact details:

Cape Town Office: 021 424 5660

Johannesburg Office: 011 339 1099

Helpdesk Queries: info@wlce.co.za

You could also approach the following organisations:

• Legal Resources Centre 

Cape Town: 021 481 3000

Email: info@lrc.org.za

• Lawyers for Human Rights

Cape Town: 021 424 8561

Wishing you the best,
Athalie