- High Court says Tribal Courts may not evict people from homes, only formal courts can do that.
- Children of the deceased’s first marriage awarded occupation rights, aligning with Bafokeng custom.
- Judgment affirms that customary law must evolve with community values and the ConstitutionÂ
For years after their father died, three adult children of the late Daniel Llota Huma were made to feel like strangers in their own home.
The house in Photsaneng Village, just outside Rustenburg, was built during his first marriage, their mother’s marriage. It was where they had grown up, where birthdays were celebrated, where their childhood laughter once echoed in the yard. But after their father passed away in 2013, everything changed.
Their stepmother, his second wife, continued living in the house. The children from the first marriage (two daughters and a son) were locked out, denied access, and eventually forced to seek help from the Royal Bafokeng Nation’s Tribal Court. The elders there saw the injustice, and ruled that the second wife should move out, returning to her own home in Mogwase, which had been built for her during her own marriage to the deceased.
But that was not the end of it. The second wife appealed the order, first through the magistrate’s court, and then to the North West High Court in Mahikeng. What followed was a legal and emotional reckoning not only for this family, but for many others navigating the fragile space between tradition, family obligation, and South Africa’s modern legal system.
Custom, culture and the Constitution collide
At the heart of the court’s final decision was a powerful recognition: in South Africa, customary law must be respected, but it cannot violate constitutional rights.
The High Court, in a judgment penned by Acting Judge M Wessels, ruled that the Tribal Court had no legal authority to order an eviction. That power rests solely with the Magistrate’s or High Courts, even when it comes to disputes on tribal land. No one, the court reminded, may be removed from their home without a proper legal process under the Constitution and the Prevention of Illegal Eviction Act (PIE Act).
But the court also looked carefully at the deeper context, the relationships, the history, the heartbreak. And here, it leaned firmly into the lived reality of the family that the house in Photsaneng was built for the first wife and her children. That the second wife had her own home. That Bafokeng custom had long respected the practice of building separate homes for each wife in polygamous families. And that all these facts, taken together, meant the children had a right to come back.
Restoring dignity through evolving custom
Crucially, the court didn’t fall back on outdated interpretations of custom. It acknowledged that customary law is not frozen in time; it adapts with the community. And that modern Bafokeng values recognise not just sons, but daughters too, as rightful inheritors and occupiers of family property. In this case, all three children, including the two daughters, were given the green light to return home.
The second wife had argued that she had a claim under the Intestate Succession Act, but the court found that irrelevant. The deceased had left a will, placing his estate in a family trust, meaning the law of intestate succession did not apply.
For the three siblings, this was not just a legal victory. It was a moral one. A return to roots. A quiet reclamation of space and memory, dignity and belonging. For years, they had lived with the pain of being unwelcome in the very house their father built for them. Now, they can finally go back.
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