Page 30 - SAReform Book

28 Reform of Customary Marriage, Divorce and Succession in SA
Fifthly, there is no official verification of the evaluation of estates. The findings show evidence of the under-valuing of estates. This process under- mines the jurisdiction of the Master’s office in administering estates. The problem is aggravated by the absence of oversight by the Master for the administration of estates under a letter of authority beyond the grant of this letter mentioned above. The Master and his or her officials responsible for administering estates should, therefore, be made aware of this problem, and they should ask questions about how property is evaluated in specific cases.
Finally, the majority of estates administered outside the official enclave of the Master’s office by the family do not comply with the new rules. There is widespread ignorance concerning the Bhe rules among participants, as well as a lack of capacity to mobilise legal rules and procedures. As a result the ghosts of customary practices of succession linger. We therefore suggest that decen- tralising the process of administration would ease the burden on the family members who administer and distribute the deceased estate. In this respect, we recommend that traditional leaders be trained and used to ensure that the estate is administered according to the Bhe rules. If traditional leaders are given the right to issue letters of authority and the state provides training for these leaders (to ensure that they appoint the correct heir), this could speed up the process and make it easier for people to administer their estates within structures with which they identify in local settings. It would also reduce the possibility of the holder of the letter of authority abusing his or her powers and distributing the estate as he or she pleases, away from the eye of the Master or magistrate. The traditional leader would be right there to ensure that the appointee follows the rules of distribution. However, families should continue to have the right to have the letter of authority issued by the service point or the Master’s office if he or she wishes.
Furthermore, in order to ensure that the proposed system operates effi- ciently, we recommend the establishment of appropriate monitoring mecha- nisms. We also recommend the use of pilot projects with selected traditional leaders to implement the decentralised system for a number of years before launching the system nationally.
In conjunction with the proposed decentralisation of the estate administra- tion process, the state should embark on an active public training and aware- ness campaign to highlight the relevant changes in the customary law of succession.
3.7 Dispute resolution forums
Much has already been said about dispute resolution in the courts with regard to the dissolution of marriages. It is therefore not necessary to go into great detail about this aspect of dispute resolution here. This section focuses on the combined effect of the challenges connected to the fact that few family disputes are resolved in the courts, on the one hand, and the ineffectiveness of informal dispute resolution forums, on the other.
3.7.1 The challenge of family disputes not being resolved in the courts
As already stated, the informal regulation of marriage dissolution has contin- ued, and challenges the aims and objectives of the RCMA. Our research found