EXPLANATORY NOTES

1. Background

Before the Moseneke case (see below), section 23(7)(a) of the Black Administration Act, 1927 (Act 38 of 1927), read with regulation 3 of the regulations made under section 23(10) of the Act, had the effect that the Master has the power to administer all estates except for black intestate estates which must be administered by a magistrate.

In Moseneke and Others V The Master and Another 2001 (2) Sa 18 (CC) the Constitutional Court declared section 23(7)(a) of the Black Administration Act, 1927 (Act 38 of 1927), invalid with immediate effect. The Court also declared regulation 3(1) of the regulations made under this Act invalid but suspended the order of invalidity until 6 December 2002 to give the Minister time to amend the offending legislation. In the interim the regulation should be interpreted so that beneficiaries of an intestate black estate had a choice to report the estate to either a magistrate or the Master. The Court emphasized that the decision deals only with black intestate estates that devolve according to common law and not those that devolve according to customary law (the Court did not consider the validity of the provisions concerning the reporting of Intestate black estates that devolve according to customary law but indications are that these provisions will also be unconstitutional).

In view of the time available and the fact that the South African Law Commission has almost finalized its investigation into the customary law of succession, which will in all probability result in an amendment of the Black Administration Act, it has been decided to at this time only effect the amendments necessary to comply with the Constitutional Court's decision.

2.1 Draft regulation 1: Definitions

This draft regulation contains the reference to the regulations to be amended.

2.2 Draft regulation 2: Amendment of regulation 2

The deletion of paragraph (a) of this regulation results from the deletion of regulation 3(1) in draft regulation 3 and since the Administration of Estates Act, 1965 (Act 66 of 1965), contains sufficient measures to deal with foreign estates.

Paragraph (e) of regulation 2 is amended to remove the reference to paragraph (a), which is to be deleted.

2.3 Draft regulation 3: Amendment of regulation 3

Subregulation (1) of regulation 3 is deleted in accordance with the decision of the Constitutional Court.

2.4 Draft regulation 4: Amendment of regulation 4

Subregulation (1) of regulation 4 is amended to only refer to estates that devolve according to customary law, namely the estates referred to in paragraph (e) of regulation 2. The estates referred to in paragraphs (b), (c) and (d) devolve according to common law and must be administered by the Master in accordance with the implications of the decision of the Constitutional Court. As mentioned the estates referred to in paragraph (a), foreign estates, will be dealt with by the Master.

2.5 Draft regulation 5: Amendment of regulation 6

Regulation 6 is amended to ensure that estates of employed persons devolving in accordance with common law is administered by the Master and not by a magistrate in accordance with the implications of the decision of the Constitutional Court.

2.6 Draft regulation 6: Deletion of regulation 9

This amendment removes the discretion of the Master to appoint a magistrate in his or her official capacity as executor in an estate which devolves according to common law, as it could be argued that such an appointment is contrary to the implications of the decision of the Constitutional Court and, acting as an executor is not and should not be an official function of magistrates.

2.7 Draft regulation 7: Commencement

In terms of this draft regulation the amendment will come into effect on 5 December 2002.