Abstract

Keywords

Inheritance; redistribution agreement; family division; succession law; inheritance law; customary law; comparative law, ancient Near Eastern Studies; Old Babylonia; executor.

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1 Introduction

The division of inheritance has been a long-standing practice throughout history, 1

 Susandra J van Wyk. BIuris (UOVS), LLB (UNISA), LLM (PUCHO), BA Hons, MA, DLitt et Phil (UNISA). Extraordinary Researcher, North-West University. Practising Attorney, Notary and Conveyancer of the High Court of South Africa. Formerly Acting Assistant Master, Bloemfontein, Master of the High Court, 1991-1999. Email: vanwyksusandra@gmail.com. ORCHID: 000-0002-4642-4859. This article is a revised version of a paper presented at the Juris Diversitas 6th Annual Conference in partnership with the Faculty of Law, North-West University in April 2019, held at the Potchefstroom Campus, South Africa. I am deeply indebted to Prof. Willemien du Plessis for her suggestion at the conference that the title of my article should include the phrase 'lessons from the Babylonians'. However, the content of the article remains solely my responsibility.

1 Westbrook Property and Family 118-119 cites Daube 1950 Jur Rev 71-91 and Koschaker 1933 ZA 37-42, 46-51, 68-80 to demonstrate that the division of co-ownership is an ancient institution derived from the Bible and cuneiform documents. For more information on the Old Babylonian inheritance divisions, see Van Wyk 2013b Fundamina 424; Claassens Family Deceased Estate Division Agreements vol 1 107-150, 224-231; Van Wyk 2018a JSem 1-21 analysis of case studies gleaned from cuneiform recordings.

division demonstrates its possible roots in Old Babylonian practices, its development in Roman-Dutch law, and its subsequent expansion in South African legal contexts.

In this article I explore the similarities and differences between the Old Babylonian and South African inheritance divisions 8

8 Claassens Family Deceased Estate Division Agreements vol 2 451-455 identified similarities between the inheritance division in Old Babylonian society and the South African redistribution agreement in terms of their elements and division mechanisms.

I start by providing background information on the Old Babylonian legal practices concerning inheritance division and the terminology associated with such divisions. Then I present a simplified example to illustrate the common qualities required for both Old Babylonian and South African inheritance divisions. Next I compare the methods of recording and documentation employed by Babylonian scribes with the approaches used in South Africa with the division of an inheritance. Afterward I explain the key features of the Old Babylonian inheritance division, with its focus on

holding greater flexibility and ability to adapt to individual family circumstances. In contrast I highlight the key features of the South African approach, which prioritise certainty through established precedents. Finally I propose the incorporation of four legal practices from the Old Babylonian inheritance division into the South African context. I argue that by drawing on the adaptable legal practices of the Babylonians, South Africa can develop redistribution agreements that better cater to the unique needs of its multicultural society. Moreover, these agreements would uphold the principles of equality, fairness, and the protection of vulnerable family members of the Constitution of the Republic of South Africa, 1996 (hereafter the "Constitution").

2 Terms and expressions assigned

The division of inheritance has been referred to by various terms and expressions depending on the legal system and time period. In Roman-Dutch law it was called a family division, 14

14 Voet Commentarius ad Pandectas para 10.2.32. See Huber Heedensdaegse Rechtsgeleertheyt para 3.29.16; Maasdorp Introduction to Dutch Jurisprudence 297-298.

In other countries it may be labelled as a family division, an inheritance division, distribution, or a partition agreement. 18

18 For example, Mitra Hindu Law of Inheritance 63-133 examines the partition as a well-known practice in Hindu Law. Van Wyk 2018a JSem 1-21 provides a comparative analysis of the division of ownership in the Book of Joshua and the Old Babylonia inheritance division, highlighting both similarities and differences.

Similarly, scholars have used a variety of terms to describe the similar agreement found in the Old Babylonian period, such as a division agreement, an inheritance division, a family division, a partition or an allotment. 19

19 For example, Kitz 2000 JBL 615 and Sjöberg Sumerian Dictionary 193 make reference to an "Old Babylonian exchange and partition document" and Ellis 1974

For the purpose of this article I will focus on two specific agreements: the South African redistribution agreement and the Old Babylonian inheritance division from Mesopotamia. The expressions "inheritance division" or "division of an inheritance" used in this article refer generally to those agreements in which heirs agree to reshuffle their inheritance property through sale, donation or exchange.

3 Who were the Babylonians?

The Babylonians from the Old Babylonian period lived in the region now known as Syria, Iraq, and parts of Turkey between 2000 and 1600 BCE. 20

20 Van de Mieroop History 85-86.

In Mesopotamia the inhabitants were involved in legal transactions as early as 3000 BCE. 26

26 See Westbrook "Character of Ancient Near Eastern Law" 5-6; Veenhof "Before Ḫammu-rāpi of Babylon" 142-143; Liverani 1996 JESHO 20-25.

transcribed and translated. 28

28 According to Westbrook "Old Babylonian Period" 361-359, esp. 362 there are thousands of excavated cuneiform tablets that can be identified as legal transactions such as sales, deeds, bonds, leases, loans, partnerships, marriage contracts, adoptions, and divisions of inheritances.

In the past, museums used to categorise cuneiform tablets based on topics such as "letters" or "legal and administrative documents". 33

33 Jacquet "Family Archives" 70; Charpin "Historian" 26-30.

Also, we are fortunate that extensive studies have been conducted in the field of ancient Near Eastern legal traditions. Some notable studies during the Old Babylonian Period include Schorr's pioneering work in 1913, 37

37 Schorr Urkunden des Altbabylonische Zivil-und Prozessrechts.

security for debt, while Roth 41

41 For instance, Roth "Gender and Law" 173-184 and Roth 1987 Comp Stud Soc Hist 715-747.

Westbrook, the editor of a two-volume comprehensive analytical survey of ancient Near Eastern law, 47

47 Westbrook History of Ancient Near Eastern Law vols 1 and 2.

3.1 Requisite qualities of inheritance division: an overview

In order to compare the inheritance divisions of the Old Babylonian and South African legal traditions, it is necessary to identify their commonalities, which are referred to as the tertium comparationis, also known as "the third element of comparison". It is an analogical method of reasoning for establishing legal principles and involves comparing two cases that have many similarities but also important differences. The tertium comparationis serves as the common factor connecting the two cases, allowing for the inference of a legal principle from one case to another. 50

50 For details on the methodology employed, see Sacco 1991 Am J Comp Law 1-34; Van Reenen 1995 CILSA 175-199.

3.2 A simplified example of the common qualities of both Old Babylonian and South African inheritance divisions

Heirs can agree to reshuffle their inheritance property through a sale, donation or exchange. For example, A, B and C inherit undivided shares in 5000 hectares of farmland and two motor vehicles. However, legal restrictions and practical challenges make the co-ownership of vehicles and the transfer of farmland to more than one heir difficult. To address these challenges the heirs can sell the inheritance property and distribute the proceeds equally or reshuffle the property to reach a mutually agreeable solution. For instance A could receive the farmland in exchange for B and C each receiving a vehicle. A could then contribute cash to cover the estate debts and balance A's award of the farmland. This division would allow each heir to receive a benefit that was practical and legally permissible.

3.3 Division of an inheritance: common requisite qualities

Inheritance division in both South Africa 51

51 Nel Jones Conveyancing 80-86; Claassens 2004-2005 Tydskrif vir Boedelbeplanningsreg 65-93; Meyerowitz Law and Practice of Administration of Estates paras 12.31, 13.17.

