Considering the ownership of house property in customary law

• Jurisdiction: South Africa
• Date: 01 June 2023
• Pages: 13-24
• Author: Fatima Osman
• Published date: 01 June 2023
• DOI: 10.17159/2225-7160/2023/v56a2

Recent case law 13

Mshengu v Estate Late Mshengu

9223/2016P

Considering the ownership of house property in customary

law

SUMMARY

The Recognition of Customary Marriages Amendment Act 1 of 2021 was

enacted to address the proprietary consequences of customary marriages.

This note examines the implications of the Amendment Act in light of the

Mshengu v Estate Mshengu 9223/2016P judgment, which was decided

shortly after the Amendment Act came into effect. Three key issues are

analysed: first the potential conflict between the Amendment Act and the

Reform of Customary Law of Succession and Regulation of Related Matters

Act 11 of 2009 in relation to the ownership of house property; second the

challenges in classifying property as house or family property; and third

the impact of the devolution of property on the rights of other family

members. The analysis emphasises the importance of soliciting input from

communities who live according to customary law and highlights the need

for legislation that is flexibly drafted to accommodate nuanced customary

law practices and provide avenues for redress in cases where statutory

provisions yield unfair outcomes.

1 Introduction

In June 2021, the legislature brought into force the Recognition of

Customary Marriages Amendment Act 1 of 2021 (Amendment Act). The

Amendment Act amends the Recognition of Customary Marriages Act

120 of 1998 (Recognition Act) to reflect judicial interventions in the

proprietary consequences of customary marriages. Just a few days after

the Amendment Act came into force, the Pietermaritzburg High Court, in

the unreported judgment of Mshengu v Estate Mshengu 9223/2016P,

considered the Amendment Act’s provisions in respect of the proprietary

consequences of polygamous customary marriages concluded before the

commencement of the Recognition Act. This note considers the

implications of the Mshengu judgment on three particular issues. First, it

notes the potential conflict between the Recognition Act (as amended)

and the Reform of Customary Law of Succession and Regulation of

Related Matters Act 11 of 2009 (Reform Act) in regulating the ownership

of house property. Second, it examines the difficulties in the

classification of property as house or family property in a customary

marriage. Finally, the note considers the implications of the devolution

of house and family property as envisaged in the Mshengu case on the

entitlements of other family members to property in customary law.

2

Mshengu v Estate Late Mshengu

The facts of the Mshengu case are briefly summarised as follows. The

deceased had concluded a customary marriage with the applicant in

1972 and a further customary marriage with the third respondent in

1981 (para 2). The deceased and the third respondent also concluded a

civil marriage in 1994 (para 2), the validity of which was not disputed by

How to cite: Osman ‘Mshengu v Estate Late Mshengu 9223/2016P: Considering the ownership of house property in

customary law’ 2023 De Jure Law Journal 13-24

http://dx.doi.org/10.17159/2225-7160/2023/v56a2