Recognizing Customary Law can only be done if it is understood in itself, which is very difficult to do with the vast number of different regulations and customs followed by the different tribes and native communities. Land Tenure alone is two fold; there are the Official Customary Laws, which are the explicit laws about how inheritance of Land occurs and what procedures are to be followed, and the Living Version of Customary Law, which is the way in which the courts have interpreted and applied the provisions in real cases. The problem resides in the fact that there is a great disparity as to how the laws are applied; the lower courts have a tendency to take social practices and changes into account more so than the higher courts, which have a tendency to strictly apply the original customary rules, even though the laws weren’t in fact that strict at all.
Primogeniture – the preference for senior males as heirs to inherit land – is a dominating feature of inheritance and tenure law within the customary system, and is something which many indigenous tribes still follow, regardless of the new laws put in place. It was codified in Article 23 of the very controversial Black Administration Act 1927, a major piece of Apartheid legislation codifying the segregationist character of South African society. The basic idea behind this rule, under Official Customary Law, is that property of a family head, when deceased, is passed onto the heir, usually the oldest of the sons in the first house. In a Zulu household, “power is inherited by men but transmitted through women”; in polygamous marriages, if the husband were to die, then the property is to be distributed accordingly amongst the sons of the houses that are identified by the wives: the first wife of the “great house” (indlunkulu), the right-hand house (qadi) and the left-hand house (ikhohlwa); determining the seniority of the wives is usually on the basis of marriage order. In a Swazi household, the senior wife is chosen by the family, which helps identify who the heir should be – usually her oldest son. In almost every tribal community household, it is very difficult to say that there is no male heir to the deceased’s estate, due to the fact that an heir will eventually be found along the bloodline - succession passes onto the deceased’s father, or the brothers, or the descendants in order of seniority. Sometimes, succession will even be passed onto grandchildren, and then if failing the oldest grandchild, will then follow through the second oldest of the family line of males until an heir can be found. In the event that no heir can be found, however, the traditional leader of the community will then take hold of the estate, but is under the duty to use the estate to maintain the surviving dependants – women included. I have simplified these customs as much as I can, but the basic idea is that the heir to the estate is usually always a male – women seem to be avoided completely. However, women are used by many communities as a way in determining the heirs, for it is the women who are the leaders of the households, especially in polygamous marriages.
