Inheritance and Disinheritance: African Customary Law and Constitutional Rights*

Patriarchy is often considered to be a prevalent feature of African customary law. Women are said to have the legal status of minors, to be unable to own property in their own names, to be barred from holding traditional leadership positions, and to be excluded from inheriting property. ¹ Customary discrimination of this sort creates a tension for the South African democracy, which values both customary law and women’s equality. On the one hand, the constitution recognizes customary law and requires courts to enforce it wherever applicable. ² That comports with its protection of African culture and religion more generally. ³ On the other hand, gender equality is a foundational principle of the new democracy. The constitution declares that “the Republic of South Africa is one, sovereign, democratic state founded on” principles that feature “non-racialism and non-sexism.” ⁴