Customary Law Of Succession In South Africa Explained

Customary law of succession in South Africa is the body of rules that historically governs the intestate devolution of the estates of Black South Africans and is now codified in the Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009, read with the Constitution (in particular sections 9 and 211) and the Intestate Succession Act 81 of 1987. The old primogeniture rule, under which only the eldest male relative could inherit, was set aside by the Constitutional Court in Bhe v Magistrate, Khayelitsha 2005 (1) SA 580 (CC), and the surviving framework is administered by the Master of the High Court in the area where the deceased was ordinarily resident at the date of death.

What Customary Law of Succession Is and Who It Applies To

Customary law of succession is the body of rules governing how a deceased estate devolves when the deceased died intestate (without a valid will) and is subject to customary law. It was historically applied to Black South Africans under the Black Administration Act 38 of 1927, which had codified a male-only primogeniture rule: the eldest male relative inherited the entire estate as the “customary heir.”

The Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009 gave the system a statutory framework, replacing that primogeniture rule. The Act applies to the estate of any person who, immediately before their death, was subject to customary law in respect of the disposition of that estate — a question of fact determined by the Master of the High Court from the deceased’s personal and family circumstances.

The system is distinct from the Intestate Succession Act 81 of 1987, which applies to estates of persons whose estates are not governed by customary law. The two regimes are now reconciled: under the Reform Act, the Intestate Succession Act 81 of 1987 sets the default allocation for a customary estate, with the modifications the Reform Act itself makes.

The Constitutional Foundation

Two constitutional provisions underpin the entire reform:

• Section 9 (equality) — the right to equal protection and benefit of the law, which underpinned the Constitutional Court’s findings in Bhe.
• Section 211 (customary law) — requires courts to apply customary law when it is applicable, subject to the Constitution.

Three judgments define the modern customary succession regime:

Case	Citation	Court	Holding
Bhe and Others v Magistrate, Khayelitsha, and Others	2005 (1) SA 580 (CC)	Constitutional Court	Declared the customary rule of male primogeniture unconstitutional; the eldest male relative is no longer the sole heir.
Mayelane v Ngwenyama and Another	2013 (4) SA 415 (CC)	Constitutional Court	Confirmed that the Intestate Succession Act 81 of 1987 applies to estates of persons married under customary law, including polygamous customary marriages, and that multiple spouses inherit the intestate share.
Mamashela v Maribana and Others	2020 (3) SA 76 (SCA)	Supreme Court of Appeal	Refined the practical application of the post-Bhe regime to customary marriages and the devolution of estates.

The Reform of Customary Law of Succession Act 11 of 2009 — What It Does

The Act sets the principle that the estate of a person who was subject to customary law devolves according to the reformed customary regime, not the male-only customary rule that prevailed before the Act. It replaces the role of the customary heir with a reformed inheritance order that includes the surviving spouse, descendants, and other dependants, governed by the Intestate Succession Act 81 of 1987 as the default allocation rule.

Key provisions:

• Section 2 — gives the Intestate Succession Act 81 of 1987 direct application to estates previously governed by customary law, subject to the modifications the Reform Act itself makes.
• Section 23 — sets out the order of intestate succession in the customary context: the surviving spouse, descendants, and other dependants in the proportions provided for.
• Section 24 — sets out the position for the surviving spouse and related rights, including the household contents and the right to remain in the matrimonial home for a defined period.

The Act also clarifies that any person may make a will to dispose of their estate, including a person who would otherwise be subject to customary intestate succession. The Wills Act 7 of 1953 applies, and a properly drafted will generally overrides the customary intestate regime.

The Intestate Succession Order Under the Reformed Regime

The Intestate Succession Act 81 of 1987 sets the default allocation: surviving spouse, descendants, parents, siblings, and more remote relatives in defined shares. In a customary estate the same Act applies, but section 24 of the Reform Act adds specific protections for the surviving spouse and the family unit.

