Mshengu v Estate Late Mshengu 9223/2016P: Considering the ownership of house property in customary law

Abstract

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.