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In the past where a black person had left no will or no valid will and any part of his estate fell within the ambit of Customary Law, his/ her estate was administered in terms of the Regulations of the Black Administration Act No. 38 of 1927, (Clause 3 (1) of the Regulations published in Government Notice 10601 of 6 February 1987, which read as follows:
“All the property in any estate falling within the purview of paragraphs of these Regulations shall be administered under the supervision of the Bantu Affairs Commissioner in whose area of jurisdiction the deceased ordinarily resided and such Bantu Affairs Commissioner shall give directions in regard to the distribution thereof as shall seem to him fit and shall take all steps necessary to ensure that the provisions of the Act and of these regulations are complied with”
In this instance the estate did not fall within the jurisdiction of the Master of the High Court as provided for in terms of the Administration of Estates Act 66 of 1965.
During late 2001 the High Court declared the provisions of the said clause 3(1) to the Regulations as invalid, unconstitutional and of no force and effect. The Constitutional Court later came to the conclusion that the order by the High Court had an unanticipated and drastic effect. The declaration of the regulation as invalid deprived magistrates of any competence to deal with that Act. At the same time, as set out above, Section 23(7) of the Act prohibits the Master from administering and distributing the estate of any black person who has died leaving no valid will. The result was that such estates technically could not be administered at all. The Minister of Justice subsequently appealed to the Constitutional Court that the declaration of invalidity should be suspended for a period of time to enable Parliament to correct the defects in the legislation in as harmonious and effective manner as possible. It was indicated that the Master’s office was at that stage not in a position to manage the estates of black people who had died intestate because of the lack of human resources, infrastructure, training and finance. During 1999 some 66 000 intestate black estates were administered by Magistrates. The Constitutional Court agreed that a period of two years would be appropriate to enable Parliament to review the whole field of succession and administration of deceased estates in an harmonious and effective manner.
The ruling that the Constitutional Court then made, as a temporary measure, gave all black families a choice in circumstances where a member of the family dies intestate and the estate is not governed by the principles of customary law. The choice was achieved by giving immediate effect to the invalidation of Section 23(7)(a) but suspending the declaration of invalidity in respect of Regulation 3(1) for two years.
During December 2002 the appropriate legislation was duly put in place with an effective date of 5 December 2002. The Administration of Estates Act was amended to now regulate the estates of all persons which are not governed by Customary Law and Regulation 3 (1) under the Black Administration Act now reads:
“All the property in any estate falling within the purview of Regulation 2(e) shall be administered in terms of the principles of customary law and the provisions of these regulations, and all other property shall be administered under the jurisdiction of the Master of the High Court in terms of the provisions of the Administration of Estates Act, 1965 (Act No. 66 of 1965)”