Reconciling privacy and transparency: section 35 of the administration of estates Act 66 of 1965 and POPIA compliance

Abstract

The Administration of Estates Act 66 of 1965 has governed the administration of deceased estates in South Africa for over 50 years, prescribing guidelines to ensure a procedurally fair and equitable distribution of assets to heirs, creditors, and beneficiaries. The executor bears primary responsibility for impartially winding up the estate and safeguarding the interests of all interested parties, which is achieved by strictly adhering to the laws and regulations of the Act. A key provision, section 35, requires the liquidation and distribution account to remain open to public inspection at the Master's office for 21 days, allowing interested parties to review it for discrepancies and raise objections to proposed distributions. However, the evolving societal and technological landscapes, characterised by instant digital access to information via simple identifiers, have heightened the importance of privacy rights under section 14 of the Constitution of the Republic of South Africa of 1996. This prompted the enactment of the Protection of Personal Information Act 4 of 2013 (hereafter POPIA), which provides robust protections for personal information, mandating institutions, companies, and individuals to overhaul data processing practices and implement safeguards for lawful processing as outlined in its conditions. Notable exceptions include processing by public bodies under section 6 and scenarios where private entities process data without consent, as permitted by other legislation under section 11. This mini-dissertation examines the inherent conflict between how section 35's transparency mechanism disproportionately infringes on POPIA's privacy safeguards, necessitating reconciliation between the two frameworks. It conducts an in-depth analysis of section 35 of the Administration of Estates Act, alongside POPIA's core definitions, terms, and conditions, to elucidate the resulting tensions and advocate for balanced reforms.