IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
CASE NO : CCT 51/00
In the matter between :
DIKGANG ERNEST MOSENEKE & OTHERS Applicant
versus
THE MASTER OF THE HIGH COURT Respondent
MASTER’S REPORT
1. The Directions issued by the Registrar of the Constitutional Court on 2nd November 2000 have been received by this office.
2. INTRODUCTION :
2.1 The Master of the High Court is a creature of the legislature : Die Meester v Protea Assuransiemaatskappy Bpk 1981(4) SA 685 (T) at 690 : “Die Meester is ‘n skepping van die Wetgewer en het slegs die bevoegdhede wat deur die Wetgewer aan hom opgedra is”
and is appointed in terms of Section 2 of the Administration of Estates Act No. 66 of 1965.
As a creature of the legislature, the Master only has the powers granted to him by the legislature. These powers must be found within the four corners of his act, whether
explicit or by necessary implication : The Master v Talmud 1960(1) SA 236 (c) at 237 - 8.
2.2 In respect of the estate of a deceased person, or of any portion there-of, the jurisdiction of the Master shall lie -
(a) in the case of a deceased person who was, at the date of his death, ordinarily resident within the area of jurisdiction of a provincial division of the Supreme Court, with the Master appointed in respect of that area; and
(b) in the case of a deceased person who was not at that date so resident, with the Master to whom application is made to grant letters of executorship or to sign and seal any such letters already granted in respect of the estate concerned :
Provided that on written application by any person having an interest in a deceased estate, a Master who would otherwise have no jurisdiction in respect of that estate may, with the consent of the Master who has such jurisdiction, assume jurisdiction in respect of that estate : Section 4(1) of the Administration of Estates Act No. 66 of 1965.
2.3 According to Section 7(1) of the Administration of Estates Act No. 66 of 1965 whenever any person dies within the Republic leaving any property or any document being or purporting to be a will therein
the surviving spouse of such person, or if there is no surviving spouse, his nearest relative or connection residing in the district in which the death has taken place, shall within fourteen days thereafter give a notice of death substantially in the prescribed form, or cause such a notice to be given to the Master; and
the person who at or immediately after the death has the control of the premises at which the death occurs shall, unless a notice has to his knowledge already been
given, within fourteen days after the death, report the death or cause the death to be reported to the Master.
2.4 As evident from the aforegoing the Administration of Estates Act No. 66 of 1965 does not differentiate between race, gender or creed.
2.5 However, the acts on the administration of estates have not been rationalized yet. The acts used in the old TBVC states differed from that used in the old Republic of South Africa with the result that five different sets of acts pertaining to the administration of estates are in use in the (new) Republic of South Africa.
2.6 The Intestate Succession Act No. 81 of 1987 regulates anew the law relating to intestate succession, and provide for matters connected therewith and applies to persons dying testate on or after 18th March 1988.
The act, too, does not differentiate between race, gender or creed.
However, in view of the non rationalization of certain acts, the position may differ from area to area - paragraph 2.5 above.
2.7 The administration of Black estates is governed by Section 23 of the Black Administration Act No. 38 of 1927 (as amended).
2.8 The Administration of Estates Act No. 66 of 1965 applies to Blacks who die testate and then only in respect of such property of a Black which is capable of being devised by Will by virtue of Section 23(9) of the Black Administration Act No. 38 of 1927.
Section 23(1) and (2) of the latter act excludes testamentary capacity in respect of the following property :
(a) All movable property belonging to a Black and allotted by him or accruing under Black law or custom to any woman with whom he lived in customary union or to any “house”. Such property on his death must devolve and be administered under Black law and custom.
(b) All land in a location held in individual tenure upon quitrent conditions. Such land must devolve upon one male person to be determined in accordance with tables of succession prescribed under Section 23(10).
1. 2.9 In respect of an estate of a Black who has died intestate or in respect of a Black’s property falling under 2.8 (a) or (b) above, the Magistrate in whose area of jurisdiction such estate or property falls will exercise supervision. It is possible, therefore, in the case of a Black dying testate for the Master to supervise the administration of one portion of the estate and the Magistrate another portion.
2.10 “Black:” includes any person who is a member of any aboriginal race or tribe of Africa : Section 35 of the Black Administration Act No. 38 of 1927.
3. DIRECTIONS :
3.1 AD PARAGRAPH 3(i) :
According to paragraph 6 of the Applicant’s supplementary affidavit dated 28th August 2000 the “applicants will, at the hearing of this matter, seek an order declaring that the provisions of the Black Administration Act and its Regulations are invalid, unconstitutional and of no force and effect. The applicants will, to the extend necessary, seek leave to amend their notice of motion to expressly incorporate this prayer ...”
