Dzuguda Shudufhadzo 15001628 PDF

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DZUGUDA SHUDUFHADZO STUDENT NO.15001628 LCS…………………3641

RESEARCH QUESTIONS The purpose and aims of this research will be achieved by answering the subsequent research questions as listed hereunder. After uncovering these questions, the role of women to inherit and succeed under customary law of succession ought to be determined. a. What is the rule of male primogeniture and what role did it serve in discriminating against South African black women, thereof? b. How has getting rid of the rule of male primogeniture improved the lives of African women? c. Although the principle of male primogeniture has been removed in terms of formal and codified customary law, does it still constitute an integral part of living customary law? d. Can a testator, after the abolition of the rule of male primogeniture revive the rule by exercising his or her right to freedom of testation? e. Do women have a choice of applicable law between common law rules of succession and customary law rules of succession? f. Should customary law of succession and common law of succession be harmonised to promote women’s rights? g. Was discarding the rule of male primogeniture the best solution to remedying customary law of succession’s injustices towards women? Injustice towards women South African law of succession is a dual legal system consisting of two branches, the common law of succession and the customary law of succession. Hence, it is imperative to recognise that these two branches of law of succession do not consider the principles of succession and inheritance alike. This is to say that according to common law of succession, inheritance concerns mainly the division of the assets of a deceased among his or her heirs.74 The division of property can take place in terms of the provision of a will (or testament) known as testate inheritance or according to the rules of common law where no will exist namely statutory intestate inheritance The guiding principle for the change required is that customary law is living law and can therefore, not be static. It should therefore, be interpreted to take account of the lived experience of the people it serves.This guiding principle, as the researcher interprets, suggest that whenever there is a proposed change or amendment to customary law principles that are already applicable to the people, such people should be consulted and involved in the reform process however from the case M v M case is a clear indication that, although, the rule of male primogeniture has been found unconstitutional and thereafter, barred from being applied, there are instances whereby people still have their estates devolved according to the rule of male primogeniture. This may be so because this rule formed the core of customary law and as a result, was understood by those it was applicable to. Alternatively, it may be because this solution came with the imposition of western ways on traditional ways of living....