The Southern Africa Litigation Centre (Salc) last week welcomed a ground-breaking ruling in the Botswana Court of Appeal which upheld the right of four sisters to inherit their family homestead.
The court rejected the argument that under Ngwaketse customary law only sons were allowed to inherit the homestead.
Salc deputy director Priti Patel described the ruling as hugely important not only for Botswana, but for women across southern Africa.
Patel said the appeal court, in a unanimous decision, held that customary law was inherently flexible and in this case the four sisters, who had used their own money to renovate the homestead, were entitled to inherit it.
The court noted that societal realities have changed over the least 30 years. Justice Lesetedi said constitutional values of equality before the law and the increased levelling of the power structures with more and more women heading households and participating with men in the public and private sphere demonstrated that there was no rational and justifiable basis for sticking to the narrow norms of days gone by.
Edith Mmusi, 80, and her three sisters insisted they should inherit the family home in which they lived and had spent their own money on improving.
Their nephew, however, disputed their claim, saying his father was given the home by the youngest-born son and he was therefore entitled to the property even though he had never lived there.
Concurring with Justice Lesetedi, Chief Justice Ian Kirby upheld women’s equality.
“Any customary law or rule which discriminates in any case against a woman unfairly solely on the basis of her gender would not be in accordance with humanity, morality or natural justice. Nor would it be in accordance with the principles of justice, equity and good conscience,” he said.
Patel said some people had feared that the Court of Appeal would set the fight for women’s rights back yet again, but it instead ruled unanimously in favour of equality and against gender discrimination.
In South Africa, the Constitutional Court held that the Black Administration Act of 1927 – under which the estates of black South Africans were administered and the rule of male primogeniture as it applied in customary law to inheritance of property – was discriminatory and unconstitutional.
The Constitutional Court in 2009 also confirmed women’s rights when it ruled in favour of Muslim women in polygamous marriages and affirmed their right to inherit if their husbands died without leaving a will.