9 ADMINISTRATION OF ESTATES

(1) According to customary law

If an estate devolves by customary law, it is administered by the same system.^[29] In practice, this means that the deceased's family gathers at the ceremony at which the spirit is laid to rest in order to determine his assets and liabilities and to confirm the identity of the heir. Further actions by creditors will be against the heir, as successor to the deceased.

Unless a dispute arises about who is to be heir, no outside authority will intervene. When the family cannot agree on the heir, however, aggrieved parties may ask a magistrate to hold an inquiry. As a result of this investigation, the magistrate may decide how the estate is to be distributed.^[30] Because this inquiry is considered to be administrative, not judicial, no appeal lies against the decision.

(2) Under supervision of a magistrate

The supervision of a magistrate becomes necessary in two situations: if an estate contains immovable property or if it is to devolve under the common-law system of intestate succession. In the first situation, the magistrate's role is limited to appointing a representative to arrange transfer of the immovables. In the second situation, however, the magistrate is responsible for supervising the entire administration process.

Hence, where an estate devolves according to common law, a magistrate of the district in which the deceased ordinarily resided begins by appointing someone as a `representative' of the estate.^[31] This official (whose functions are modelled on those of an executor) must then arrange for payment of estate debts, collection of assets and the final distribution.^[32] Although magistrates usually consult the deceased's relatives when appointing a representative, the appointment (or dismissal) is entirely a matter of magisterial discretion (as is the decision whether representatives should furnish security and account for their administration).

Whenever an estate includes immovable property, the magistrate must provide the representative with a certificate of appointment, which gives the necessary authority to receive and transfer the property to the heir(s). In addition, for the benefit of the Registrar of Deeds, magistrates normally issue certificates identifying the heir(s) and indicating who will inherit what proportions of the estate.

(3) Under supervision of the Master

Estates devised by will must administered under supervision of the Master of the High Court.^[33] If an estate is partially testate and partially intestate, the intestate portion, which would include house property or land held under quitrent tenure,^[34] must be administered by customary law.^[35]

The main question posed by these three systems of administration is whether appropriate criteria are being used to determine which type of administration to apply. (And the Law Commission would be interested to know how efficiently the present system works.) As the law stands, the principal criteria for involving staff of a magistrate's court or the Master's office are whether the common law governs succession and whether the estate includes immovable property. Presumably, in the interests of speed and economy, however, court officials need to become involved only if the estate is a substantial one or legal difficulties seem likely. Small estates, and those where the family is in general agreement on the heir and the assets, could be administered informally by the family concerned.

[29] Section 23(1) of the Black Administration Act 38 of 1927.

[30] Customary law still applies, since the magistrate has no authority to direct application of the common law: s 3(2) of GN R200 of 1987.

[31] Who has full power to represent the estate.

[32] Section 4 of GN R200 of 1987.

[33] Section 23(9) of the Black Administration Act. Administration is therefore governed by the Administration of Estates Act 66 of 1965.

[34] Namely, portions of the estate that fall under the provisions of s 23(1) and (2) of the Black Administration Act.

[35] Section 23(7) of the Black Administration Act.

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