Disagreement or complication: The division of inheritance begins with disagreement or complication, as observed by the Roman-Dutch legal scholar Voet, who famously stated that co-ownership is "the source of disagreement and carelessness". 53

53 Voet Commentarius ad Pandectas para 10.2.32.

Negotiations to reshuffle inheritance: Heirs could avoid these issues by negotiating and agreeing on the allocation of the inheritance property while adhering to legal requirements and restrictions to ensure fairness. 54

54 In Roman-Dutch law the consensual basis of an inheritance division was emphasised by Voet Commentarius ad Pandectas para 10.2.32. See the Klerck case 630-631 regarding the South African counterpart. In Old Babylonia all the recorded texts concerning the division of inheritances consistently state that the parties involved must "mutually agree to the division". Claassens Family Deceased Estate Division Agreements vol 1, 345, 356-357.

Mechanisms to reshuffle: Heirs have the option of transferring their inheritances through various mechanisms, including sale, donation or exchange. 56

56 According to Roman-Dutch law, family heirs who inherited together had the option to redistribute their shared inheritance. Huber Heedensdaegse Rechtsgeleertheyt para 3.29.16; Maasdorp Introduction to Dutch Jurisprudence 297-298. In an analysis of the forty-six division recordings from Old Babylonian Nippur, Larsa, and Sippar, Claassens Family Deceased Estate Division Agreements vol 1 107-150 reflect on the use of various mechanisms, such as sale, donation or exchange, depending on the specific circumstances of each family.

Dealing with estate or movable property: All division agreements require heirs to deal with the properties of the deceased estate or property outside the estate that may be introduced by a party to the agreement to equalise the allocation of inheritance properties. 59

59 The Roman-Dutch law recognised the option to bring-in property as a redistribution mechanism. See Huber Heedensdaegse Rechtsgeleertheyt para 3.29.16; Maasdorp Introduction to Dutch Jurisprudence 297-298. Regarding the South African counterpart, see Klerck case 630-631; Cradock's Estate v Cradock 1951 3 SA 51 (N) 59C; Meyerowitz Law and Practice of Administration of Estates para 13.17. See examples from Old Babylonian recordings in Claassens Family Deceased Estate Division Agreements vol 1 125-126, 356 and my further discussion in para 7.1.

4 Comparing the recording of inheritance division in Old Babylonia with its South African counterpart

4.1 Old Babylonian recording: abridged version of oral arrangements

In Old Babylonia parties orally agreed on legal practices that were unique to each agreement, time and city-state. 60

60 See Westbrook and Jasnow "Old Babylonian Period" 361-340.

It is important to clarify that the term "recording" is preferred over "text" when referring to the Old Babylonia inheritance division, as the Old Babylonian society relied heavily on oral traditions and did not view recordings as the

final and binding agreement. 63

63 Renteln and Dundes "What is Folk Law?" 1-4. See Hibbits 1992 Emory LJ 873-960, esp 874.

The work of Old Babylonian scribal schools and their trained scribes have provided invaluable assistance in our understanding of the recordings of inheritance divisions, as well as a vast corpus of other types of literature. 65

65 Westbrook "Character of Ancient Near Eastern Law" 5-6; Veenhof "Before Ḫammu-rāpi of Babylon" 137-161.

The recording of an inheritance division was considered a significant achievement in a scribe's education, and training in drafting contracts was given only in the final stage of a scribe's education. 67

67 Veldhuis Elementary Education 63; Robson 2001 RA 39; Pearce "Scribes" 2265-2278.

Westbrook 71

71 Westbrook Old Babylonian Marriage Law 16.

inheritance division was recorded in an abbreviated form that reflected the agreed-upon oral arrangements 73

73 Hibbits 1992 Emory LJ 874; Renteln and Dundes "What is Folk Law?" 2-4; Westbrook "Adoption Laws of Codex Hammurabi" 195-204; Malul Studies in Mesopotamian Legal Symbolism 449-450. Compare Claassens Family Deceased Estate Division Agreements vol 1 216-225; Van Wyk 2013b Fundamina 423-427; Claassens-van Wyk 2013 JSem 72-77.

The so-called "no-claim" clause was widely used in various legal documents, including most of the recorded inheritance divisions. This clause typically stated that the parties involved would not make claims against each other, raise claims, or speak against one another. 80

80 See the analysis of case studies in Claassens Family Deceased Estate Division Agreements vol 1 129-130, 182-183.

Generally, witnesses testified to the details of an agreement in addition to the parties 82

82 Veenhof "Before Ḫammu-rāpi of Babylon" 147; Greengus "Legal and Social Institutions" 469-484; Tanret and Suurmeijer 2011 ZA 78-112; Charpin Reading and Writing 42-52.

Such a recorded inheritance division was an abridged version of the oral arrangements and did not require the notarisation of every detail due to the involvement of witnesses, the recording of the oath taken, and the no-claim clause. 84

84 Malul Studies in Mesopotamian Legal Symbolism 449-450; Hibbits 1992 Emory LJ 874.

4.2 Redistribution agreement as a final binding contract

Contrary to the Old Babylonian inheritance division, the South African redistribution agreement is considered a legal contract 87

87 See Bydawell case 523H.

In contrast, with the Old Babylonian inheritance division the scribes adhered to the customs and practices of their learned scribal school, using different

techniques and styles to capture the oral agreement in written format, reflecting their individual idiosyncratic styles to a greater degree. 91

91 Pearce "Scribes" 2265-2278. Compare Van Wyk 2013b Fundamina 432-439; Van Wyk 2014b JSem 443-483; Van Wyk 2014a JSem 195-236.

5 Features of the Old Babylonian inheritance division

The upcoming section will delve into a discussion on the proposed key features of the Old Babylonian division that differentiate it from its South African counterpart. These features include: (1) the absence of a time limit for the inheritance division in an informal administration process in the Old Babylonian system, (2) the emphasis on maintaining harmonious family relationships, and (3) the use of flexible and practical solutions that are tailored to the unique circumstances of each case.

5.1 Informal administration process

In the Old Babylonian inheritance division heirs may divide their shared inheritances at any time whilst with a South African redistribution agreement the heirs may agree to a division only during the formal administration process. 92

92 See my discussion in para 6.

inheritance property. In the final stage the co-owners could decide to divide certain or all of their shared inheritance into portions of sole ownership. 99

99 Westbrook Property and Family 141 and the analysis of case studies in Claassens Family Deceased Estate Division Agreements vol 1 107-150.

Although both the Old Babylonian and South African common law (Roman-Dutch law) inheritance divisions shared the goal of preserving family relationships, a notable difference arises in the South African context when the heirs involved are not family members. In such cases, their motivations for dividing the inheritance may be driven by factors like exclusion, financial gain or control. 100

100 According to Claassens Family Deceased Estate Division Agreements vol 1 154, 127, non-family contractual parties in some contemporary societies may prioritise competition and favourable deals due to their capitalistic mindset. In contrast, family contractual parties in Old Babylonian agreements placed importance on establishing and maintaining family relationships.

5.2 Family relationship orientation

A complex system of family relationships existed in Old Babylonian society, including the nuclear family, extended families and interconnected family groups. 102

102 See Roth "Gender and Law" 173-184 and Roth 1987 Comp Stud Soc Hist 715-747; Stone 1982 JESHO 50-70, esp. 18, 50, 52, 55 and Stone and Stone 1981 Iraq 19-33 regarding different social roles in Old Babylonian society.

members involved. 107

107 Suurmeijer 2010 RA 9-40; Frymer-Kensky 1981 BA 211; Obermark Adoption 1, 29-30; Westbrook Property and Family 48-60; Westbrook "Adoption Laws of Codex Hammurabi" 195-204. Compare Van Wyk 2019a JSem 1-24; Van Wyk 2019b JSem 1-34; "analysis of case studies".

Certain priestess groups, especially the nadiātu, 111

111 "Nadiātu" is a plural noun meaning priestesses, while "nadītu" is the singular form. See Stone and Stone 1981 Iraq 19.

