Bereddering van intestate boedels van swart erflaters

Abstract

The winding up of estates under Black law and custom have changed considerably since 6 December 2002. Different systems of administration of estates existed before then. The intestate estates of Black persons were administered by the Magistrate, while the estates of all other race groups, including testate estates of Black persons, were administered by the Master of the High Court. The administration of all intestate estates of Black persons accrued under the Black Administration Act 38 of 1927 and the Regulations for the Administration and Distribution of the Estates of Deceased Blacks, GN R200 of 1987 promulgated in terms thereof. All other estates were administered under the Administration of Estates Act 66 of 1965. Section 23(7)(a) of the Black Administration Act 38 of 1927 excluded the Master's authority to administer intestate estates of Black persons. This differentiation was pointed out in Moseneke v The Master 2001 SA 18 (CC). The Constitutional Court decided that any legislation that prefers different systems of administration on grounds of race should be declared unconstitutional. The Court, however, only changed the circumstances of estates of Black persons that devolved under common law and these estates could then also be administered by the Master or the Magistrate. All intestate estates of Black persons that devolved under customary law were still administered by the Magistrate with appropriate jurisdiction. On 5 December 2002, the Administration of Estates Amendment Act 47 of 2002 and the Amendment of the Regulations for the Administration and Distribution of Estates, GN R1501 of 2002 were promulgated to give effect to the order of Moseneke v The Master 2001 SA 18 (CC). After these amendments, all estates with a value of less than R50 000,OO were to be administered by the Magistrates, but under supervision of the Master. All other estates, excluding those that devolved under customary law, had to be reported to the Master. The intestate estates of Black persons that had to devolve under customary law were still administered by the Magistrate. On 15 October 2004, the Constitutional Court ruled in Bhe v Magistrate, Khayelitsha (Commission for Gender Equality as Amicus Curiae); Shibi v Sithole; South African Human Rights Commission v President of the Republic of South Africa 2005 1 SA 580 (KH) that all discrimination and differentiation of the administration systems should stop. All estates, including intestate estates of Black persons that must devolve under customary law, must be administered by the Master. This was the beginning of a unified system where all estates must be reported to the Master. All estates that were reported before 15 October 2004 had to be finalised in the way that they were reported. The South African Law Reform Commission currently is investigating the winding up and administration of estates. With their findings and the abovementioned legislation and case law, a unified system is sure to follow. Estate planners and executers need to take note of all the amendments that have taken place in the area of the intestate estates of Black persons during the past five years.