In the apartheid era, a huge portion of the population was denied property rights in terms of the Black Land Act, the Group Areas Act and the Black Administration Act.

Township homes during this era were ‘rented’ to families.

At the end of apartheid, the property rights of these homes were transferred to owners on the basis of permits that listed the family members connected to the home.

Today, black communities are facing the repercussions of these racialised and exclusionary laws as the first generation of township homeowners begins to ‘pass the torch’ to the next generation.

The question of who should inherit ownership of these homes is leading to heated disputes in families still required to battle out customary inheritance claims under the framework of apartheid-era bureaucratic processes and legislation.

Kagiso Mahlangu, director of real estate and conveyancing at CMS SA, says because SA’s post-apartheid laws are built on apartheid-era laws – with only those that do not abide by the Constitution being struck – disputes of customary inheritance are still handled under the framework of the Black Administration Act.

Writing on the Sunday Times Daily site, Mahlangu says while the intestate law of succession is recognised by the Constitutional Court as the common legal recourse in determining inheritance, SA retains a pluralistic legal system, wherein customary law is also legally recognised.

‘These opposing laws governing inheritance and the entanglement of the official law of succession with segregationist legislation has called into question the need to perhaps bring townships communities into existing succession law rather than applying customary law reminiscent of apartheid.’

This, he says, will bring inheritance claims into the 21st century, and will also reduce complexities in the process of inheritance, as there will be a clear line of succession.

He adds: ‘Though reforms to customary law seek to ensure judgments made within its authority are not discriminatory and in line with the Constitution, they have often been difficult to understand for those trying to claim inheritance.’

Mahlangu says the question remains: ‘can we really do away with customary law in a country in which customs are intrinsically linked to who we are and what we own, considering we are burdened by the legacy of the old regime’s interpretation of customary practices? And if not, is there a way for the common law of succession and customary law to coexist in a way that reconciles the latter with the Constitution, without imposing western ideals on customary practices or beliefs?’

Full analysis on the Sunday Times Daily site (subscription needed)