PVL2602 Assignment 1 2026 Semester 2 (281604) Due 17 August 2026

UNIVERSITY OF SOUTH AFRICA (UNISA)
College of Law



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Law of Succession
Semester 2 Assignment 01 — 2026


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Module Code: PVL2602

Module Name: Law of Succession

Assignment No.: 01

Due Date: 17 August 2026

Semester: Semester 2, 2026




Submitted in partial fulfilment of the requirements for Law of Succession
at the University of South Africa.

,UNISA | PVL2602 Law of Succession – Assignment 01



Question 1: Customary Marriage and the Intestate Estate

The question raised by Mandla’s claim is whether the rule of male primogeniture still governs
the intestate estate of a person, subject to customary law, who died on 14 May 2010, and
whether the applicable law is the Reform of Customary Law of Succession Act 11 of 2009
(RCLSA) or a source that predates it.


1.1 Whether Mandla’s Claim to the Estate is Correct


Xolani and Nomsa concluded a customary marriage in 2005. Registration is not a require-
ment for validity: section 4(9) of the Recognition of Customary Marriages Act 120 of 1998
(RCMA) provides that failure to register a customary marriage does not affect its validity.1
Nomsa was therefore Xolani’s lawful spouse at the time of his death, despite the absence of
registration with the Department of Home Affairs.

Mandla’s claim that he is sole heir under male primogeniture, and his argument that Nomsa’s
rights depend on the RCLSA, both misstate the law. The rule of male primogeniture, as it oper-
ated in the customary law of succession together with section 23 of the Black Administration
Act 38 of 1927, was declared unconstitutional and invalid in Bhe v Magistrate, Khayelitsha;
Shibi v Sithole; South African Human Rights Commission v President of the Republic of South
Africa.2 The Constitutional Court found the rule unfairly discriminatory on the grounds of
gender, birth and age, since it excluded women, extramarital children and younger sons from
inheriting. As an interim remedy, pending legislative reform, the Court ordered that the Intes-
tate Succession Act 81 of 1987 (ISA) applies to the estate of any person who would otherwise
have been subject to customary law, and who dies without a valid will.3 This order took ef-
fect on the date of the judgment, 15 October 2004, and bound all courts and administrators
from that date, not from the later date on which Parliament eventually legislated on the same
subject.

The RCLSA was only assented to in 2009 and only came into operation on 20 September
2010, some four months after Xolani’s death.4 The RCLSA essentially gives statutory, per-
manent form to the interim regime already established in Bhe; it does not create Nomsa’s
1
Recognition of Customary Marriages Act 120 of 1998, s 4(9).
2
Bhe v Magistrate, Khayelitsha; Shibi v Sithole; South African Human Rights Commission v President of the
Republic of South Africa 2005 (1) SA 580 (CC); 2005 (1) BCLR 1 (CC).
3
Bhe (n 1) paras 136–138.
4
Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009, s 2(1), read with
the commencement proclamation of 20 September 2010.



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, UNISA | PVL2602 Law of Succession – Assignment 01


inheritance right for the first time. Mandla is correct that the RCLSA cannot assist Nomsa
directly, since Xolani died before its commencement, but he is incorrect in concluding that
Nomsa therefore has no claim. Nomsa’s right to inherit does not rest on the RCLSA at all: it
rests on the Bhe order, which had already displaced male primogeniture and applied the ISA
to customary intestate estates almost six years before Xolani died. Mandla’s claim to be sole
heir is accordingly incorrect, and Nomsa and the two children are entitled to inherit under the
ISA.

1998 2004 2005 14 May 2010 20 Sept 2010



RCMA commences;Bhe: primogeniture Xolani and Nomsa Xolani dies intestate RCLSA commences
customary mar- struck down, marry customarily (after Xolani’s death)
riages recognised ISA applied to (unregistered)
customary estates


Figure 1: Timeline showing that the Bhe order, not the RCLSA, governs Xolani’s estate



1.2 Devolution of the Estate and Calculation of Shares


Since Xolani died intestate and is survived by a spouse and descendants, the estate devolves
in terms of section 1(1)(c) of the ISA. The surviving spouse inherits a child’s share or the
amount fixed by the Minister of Justice by notice in the Gazette, whichever is the greater,
and the descendants share the residue equally.5 At the date of Xolani’s death, the prescribed
amount was R125 000; the increase to R250 000 was only fixed with effect from 24 Novem-
ber 2014 and, by virtue of section 1(3) of the ISA, a later notice does not apply to the estate of
a person who died before the date of that notice.6 R125 000 is therefore the applicable figure.

A child’s share is calculated by dividing the value of the estate by the number of surviving
children, plus one for the surviving spouse.7 Xolani is survived by Nomsa and two children,
giving three units.


R2 100 000
Child’s share = = R700 000
3

Because the calculated child’s share (R700 000) exceeds the fixed statutory amount (R125 000),
Nomsa is entitled to the greater figure, namely R700 000. The balance of the estate is then
5
Intestate Succession Act 81 of 1987, s 1(1)(c).
6
ISA (n 4) s 1(1)(c)(i) and s 1(3); Government Notice R1076 GG 38180 (24 November 2014) fixing the amount at
R250 000 with effect from that date.
7
ISA (n 4) s 1(4)(f).



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