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).