Page 29 - SAReform Book

Summary Research Report 27 3.6.2 Negative findings
Notwithstanding the positive findings above, there are major shortcomings in addressing cases of intestate succession in black estates under the Bhe rules.
First, how some estates are distributed in practice beyond the letter of appointment of the administrator is not addressed in the state’s current proce- dures for the administration of estates. We recommend that the Master should have oversight of the administration of the estate beyond the point of appoint- ment of the administrator, to ensure that the family does not deviate from the Bhe rules at any point in the process of the administration of the estate.
Secondly, there is considerable delay in the transmission of records from service points (magistrates) to the Master’s office for purposes of review. During this time, there is the risk that the person who receives the letter of authority at the service point could distribute the property as he or she sees fit without regard to the Bhe rules. There is, therefore, a need to shorten this period; court returns should be made every month, and the returns should be examined by relevant officials upon receipt.
Thirdly, the practice of requiring production of the deceased’s marriage certificate for purposes of administering his or her estate plays a gate-keeping role that cannot be justified by the law. This is because the absence of a marriage certificate does not indicate that a valid marriage does not exist; the RCMA does not require registration of the marriage to validate the marriage. Though innovative and useful, the alternative practices used to prove the existence of a marriage in the absence of marriage certificate, such as lobolo letters or family meetings called to confirm the existence of the marriage, are not foolproof either. Their objectivity cannot be guaranteed, and they can therefore not be relied upon to safeguard the interests of beneficiaries to the estate when the existence of the marriage is disputed. We therefore recom- mend that the referral of disputed marriages to the courts by the Master for the purpose of determining their validity should be actively promoted, and the courts must be equipped to deal with these matters expeditiously. As some parties whose marriage disputes are referred to the courts do not go back to the Master’s office to complete the administration of the estate, the courts to which these disputes have been referred must proactively assist the parties to go back to the Master’s office to complete the process of administration of the estate.
Fourthly, the Bhe rules do not recognise the right of dependent parents or relatives other than members of the nuclear family of the deceased to support from the estate. Our findings show that not placing parents or other deserving family members among priority beneficiaries to the estate is too narrow an approach to support the acceptance of Bhe by those for whose benefit it is intended. The aged parents are often ‘dependants’ and they could be as badly off as the surviving spouse and children. This narrow concept of family and heirs is in practice not consonant with the needs of the wider family. There is therefore a need to consider this issue seriously in the application of the succession rules under any law to the estates of black people who still subscribe to the notion of the extended family.