By Zuko Komisa
One of the most common disputes that many South Africa families have to resolve is that of the family home where each generation has to grapple with the complexities of the laws governing inheritance and kinship of the family home.
Micheal Motsoeneng-Bill recently discussed this sometimes sensitive with law experts to dissect this complex matter.
In efforts to understand family homes, the problems they present and laws governing them he spoke to Tshenolo Masha of Probono.org which promotes legal access for communities. Masha wrote a comprehensive paper on family homes, laws on inheritance & Kinship. She broke down the concept of a family house.
“When you are dealing with a family home from a land registration perspective it isn’t catered for. This is due to the use of this word which was predominantly in the urban black townships, this leads to the concentration of this research in those areas to understand where it comes from and how it has developed over the years. As well as how it interfaces with the current Land Registration Acts, land system and how the law does or doesn’t recognise it”
The paper examines what lies behind the concept of family houses. It also looks at the collective entitlement by the family as well as how the concept coincides with rural customs and history and the apartheid disposition of South Africans in urban areas.
Exclusion of Women and Children
Within patriarchal society, the family home is traditionally given to the oldest males in the family. Maxim Bolt, Associate Professor at the University of Birmingham, also unpacked the family dynamics that occasionally present themselves in Family home disputes.
“Our starting point is that the family house as an entity, as a popular norm need to be taken seriously. Given that under the constitution, customary law and common law should have equal weight… Informally outside the law, family houses already exist, people administer their own living situation in terms of family houses, essentially outside legal categories.”
He affirms that bringing a concept of family homes under the constitution would help find ways to make a universal concept that doesn’t systematically exclude women and children.
Advocate Nqobizitha Mlilo says there is a lot of litigation surrounding the family home, “I think that there is room for the accommodation of both black people continuing to live their customary law with regards to the ownership of the house as a family rather than been given to a particular person ass well as accepting the concept of Roman-Dutch Law on single ownership”
To gain better understanding of Laws governing the family homes listen to the full conversation here: