THE BLOODY HAND DOES NOT INHERIT, BUT CAN IT BENEFIT FROM THE JOINT ESTATE?

‘…to love and to cherish, till death do us part...’ When one lovingly utters such words, it is a pledge to commit to the marriage until death does them apart. It is never in anticipation that their spouse will someday be the very hand that causes their death.

In the month of August, a month dedicated to commemorating the historic protest against the apartheid regime led by women chanting ‘wathinta abafazi wathinta imbokodo,’ Judge Thulare penned a moving judgment where a husband who was the cause of his wife’s death (herein referred to as “the deceased”) could not benefit from the joint estate. (See S v Ntamehlo (CC60/2021) [2023] ZAWCHC 181 handed down on 2 August 2023)

The husband and the now-deceased wife were married to each other under customary law. Consequent to the husband’s abuse and infidelity, the marriage irretrievably broke down, and the husband demanded that the deceased leave the RDP house. The deceased refused to leave the house unless the husband paid her for her fair share of their estate. In a chilling message sent by the husband to his clan namesake, the husband expressed his wishes to murder the deceased, which precisely became the gruesome manner in which she was murdered. The deceased was strangled to death, burnt, and buried in a shallow ‘grave,’ what Judge Thulare described as being buried like human waste.

Section 7(2) of the Recognition of Customary Marriages Act 120 of 1998 provides that a customary marriage entered into after the commencement of the Act is a marriage in community of property and of profit and loss between the spouses unless the spouses specifically exclude such consequences in an antenuptial contract regulating the matrimonial property system of their marriage. The deceased was indeed entitled to a half-share of the estate in terms of the legislation. Under the common law, an existing rule, ‘de bloedige hand neemt geen erf,’ which directly translates to ‘the bloody hand cannot inherit,’ means that when someone murders another, such a person cannot inherit from the deceased’s estate. However, of importance is that the rule finds application in the law of succession and not in matrimonial property law. Wim Wesser expands on this by providing that a spouse to a marriage in community of property is entitled to half of the joint estate because they are a co-owner of the joint estate and not by virtue of the rules of succession. Hence, a husband and wife married under customary law who did not enter into an antenuptial contract are married in community of property. Consequently, the husband who murders his wife cannot inherit from her estate due to the bloody hand rule. The husband is disqualified from inheriting her half-share of the estate. However, he is still entitled to his half-share of the joint estate by virtue of the marriage being in community of property. He is not inheriting.

The issue then turns to Section 9(1) of the Divorce Act 70 of 1979, which empowers the court when granting a decree of divorce to make an order that the patrimonial benefits of the marriage be forfeited by one party in favour of the other, either wholly or in part. This essentially means that a spouse can apply to the court, seeking that their spouse does not benefit from the joint estate. The court can make such an order considering various factors, i.e., the duration of the marriage, circumstances that gave rise to the breakdown, and any substantial misconduct on the part of either of the parties. The forfeiture order bars the party from benefiting from the joint estate. Unfortunately, a forfeiture order cannot be applied for by the deceased.

Judge Thulare quotes the Siyaya ePitoli protest song, which referred to the march to the Union Buildings and the promise that the seat would be occupied one day. Judge Thulare points out that some reasons behind the historic marches to Pretoria remain stubborn monuments, and among those stubborn monuments are the indignity of women, toxic masculinity, and patriarchy. Judge Thulare further ponders whether women can change the lyrics from ‘Siyaya ePitoli’ to ‘Sesifikile ePitoli’? He concluded that it was time. The common law rule was extended to the Matrimonial Property Law in the judgment, and the husband who unlawfully and intentionally was the cause of his wife’s death was not eligible to his half-share of the joint estate.?

Name: Nqobile Ngcongo Position: Director Department: Litigation ?? Tel: 031?536 7575 Email: [email protected]

Name: Senamile Sishi Position: Candidate Attorney Department: Litigation? Tel: 031?536 7536 Email: [email protected]

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