It was common for the uncloistered nadītu to provide her husband with a second wife, whose children would be considered the children of the nadītu. The second wife could be a younger sister, a free woman or a slave girl. 115

115 Harris Sippar 315, 317; Goddeeris Old Babylonian Legal and Administrative Texts 362-363.

In Old Babylonia the principle of the first-born share prevailed in some cases, and the continuation of family patronage through inheritance was an important institution. 117

117 Westbrook Property and Family 14, 23; Kitz 2000 JBL 618; Frymer-Kensky 1981 BA 241; Frymer-Kensky "Gender and Law" 1-31.

5.3 Finding practical solutions to divide ownership

The Old Babylonian and South African common law (Roman-Dutch law) inheritance divisions share a common objective of avoiding co-ownership and seeking practical solutions for sole ownership. 124

124 Van Wyk 2013a Fundamina 155.

living in the same household. 126

126 Postgate Mesopotamia 98.

6 The features of the South African redistribution agreement

In this section we will explore three key features that differentiate the South African redistribution agreement from its Old Babylonian counterpart. The first feature focusses on the importance of adhering to statutory requirements. The second feature addresses the formal administrative process in the redistribution of an inheritance as overseen by the executor. The last feature highlights the significance of concluding the agreement with a commitment to fairness and equality, taking into consideration South Africa's mixed law system and the underlying values of South Africa's Constitution.

6.1 Statutory compliance

Redistribution agreements have been recognised in South African court cases since 1897, with the application of Roman-Dutch law as the common source of law. 130

130 McDonald case.

English common law or the South African customary law in relation to redistribution agreements. 131

131 There are commonalities between customary law and the characteristics of ancient Near Eastern legal thought, including non-specialisation, the religious impact, group or social orientation, the concrete nature of legal acts, and openness. See Claassens Family Deceased Estate Division Agreements vol 1 23-50. Compare Van Niekerk 2001 Codicillus 5-13 for a similar comparison between customary law and South African law.

The Deeds Act, which commenced on the 11th of September 1937, was the first legislative recognition of the South African inheritance division as a redistribution agreement. Sections 14(1)(b)(iii) and (iv) of the Deeds Act allow for the redistribution of immovable inheritance property and/or rights, and the bringing-in of non-estate movable property to equalise the division of an inheritance. 132

132 The Deeds Office of the Department of Rural Development and Land Reform oversees the registration of immovable properties and/or rights.

In 1972 regulation 5(1)(e)(iii) of the Estate Administration Act 66 of 1965 (hereafter the "Estates Act") was introduced, 133

133 GN R473 in GG 3425 of 24 March 1972.

The Master of the High Court of the Department of Justice holds jurisdiction over the estates of deceased individuals in South Africa in terms of section 4 of the Estates Act. 135

135 In terms of ss 7 and 8 of the Estates Act.

Other legal requirements for the South African redistribution agreement for instance prohibit the registration of farmland to more than one person. 140

140 Section 3 of the Subdivision of Agricultural Land Act 70 of 1970 applies, unless the Minister of Agriculture, Forestry, and Fisheries grants such registration. A similar prohibition can be found in s 5(2) of the Agricultural Holdings (Transvaal) Act 22 of 1919. This provision relates to the transfer of any holding or a portion thereof that is smaller in size than one morgen, or a holding held jointly by two or more persons. See Nel Jones Conveyancing 84, 171-173.

Additionally, the conveyancer is obliged to review all submitted documentation, including the certified copy of the redistribution agreement, for accuracy and correctness. This assessment is crucial for the registration process of inherited immovable property at the Deeds Office. 143

143 Section 42(1) of the Estates Act and s 15(A) read with reg 44A of the regulations of the Deeds Act (GN R474 in GG 466 of 29 March 1963 (Regulations to the Deeds Registries Act 47 of 1937, as amended).

In contrast with Old Babylonia, section 195 of the Constitution outlines basic values and principles that must govern public administration. This entails that since 1994 public officials in South Africa are required to act transparently, responsibly, openly and accountably in their administrative acts, as promoted by laws such as the Promotion of Access to Information Act 2 of 2000 (hereafter "PAIA") and the Promotion of Administrative Justice Act 3 of 2000 (hereafter "AJA"). For instance, in the case of the Master evaluating a redistribution agreement, the Master is obliged to provide information if requested under section 3 of PAIA. Similarly, if the Master is deciding on an objection submitted against the executor's report of the Master's administration, the Master's actions are subject to review under the AJA. 144

144 See Nedbank Ltd v Mendelow 2013 6 SA 130 (SCA) paras 11, 28.

6.2 Formal administration process

In South African law when a person dies a deceased estate is formed, which must be administered and distributed according to the Will 145

145 A Will must comply with the formal requirements of the Wills Act 7 of 1953.

formal estate administration process and the heirs appointed an administrator to manage the shared inheritance or transfer the estate properties to the family heirs entitled by succession. 146

146 The Old Babylonian administrator (an informal type of executor) was usually the oldest brother. Kitz 2000 JBL 607, 618; Westbrook Property and Family 140-141.

In South African law the executor must follow a strict process prescribed by the Estates Act and is obliged to account to the Master of the High Court for proper compliance with the process. 147

147 Section 35(1)(a) read with the reg 5(1) of the Estates Act. See Meyerowitz Law and Practice of Administration of Estates paras 1.3-1.8 regarding the Master and paras 12.1-12.12 regarding the executor.

The executor is required to submit an L&D Account report to the Master within a specified timeframe, 149

149 Section 35(1)(a) read with the reg 5(1) of the Estates Act.

In South African law, the estate debts must be settled first from the proceeds of the estate properties before the remaining balance can be transferred to the heirs. 152

152 Section 34 of the Estates Act. See Meyerowitz Law and Practice of Administration of Estates paras 12.31, 13.7.

Moreover, in South African law, the transfer of the common law half share in a marriage in community of property is subject to the payment of joint estate debts. If there are sufficient funds available to pay the estate debts, the common law half share of a surviving spouse can be included in a redistribution agreement. 155

155 Section 14(1)(b)(iii) of the Deeds Act.

In South Africa, the redistribution agreement is an agreement that the heirs and/or the surviving spouse enter into. 156

156 Section 14(1)(b)(iii) of the Deeds Act and reg 5(1)(e)(iii), as per s 35(1) read with reg 5(1) of the Estates Act.

Because the redistribution agreement is defined as a contract, parties are bound to abide by its terms and conditions according to the common law principle of pacta sunt servanda. 158

158 See Meyerowitz Law and Practice of Administration of Estates para 12.3; Klerck case 630-631; Bydawell case 523G-H.

In South African law the heirs' vested rights and the enforceability of the redistribution agreement come into effect only when the advertised L&D Account and its attached redistribution agreement are free from any objections. 161

161 Regulation 5(1)(iii) read with s 35(12) of the Estates Act. Reg 5(1)(e)(iii) of the Estates Act assigns the responsibility of enforcing the redistribution agreement to the executor.

6.3 Constitutional values and principles

South Africa is a multicultural and legal pluralistic society divided by language, religion, culture, sexual orientation and race. Historically and even today the norms of the customary law in African communities, Hindu, 163

163 Regarding Hindu marriages, see Green Paper 48.

of LGBTQIA+ persons and communities, 165

165 The term "LGBTQIA+" refers to individuals and groups who identify as lesbian, gay, bisexual, transgender, queer, intersex, asexual, and other related categories. Green Paper 45, 48.