Where the deceased was married in a customary marriage (including a polygamous customary marriage recognised under the Recognition of Customary Marriages Act 120 of 1998), the surviving spouse’s share is allocated in accordance with the Reform Act and Mayelane. Adopted children and children born outside of marriage inherit on the same footing as other descendants — Bhe made clear that the previous customary disqualification of certain categories of heirs is constitutionally untenable.

The Role of the Master of the High Court

The Master of the High Court in the area where the deceased was ordinarily resident at the date of death has jurisdiction to administer the estate (Administration of Estates Act 66 of 1965). The Master’s office issues letters of executorship (or letters of authority, where there is no will) and supervises the liquidation of the estate, the payment of creditors, and the distribution to heirs.

For a customary estate, the Master’s office will confirm the deceased’s marital status at the date of death — including the existence of any customary marriage, the lobola negotiations, and the registration of the marriage under the Recognition of Customary Marriages Act 120 of 1998 where applicable — and identify the heirs in terms of the reformed order. The Master’s office can require a family tree, an inventory of assets, and the customary marriage registration documents. These are submitted on the Master’s prescribed forms.

The Department of Justice and Constitutional Development is the responsible ministry for the Master’s function; the relevant Master’s office (Pretoria, Johannesburg, or another High Court seat depending on the deceased’s domicile) is the practical contact point.

Estate Duty and Tax Considerations

Tax exposure for a customary estate is the same as for any other estate:

• Estate Duty Act 45 of 1955 — applies to customary estates on the same basis as other estates; there is no exemption simply because the estate is governed by customary law.
• Section 4 threshold — the first R3.5 million of the net estate is currently exempt from estate duty (verify against the current tax year’s schedule before publication).
• Spousal deduction (section 4(q)) — provides for a deduction from the value of the estate for property accruing to a surviving spouse, which works similarly across customary and non-customary estates.
• Capital gains tax — may apply on the deemed disposal of assets on death; the deemed disposal is calculated by the executor and reported to SARS.

What Customary Law of Succession Does Not Cover

• It does not apply where the deceased made a valid will — a will disposes of the estate outside the customary regime, with the Wills Act 7 of 1953 controlling the formal validity requirements.
• It does not apply to estates of persons who are not subject to customary law at the date of death — the Intestate Succession Act 81 of 1987 governs those estates instead.
• Adoption of a child by a person whose estate would otherwise be governed by customary law does not change the child’s inheritance rights — the adopted child inherits in the same way as a biological descendant.
• It does not displace the Administration of Estates Act 66 of 1965, which governs the procedural administration of estates in the Master’s office.

Why Drafting a Will Matters Even in a Customary Estate

The customary regime is a default — it operates only where the deceased did not make a valid will. A will allows the deceased to choose who inherits, to set out specific bequests, to address the situation of a customary marriage with multiple spouses, and to nominate an executor. The Wills Act 7 of 1953 sets the formal requirements for a valid will in South Africa; an invalid will results in the customary regime applying, which may not reflect the deceased’s wishes.

Drafting a will with an attorney familiar with both the customary framework and the Wills Act is the most reliable way to ensure the estate is administered in accordance with the deceased’s actual intentions. Burger Huyser Attorneys’ Wills & Estates practice — which runs through the Linden head office and the Pretoria, Centurion, Sandton, Bedfordview, and Alberton branches — drafts and stores wills for clients whose estates would otherwise fall under the customary intestate regime, and advises on the interaction between the Recognition of Customary Marriages Act 120 of 1998 and the Intestate Succession Act 81 of 1987 where multiple spouses are involved.

Practical effect: Estates that, under the old primogeniture rule, would have passed to a single male heir now pass to the spouse and all the children, with the surviving spouse receiving a defined share and continued rights to the household. The Master of the High Court, not the family, now determines the heirs in terms of the reformed order.

