General Notice: Constitution of the Republic of South Africa Fourth
REGULATIONS FOR THE ADMINISTRATION AND DISTRIBUTION OF THE ESTATES OF DECEASED BLACKS
The State President has under and, by virtue of the powers vested in him by section 23 (10) of the Black Administration Act, 1927 (Act 38 of 1927), made the regulations set out in the Schedule.
1. In these regulations, unless the context indicates otherwise-
"Act" means the Black Administration Act, 1927 (Act
38 of 1927);
"estate" means the estate of a deceased Black;
"magistrate" includes an additional magistrate, but not a regional magistrate;
"Master" means the Master of the Supreme Court, including a deputy master and an assistant master; and
"Minister" means the Minister of Justice and any officer of the Department of Justice acting under his authority.
2. If a Black dies leaving no valid will, so much of his property, including immovable property, as does not fall within the purview of subsection (1) or subsection (2) of section 23 of the Act shall be distributed in the manner following:
(a) if the deceased was, during his lifetime, ordinarily resident in any territory outside the Republic other' than Mozambique, all movable assets in his estate after payment of such claims as may be found to be due shall be forwarded to the officer administering the district or area in which the deceased was ordinarily resident for disposal by him.
(b) If the deceased was at the time of his death the holder of a letter of exemption issued under the provisions of section 31 of the Act, exempting him from the operation of the Code of Zulu Law, the property shall devolve as if he had been a European.
(c) If the deceased, at the time of his death was-.
(i) a partner in a marriage in community of property or under antenuptial contract; or
(ii) a widower, widow or divorcee, as the case may be, of a marriage in community of property or under antenuptial contract and was not survived by a partner to a customary union entered into subsequent to the dissolution of such marriage,
the property shall devolve as if the deceased had been a European.
(d) When any deceased Black Is survived by any partner-
(i) with whom he had contracted a marriage which, in terms of subsection (6) of section 22 of the Act, had not produced the legal consequences of a marriage in community of property; or
(ii) with whom he had entered into a customary union; or
(iii) who was at the time of his death living with him as his putative spouse;
or by any issue of himself and any such partner, and the circumstances are such as in the opinion of the Minister to render the application of Black law and custom to the devolution of the whole, or some part, of his property inequitable or inappropriate, the Minister may direct that the said property or the said part thereof, as the case may be, shall devolve as if the said Black and the said partner had been lawfully married out of community of property, whether or not such was in fact the case, and as if the said Black had been a European.
(e) If the deceased does not fall into any of the classes described in paragraphs (a), (b), (c) and (d), the, property shall be distributed according to Black law and custom.
3. (1) All the property in any estate falling within the purview of paragraphs (a), (b), (c) and (d) of regulation 2 of these regulations shall be administered under the supervision of the magistrate in whose area of jurisdiction the deceased ordinarily resided and such magistrate shall give such directions in regard to the distribution thereof as shall seem to him fit and shall take all steps necessary to ensure that the provisions of the Act and of these regulations are complied with.
(2) Whenever it appears to the magistrate in whose area of jurisdiction any deceased Black ordinarily resided or, in the case of immovable property, to the magistrate in whose area of jurisdiction such property is situated, that it is necessary, in connection with the distribution of any property in the estate of Black falling within he purview of subsection (1) or subsection (2) of section 23 of the Act or of paragraph (e) of regulation 2, that an inquiry should be instituted to determine the person or persons entitled to such property, such magistrate may call before him any person who may be able to provide information in regard to the proper distribution of such property and, after hearing such persons as be may consider necessary, shall give such directions in regard to the distribution of such property as shall seem to him fit to ensure that the provisions of the Act and of these regulations are complied with.
(3) Any person called or summoned before a magistrate as provided
for in subregulation (2) who-
(i) having received written notice from such magistrate to appear before him, refuses or neglects without lawful excuse so to appear at the time and place and on the date fixed in such notice by the magistrate for such purpose; or
(ii) neglects or refuses to answer any question put to him by such magistrate which he could legally have been required to answer had he been a witness in a criminal case,
shall be guilty of an offence.
4. (1) For the administration and distribution of any property
in the estate of a deceased Black referred to in regulation 2 the appointment
of an executor shall not be necessary:
Provided that whenever the magistrate in whose area of jurisdiction the deceased Black ordinarily resided considers it desirable, he may issue a certificate to any person whom he may deem suitable, appointing him to represent the estate and to assume responsibility for the payment of debts, the collection of assets and the general administration and distribution of property. Such certificate shall be issued in any case where it is necessary to pass transfer to any person of immovable property, not being land in a location held under quitrent conditions, registered in the name of the deceased.