Also, prior to the entrance of South Africa into a new democratic dispensation in 1994 the only marriage regime officially recognised and its religious marriage rituals were commonly referred to as the "white wedding". 168

168 Green Paper 10.

In South Africa the Constitution and the Bill of Rights have introduced a new legal framework that presents both challenges and opportunities for the ongoing development of the redistribution agreement. These challenges highlight the need for a renewed constitutional examination of family and succession laws. These laws directly affect the succession rights of women and permanent life partners as well as the freedom of individuals to express their sexual orientation. This also applies to those engaged in customary marriage structures. 169

169 Green Paper 6-7.

Today there are three pieces of legislation that regulate marriages in South Africa: the Marriage Act 25 of 1961 (hereafter the "Marriage Act"), the Recognition of Customary Marriages Act 120 of 1998 (hereafter "RCMA") and the Civil Union Act 17 of 2006. The Marriage Act applies to monogamous marriages between opposite-sex couples. The RCMA applies to polygamous marriages involving opposite-sex couples who are black South Africans. The Civil Union Act covers both monogamous partnerships for same-sex and opposite-sex couples. Additionally, monogamous marriages between heterosexual black individuals were historically, governed by the partially repealed Black Administration Act 38 of 1927

(hereafter the "BBA"). 170

170 Green Paper 6.

These pieces of legislation are not aligned with South Africa's Constitution and are exclusive instead of being inclusive for all South Africans, as per the values of the Constitution. 172

172 See esp. Green Paper 6-7.

Also, discriminatory provisions and shortcomings that are unconstitutional and thus invalid have been highlighted in various South African court cases. For example, in the case of Sithole v Sithole 176

176 Sithole v Sithole 2021 5 SA 34 (CC) (the "Sithole case").

Ramuhovhi case dealt with pre-Act polygamous customary marriages. The court ruled the differential treatment established by sections 7(1) 180

180 Section 7(1) of the Recognition of Customary Marriages Act 120 of 1998 (the "RCMA") maintained that the proprietary consequences of customary marriages before the Act's commencement would continue to be governed by customary law.

In the case of Bwanya v Master of the High Court, Cape Town, 183

183 Bwanya v Master of the High Court, Cape Town 2022 3 SA 250 (CC).

The recent appraisal of South African family and succession law, as outlined in the Green Paper, suggests the establishment of a new legal framework to regulate all monogamous and heterosexual religious marriages, regardless of race, religion, culture, sex, gender or nationality. The goal of this proposal is to align the legislation with sections 9, 10, 15 and 31 of the Constitution. 186

186 Green Paper 6-7, 45.

Africa's constitutional values and principles, as this alignment is crucial for effectively addressing challenges and opportunities in the further development of redistribution agreements.

7 Proposed application of legal practices of Old Babylonian inheritance division in relation to their South African counterparts

This section will examine how certain legal practices employed in the Old Babylonian inheritance division can be potentially utilised in the South African redistribution agreement. These practices aim to facilitate a fair redistribution of inheritances that considers the specific circumstances of each case and ultimately achieves agreement among all parties involved. 188

188 Due to this article's length and scope, a detailed comparison between Old Babylonian and South African legal practices on family division is unfeasible. Rather, the article focusses on lessons that can be learned from Old Babylonian legal practices and their potential relevance to South African redistribution agreements.

7.1 Division by lots (lot-casting)

The practice of lot-casting, also known as division by lots, is a common feature found in both the Old Babylonian inheritance division 189

189 Kitz 2000 JBL 618; Westbrook Property and Family 23; Kitz 2000 CBQ 207-214.

It appears from the available records that the methods utilised in Old Babylonia to effect a division by lot were similar to the recommendations put forward by Roman-Dutch legal scholars. 191

191 See Kitz 2000 JBL 618; Westbrook Property and Family 23; Kitz 2000 CBQ 207-214.

a long time, whilst the Roman Dutch legal scholar Huber 194

194 Huber Heedensdaegse Rechtsgeleertheyt paras 1, 3.29.16.

In South African law the practical procedures followed by heirs to redistribute estate assets are not rigidly defined. Executors in South Africa may draw inspiration from the methods utilised in the Old Babylonian period and recommended by Roman-Dutch legal scholars, particularly in the redistribution of movable estate assets. These methods encompass various approaches, such as appointing an appraiser selected by the Master to evaluate the assets of the estate and then for one party to receive the movables as they are, while the other party is compensated on the basis of the appraised value. Alternatively, one party may divide the assets and the other party could make a choice. Another option is employing lot-drawing to allocate assets and achieve individual ownership.

7.2 Bringing-in practice of any type of non-estate asset

The Old Babylonian inheritance division implemented the bringing-in principle, which involved one or more parties contributing assets or money to attain an equitable division based on value. 195

195 Stone and Stone 1981 Iraq 23; Claassens Family Deceased Estate Division Agreements vol 1 128, 175 264-265; Claassens-van Wyk 2013 JSem 72-73.

To provide some background understanding for the following discussion on the exclusion of non-estate immovable property, the following points need to be considered. Denoon 198

198 Denoon 1945 SALJ 319.

was only after a 1962 court case 200

200 Lubbe v Kommissaris van Binnelandse Inkomste 1962 2 SA 503 SA (O).

In South Africa, the exclusion of non-estate immovable property has consequences as it may limit the pool of assets available for division and options to achieve fairness among the heirs, particularly in cases where the heirs need to address hardships and impractical situations. This exclusion appears to aim at preventing exemption claims from transfer duty under section 9(1)(e) of the Transfer Duty Act. However, there is an argument to be made for including non-estate immovable property subject to transfer duty, as it could contribute to a fair redistribution of the inheritance. Also, the immovable property would potentially qualify for the threshold exemption when transfer duty is to be paid. 202

202 In accordance with the schedule of Fees of Office as prescribed by reg 84 and 86 of the Deeds Act, as amended. The transfer duty threshold was raised by R100 000 from R1 000 000 to R1 100 000 on the 1st of March 2023. GN R3095 in GG 48150 of 28 February 2023.

7.3 Maintenance provision

Contemporary scholars in ancient Near Eastern studies find it convenient to use today's legal term the "usufruct" to denote a maintenance clause in an inheritance division. 203

203 Van Wyk 2014b JSem 478-479, esp. 457.

Old Babylonian period the maintenance provision encompassed various potential obligations based on the specific needs of the family, as well as the prevailing economic and social circumstances of each case. These obligations could include receiving income or predominantly goods, benefiting from certain advantages associated with another person's property, or even holding property with restrictions on its transferability. 206

206 Harris Sippar 317-322; Stone 1982 JESHO 55, 62-63, 69. Compare Van Wyk 2015 JNSL 95-122 and Van Wyk 2014b JSem 468, esp. 472-474.

The Old Babylonian inheritance divisions commonly involved the sons of the deceased family head that would undertake the responsibility of providing for their priestess sister throughout her lifetime, 207

207 Stone 1982 JESHO 57-59.

In Old Babylonian society the position, status, and property ownership of the priestess' sister 212

212 Harris Sippar 317-322; Stone 1982 JESHO 55, 62-63. Compare Van Wyk 2015 JNSL 95-122.

part of the accepted practice, when a nadītu joined the priestess group affiliated with a particular deity, she would receive her dowry and ring-money from her father. 215

215 Harris Sippar 7; Tanret Seal of the Sanga 234-236. Stone 1982 JESHO 62, 58-59.

In some cases the nadītu, through her intelligence and labour, could accumulate property for her own financial independence. 219

219 Harris Sippar 307, 337.

In South Africa the MSSA governs the provision of reasonable maintenance for claimant spouses until their death or remarriage. 225

225 Section 2(1) read with 3(a) of the MSSA.

spouse and a dependent child conflict, the claims will be proportionately reduced if necessary. 227

