Customary Laws on Inheritance in Namibia: Issues and Questions for Consideration in Developing New Legislation

Customary Laws on Inheritance in Namibia: Issues and Questions for Consideration in Developing New Legislation

1. GENERAL APPROACH: We recommend that Namibia’s approach to inheritance should be to retain a dual system which incorporates the positive aspects of customary law whilst at the same time ensuring respect for all constitutional rights. As a practical approach, to ensure equitable economic protection of vulnerable women and children, we propose transforming some inheritance issues into issues of maintenance. The following is a summary of the basic approach that we recommend. More detail and additional recommendations are included in Chapter 10 of the report. 2. DISTRIBUTION OF INTESTATE ESTATES: Allow for fragmentation of the estate, to make provision for inheritance by the surviving spouse(s) and children, and also the primary customary law heir or heirs (ie the person or persons who would otherwise have enjoyed preference based on their status within a particular kinship system). The definition of ‘customary law heir(s)’ must be worded in a broad and general manner to allow for differential application in different kinship systems. If there is no customary law heir (as in the case of families who do not follow customary law), then this aspect of the scheme would simply fall away. Other potential beneficiaries to whom the deceased would have owed a duty of support should not be included in the distribution scheme, but should claim maintenance from the estate if necessary. This wider pool of potential beneficiaries should be eligible to receive portions of the estate as heirs only in the absence of a surviving spouse and/or children. One advantage of this option is that it provides a uniform approach for all persons in Namibia, whilst still providing an avenue to respect the different customs of different communities. It might, however, be necessary to qualify such an approach by stating in the law that no discriminatory rules of customary law will be enforced by the state. 3. MAINTENANCE FROM THE DECEASED’S ESTATE: Provision should be made for dependants, based on their reasonable maintenance needs, to apply for maintenance within a prescribed period. Maintenance should be available to all dependents of the deceased whose reasonable maintenance needs are not adequately provided for by will or in terms of intestate succession rules. Dependants should be defined broadly to include the surviving spouse and children, as well as any other person who was actually dependant on the deceased at the time of the deceased’s death. Providing maintenance for dependents in this way would ensure that the most needy family members are provided for, and would probably avert many disputes about inheritance. 4. DEFINITION OF ‘SURVIVING SPOUSE’: It is recommended that the term ‘surviving spouse’ be defined broadly to include surviving partners in long-standing informal relationships and surviving partners in past or future polygamous marriages. 5. PROPERTY GRABBING: The proposed law should make property grabbing a criminal offence with stiff penalties, and provide restitution or compensation for the victim. 6. ADMINISTRATION OF ESTATES: We recommend that the Master’s Office be decentralised, and that the Administration of Estates Act 66 of 1965, appropriately amended, be made applicable to all estates.

Mercedes Ovis & Robert J Gordon

http://www.lac.org.na/projects/grap/Pdf/custinh.pdf

Legal Assistance Centre

2005

© Legal Assistance Centre, 2005

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