Disputes over 'family houses' dominate queries at the Orange Farm Advice Centre, notes David Dickinson, attorney with Lawyers for Human Rights and Emeritus Professor of Sociology at Wits University.

'In SA, there are two ways of dying. With or without a will. A will gives instructions on distributing your worldly possessions. Dying without a will, or intestate, means your possessions are inherited by relatives in line with the Intestate Succession Act (ISA),' he writes on the Daily Maverick site.

Despite no legal recognition of 'family houses,' they hold significant social meaning in townships, where properties are seen as communal family assets and ancestral spaces.

The ISA governs intestate estates, but Dickinson observes, it often results in chaos. When apartheid-era township housing was transferred to permit holders, registering properties as family houses was not permitted.

'Nevertheless, many houses were considered by occupants to be owned by the family,' he writes.

Legally, however, properties are divided among heirs, according to the Act, leading to fragmented ownership.

'It’s not uncommon to find, after questions and a sketched family tree, that the house is (legally) owned by five, 10 or even 20 family members in varying percentages,' Dickinson notes.

This fragmentation stems from the Act’s division of estates among family stirpes. Dickinson argues that making a will could prevent this, but few township residents do so.

'The social reality of township residents dying intestate can’t be willed away. Rather, the gulf between fragmented legal ownership and the understanding of the family house needs to be addressed,' he proposes.

Delays exacerbate disputes as legal ownership splinters further.

Clients are often shocked to learn how many relatives legally co-own a property originally transferred to a parent or grandparent.

'Then they are despondent when we explain the legal cost of winding up estates and conveyancing. Often, the best advice is to ignore the legal labyrinth we’ve mapped out. Rather, attempt to resolve the dispute through a family meeting,' Dickinson writes.

This approach, while practical, defers legal resolution.

The 2004 Constitutional Court ruling in Bhe v Khayelitsha Magistrate abolished the Black Administration Act’s primogeniture principle, which favoured the eldest male heir.

Ten justices applied the ISA universally, a move Dickinson says 'contributed significantly to the chaos of property ownership in townships.'

Justice Sandile Ngcobo dissented, proposing customary law succession where the eldest child, regardless of gender, acts as custodian of undivided family property.

'The majority judgment in Bhe illustrates how bringing legislation into constitutional alignment can create social bedlam,' Dickinson notes.

To address this, he advocates separating family houses from the ISA, citing private pensions as a precedent for alternative distribution.

He adds that public interest law NGOs are litigating to recognise family houses as a legal category.

'This would reduce the often-intractable property disputes within families. It must, however, be accompanied by the separation of the family houses from the Intestate Succession Act, allowing these properties to pass, at minimal cost, from one generation to the next,' he concludes.

Full commentary on the Daily Maverick site