227 Section 2(3)(c) of the MSSA.

Furthermore, the executor has a duty to protect the interests of minors, as mandated by section 28(2) of the Constitution. This duty is reinforced by section 9 of the Children's Act 38 of 2005, which prioritises the best interests of the dependent children in all matters related to their care, protection, and overall well-being. In the case of Du Toit v Thomas 231

231 Du Toit v Thomas (635/15) [2016] ZASCA 94 (1 June 2016).

In terms of section 2(3)(d) of the MSSA, the executor can enter into agreements to facilitate the transfer of the assets of an estate, establish rights in those assets, create trusts, or even impose obligations on heirs to settle a maintenance claim. As previously mentioned, this includes the option of introducing a redistribution agreement. 232

232 Meyerowitz Law and Practice of Administration of Estates paras 15.79A, 15.45; Sonnekus 1990 TSAR 512.

In South Africa, when it comes to settling maintenance claims, a common approach is to provide a lump sum payment to expedite the winding up of the estate. 233

233 If there is insufficient cash available in the estate to settle the claim, it may be necessary to sell estate assets to generate the required funds. Meyerowitz Law and Practice of Administration of Estates paras 13.7, 15.79A. See Feldman v Oshry 2009 6 SA 454 (KZD) paras 36-37 (the "Feldman case").

other hand, the claimant dependent may also encounter a disadvantage if unforeseen circumstances arise and the initially agreed-upon maintenance amount becomes insufficient to meet his/her ongoing maintenance needs. 235

235 See Feldman case paras 34-35.

As a solution, as in some of the Old Babylonian maintenance provisions, 236

236 Harris Sippar 334-350. Compare Van Wyk 2014b JSem 471-474; 467-480.

One potential solution to this problem is to establish an inter vivos trust in accordance with the provisions of the Trust Property Control Act 57 of 1988 (herewith "TPCA"). 240

240 Williams Maintenance 386, 393-401 outlined the advantages and disadvantages of a trust structure.

individuals can be held personally liable if they mismanage the property or fail to adequately meet the needs of the trust beneficiary or dependent. 244

244 Sections 9(1) and (2) of the TPCA (South African trust) and Stone 1982 JESHO 60; Harris 1964 Studies Oppenheim 119; Greengus "Legal and Social Institutions" 264 (Old Babylonian counterpart).

However, the option of establishing an inter vivos trust under the TPCA is viable only if the executor actively enters into such an arrangement. 245

245 In accordance with s 2(3)(d) of the MSSA.

An alternative option is then to create a company structure in a redistribution agreement, with the heirs and/or the surviving spouse holding all the shares in the company. As the only shareholders of the company, whose shares form part of each heir's estate, it can be argued that they are still acting as heirs in their participation to redistribute their inheritances. 247

247 This meets the requirement that only eligible heirs of full legal capacity are allowed to be parties to a redistribution agreement. Bydawell case 523B. Acceptance of this solution as a valid option may vary among the branches of the Master offices.

Also, another way to address the maintenance needs of a surviving spouse and/or dependent child in South Africa is through the introduction of a usufruct construction. 249

249 Williams Maintenance 383.

this stance has changed 251

251 Ex Parte Jooste 1968 4 SA 437 (O). Section 67 of the Deeds Act provisions can be invoked to directly refer to the usufruct in the Transfer Deed without the need for notarisation. See Meyerowitz Law and Practice of Administration of Estates paras 12.31, 13.7.

Also the Old Babylonian and South African approaches to addressing maintenance needs by means of a usufruct construction share similar advantages and disadvantages, as highlighted by Williams' comments on the South African solution. 255

255 Williams Maintenance 383-386

parties may agree that the responsible family members stood to gain full ownership after the dependent passed away or no longer required financial support. 261

261 Suurmeijer 2010 RA 19-21, 27. Compare Van Wyk 2019a JSem 1-24; Van Wyk 2019b JSem 1-34.

7.4 Payment-clause

The Old Babylonians had a systematic approach to dividing an inheritance that incorporated a payment clause. 262

262 Two inheritance divisions excavated from the Old Babylonian Tell Harmal site included a payment clause that required any family member who transgressed with a claim to pay an agreed monetary reward in units of silver. Tell Harmal represents the ancient city Shaduppum and is today part of the expanding city of Baghdad, in Iraq. Ellis 1974 JCS 133-153. Compare Van Wyk's 2018 Fundamina 170-197 study of the payment clause in these recordings.

Like the payment clause in Old Babylonian practices, some modern commonwealth law systems, including those in England, Wales and Australia, have established mechanisms for addressing breaches of contract. These mechanisms, such as rescission, alternative contracts and the compensation principle for liquidated damages enable contracts to be modified or terminated if necessary. They prevent excessive compensation and aim to ensure fairness for both parties involved. 264

264 See O'Sullivan, Elliott and Zakrzewski Law of Rescission; Goetz and Scott 1977 Colum L Rev 576-578.

In South Africa a penalty clause can be incorporated into the redistribution agreement division, especially when limited rights were created, ensuring that an obligation and/or limitations regarding the burdened inheritance property is/are met. This is to anticipate possible disputes and ensure certainty in following the terms of the contract and the initial inheritance awards where the obligations were agreed upon.

8 Conclusion

The Old Babylonian inheritance division and the South Africa redistribution agreement share common elements. These include the necessity of engaging in negotiations to reallocate inheritances based on prevailing circumstances. Mechanisms such as exchange, sale, or donation are employed in reaching an agreement. Furthermore, estate properties can be managed in a manner that enables the introduction of assets to equalise the division.

In South African law the executor follows a statutory process prescribed by the Estates Act to enforce a redistribution agreement agreed upon by the eligible heirs of a deceased estate. In contrast, the Old Babylonian approach involved an informal administration process where family members divided the family inheritance with no time limitations, aiming to sustain family relationships and address the parties' needs. We can learn valuable lessons from the Old Babylonians about adaptive approaches tailored to the circumstances of each case, introducing flexible solutions to ensure fairness and equality, especially when considering the needs of vulnerable family members. This consideration becomes even more significant in South Africa's mixed law system, as it strives to adhere to the underlying values of the country's Constitution.

When comparing inheritance divisions in the contexts of the Old Babylonian and South African traditions, the following adaptable legal practices of the Old Babylonians offer valuable insights for interpreting South African law concerning redistribution agreements. These practices involve a division by lots, the bringing-in principle, maintenance clauses and payment clauses.

In South African law the practical procedures that heirs undertake to reshuffle the assets of an estate are not fixed. South African executors may draw inspiration from the methods employed during the Old Babylonian period, which are similar to the recommendations made by Roman-Dutch legal scholars, especially for movable estate assets. These methods provide options such as appointing an appraiser to evaluate the assets, with one party receiving the assets as they are while the other receives compensation based on the appraised value. Alternatively, assets can be divided with one party dividing the assets and the other making a choice, or lot-drawing can be used to allocate the assets and establish individual ownership.

The Old Babylonian inheritance division included the possibility of implementing the bringing-in principle, where parties could contribute non-estate immovable or movable properties, including money, to the estate, to achieve an equal division. In South Africa the bringing-in principle is currently limited to non-estate movable property in redistribution agreements. However, the exclusion of non-estate immovable property in South Africa's redistribution system has implications that limit flexibility in addressing hardships and impractical situations in a diverse society. This exclusion appears to be aimed at preventing claims of exemption from transfer duty. However, there is an argument to be made for including non-estate immovable property subject to transfer duty, as it could contribute to a fair redistribution of the inheritance. Also, by potentially qualifying for the transfer duty threshold exemption, the inclusion of such property might

benefit the larger low-income South African population by promoting equity and balancing the division of inheritances.

