Examining the application of the rules of intestate succession in a culturally diverse society: the position of living customary law

Abstract

This study examines whether South Africa’s common law of succession, grounded in the Intestate Succession Act, can coexist with the communal and evolving nature of living customary law or whether it compromises cultural authenticity and undermines constitutional pluralism. The research demonstrates that while judicial and statutory reforms most notably Bhe and the Reform of Customary Law Succession Act advanced equality and dignity, they frequently did so by subsuming customary principles into rigid statutory categories. This strategy secured individual rights but eroded the communal ethos of succession, weakening African traditions of family continuity and intergenerational responsibility. The research contributes to knowledge by reframing the debate beyond a binary of common law versus customary law. It argues that the development of customary law of succession, rather than its replacement, offers a path to harmonisation that respects constitutional values while preserving cultural authenticity. Drawing on comparative insights from marriage law reform under the Recognition Customary Marriage Act, it proposes pluralistic models such as dual-choice systems, strengthened ascertainment of living law, and statutory mechanisms of support that ensure succession remains both constitutionally compliant and culturally grounded. In doing so, the dissertation advances a normative framework for genuine legal pluralism in South Africa’s succession law