A landmark ruling raises the issue of a woman’s right to inherit outside of wedlock regardless of what Nguni customary law dictates, writes Mkhululi Ngxumza

A married woman inherits all kinds of assets from her husband, her children, who may die before her leaving no children of their own, and from anyone from whom her husband would have been entitled to inherit as a result of primogeniture. This is however the only time a woman may inherit under the Nguni law of primogeniture which states that only the eldest son can inherit.

Under Nguni law, this inheritance only relates to a spouse recognised by South African law, however, a ground-breaking case shows how the law is evolving along with our changing society.

In the matter of Bhe and Others v Khayelitsha Magistrate and Others, the father of the late boyfriend of Miss Bhe wanted to evict her and her children from the house owned by his deceased son in order to defray costs of burial of his son.

In order to achieve this he had to evict his own granddaughters along with their mother. He justified his decision by the fact that his son was not married to Miss Bhe and so she was not entitled to inherit in terms of the Nguni customary law, since lobola was never paid.

Indeed Miss Bhe and her daughters were not entitled to inherit based on the above, as cohabitation is not recognised by Nguni customary law. Children born out of wedlock are also not entitled to inherit. However, as society changes and due to economic challenges, cohabitation has become a common trend. Nguni customary law should develop and adapt to cater for these new challenges of an evolving society.

Miss Bhe and her late boyfriend lived as a family unit. The Constitutional Court looked at humanitarian grounds and rules that it would place an unfair burden on Miss Bhe if it allowed the eviction. Furthermore, it would be unconstitutional to not allow Miss Bhe to inherit.

How financial planning would have solved the dispute

Although in this case Miss Bhe was fortunate to be able to take her matter to the constitutional court, there are many women who are not in a position to challenge the legality of customary law and need to be aware of their vulnerable position when co-habiting.

In this case a financial plan could have ensured that Miss Bhe received the proper financial protection whilst still meeting the requirements of Nguni law.

A will can protect family members as it would supercede Nguni customary law. In this case, a will by the deceased clearly stating that his partner was to inherit his house would have protected her and their children.

In a will the testator (the person writing the will) may include all his assets but it is important to note that some assets cannot be disposed of in terms of the will as they are regulated by some other law. For example when married in community of property, the surviving spouse is entitled to 50% of the estate. Arable land and livestock is regulated in terms of Nguni law, which in turn applies the doctrine of primogeniture (inheritance to the eldest son).

It is most important is for the testator when nominating his beneficiaries, to put a clause in the will that will prohibit the benefits received from his estate from forming part of any marriage of the recipients. This will be a good protection for Nguni women, as if they should remarry, the assets from her late husband or father could never be claimed by her new husband, irrespective of their marriage contract.

Through taking out an insurance policy (life cover) the deceased could also have ensured that there were funds to care for his children adequately.

As mentioned previously the intention of primogeniture, where the son who inherits will take care of his family, is not always adhered to. By having separate life cover where the wife and other children are provided for would ensure their financial security.

Mkhululi Ngxumza is a Cape Town-based financial adviser with a specialisation in Nguni Customary Law