CC Acknowledges Customary Law: The Family Home

This is an application that ended up in the Constitutional Court, by a partner (applicant) who lived with her late partner in, what was to them, their family home. Upon the death of her late partner, she (the applicant) was appointed the executrix of her deceased partner’s estate who died intestate. The applicant and deceased were not married but had lived together for years in the family home the applicant had inherited from her late grandfather as a “family home” intended to be for the benefit of the family.

September 28, 2022

In terms of the ‘Conversion of Certain Rights into Leasehold or Ownership Act of 1998’ (Conversion Act) and The Upgrading of Land Tenure Rights Act of 1991 (ULTRA) promulgated to automatically convert all registered leaseholds into ownership rights, the applicant and deceased  applied to be conferred with ownership rights of the family home. Officials at the housing transfer bureau informed the couple that a ‘family house’ could only be registered in the name of one person and that they should consider a ‘family house rights agreement’ where the family will appoint a custodian who will have supervisory rights over the property. The couple then concluded such an agreement where the deceased partner was appointed ‘custodian’ of the house.

Upon the death of the family house custodian and his deceased estate being wound up, the applicant was informed that the deceased had a male child (the first respondent) who was then appointed executor of the intestate estate in accordance with the Administration of Estates Act of 1965.

The respondent, having been appointed executor, also became the sole owner of the property, and he then threatened to evict the applicant and her family from the house. The applicant then approached the office of the Director General, after which an investigation report revealed that on records the property is subject to a family rights agreement.

This led the applicant to seek an order, heard in the North Gauteng High Court, that the respondent’s title and threats to evict her are contrary to the duties of a custodian of a family house and therefore he cannot be entrusted with the responsibility.

The historical development reveals that the legislature had attempted to formalise and confer leasehold or full ownership upon beneficiaries in terms of provisions of the Conversion Act. Case law revealed the discriminatory effect of ownership rights being registered only to men, the Conversion Act read with ULTRA was meant to improve the precarious tenure position of black persons caused by apartheid laws. It therefore focused on the occupational rights of occupiers.

The court explored the concept of a family home through customary law and found the concept of “family homes” and the property rights that they confer on the people living in them is thus a common occurrence and yet is invisible to the “formal laws” of South Africa.

This sometimes leads to great conflicts as this goes against the norms that underlie the idea of a “family home”, as is visible in this case.

It is based on the principle that the person in control of the property (“custodian” or “caretaker”) has a collective kin-based obligation to preserve the property. By implication, then, kin members’ ability to alienate the property is limited by their obligations

Replacing customary law of succession and inheritance with common law intestate succession means a clash of norms. One, where formal law requires an individual title, which bestows the owner with sole rights of inter alia alienation of property, and upon their death, devolving to the rightful heirs in terms of intestate succession. And another, whereas family house is not understood as “property” in the common-law sense. It is also not “inherited” in the way movable property is but is rather based on the succession of the duties and responsibilities of the custodian of the house – which is why often the property remains registered in the name of the deceased.

Since the Deeds Registration Act 47 does not recognise family house rights, it leaves people with only bureaucratic protection but no formal legal protection. However, as soon as they enter a court of law, the common law kicks in, leaving them venerable of their rights in the family property not being protected.

On the death of the title holder, the home will either go to the person bequeathed in a will or devolve intestate as in this case.

An important starting point is that customary law must be understood in its own framework, not through the common law lens. This was already the warning from the Constitutional Court in Alexkor Ltd v Richtersveld Community.

The court makes it clear that customary law is an integral part of our law and that, like all law, it depends on the Constitution for its ultimate force and validity. In other words, whether it is valid or not does not depend on the common law – it depends on the Constitution. And courts are, in terms of section 211(3) of the Constitution, obliged to apply customary law when it is applicable. In doing so, the court must have regard to the spirit, purport, and objects of the Bill of Rights.

It is a collective good whose value as a place connecting kinship across generations is bigger than the value it can fetch in the market by a person whose name happens to be on the title deed. That does not mean that it can never be alienated, but it cannot be alienated by the sole decision of the person listed on the title deed.

The court further looked into a full bench decision in Hlongwane where. on similar fact to this case. the court ruled that family rights agreement is nothing but a personal arrangement between siblings and does not elevate the arrangement above the real right of ownership in the immovable property that is registered through the transfer process.

The court chose not to follow the Hlongwane ruling as it held that it had to take into consideration the transformative ideals of the constitution and the right of security of tenure thus affording the applicant a different interpretation.

The court held common law consideration would mean that when the estate is finalised the property will be transferred to the respondent, his claim to the property would be preferred because he is the registered owner. This property right will then stand in tension with the property right of the applicant, namely the right to the family home – an unregistered property right.

But in understanding customary law within its own framework and the duty of property law section 39(2) of the Constitution obliges a court, when interpreting legislation, and when developing the common law or customary law, to promote the spirit, purport and objects of the Bill of Rights.

The court, having explored scholarly articles that support a transformative interpretation of property rights that secured the land tenure of those who live in accordance with customary practices, held that the property as set out in the letter from the Director of Gauteng Housing Department of Local Government and Housing Assets Disposal and Regulation Directorate dated 25 May 2016 is subject to a family rights agreement imposed by adjudication judgment dated 29 April 2016.

Furthermore, the Deeds Registrar was ordered to register the property in the name of the applicant as the custodian of the family house, with a caveat on the title deed that it is a family house.

Written by Wessel de Kock

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