After Siphe’s father died, he was taken in by his paternal aunt Bulelwa, living in her crowded shack in Delft. Xolani, Siphe’s paternal younger uncle muscled into Siphe’s late father’s house, and claimed it for himself on the basis of his patriarchal cultural right and standing as the eldest male in the family.
Siphe was born with a learning disability and was now totally dependent on his aunt, Bulelwa, a woman with a young family who was struggling to make ends meet. As Siphe grew towards adulthood he was able to manage small tasks to eke out a meagre living but was still residing with Bulelwa, sharing a cramped room with her young children. Siphe needed to establish his own household but his uncle refused to give him access to his late father’s house. Bulelwa had to find a solution as the strain was becoming untenable.
Bulelwa’s neighbour advised her to see her lawyer and being a resourceful and strong woman, she took the initiative to make an appointment with the lawyers. Siphe accompanied her to the consultation, they explained the situation and helped the lawyers to investigate and explore the situation from a legal and cultural perspective.
Siphe was the only child of his late father. His mother died years before and his father brought Siphe with him to Cape Town to seek employment and better opportunities. After several years he remarkably managed to buy his own house. Siphe and his father lived in their house in Khayelitsha until his father died of a kidney disease, leaving no Will but the house in which he and his only child lived.
Siphe’s father did not make a Will before his death so Siphe was to rely on the Law of Intestate Succession to affirm his legal right to his father’s property. In terms of the Law of Intestacy, Siphe as the only child of his single father, was his late father’s only rightful heir. The house was legally Siphe’s inheritance but his uncle, Xolani, a policeman, was relying on cultural customs to claim his late brother’s house for himself.
Through the legal advice received, Bulelwa reported the estate of Siphe’s father at the Master of the High Court, and was appointed as the Representative in her late brother’s estate. The lawyers prepared the documents for the transfer of the property from the deceased estate to his heir, his only child, Siphe. Bulelwa negotiated a fair price for the fees and arranged for the payments to be made in instalments, monthly into the lawyers’ Trust Account on the 1st of every month. When the lawyers had received sufficient funds to attend to the required payments of the outstanding water bill to the Municipality, they could obtain the necessary Rates Clearance Certificate from City to complete the list of required transfer documents enabling them to lodge the documents at the Deeds Office for examination, approval and registration of ownership from the deceased estate into Siphe’s name.
Although Siphe became the lawful owner of his late father’s house but he still could not get possession of the house because ironically his policeman uncle Xolani (who is meant to enforce the law) was refusing him access. Bulelwa and Siphe then approached the street committee of the area in which the house is located. The committee knew the history of the family and arranged several meetings which Xolani reluctantly attended. Through this constructive dialogue Xolani agreed to move out and give possession to Siphe.
Bulelwa and Siphe accessed the legal system to ensure ownership of the property was formally transferred to Siphe, as the rightful heir, and together with the assistance of the Street Committee who knew the history of the house, the legal position and cultural customs, the greedy uncle was asked to leave and to give physical possession of the house to Siphe.
The moral of this story is that where there is a will (or not), there is a way. The legal system and community organisations can collaborate to see that justice is done.
- Write a Will as soon as you can to make sure that your house and other possessions are easily and correctly taken care of after your death. If you are aware of vulnerable members of the community who do not have ease to legal services, pass on this advice as it saves time and money in the long run and avoids disputes.
- Consult with a lawyer to establish your rights, negotiate the fee and payment structure with them.
- Do not take NO for an answer; where there is a will (or not) there is a way.
Chris Fick & Associates Inc. This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE).