The single most common problem brought to the Orange Farm Advice Centre is disputes over 'family houses'. Legally, there is no such thing as a family house, yet it has a very real existence.
In South Africa, 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.
In theory, the act provides for intestate estates to be distributed in an orderly fashion. In practice, the result is chaos for many township families.
The single most common problem brought to the Orange Farm Advice Centre, partnered with Lawyers for Human Rights, is disputes over “family houses”. Legally, there is no such thing as a family house, yet it has a very real existence.
When the apartheid-era township housing stock was transferred to permit holder(s), registering the property as a family house was not an option. Nevertheless, many houses were considered by occupants to be owned by the family.
In this understanding, the property is available for any family members in need of a home, and the place of the ancestors where ceremonies are conducted. However, the law does not permit properties to be registered as a family house. What has followed is an epidemic of family house disputes.
When consulted over these disputes, we establish the property's legal owner. 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. This legal fragmentation is an outcome of the Intestate Succession Act, which divides intestate estates between family stirpes, or lineage lines.
This legal fragmentation would be avoided if the title deed holder of the property made a will (though not disputes over the family's understanding of the property as a family house).
Jigsaw puzzle
However, despite encouragement, such as the legal profession's laudable September Wills Week, few people in South Africa's townships make a will and die testate. Outside of Wills Week, the advice centre has more people coming in with a jigsaw puzzle of house ownership stemming from intestate succession than seeking assistance with writing a will.
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. The longer delayed, the further family houses will be legally fragmented and the more complex the disputes.
Those seeking advice are often shocked at just how many people have some legal ownership of the property that was 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. This advice kicks the legal can down the road for future generations, but is the best we can suggest.
Before the 2004 Constitutional Court's judgment in Bhe v Khayelitsha Magistrate, unless black Africans drew up a will, their estate devolved in terms of the Black Administration Act and the principle of primogeniture kicks in; the oldest male son is heir to the estate of their father.
The act provided an imperfect codification of customary law that excluded women, and younger sons. The court found this unconstitutional. Ten out of the court's 11 justices ruled that the Intestate Succession Act would henceforth apply to all South Africans. This has contributed significantly to the chaos of property ownership in townships.
The eleventh justice, Sandile Ngcobo, who later served as Chief Justice, dissented. He did not dispute the Black Administration Act's unconstitutionality but argued that customary law provided a mechanism not for inheritance, but succession in which the (eldest male) heir was custodian, not owner, of family property that was legally undivided.
Justice Ngcobo's proposed amendment was that traditional succession in African families would fall to the oldest child, irrespective of gender.
Social bedlam
This still left aspects of the Black Administrations Act unconstitutional, such as age discrimination. Yet, the majority judgment in Bhe illustrates how bringing legislation into constitutional alignment can create social bedlam.
Given the reality of intestate estates, particularly in townships, family houses need to be separated from the Intestate Succession Act. This is not a farfetched proposal — private pensions and provident funds, often a major component of a person's estate, are distributed separately from the provisions of the Intestate Succession Act.
Public interest law NGOs are pursuing litigation to have the family house recognised 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.