This office was not served with any amendment to the notice of motion. It is therefor not possible for this office to say whether the learned judge in fact considered a prayer to have Section 23(7) of the Black Administration Act No. 38 of 1927 to be unconstitutional and then decided not to give a ruling there-on.
3.2 AD PARAGRAPH 3(ii) :
(It appears that the reference to Section 171(1)(a) of the Constitution should be Section 172(1)(a) of the Constitution).
This office is of the opinion that a declaration of invalidity should not be inferred from the terms of an order and that there should be a specific declaration of invalidity to prevent any confusion.
3.3 AD PARAGRAPH 3(iii) :
Although it is not for this office to say whether Section 23(7) is inconsistent with the Constitution, this office has accepted that it perhaps would have to take jurisdiction over intestate estates of Blacks in future.
3.4 AD PARAGRAPH 4 :
In terms of Section 23(7) of the Black Administration Act No. 38 of 1927 the Master shall have no powers in connection with the administration and distribution of the estate of any Black who has died leaving no valid will or of any portion of the estate of a deceased Black which falls under Section 23(1) of (2) of the said act.
If a declaration of invalidity of Section 23(7) of the Black Administration Act No. 38 of 1927 not be inferred from the terms of the order made by the High Court, the Master will
have no powers in connection with the administration and distribution of the said estate - paragraph 2.1 above read with the provisions of the said Section 23(7) above. The question then arises whether the High Court has the inherent jurisdiction to grant powers pertaining to deceased estates to the Master not granted by the legislature - the relevant acts do not create such jurisdiction to the High Court. It should also be remembered that the Master is not an officer of the High Court.
Should the High Court not have the inherent jurisdiction to grant powers pertaining to deceased estates to the Master, paragraph 2 of the order will have no force and effect on the Master.
Any letters of executorship issued by the Master under such circumstances will have no legal force. All actions taken by an executor under such circumstances will be ab initia null and void.
3.5 AD PARAGRAPH 5 :
If a declaration of invalidity of Section 23(7) of the Black Administration Act No. 38 of 1927 not be inferred from the order made by the High Court while the provisions of Clause 3(1) of the Regulations promulgated in terms of the said act and published in Government Gazette number 10601, Government Notice number R.200 of 6 February are declared invalid, unconstitutional and of no force and effect, an impasse would result with no official procedures in place to ensure the proper administration of the intestate estates of Blacks. No registration processes will be in place, no authorities / directions to administer these estates can be issued, financial institutions will not release monies for funerals, payments of debts, maintenance of dependents, etc. Transfer of properties will
not take place.
Chaos in the administration of intestate estates of Blacks will ensue. (In fact that already happened since the relevant order of court was issued and this office acknowledges that it has taken jurisdiction of some of the cases where the need was high and to assist those left destitute notwithstanding the provisions of Section 23(7) of the Black Administration Act No. 38 of 1927).
3.6 AD PARAGRAPH 6 :
This office is of the opinion that direct access in the interest of justice to the Constitutional Court is important.
The Office of the Master is not in a position to take jurisdiction at present to take jurisdiction over the intestate estates of Blacks :
lack of human resources
lack of infrastructure
training
limited budget allocations.
In view of the fact that an impasse has been reached due to the declaration by that the High Court that Clause 3(1) of the Regulations promulgated in terms of the Black Administration Act, No. 38 of 1927 and published in Government Gazette number 10601, Government Notice number R.200 of 6th February 1987 is invalid, unconstitutional and of no force and effects while no such declaration was made on Section 23(7) of the said act. Many intestate estates of Blacks cannot be administered
and distributed leaving many people destitute.
3.7 AD PARAGRAPH 7 :
Although this office is not kept informed on developments, it is generally known that the matter of the intestate estates of Blacks has been referred to the South African Law Commission for investigation.
The Office of the Master is not in a position to take jurisdiction at present over the intestate estates of Blacks :
lack of human resources
lack of infrastructure
training
limited budget allocations.
It is recommended that the Department of Justice is afforded time (3 years) to provide the Master with trained human resources, infrastructure, budget allocations and rationalized acts to take jurisdiction over the intestate estates of Blacks.
Those estates administered and being administered in terms of Section 23(7) of the Black Administration Act No. 38 of 1927 read with Regulation 3(1) should be excluded from any order of unconstitutionality.
3.8 I hereby attach a copy of a letter dated the 10th of November 2000 reflecting the views of the Association of Trust Companies in South Africa. This Association is involved with the majority of deceased estates in South Africa.
3.9 I abide the decision of the Honourable Court.
MASTER OF THE HIGH COURT OF SOUTH AFRICA (Transvaal Provincial Division)
Master’s Office PRETORIA 0001
13 November 2000 /mm
