Of inheritance and vat �en sat
Nnasaretha Kgamanyane | Friday May 22, 2015 12:45
Dikgosi comprise the frontline in inheritance battles. From time immemorial, disgruntled family members would drag each other before the traditional leader for mediation when endowments were in dispute.
Even with the emergence of the Roman Dutch judicial system Batswana have traditionally been more comfortable entrusting the sensitive inheritance wrangles to the sagacity of dikgosi.
Dikgosi in most instances would intimately know the aggrieved parties, the disputed assets and the deceased, rendering their justice more personal, as opposed to formal courts.
In addition, few Batswana have the resources required to drag their rivals through the official judiciary, where cases can take decades and expenses can rise into hundreds of thousands of Pula.
Besides costs and traditions, government expects dikgosi to head up division of property disputes arising from inheritance and cohabitation.
According to the Ministry of Local Government, the aggrieved parties should “bring their complaint to the kgosi accompanied by their ward head and their parents. A list of the property under consideration should also be presented”.
Empowered by their subjects and government, dikgosi say prickly inheritance battles have only been complicated by the rise in cohabitation. Increasingly, the traditional leaders are being asked to mediate between parties whose living arrangements are not recognised by the Roman Dutch system.
One such traditional leader is Gaborone West customary court deputy president, Oageng Mosole, who says the lack of legal back-up hinders dikgosi from effectively helping out in vat ‘en sat inheritance cases.
In April 2004, the Lobatse High Court produced a dramatic ruling in which a long-time lover found herself in the lurch following her partner’s untimely road accident death.
According to the case particulars, the couple had two children and a large estate, which the woman sued to take control of, despite the absence of a common law marriage.
Her ‘mother-in-law’ seized her deceased son’s house and other assets. And the law was on her side.
“Where the parties cohabited without a formal marriage there was a presumption that their estates would not be jointly owned,” the High Court ruled.
“Upon such reasoning there was a presumption that the properties in the deceased’s name belonged to the deceased.
“There was, in the absence of any marriage, no duty on the deceased’s estate upon his demise to support the applicant.”
The couple’s children were at least covered by maintenance laws, although they were prohibited from inheriting any assets, as “the right to maintenance however is distinct from a right to inherit”.
After conducting research on the matter, Ibid Schapera, in his book, A Handbook of Tswana Law and Customs, agrees with the law and states that as long as a man and his partner are not formally betrothed and bogadi (dowry) has not been paid, neither party is under any legally enforceable obligation towards the other.
Children, as in the 2004 High Court case, are the biggest victims of this status quo. And the traditional leaders are feeling the pinch of helplessness.
During an interview with Mmegi, Mosole said that there was no written customary law that stated what dikgosi had to do when it comes to such cases.
“Even though we have come across many such cases, there is no law written on cohabitation, but we try our best to resolve inheritance disputes between the in-laws and their child’s partner,” he said.
Due to the gap in legislation favouring cohabitation, dikgosi are forced to use their powers of prerogative.
“Sometimes you will find that the deceased had developed a large estate alone and had just met the living partner. However, in cases where the family knew the partner or where the couple had children, we give the inheritance to the deceased’s children, as they are the rightful heirs.
“In cases where the children are still young, we give the inheritance to their mother to care for them so that her children will benefit from them when they grow up.”
The rules, however, are not hard and fast. Different dikgosi in different tribes apply different judgments.
In some tribes, Mosole says, if her partner dies, a woman is returned to her parents’ home and in others, she is entitled to inherit the estate.
With studies indicating that more than 80 percent of couples living together in Botswana are not married, traditional leaders are increasingly bending the rules to achieve social justice.