The Old Babylonian inheritance division involved brothers taking responsibility for providing for their priestess sister, while South African law recognises the need to provide for surviving spouses and dependent children. Both divisions employed methods such as usufruct or company construction to address maintenance needs. The Old Babylonian records demonstrate the importance of adequately meeting the dependent's needs through a mechanism for handling maintenance claims. Like the Old Babylonian practice, it is recommended that maintenance provisions should extend throughout the dependent's lifetime, considering potential changes for both the dependent and the obligated family members (the heirs). The redistribution agreement could address these concerns by outlining the rights and obligations of the heirs, the consequences of transgression, and the procedures for re-evaluating the maintenance arrangement.

Another Old Babylonian legal practice known as the payment clause stipulated that anyone failing to honour the agreed-upon obligations in the inheritance division would be required to pay a specific amount to the other parties involved. A penalty clause could be included in a South African redistribution agreement to anticipate potential disputes and ensure compliance with the terms of the contract and initial inheritance awards, particularly when the obligations have been agreed upon. This would serve to provide certainty and enforce adherence to the terms agreed upon.

In conclusion, the narrow approach of South African law towards redistribution agreements may not always be the best solution for today's challenges. This article argues for a more flexible and innovative approach in the South African context, drawing lessons from the practices of the Babylonians. By embracing a more flexible and innovative approach, it may be possible to achieve a fair and equitable redistribution agreement that aligns with the underlying values of the South African Constitution.

Bibliography

Literature

Charpin Reading and Writing

Charpin D Reading and Writing in Babylon (MA Harvard University Press Cambridge 2010)

Charpin "Historian"

Charpin D "The Historian and the Old Babylonian Archive" in Baker HD and Juras M (eds) Documentary Sources in Ancient Near Eastern and Greco-Roman Economic History: Methodology and Practice (Oxbow Books Philadelphia 2014) 24-58

Claassens 2004-2005 Tydskrif vir Boedelbeplanningsreg

Claassens SJ "Herverdelingsooreenkomste in die Beredderingsproses van Bestorwe Boedels" 2004-2005 Tydskrif vir Boedelbeplanningsreg 36-102

Claassens Family Deceased Estate Division Agreements

Claassens (Van Wyk) SJ Family Deceased Estate Division Agreements from Old Babylonian Larsa, Nippur and Sippar vols 1 and 2 (DLitt et Phil-thesis University of South Africa 2012)

Claassens-van Wyk 2013 JSem

Claassens-van Wyk SJ "Old Babylonian Nippur Solutions between Beneficiaries in a Deceased Estate Division Agreement" 2013 JSem 56-89

Daube 1950 Jur Rev

Daube D "Consortium in Roman and Hebrew Law" 1950 Jur Rev 71-91

Dekiere MHET

Dekiere L Old Babylonian Real Estate Documents from Sippar in the British Museum. Mesopotamian History and Environment Series (MHET) 3 Documents form the Reign of Samsu-iluna vol 11, pt 3 (Ghent University of Ghent 1995)

Denoon 1945 SALJ

Denoon G "Vesting of Ownership" 1945 SALJ 312-325

Ellis 1974 JCS

Ellis MdJ "The Division of Property at Tell Harmal" 1974 JCS 133-153

Fleishman 2001 JAOS

Fleishman J "Legal Sanctions Imposed on Parents in Old Babylonian Legal Sources" 2001 JAOS 93-97

Frymer-Kensky "Gender and Law"

Frymer-Kensky T "Gender and Law: An Introduction" in Matthews VH, Levinson BM and Frymer-Kensky T (eds) Gender and Law in the Hebrew Bible and the Ancient Near East (Sheffield Academic Press Sheffield 1998) 1-31

Frymer-Kensky 1981 BA

Frymer-Kensky T "Patriarchal Family Relationships and Near Eastern Law" 1981 BA 209-214

Goddeeris Old Babylonian Legal and Administrative Texts

Goddeeris A The Old Babylonian Legal and Administrative Texts in the Hilprecht Collection. Texts, Seal Impressions vol 1 (Harrassowitz Wiesbaden 2016)

Goetz and Scott 1977 Colum L Rev

Goetz CJ and Scott RE "Liquidated Damages, Penalties and the Just Compensation Principle: Some Notes on an Enforcement Model and a Theory of Efficient Breach" 1977 Colum L Rev 554-594

Graef 2002 JESHO

Graef K "An Account of the Redistribution of Land to Soldiers in Late Old Babylonian Sippar- Amnānum" 2002 JESHO 141-178

Greengus "Legal and Social Institutions"

Greengus S "Legal and Social Institutions of Ancient Mesopotamia" in Sasson JM (ed) Civilizations of the Ancient Near East (Charles Scribner's Sons New York 1995) 469-484

Harris Sippar

Harris R Ancient Sippar: A Demographic Study of an Old-Babylonian City, 1894-1595 BC (Nederlands Historisch-Archaeologisch Instituut Istanbul 1975)

Harris 1963 JESHO

Harris R "The Organisation and Administration of the Cloister in Ancient Babylonia" 1963 JESHO 121-157

Harris 1964 Studies Oppenheim

Harris R The Nadītu Woman 1964 Studies Oppenheim, Chicago 106-135

Hibbits 1992 Emory LJ

Hibbits BJ "Coming to Our Senses: Communication and Legal Expression in Performance Cultures" 1992 Emory LJ 873-960

Huber Heedensdaegse Rechtsgeleertheyt

Huber U Heedensdaegse Rechtsgeleertheyt Translation: Gane P The Jurisprudence of My Time vol 1 (Butterworths Durban 1939)

Jacquet "Family Archives"

Jacquet A "Family Archives in Mesopotamia during the Old Babylonian Period" in Faraguna M (ed) Archives and Archival Documents in Ancient Societies Trieste 30 September-1 October 2011 (Edizioni Università di Trieste Trieste 2013) 63-85

Kaser 1984 Römisches Privatrecht

Kaser M Römisches Privatrecht Translation: Dannenburg R Roman Private Law 13th ed (Unisa Pretoria 1984)

Kitz 2000 CBQ

Kitz AM "The Hebrew Terminology of Lot-Casting and its Ancient Near Eastern Context" 2000 CBQ 207-214

Kitz 2000 JBL

Kitz AM "Undivided Inheritance and Lot-Casting in the Book of Joshua" 2000 JBL 601-618

Knapp History and Culture

Knapp BA The History and Culture of Ancient Western Asia and Egypt (Wadsworth Belmont 1988)

Koschaker 1933 ZA

Koschaker P "Fratriarchat, Hausgemeinschaft und Mutterrecht in Keilschriftrechten" 1933 ZA 1-89

Leemans 1986 Oikumene

Leemans WF "The Family in the Economic Life of the Old Babylonian Period" 1986 Oikumene 15-22

Liverani 1996 JESHO

Liverani M "Reconstructing the Rural Landscape of the Ancient Near East" 1996 JESHO 1-41

Maasdorp Introduction to Dutch Jurisprudence

Maasdorp AFS The Introduction to Dutch Jurisprudence of Hugo Grotius 3rd ed (Juta Cape Town 1903)

Malul Studies in Mesopotamian Legal Symbolism

Malul M Studies in Mesopotamian Legal Symbolism (Butzon and Bercker Kevelaer Neukirchener 1988)

Malul Knowledge, Control and Sex

Malul M Knowledge, Control and Sex. Studies in Biblical Thought, Culture, and Worldview (Butzon and Bercker Kevelaer Neukirchener 2002)

McClean 1963 ICLQ

McClean AJ "The Common Law Life Estate and the Civil Law Usufruct: A Comparative Study" 1963 ICLQ 649-667

Meyerowitz Law and Practice of Administration of Estates

Meyerowitz D The Law and Practice of Administration of Estates 5th ed (Juta Cape Town 2010)

Mitra Hindu Law of Inheritance

Mitra AC The Hindu Law of Inheritance, Partition, Stridhan and Wills (Pacific Publications Delhi 2010)

