Once again, property-grabbing is in the headlines. The vexed issue of inheritance in the absence of a will has been ducked by the government for many years. Here is an overview of the relevant law and past proposals for law reform that have failed to move forward.
The current law
The key legal provisions lie in the notorious Native Administration Proclamation, 1928, which provides rules for the property of “Natives” who die without leaving a valid will (referred to as “intestate inheritance”).
If the deceased was married in a civil marriage in community of property or with an antenuptial contract, the property is to be distributed “as if he had been a European”.
The same applies if the deceased was a widow, widower or divorcee in such a marriage, as long as there is no surviving partner in a subsequent customary marriage. In any other case, the deceased’s property is to be distributed “according to native law and custom”.
If a “Native” man is married under customary law, any property belonging to a particular spouse or house according to customary law must be administered upon his death “under native law and custom”. He is allowed to make a will only in respect of his other property.
In contrast, white and coloured people have full freedom to dispose of their property by means of a will.
In essence, this proclamation imposes customary law on black persons by subjecting them to different treatment with regard to their estates, compared to white or coloured persons, giving them a more limited range of choices.
The potential abuse of customary law was highlighted in 1996 by the committee that monitors compliance with the Convention on the Elimination of all Forms of Racial Discrimination: “It is difficult to ascertain who the heirs are and this uncertainty is exploited by unscrupulous persons who enrich themselves at the expense of the deceased’s immediate family, particularly women and children.”
How parliament got around a key court ruling
In 2003, the High Court of Namibia ruled that these provisions on intestate inheritance were unconstitutional racial discrimination and set a deadline of 30 June 2005 for their repeal, to give parliament a reasonable opportunity to review the whole field of succession and the administration of deceased estates.
The court extended the deadline to 30 December 2005 to give the government more time to come up with a uniform law.
In November 2005, parliament passed the Estates and Succession Amendment Act, which removed race-based distinctions but contained no reforms whatsoever to the substantive law of inheritance.
In fact, the wording used on this point practically defies belief – it repealed the sections found to be unconstitutional to give an appearance of compliance with the High Court order, but then effectively reinstated the same sections, saying the rules of intestate succession contained in those provisions would continue to apply as if they had not been repealed.
Almost 20 years have passed since then, with the promised overarching review of the law still outstanding.
Communal land rights
The Communal Land Reform Act 2002 provides some protection for widows (and widowers) on their right to remain on the communal land they occupied with their spouses.
In terms of the act, when a person who had a communal land right dies, the right immediately reverts to the chief or traditional authority for reallocation – and it must be offered to the surviving spouse.
If there is no surviving spouse, or if the spouse declines the reallocation, the communal land right goes to a child of the deceased selected by the chief or traditional authority in accordance with customary law.
Where there is no surviving spouse or child, the land can be reallocated as the chief or traditional authority sees fit.
While enforcement of this right has not always been perfect, the law does provide an avenue of redress for widows. But there is nothing in place to protect rights to other forms of property, such as livestock and household goods.
Three options on ways forward
Years ago, the Legal Assistance Centre and the Law Reform and Development Commission identified three possible approaches to intestate succession.
- The ‘Two Paths’ approach suggests dividing deceased estates into two categories: customary law estates to be administered in terms of the relevant customary laws, and other estates which would follow the general legal rules on intestate succession.
While this respects culture by giving a large degree of deference to customary law, it fails to provide a strong mechanism to prevent unconstitutional practices under customary law, or to sufficiently protect spouses and children in the case of customary law estates.
- ‘One Path for All’ advocates one set of rules for all intestate estates, with assets going to the deceased’s spouses and children, and in their absence to specified family members in an order of priority set out in the law.
This option would provide strong protection to spouses and children, but it would overrule many aspects of customary law and so might not be well received or respected by traditional communities. It might also fail to protect all persons who were dependent on the deceased.
- A ‘Compromise Approach’ would allocate a share of the deceased’s estate to the spouse and children and another share to customary heirs.
Crucially, this option would be combined with a provision for maintenance of the deceased’s dependants (which would be the first charge on the estate after the payment of creditors), as well as legal provisions allowing the spouse(s) and children to remain in the family home.
It would protect spouses and children while maintaining the role of customary succession rules with their advantages of familiarity and flexibility.
The idea on the family home is that people living in the deceased’s household when he or she dies should be allowed to continue living there, with that asset going to the usual heirs at a later stage.
This is similar to the Communal Land Reform Act which allows the surviving spouse to remain on the deceased’s communal land. This protection should extend to the household effects that form part of the family home.
The idea on maintenance is that support for dependants should be prioritised before dividing the deceased’s estate, much like requiring that any debts have to be paid before the remaining property can be distributed among the heirs.
Making continued maintenance a priority would entail the least disruption to vulnerable family members and could well prevent some disputes about succession.
Estates might not be large enough to adequately address all maintenance claims, but it makes sense that the basic maintenance needs of genuine dependants should take priority.
Within this framework, everyone would be equally free to dispose of their property by means of a will.
In 2012, the Law Reform and Development Commission recommended the third option for law reform, combined with protection for the family home and the maintenance of dependants.
It produced a draft intestate succession bill based on this approach. It also recommended that maintenance be provided for the deceased’s dependants even in cases where the deceased made a will, if the will does not adequately provide for them. (Minor children can apply for maintenance from deceased estates as the law now stands, but the surviving spouse and other dependants cannot.)
These proposals were discussed at a number of forums but ultimately did not move forward.
Interim protection
Pending the complete overhaul of Namibia’s laws on inheritance, the Legal Assistance Centre has long proposed an urgent interim amendment to the Administration of Estates Act which would make property-grabbing a crime.
The proposed amendment would simply protect the right of surviving spouses and children to remain in the deceased’s family home with the use of the household effects, livestock and crops until the administration and distribution of the estate is finalised.
Any person who sells or otherwise interferes with the property of the deceased person before the administration and distribution of the estate is finalised would be committing a crime.
The objective is not to change the rules of inheritance, but merely to ensure an orderly and fair process – so that unscrupulous family members could be stopped from taking advantage of people while they are incapacitated by shock and grief.
Safeguards could be added to ensure that the assets remain in place for the ultimate heirs.
Countries such as Zambia, Zimbabwe and Ghana have protections of this nature but Namibia has been slow to provide even such a basic protection.
Key principles
It is a myth that widows are denied inheritance rights only because of customary law. When property is grabbed from widows, complex factors are usually at work – including gender stereotypes, distortions of custom by people who hope to gain from the estate, and fears about the future against a backdrop of economic insecurity.
Customary law rules that once worked well to protect vulnerable family members may be less effective now that different kinds of property form part of the deceased’s assets. Exploitative practices by some individuals are also working to taint perceptions of customary laws about inheritance, obscuring their positive aspects.
The key point is that inheritance should not be viewed as an avenue for enrichment. Its primary function, under all Namibian legal systems, should be to minimise disruption and hardship for the family and to protect the most vulnerable family members.
This is the fundamental principle that should guide law reform in this field.
- Dianne Hubbard is a legal consultant with years of experience in public interest law and a passion for trying to make legal issues clear and accessible.
– More details on inheritance issues are available on the LAC website: www.lac.org.na