The Difference Between the Old Customary Rule and the Current Regime

Aspect	Pre-Reform (pre-2009)	Post-Reform (post-2010)
Heir	Eldest male relative (customary heir) inherited the entire estate.	Estate distributed to the surviving spouse, descendants, and dependants in defined shares.
Spouse’s inheritance	Spouse had no formal inheritance under the male-only customary rule.	Surviving spouse (including a spouse in a polygamous customary marriage) inherits a defined share.
Female heirs	Disqualified under the customary primogeniture rule.	Inherit on the same footing as male heirs.
Children born outside of marriage	Disqualified under the customary rule.	Inherit on the same footing as other descendants.
Governing statute	Black Administration Act 38 of 1927.	Reform of Customary Law of Succession Act 11 of 2009, read with the Intestate Succession Act 81 of 1987.
Constitutional status	Found unconstitutional in Bhe (2005).	Aligned with sections 9 and 211 of the Constitution.

Frequently Asked Questions

Who is subject to customary law of succession in South Africa?

A person who, immediately before their death, was subject to customary law in respect of the disposition of their estate. In practice this is determined by the Master of the High Court from the deceased’s personal and family circumstances. The Reform of Customary Law of Succession Act 11 of 2009 applies to that estate and the Intestate Succession Act 81 of 1987 sets the default allocation.

Does the customary rule of male primogeniture still apply?

No. The Constitutional Court in Bhe v Magistrate, Khayelitsha 2005 (1) SA 580 (CC) declared the customary rule of male primogeniture unconstitutional, and the Reform of Customary Law of Succession Act 11 of 2009 has since codified the reformed regime. The estate is now distributed to the surviving spouse, descendants, and other dependants in defined shares.

Can a married person in a customary marriage inherit from their spouse?

Yes. The surviving spouse to a customary marriage (including a polygamous customary marriage) is an heir in the reformed customary regime, and the Intestate Succession Act 81 of 1987 applies to the estate. This was confirmed by the Constitutional Court in Mayelane v Ngwenyama 2013 (4) SA 415 (CC).

What does the Master of the High Court do in a customary estate?

The Master of the High Court in the area where the deceased was ordinarily resident at the date of death has jurisdiction to administer the estate. The Master issues letters of executorship or letters of authority, requires the executor to lodge an inventory and a liquidation and distribution account, supervises the payment of creditors, and authorises the distribution to heirs.

Does a will override the customary regime?

Yes. A valid will made in accordance with the Wills Act 7 of 1953 disposes of the deceased’s estate outside the customary regime. The customary regime is a default that applies only where the deceased did not make a valid will. Drafting a will with an attorney is the most reliable way to ensure the estate is administered in accordance with the deceased’s actual wishes.

How long does it take to wind up a customary estate?

The Master’s office timelines vary depending on the complexity of the estate, the completeness of the paperwork, and the Master’s office in question. A relatively orderly estate can be wound up in roughly six to twelve months, while estates with disputes, missing documents, or unresolved customary-marriage questions take longer. The Master’s office publishes its current processing times on the Department of Justice and Constitutional Development website.

Does the Reform Act apply to estates outside South Africa?

The Reform of Customary Law of Succession Act 11 of 2009 applies to estates in South Africa that are subject to customary law. The administration of estates of South African residents who die owning property in other jurisdictions is governed by the rules of the relevant foreign jurisdiction and applicable treaty provisions, and may require separate advice in each affected country.

Need help with a deceased estate? If you are winding up a deceased estate and need practitioner assistance with the Master’s office lodgement, the drafting of the liquidation and distribution account, or the resolution of any customary marriage or heirship questions, the Wills & Estates team at Burger Huyser Attorneys can help. The firm is based at the Linden, Randburg head office (49 First Avenue, 011 888 0246) and has branch offices in Pretoria (Menlyn, 012 471 5700), Centurion (012 644 4990), Sandton (011 253 3080), Bedfordview (011 201 7190), and Alberton (011 439 3990). Initial consultations are booked through the branch nearest to where the deceased was ordinarily resident at the date of death. The firm carries a 4.8/5 average across 250+ Google reviews (Trustindex verified “Top Rated Law Firm in South Africa”).