The Constitutional Court's decision of Bhe and Others v Magistrate Khayelitsha and Others 2005 (1) SA 580 handed down on 15 October 2004 declared Section 23 of the Black Administration Act 38 of 1927 and Regulation Notice 10601 of 6 February 1987 unconstitutional. This impacted on the future administration of black estates and the practice pertaining to the conveyance of immovable property emanating from a deceased black estate.
It has not endeavoured to discuss, in detail, how the estates of black persons who died intestate have to be administered, but merely to provide a guide on what procedure must be followed, given the date of death of the deceased.
2. Summary of the Bhe decision
Briefly the following was held:
- Section 23 of the Black Administrtion Act 38 of 1927 has been repealed with retrospective effect to 27 April 1994.
- Magistrates will no longer have the authority to administer black intestate estates.
- All estates, irrespective of race, colour or creed, will be administered by the Master of the High Court in terms of the Administration of Estates Act, 66 of 1965.
- The order of the court in respect of the administration of estates is not made retrospective, thus estates currently being administered by the magistrate in terms of Section 23 of the Black Administration Act will continue being administered by those magistrates. However, the customary rules of intestate succession should not be adhered to and the magistrate must apply the provisions of the Intestate Succession Act 81 of 1987.
- Although the provisions of Section 23 have been repealed with retrospective effect, this will not apply to completed transfers of ownership, except where an heir had notice of a challenge to the legal validity of the statutory provisions and the customary law rule of male primogeniture. How the challenge will be put into effect is for the courts to decide and only the future will tell.
- In polygamous marriages, each spouse will be entitled to R125 000 or a child's share (see Clause 3.4 infra)
3.1 Where the deceased died prior to 27 April 1994
The Master of the High Court has decided that, for practical reasons, these estates must be referred to the Master and must be administered according to the Black Administration Act 38 of 1927, and the regulations promulgated thereunder.
3.2 Where the deceased died after 27 April 1994
The Master of the High Court must administer all deceased estates where the deceased died after 27 April 1994. The estates will be administered in terms of the Administration of Estates Act 66 of 1965 and the Intestate Succession Act 81 of 1987.
3.3 Where a deceased died after 27 April 1994 but before 15 October 2004
Where a black person died after 27 April 1994, but before 15 October 2004 and such estate was reported to the Magistrate, such magistrate must finalize the estate, but the estate must be administered in terms of the Intestate Succession Act, read in conjunction with the Bhe decision.
However, where the estate has already been wound up, in terms of the Black Administration Act and the regulations promulgated thereunder, the delivery of all assets will devolve in terms thereof, unless a dispute by an heir is made.
3.4 Where a deceased died after 15 October 2004
Such an estate must be administered in terms of the Administration of Estates Act 66 of 1965 and the Intestate Succession Act 81 or 1987.
3.5 Intestate Succession of Polygamous Customary Marriages
When the deceased was a husband in a polygamous customary union, the portion of the surviving wives must be determined as follows:
- When the deceased is survived by wives but not survived by any descendants, the estate is divided equally between the wives.
- When the deceased is survived by wives and descendants, each surviving wife is entitled to a child's share or R125 000, whichever is the greater. Where the estate is not large enough to pay each surviving wife at least R125 000, the estate is distributed equally between the wives.
- A child's share is calculated by adding the number of children surviving the husband (and predeceased children survived by descendants) to the number of surviving wives.
4. Effect of the Bhe decision on the deeds office practice and procedure
4.1 Deceased died prior to 27 April 1994
Where a deceased died prior to 27 April 1994, his/her estate would have been wound up in terms of the Black Administration Act 38 of 1927 and the regulations promulgated thereunder.
Practitioners preparing deeds and documents for lodgement in a deeds registry must follow the following practice:
Drafting the causa
The causa of the deed will reflect who is entitled to receive transfer of the land in question as referred to in the Regulation 4(2) certificate issued by the magistrate concerned, or if the provisions of Act 81 of 1987 were utilized, the conventional causa, as per the discussion infra must be applied.
Where the estate was administered in terms of Act 38 of 1927, the causa should read as follows:
And the appearer declared that the said deceased died intestate on ............................
And whereas the estate is being administered in terms of the regulations of Act 38 of 1927, in terms of which the hereinmentioned transferee is entitled to the hereinmentioned property in terms of the approval of the magistrate issued in terms of regulation 4(2) of Act 38 of 1927.
Now therefore ........................................."
Where the property is an asset in a joint estate, the causa will obviously have to reflect that, if the surviving spouse is receiving the whole of the property, he/she is entitled to a half share by virtue of his/her marriage in community of property to the deceased.