Nel Jones Conveyancing

Nel HS Jones Conveyancing in South Africa 4th ed (Juta Cape Town 2008)

Oats 1990 WA

Oats D "Innovations in Mudbrick: Decorative and Structural Techniques in Ancient Mesopotamia" 1990 WA 388-406

O'Callaghan 1954 JCS

O'Callaghan RT "A New Inheritance Contract from Nippur" 1945 JCS 137-143

O'Sullivan, Elliott and Zakrzewski Law of Rescission

O'Sullivan D, Elliott S and Zakrzewski R The Law of Rescission (Oxford University Press New York 2008)

Obermark Adoption

Obermark PR Adoption in the Old Babylonian Period (Doctoral thesis International Hebrew Union College 1992)

Oppenheim Assyrian Dictionary

Oppenheim AL The Assyrian Dictionary of the Oriental Institute of the University of Chicago (CAD) Ḫ vol 6 (University of Chicago Oriental Institute Chicago 1956)

Oppenheim Mesopotamia

Oppenheim AL Ancient Mesopotamia: Portrait of a Dead Civilization (University of Chicago Press London 1964)

Pearce "Scribes"

Pearce LE "Scribes and Scholars in Ancient Mesopotamia" in Sasson JM (ed) Civilizations of the Ancient Near East (Charles Scribner's Sons New York 1995) 2265-2278

Postgate Mesopotamia

Postgate JN Early Mesopotamia: Society and Economy at the Dawn of History (Routledge London 1992)

Robson 2001 RA

Robson E "The Tablet House: A Scribal School in Old Babylonian Nippur" 2001 RA 39-66

Roth 1987 Comp Stud Soc Hist

Roth MT "Age at Marriage and the Household: A Study of Neo-Babylonian and Neo-Assyrian Forms" 1987 Comp Stud Soc Hist 715-747

Roth "Gender and Law"

Roth MT "Gender and Law: A Case Study from Ancient Mesopotamia" in Matthews VH, Levinson BM and Frymer-Kensky T (eds) Gender and Law in the Hebrew Bible and the Ancient Near East (Sheffield Academic Press Sheffield 1998) 173-184

Renteln and Dundes "What is Folk Law?"

Renteln AD and Dundes A "What is Folk Law?" in Renteln AD and Dundes A (eds) Essays in the Theory and Practice of Lex Non Scripta (University of Wisconsin Press Wisconsin 1994) 1-32

Sacco 1991 Am J Comp L

Sacco R "Legal Formants: A Dynamic Approach to Comparative Law (Installment I of II)" 1991 Am J Comp L 1-34

Schorr Altbabylonische

Schorr Urkunden des Altbabylonische Zivil-und Prozessrechts. Vorderasiatische Bibliothek (JC Hinrichsche Buchhandlung Leipzig 1913)

Skaist Old Babylonian Loan Contract

Skaist A The Old Babylonian Loan Contract: Its History and Geography (Bar-Ilan University Press Ramat Gan 1994)

Sjöberg Sumerian Dictionary

Sjöberg ÅAke W Sumerian Dictionary vol 2B (University Museum Philadelphia 1984)

Sonnekus 1990 TSAR

Sonnekus JC "Verlengde Onderhoudsaanspraak van die Langslewende Gade – 'n Aanvaarbare Ondergrawing van Beskikkingsbevoegdheid?" 1990 TSAR 491-513

Spada Model Contracts

Spada G Sumerian Model Contracts from the Old Babylonian Period in the Hilprecht Collection Jena (Harrassowitz Verlag Wiesbaden 2018)

Stone and Stone 1981 Iraq

Stone EC and Stone ET "Texts, Architecture and Ethnographic Analogy: Patterns of Residence in Old Babylonian Nippur" 1981 Iraq 19-33

Stone 1982 JESHO

Stone E "The Social Role of the Nadītu Women in Old Babylonian Nippur" 1982 JESHO 50-70

Stone and Owen Adoption

Stone E and Owen DI 1991 Adoption in Old Babylonian Nippur and the Archive of Mannummešu-liṣṣur (Eisenbrauns Winona Lake 1991)

Stone "Adoption in Nippur"

Stone EC "Adoption in Old Babylonian Nippur" in Stone EC and Owen DI (eds) Adoption in Old Babylonian Nippur and the Archive of Mannum-mēšu-liṣṣur (Eisenbrauns Winona Lake 1991) 1-33

Suurmeijer 2010 RA

Suurmeijer G "'He Took Him as His Son': Adoption in Old Babylonian Sippar" 2010 RA 9-40

Tanret Seal of the Sanga

Tanret M The Seal of the Sanga: On the Old Babylonian Sangas of Šamaš of Sippar-Jaḫrūrum and Sippar-Amnānum (Boston Leiden 2010)

Tanret and Suurmeijer 2011 ZA

Tanret M and Suurmeijer G "Officials of the Šamaš Temple of Sippar as Contract Witnesses in the Old Babylonian Period" 2011 ZA 78-112

Van de Mieroop History

Van de Mieroop A History of the Ancient Near East ca 3000-323 BC 2007 (Blackwell Malden 2005)

Van Niekerk 2001 Codicillus

Van Niekerk GJ 2001 "Indigenous Law in South Africa – Historical and Comparative Perspective" 2001 Codicillus 5-13

Van Reenen 1995 CILSA

Van Reenen TP "Major Theoretical Problems of Modern Comparative Legal Methodology (1): The Nature and Role of the Tertium Comparationis" 1995 CILSA 175-199

Van Warmelo 1950 THRHR

Van Warmelo P "Die Geskiedkundige Ontwikkeling van die Mede-eiendom in die Romeinse en Romeins-Hollandse Reg" 1950 THRHR 205-242

Van Wyk 2013a Fundamina

Van Wyk S J "Old Babylonian Family Division Agreement from a Deceased Estate – Analysis of its Practical and Theoretical Mechanisms" 2013a Fundamina 146-171

Van Wyk 2013b Fundamina

Van Wyk SJ "Content Analysis: A New Approach in the Study of the Old Babylonian Family Division Agreement in a Deceased Estate" 2013b Fundamina 413-440

Van Wyk 2014a JSem

Van Wyk SJ "Contractual Maintenance Support of a Priestess-Sister in Three Old Babylonian Sippar Division Agreements" 2014a JSem 195-236

Van Wyk 2014b JSem

Van Wyk SJ "Lost in Translation: Present-day Terms in the Maintenance Texts of the Nadiātu from Old Babylonian Nippur" 2014 JSem 443-483

Van Wyk 2015 JSem

Van Wyk SJ "The Concealed Crime of the Nadītu Priestess in §110 of the Laws of Hammurabi" 2015 JSem 109-145

Van Wyk 2015 JNSL

Van Wyk "Prostitute, Nun, 'Man-Woman': Revisiting the Position of the Old Babylonian Nadīatu Priestesses" 2015 JNSL 95-122

Van Wyk 2018a JSem

Van Wyk SJ "Revisiting the Division of Ownership in the Book of Joshua and Old Babylonia" 2018 JSem 1-21

Van Wyk 2018b JSem

Van Wyk SJ "Inheritance Feuds in the Ur-Pabilsaĝa Archive from Old Babylonian Nippur" 2018 JSem 1-27

Van Wyk 2018 Fundamina

Van Wyk SJ "The Phrase 'Should a Claimant Raise a Claim, He will Pay...' in the Division of an Inheritance from Old Babylonian Tell Harmal" 2018 Fundamina 170-197

Van Wyk 2019a JSem

Van Wyk SJ "Towards a Typology of Old Babylonian Adoption Recordings" 2019a JSem 1-24

