4 UNDERAGE HEIRS

If an heir happens to be too young, the estate must be administered for him until he is old enough to assume full adult responsibility. In customary law, the person who acts as administrator, and at the same time as guardian of the heir, is determined according to certain well-recognized principles. In polygynous families a minor heir of any house is subject to the deceased's highest ranking major son (who is most likely to be the heir's oldest step-brother). In monogamous families or in situations where all a deceased's descendants are too young, the estate is administered by one of the deceased's brothers or by his father.

The courts have supported these rules. By implication, therefore, they do not allow an individual freedom to appoint whomever he chooses as an administrator/guardian (although, as we shall see below, he may do so by executing a will). Only in KwaZuluNatal have the customary rules been changed. Here the heir's mother may become his guardian.^[11]

The administrator does not act as a mere agent for the heir. As a member of the deceased's immediate family, he has a personal interest in the estate. At the same time, however, his powers of administration are subject to the family's interests. Thus, before disposing of property, the administrator should take care to consult the widow, the deceased's close male relatives and the heir (if old enough). The legal effects of failure to consult, however, are obscure. Would a transfer of property or a contract be deemed void (or voidable) at the instance of one of the interested parties?

Customary law, in fact, has little to say about administrators who do not perform their duties. Accordingly, the courts have intervened to give a limited range of remedies. These include an order for recovery of property that has been alienated, a declaration of rights and, in the last resort, an order removing the administrator from office. These actions are available mainly to the heir (although presumably the widow too). If the heir is not capable of suing alone, a senior male relative of the deceased may act on his behalf or the court may appoint a curator ad litem.

Does the law provide the heir (and other family dependants) with sufficient protection against administrators who act negligently or fraudulently?

[11] Section 29(1) of the Codes (Proc R151 of 1987 and KwaZulu Act 16 of 1985).

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