In most communal areas, traditional leaders, such as headmen, chiefs, indunas and kings, control the land. These, with few exceptions, are men. Land may also be distributed to extended families, which distribute it to men. Married men may then bring their wives to live in a patrilocal village. Women, both married and unmarried, therefore gain access to land through their husbands, brothers, uncles or parental families. The control of land is therefore usually in the hands of men, while women are more often involved in using the land, such as, for instance, in tending crops (14).

In matrilineal communities, such as the Owambo and Okavango, the custom is that spouses have some control over their own individual property in marriage, divorce and inheritance issues. Nevertheless, matrilineal uncles and brothers make more decisions and usually approach the traditional leader to be allocated a parcel of land (14).

In matrilineal and patrilineal systems, wives need the consent of their husbands for property transactions, while husbands do not need the consent of their wives. Also under the matrilineal system, immovable properties, such as houses, tend to be treated as men’s property, regardless of which spouse actually acquired them. Furthermore, under matrilineal systems, the control of movable property, such as livestock, is usually vested in the wife’s male relatives (14).

Customary marriages in most communities are potentially polygamous and not registered. These marriages are regulated primarily by unwritten customary laws that differ from community to community. For example, in Herero communities, civil marriages are usually technically in community of property, while husband and wife have separate movable property in terms of customary law.

It is not uncommon, in regions other than the Caprivi, for a couple to marry in terms of both civil and customary law and to rely upon different legal and social norms, depending on the situation at hand.

It also occurs that a man is married under civil law to one wife and is cohabiting with a second wife under customary law. When the husband dies, the woman married according to civil law often lays claim to a portion of the deceased’s property that could also be claimed by the other wife (14).

The custom of lobola, the payment of bride’s wealth by the husband to the wife’s guardian, is one the most enduring institutions of customary law and is applied to civil marriages as well. Although not a requirement for a valid civil marriage, it is seen as indispensable to create the status of a married woman for the wife and to transfer her into the family of her husband (15).

In most communal areas, traditional leaders, such as headmen, chiefs, indunas and kings, are fully involved in land-use planning and development. A Council of Traditional Leaders is established to assist the President with the administration and control of communal land.

These leaders are mostly men with few exceptions, such as the Nama in the south of the country. As of 2005, there are currently 86 recognized traditional authority leaders in the country, of whom only two are women. Section 3[g] of the Traditional Authorities Act states that traditional authorities should promote affirmative action, particularly with regard to positions of leadership, as required by the Constitution (14).

Traditional authorities also function to promote peace and welfare among community members and to supervise and ensure that the community members observe the customary law of that community (14).

Communal Land Boards (CLBs) have been established in 12 regions. They administer the system of granting, recording and cancelling customary land rights, in consultation with traditional authorities. CLBs include representatives of the traditional authorities, farming community, regional council, women, the public service and conservancies in their area of jurisdiction (14).

The role of traditional leaders on land tenure matters is now limited because of the CLBs. Some traditional authorities are not formally recognized under the Traditional Authorities Act; as a result, they cannot be included in the CLBs. In return, they do not abide by the decisions of the boards (14).

The customary law rules on inheritance vary among communities, depending on whether matrilineal or patrilineal kinship systems are in use (15).

According to Section 26 of the Communal Land Reform Act, a customary land right ends when the person who held that right dies. Customary law, which is applied in this case, states that following the death, the customary land right reverts back to the chief or traditional authority for reallocation.

The customary right must be reallocated to the surviving spouse, if s/he consents to such allocation, or to a child of the deceased if there is no surviving spouse or if the spouse does not accept the allocation of the right as stated in Section 26[2][b] of the Act (14).

If the surviving spouse does not consent to the reallocation, the customary land right will be reallocated “to such child of the deceased person as the Chief or Traditional Authority determines to be entitled to the allocation of the right in accordance with customary law”. Because eldest sons are often given preference under customary law, daughters and younger sons are not granted equal rights. Moreover, the surviving spouse could be pressured into refusing allocation, in order for the eldest son to inherit the land right (14).

In matrilineal communities, descent must fall on the mother’s side but still exclude women. As a matter of fact, the practice in communal areas is that upon the death of a female land-rights holder, land is usually allocated to the husband or another male member of the deceased’s family (14).

In some patrilineal communities, where descent is along male lineage, widows are stripped of land and household goods by the members of the husband’s extended family after his death (14).

The Magistrate’s courts may have difficulty determining the relevant customary law rules, since they are not recorded in writing and may differ within the same community or ethnic group (15).

• The Administration of Estates Act of 1965, the Native Administration Proclamation of 1928, the Intestate Succession Ordinance of 1946 and the Administration of Estates [Rehoboth Gebiet] Proclamation of 1941 all contain provisions that violate the constitutional principle of non-discrimination (14).
• Although Article 66 of the Constitution provides that both customary law and common law, in force at independence, will be legitimate as long as they do not conflict with the Constitution or any other statutory law, sex discrimination is still present in some aspects of customary law. 
• While Article 66 also states that common or customary law may be repealed or modified by Parliament, discriminatory practices need to be challenged before a court before such laws can be declared unconstitutional. So far, there have been no court challenges to customary law on this ground since independence (14).
• Although only civil marriages are recognized under statutory law, it is not uncommon, in regions other than the Caprivi, for a couple to marry and rely upon different legal and social norms, depending on the situation at hand. It also occurs that a man is married under civil law to one wife and is cohabiting with a second wife under customary law. When the husband dies, the woman married according to civil law often lays claim to a portion of the deceased’s property that could also be claimed by the other wife (14).
• Although the Married Persons Equality Act of 1996 states that on the death of a spouse, both men and women are entitled to assets accumulated through marriage, women continue to face persistent discrimination arising from customary laws. Also, traditional rules, which did not grant women the right to own land but did give them access to it, have been eroded, depriving them of secondary rights as well (12).
• According to the Married Persons Equality Act of 1996, customary law must be applied for reallocation of land rights by the traditional chief. Although customary law provides for the reallocation of land rights to the child only if there is no surviving spouse or if the spouse does not accept the allocation, the practice in communal areas is that land is usually allocated to the husband or another male member of the deceased’s family. In some communities, widows are stripped of land and household goods by a husband’s extended family members after his death (14).
• The Communal Land Reform Act is gender-neutral in stating that any person who held a customary land right before the Act will continue to hold this right. Traditionally, men apply for customary land rights upon marriage and hence are regarded as the right holders. The Act does not provide for the registration of land rights in the names of both husband and wife; however, the regulations issued in terms of the Communal Land Reform Act require that the name of the applicant’s spouse also appears on the form (11).
• The statutory law does not require the registration of customary marriages. However, the Ministry of Justice is in the process of consulting traditional leaders in the regions to compile a bill on the registration of customary marriages (2).