Lost in translation: is a spouse a spouse or a descendant (or both) in terms of the reform of Customary Law of Succession and Regulation of related matters act?

Abstract

The Customary Law of Succession Act took effect on 20 September 2010, more than 17 months after it was signed by the president. The noble intentions of the act, as stated in its preamble, are to "modify the customary law of succession" and to "clarify certain matters relating to the law of succession and the law of property" (emphasis added). The practical implementation of the act, however, has been far more complicated than envisaged and the issues coming to the fore are all but clear. One crucial issue is the act's use of the terms "spouse" and "descendant", especially in relation to one another. This note discusses the anomaly caused by the adaptation of these two terms to provide for customary law situations not catered for in the Intestate Succession Act 81 of 1987, especially from a comparative and practical viewpoint