Van Wyk 2019b JSem

Van Wyk SJ "Keeping Home and Hearth Together: A Scribe's Adaptation of Adoption and Inheritance Division Templates from Old Babylonian Nippur Scribal Schools" 2019b JSem 1-34

Van Wyk 2021 PELJ

Van Wyk SJ "Debunking the Master of the High Court's Assumed Approval Authority Over a Redistribution Agreement in a Deceased Estate" 2021 PELJ 1-46

Veenhof "Before Ḫammu-rāpi of Babylon"

Veenhof KR "Before Ḫammu-rāpi of Babylon: Law and Laws in Early Mesopotamia" in Feldbrugge FM (ed) The Law's Beginnings (Martinus Hijhoff Leiden 2003) 137-161

Veldhuis 1996 Dutch Studies-Nell

Veldhuis N "The Cuneiform Tablet" 1996 Dutch Studies-Nell 11-26

Veldhuis Elementary Education

Veldhuis N Elementary Education at Nippur: The Lists of Trees and Wooden Objects (Doctoral thesis University of Groningen 1997)

Verbeke, Verdickt and Maasland "Usufruct"

Verbeke A-L, Verdickt B amd Maasland D-J "The Many Faces of Usufruct" in Van der Merwe C and Verbeke A-L (eds) Time-Limited Interest in Land (Cambridge University Press Cambridge 2012) 33-56

Voet Commentarius ad Pandectas

Voet J Commentarius ad Pandectas Translation: Gane P The Selective Voet, Being the Commentary on the Pandects vol 7 (Butterworths Durban 1955-1957)

Westbrook History of Ancient Near Eastern Law

Westbrook R (ed) A History of Ancient Near Eastern Law vols 1 and 2 (Brill Leiden 2003)

Westbrook Old Babylonian Marriage Law

Westbrook R Old Babylonian Marriage Law vol 2 (Published PhD dissertation Yale 1982)

Westbrook Property and Family

Westbrook R Property and Family in Biblical Law (Sheffield Academic Press London 1991)

Westbrook 1991 JAOS

Westbrook R "The Phrase 'His Heart is Satisfied' in Ancient Near Eastern Legal Sources" 1991 JAOS 219-224

Westbrook "Adoption Laws of Codex Hammurabi"

Westbrook R "The Adoption Laws of Codex Hammurabi" in Rainey AF (ed) Kinattūtu ša dārâti: Raphael Kutscher Memorial Volume (Institute of Archaeology of Tel Aviv Tel Aviv 1993) 195-204

Westbrook and Jasnow "Old Babylonian Period"

Westbrook R and Jasnow R "The Old Babylonian Period" in Westbrook R and Jasnow R (eds) Security for Debt in Ancient Near Eastern Law (Brill Leiden 2001) 361-340

Westbrook "Character of Ancient Near Eastern Law"

Westbrook R (ed) "The Character of Ancient Near Eastern Law" in Westbrook R (ed) A History of Ancient Near Eastern Law vol 1 (Brill Leiden 2003) 1-90

Westbrook "Old Babylonian Period"

Westbrook R (ed) "Mesopotamia: Old Babylonian Period" in Westbrook R (ed) A History of Ancient Near Eastern Law vol 1 (Brill Leiden 2003) 361-430

Williams Maintenance

Williams RA Maintenance of the Surviving Spouse in South Africa: The Challenges Faced by the Executor (LLD-thesis Unisa 2020)

Case law

Bhe v Khayelitsha Magistrate 2005 1 SA 580 (CC)

Bwanya v Master of the High Court, Cape Town 2022 3 SA 250 (CC)

Bydawell v Chapman 1953 3 SA 514 (A)

Carelse v Estate de Vries [1906] 25 SC 532

Cradock's Estate v Cradock 1951 3 SA 51 (N)

Du Toit v Thomas (635/15) [2016] ZASCA 94 (1 June 2016)

Esterhuizen's Executor Dative v Registrar of Deeds 5 Searle 124

Ex parte Bloch 1936 WLD 48

Ex parte Evans and Evans 1950 3 SA 732 (T)

Ex parte Forbes 1912 NPD 352

Ex parte Jooste 1968 4 SA 437 (O)

Ex parte MacPherson 18 CTR 154

Feldman v Oshry 2009 6 SA 454 (KZD)

Glazer v Glazer 1963 4 SA 694 (A)

Gumede v President of the Republic of South Africa 2009 3 BCLR 243 (CC)

In re Estate Linder 1935 NPD 99

Klerck v Registrar of Deeds 1950 1 SA 626 (T)

Lubbe v Kommissaris van Binnelandse Inkomste 1962 2 SA 503 (O)

Nedbank Ltd v Mendelow 2013 6 SA 130 (SCA)

Ramuhovhi v President of the Republic of South Africa 2018 2 BCLR 217 (CC)

Seidel v Lipschitz (24960/11) [2013] ZAWCHC 158 (24 October 2013)

Sithole v Sithole 2021 5 SA 34 (CC)

Testate Estate of John McDonald (1897) 18 NLR 156

Wiid v Wiid (1571/2006) [2012] ZANCHC 62 (13 January 2012)

Legislation

Administration of Estates Act 66 of 1965

Agricultural Holdings (Transvaal) Act 22 of 1919

Alienation of Land Act 68 of 1981

Black Administration Act 38 of 1927

Children's Act 38 of 2005

Civil Union Act 17 of 2006

Constitution of the Republic of South Africa, 1996

Deeds Registries Act 47 of 1937

Estate Duty Act 45 of 1955

Intestate Succession Act 81 of 1987

Maintenance Act 99 of 1998

Maintenance of Surviving Spouses Act 27 of 1990

Marriage Act 25 of 1961

Matrimonial Property Act 88 of 1984

Promotion of Access to Information Act 2 of 2000

Promotion of Administrative Justice Act 3 of 2000

Recognition of Customary Marriages Act 120 of 1998

Recognition of Customary Marriages Amendment Act 1 of 2021

Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009

Subdivision of Agricultural Land Act 70 of 1970

Transfer Duty Act 40 of 1949

Trust Property Control Act 57 of 1988

Wills Act 7 of 1953

Government publications

Gen N 1678 in GG 48217 of 16 March 2023 (Explanatory Summary of the Judicial Matters Amendment Bill, 2023)

GN R474 in GG 466 of 29 March 1963 (Regulations to the Deeds Registries Act 47 of 1937), as amended

GN R473 in GG 3425 of 24 March 1972 (Regulations to the Administration of Estates Act 66 of 1965), as amended

GN R398 in GG 44529 of 4 May 2021 (Green Paper on Marriages in South Africa)

GN R3095 in GG 48150 of 28 February 2023 (Regulations to the Deeds Registries Act 47 of 1937), as amended

Judicial Matters Amendment Bill B7-2023

Internet sources

Charpin 2008 http://www.archibab.fr/en/accueil.htm

Charpin D (ed) 2008 ARCHIBAB: Babylonian Archives (20th-17th Centuries BC) http://www.archibab.fr/en/accueil.htm accessed 1 June 2023

Jones 2003 https://www.chicagotribune.com/ct-iraq-connection-jones-2003-column.html

Jones C 2003 The Iraq Connection: In the Once-Quiet Halls of Chicago's Oriental Institute, Anger and Frustration Fuel an Effort to Find Looted Treasures https://www.chicagotribune.com/ct-iraq-connection-jones-2003-column.html accessed 12 June 2023

List of Abbreviations

Addendum A

The tablet, which is part of the JB Nies Collection (NBC 8935), is currently owned by Yale University. O'Callaghan 1954 JCS transcribed and translated the tablet and named it "A new inheritance contract from Nippur", where he also provided some commentary on the tablet.

Obverse plate (O'Callaghan 1954 JCS 142)

Reverse plate (O'Callaghan 1954 JCS 143)