(2) A person to whom a certificate has been issued under subregulation (1) shall have full power and authority to represent the estate in relation to such property, including power on behalf of the estate and subject to the approval of the magistrate to pass and to receive transfer of immovable property.
(3) The magistrate may require any person to whom a certificate has been issued under subregulation (1) to provide such security for the due and proper administration of such property as the magistrate may deem necessary and to render a just, true and exact account of his administration within such period and at such intervals as the magistrate may prescribe.
(4) Any person failing within the period prescribed to render any account which may be required of him under subregulation (3), or any person who under the provisions of that subregulation renders other than a just, true and exact account, shall be guilty of an offence.
(5) The magistrate may at any time revoke a certificate issued by him to any person under subregulation (1).
5. (1) Whenever a deceased Black leaves a valid will which disposes of any portion of his estate and there is in such estate any such property as is referred to in subsection (1) or subsection (2) of section 23 of the Act the magistrate in whose area of jurisdiction the deceased Black ordinarily resided shall provide the executor of the estate with all such information regarding such property, its value and the realisation thereof, or any portion thereof, as may be necessary.
(2) In the administration of any such estate as is referred to in subregulation (1) the claims of any creditors shall be satisfied from the portion of the estate administered under the Administration of Estates Act, 1965 (Act 66 of 1965), in terms of subsection (9) of section 23 of the Act. Should such portion be insufficient to meet such claims the executor of the estate shall notify the magistrate concerned who shall, in consultation with the executor, cause to be realised as much of the property falling within the purview of the said subsection (1) or subsection (2) as is executable in respect of the deceased's liabilities and as is necessary to meet the balance of such claims. The executor shall thereupon proceed to liquidate the claims and submit his account to the Master in due course.
6. (1) Notwithstanding anything in regulation 3, if a Black in the employ of any person dies without leaving such a will as is referred to in subsection (9) of section 23 of the Act, the magistrate in whose area of jurisdiction such Black was employed immediately prior to his death may collect and realise any asset in, and may enforce any claim belonging to, the estate of such Black.
(2) Such magistrate may from any moneys `collected or realised by him under subregulation (1) pay any preferent claims requiring immediate liquidation against the estate of such Black and, if such Black was domiciled in a district other than the one wherein he was employed, such magistrate shall render a true account of all assets collected by him under subregulation (1) and of any moneys expended by him under this subregulation to the magistrate in whose area of jurisdiction such Black was domiciled.
7. (1) A magistrate, in exercising his functions under the Act or these regulations, may take all such steps as he may consider necessary to safeguard and preserve the inheritance or interests of minors and may deposit the cash inheritance of any minor in the Guardian's Fund, giving at the same time to the Master particulars as to the deceased parent, the date of birth of the minor and the name and address of the guardian.
(2) These regulations do not limit or restrict the exercise by the Supreme Chief of his functions as the upper guardian of Black orphans and minors.
8.(1) Whenever any Black who is the parent of a minor child entitled to claim from that Black any inheritance from the estate of that Black's deceased spouse, being an estate which has been administered under the supervision and control of a magistrate under the provisions of these regulations, wishes to contract a marriage again, that Black shall obtain a certificate under the hand of such magistrate to the effect that arrangements have been made to his satisfaction for the preservation and protection of the inheritance of such minor.
(2) Such certificate shall be delivered to the marriage officer before whom the marriage is intended to be solemnised.
(3) Any such Black who contracts a marriage again without obtaining such a certificate as is required under subregulation (1) and any marriage officer who solemnises any such marriage unless there has first been delivered to him the certificate required by this regulation in respect of the parties shall be guilty of an offence.
9. Whenever it shall appear to the Master in the administration of an estate under subsection (9) of section 23 of the Act that no executor has been appointed, or that the executor testamentary is either unable or unwilling to act, he may, subject to the provisions of section 18 of the Administration of Estates Act, 1965 (Act 66 of 1965), appoint and require the magistrate of the district or area in which the deceased ordinarily resided to act in his official capacity as executor in the estate, but such magistrate shall not be required to find security for the administration of the estate.
10. The Master to whom the death of any person has been reported may call upon the magistrate in whose area of jurisdiction the deceased died or was ordinarily resident to certify whether or not such deceased person was a Black as defined in the Act.
11. Government Notice R. 34 of 7 January 1966, as amended,
is hereby repealed.