Traditionally, women have been denied rights to property under the South African customary law of succession. Women were under the guardianship of the male in the family and did not have the legal capacity to either own or acquire property.

In various black communities, succession was governed by the principle of male primogeniture, which meant that the eldest son of a family succeeded an entire estate after death of a parent, to the exclusion of younger siblings, both male and female. This principle was however found to be unconstitutional in the case of ‘Bhe v The Magistrate, Khayelitsha; Shibi v Sithole; South African Human Rights Commission v President of the Republic of South Africa’. The principle does not acknowledge women’s rights and infringes upon the fundamental right to equality and human dignity, to the extent that it excludes or hinders women from inheriting property.

The customary law of succession is currently subject to the Intestate Succession Act in order to ensure the protection of the rights of women to inherit. A person can however still choose to enforce customary law of succession in terms of the Wills Act because we are all entitled to freedom of testation.

Other recent developments such as Section 6 of the Recognition of Customary Marriages Act (equal status and capacity of spouses) and section 8 of Promotion of Equality and Prevention of Unfair Discrimination Act, also help in enforcing women’s right to acquire, own and dispose of property.

When transferring property of a deceased person who died intestate (without a will), the Deeds Registry Act requires that a Particulars of Next-of-Kin Affidavit listing all the intestate heirs in accordance with section 1 (1) of the Intestate Succession Act, be lodged along with other transfer documents. This helps to ensure that no intestate heirs, including women, are unlawfully deprived of their right to inherit.

All these recent legal developments in the protection of women’s property rights and women now being able to enjoy the same rights as men to inherit intestate, is a clear indication that we are heading in the right direction towards equality.