Deeds Office Requirements for Estates Administered in terms of Act 38 of 1927:
(i) The Regulation 4(2) certificate by the magistrate must be lodged, or endorsed on the power of attorney.
(ii) No proof of intestacy or intestate heirs needs to be lodged.
(iii) The balance for distribution need not be proved.
(iv) Any open bonds must be lodged for disposal.
(v) If the property forms an asset in a joint estate, and the surviving spouse is entitled to the lands as a whole, the provisions of Section 45 of Act 47 of 1937 could possibly be made use of.
(vi) The appointment of the representative need not be lodged, as the preparer accepts responsibility for such an appointment (see the definition of executor read with Regulation 44A(c) in Act 47 of 1937).
(vii) Proof that the deceased was not registered for VAT must also be lodged. However, if it is leasehold being transferred, no proof needs to be lodged.
4.2 Deceased died after 27 April 1994 but before 15 October 2004
Where the estate was wound up in terms of the Black Administration Act 38 of 1927, the procedure as referred to in paragraph 4.1 supra will be followed.
Where the estate was reported to the magistrate, but the magistrate applied the provisions of the Intestate Succession Act 81 of 1987, read in conjunction with the Administration of Estates Act 66 of 1965, the procedure in clause 4.3 infra will have to be followed.
4.3 Deceased died after 15 October 2004
4.3.1 Supporting documents to be lodged:
(i) A conveyancer's certificate in terms of Section 42(1) of the Administration of Estates Act of 1965 to the effect that the transfer is in accordance with the liquidation and distribution account, unless the estate is administered in terms of Section 18(3)
(ii) A copy of any waiver or repudiation of an inheritance or legacy as proof of such waiver or repudiation.
(iii) If the heirs entered into a redistribution agreement, a copy thereof must be lodged to determine whether the terms of such an agreement have been complied with. The complete facts must be mentioned in the recital of the deed.
(iv) If it is alleged that one of the heirs is deceased, his death must be proved (death notice or death certificate). If the deceased left descendants who can inherit in terms of the will, such descendants must be proved by way of an affidavit or next of kin or death notice.
(v) Proof that the deceased did in fact die intestate. This fact must be proved by lodging a death notice.
(vi) Proof must also be lodged that the person or persons to whom the land is to be transferred are in fact the deceased's intestate heirs. An affidavit of next of kin or death notice is necessary to prove the intestate heirs of a deceased (see RCR 5.1.29/96).
The following must also be proved:
(a) That the deceased and his alleged spouse were in fact married. A marriage certificate or affidavit from the surviving spouse must be lodged. In respect of customary marriages, the registration certificate is necessary.
(b) The balance of the estate is available for distribution. A certified copy of the liquidation and distribution account certified a true copy of the original will prove sufficient evidence in this regard.
(c) Proof is also necessary as to whether or not the deceased has descendants that are entitled to inheritance ab intestatio from him. A certificate of next of kin will provide proof of this fact.
(d) Transfer duty is not payable on land which is acquired by intestate succession, or as a result of a redistribution of assets in a deceased estate (Section 9(i)(e)(i) of Act 40 of 1949). However, proof must be lodged that the deceased was not registered for VAT (see discussion supra).
4.3.2 Where the Estate is administered in terms of Section 18(3) of the Administration of Estates Act 66 of 1965
The documents referred to in 4.3.1 must be lodged with the exception of:
(i) The Regulation 42(1) certificate from the conveyancer.
(ii) The liquidation and distribution agreement.
In such an instance the preamble of the deed will refer to the representative and not the executor.
4.4 Drafting of causa
The circumstances pertaining to each inheritance will determine how the causa of the deed of transfer should be drafted. The following information, if applicable, should be mentioned:
(i) The date of death of the testator - the date of death of the testator is important, as this represents the date on which the rights to the inheritance devolved on the heir.
(ii) The way in which the land devolves - it should be mentioned that the land devolves intestate and the particular section of the Intestate Succession Act should then also be mentioned.
(iii) A short explanation why the inheritance devolves on the transferee - If the inheritance is transferred to any person(s) other than those on whom the right initially devolved, or in another proportion than that in which the right initially devolved on them, an explanation is required, e.g. redistribution agreements, renunciations of an inheritance, heirs who died before the testator, massing of estates, adiation, etc.
(iv) Transfer from a massed estate - Should any of the exceptions to Section 21 of the Deeds Registries Act apply, the causa should indicate that the transfer is on behalf of the joint estate (see the provisions of Regulation 50(2)(c).
Republished with permission from the SA Deeds Journal