Interplay of the Customary Law of Testacy and Statutory Regulation of Intestacy with Respect to the Transfer of Customary Law Rights in Land in South Africa

Authors Rebecca E Badejogbin

ISSN: 2026-8556
Affiliations: Doctoral candidate under the NRF Chair in Customary Law, Department of Private Law, University of Cape Town
Source: SADC Law Journal, The, 2014/15, p. 10 – 25


Legal pluralism, as a feature of the legal systems in the SADC Region, presents real challenges with respect to the applicable laws to land rights. In South Africa in particular, a challenge exists with respect to the acquisition of land rights through customary testacy. Although customary testacy may not be prominently practiced in the country, its existence is acknowledged. The Interstate Succession Act and the Reform of Customary Law of Succession and Regulation of Related Matters Act have been interpreted as precluding the application of customary law of intestacy in the absence of a statutory will. Testacy as referred to in the laws is defined by the Act to mean statutory testacy. This paper however contends that the testacy capable of precluding the application of statutory intestacy law cannot be restricted to statutory testacy. The paper also contends that under South Africa’s pluralistic legal system, customary law testacy can preclude the application of these statutory provisions regarding intestacy, and determine ownership rights (whether statutory or customary) pertaining to land and its resources. There are however, problems associated with this argument, such as statutory provisions that have the effect of restraining the application of customary testacy. How this is resolved reveals an intriguing interplay of land devolution under customary law, statutory limitations and constitutional influence. This paper is focused on customary testacy on land rights and its resources.