Letters to the Editor – January/February 2024

February 1st, 2024
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PO Box 36626, Menlo Park 0102

Docex 82, Pretoria

E-mail: derebus@derebus.org.za

Fax (012) 362 0969

Letters are not published under noms de plume. However, letters from practising attorneys who make their identities and addresses known to the editor may be considered for publication anonymously.

Master’s offices

The activities of the Master’s offices have recently been highlighted, and quite deservedly, for no less a person than Charles Dickens described the type of government department, in this case, the equivalent of the Master’s office, as the ‘Circumlocution Office’.

Our Master’s offices are seized with several functions, but the main function arises from the Administration of Estates Act 66 of 1965.

Prior to the Moseneke and Others v the Master and Another 2001 (2) SA 18 (CC) judgment in 6 December 2000, estates of previously defined ‘black’ persons were liquidated in terms of the Native Administration Act 38 of 1927 (subsequently renamed the Bantu Administration Act, and the Black Administration Act). In terms thereof, the estate of any ‘black’ person was administered formerly by the local Native/Bantu Affairs Commissioner/Magistrate holding office in the area where the deceased had died. Most of these estates were not large, and the heirs and legatees were resident in the district of the deceased and there was a degree of convenience for all concerned.

The Moseneke judgment changed that situation of convenience to connected parties, and from the date of the judgment, in future all ‘black’ estates were dealt with by the Master, which effectively meant that, as so frequently happens, they were also subject to another of the inflexible supreme laws, this time to the ‘Law of Unintended Consequences’, and these estates were now brought into the purview of the halls of circumlocution: The offices of the Master of the High Court. The immediate effect was that the offices of the Master were inundated with a vastly increased workload, being an increased number of estates being handled by the Office of the Master of the High Court, but without a concomitant increase in the staff complement.

The staff of the offices of the Master of the High Court were simply unable to handle the increased workload, at a time when the population of South Africa possibly numbered in the region of 44,8 million people. The latest census estimates the South African population at an excess of 62 million.

The legal position, and consequences after any person has died, is that after such person’s death if the deceased left property or any document being or purporting to be a will this event is required to be reported to the Master of the High Court, by either –

  • a surviving spouse;
  • the nearest relative or connection residing in the district in which the death has taken place; or
  • the person who immediately after the death has control of the premises in which the death had occurred (see s 7(1)(a) and (b) of the Administration of the Estates Act).

This administrative step is to follow, irrespective of whether the deceased left a will or died intestate (without a valid will).

Thereafter, in terms of s 9 of the Administration of Deceased Estates Act and within such further period as the Master may allow, and in the presence of any such person having an interest in the estate as heirs, such person was to make an inventory in the prescribed form, which inventory specifies all immovable property registered in the name of the deceased or the immovable property, which such person knows the deceased to have had an interest at the date of death, all particulars known to such person concerning any such property or interest.

Thereafter, in terms of s 14 of the Administration of Deceased Estates Act the Master shall subject to the provisions of subs 2 and ss 16, 17 and 22 grant letters of executorship to such person.

The Administration of Estates Act has a provision for ‘small estates’ of persons who have left an estate of less than R 50 000 and in terms of s 18(3) of the Administration of Estates Act, the Master of the High Court, could appoint a representative in the estate of such deceased to take control of the assets as reflected in the inventory, filed with the Master, to pay the debts, and to transfer the residue of the estate to the heirs of the deceased.

Section 18(3) of the Administration of Estates Act provides:

‘(3) If the value of any estate does not exceed the amount determined by the Minister by notice in the Gazette, the Master may dispense with the appointment of an executor and give directions as to the manner in which any such estate shall be liquidated and distributed.’

With regard to new estates reported on/after 2 December 2014 (Justice Circular 117 of 2014 dated 2 December 2014) by way of Circular 58 of 2015 thereof: ‘2.2.1 At service points where the new ICMS Masters Deceased Estates (PEAS) has been rolled out, the jurisdiction has been increased from R 50 000 to R 250 000.’

This directive was effective from 17 August 2015 and is to be implemented as such.

On 25 February 2010, GhostDigest reprinted with permission from South African Deeds Journal that: ‘There are two aspects that need to be clarified with regard to the wording of section 18(3), namely:

  • The Master must give directions as to the manner in which any estate must be liquidated and distributed; and
  • The meaning of “liquidated” as used in deceased estates’ (‘Section 18(3) sales’ (www.ghostdigest.com, accessed 2-12-2023)).

Currently, Letters of Authority (form J170) authorise (direct) the appointee (the Master’s Representative) to take control of the assets, ‘pay the debts’ and then transfer the residue of the property to the heir/heirs entitled thereto by law.

With regard to the meaning of ‘liquidated’, such as is used in deceased estates, derives from the authority Cradock’s Estate v Cradock and Others 1951 (3) SA 51 (N) where the court held: ‘Speaking generally, he [the executor] must liquidate the estate, pay the claims of creditors and distribute the balance among those who are entitled to it in terms of the will or ab intestato. But “liquidate” does not mean “realise”, but “reduce into possession”’.

It is noteworthy that the numbers of deceased estates having a value of R 250 000 or less is not available.

However, if one estimates such number to be 2 000 then the possible sum of money, which is no longer supervised by a Master but left to the tender mercies of a s 18(3) representative is in the region of R 500 million, which quantum of assets does not receive the close supervision of the Master.

Perhaps this attention to the Office of the Master should be widened by interested parties.

 

LEA Callaghan BA UED (Rhodes University) LLB (UKZN)

is a legal practitioner in Cape Town.

This article was first published in De Rebus in 2024 (Jan/Feb) DR 4.

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