Customary succession and the development of customary law: The Bhe legacy
Authors Sindiso Mnisi Weeks
Affiliations: Assistant Professor, School for Global Inclusion and Social Development, University of Massachusetts Boston
Source: Acta Juridica, 2015, p. 215 – 255
The Bhe decision was an important intervention in customary succession and women’s ability to inherit under official customary law. It also had significant implications for the development of legislated customary law and the jurisprudence pertaining to it. This article explores the Constitutional Court’s findings in light of literature and empirical evidence of women’s rights to inherit under customary law both before and after the judgment with the goal of celebrating the legal successes that the judgment symbolises and critiquing it on its limited benefit to remotely placed, rural women on the ground. The article draws on a detailed empirical study of how Bhe minimally impacted the dispute resolution of rural traditional courts around women’s inheritance, substantially — but not entirely positively — impacted a rural magistrates’ court in Mpumalanga and, in turn, impacted the women who rely on these forums for access to justice. It also draws on data from the CommunityAgency for Social Enquiry’s 2010 survey on women, land and customary law to reflect the trends in inheritance practices that have emerged in customary communities from preto post-1994. The article is, in part, a commentary on the narrow interaction between formal and informal legal institutions as well as the need to review the tools possessed by the formal courts to develop vernacular (that is, living customary) law. The article concludes with suggestions on what further developments are needed if rural women are to be served by the law as it stands.