Guardians and Custodians

The Master has no jurisdiction to appoint a guardian or custodian over a minor.

Only the High Court can appoint a person, other than the natural guardian of a minor, as the legal guardian of a minor. Likewise, only the High Court can deprive a natural guardian of guardianship over his or her minor.

As far as custody of a minor is concerned, the Child Care Act, 74 of 1983, provides that the Commissioner for Child Welfare for the district in which the minor is resident, and who is a designated Magistrate, may appoint a custodian over a minor, if after an enquiry, it is found that the minor is a child in need of care. Section 14 of the Child Care Act sets out the circumstances in terms of which a minor is deemed to be in need of care, and includes the situation where a child has no parent or guardian or a child whose parent or guardian cannot be traced.

The custodian which the Commissioner of Child Welfare appoints, is the person who is responsible for the day to day care of the minor. The custodian does however not have the right to administer the assets of the minor.

FAQ's on Guardian's Fund

The Guardian's Fund falls under the administration of the Master of the High Court. It is a fund created to hold and administer funds which are paid to the Master on behalf of various persons known or unknown, for example, minors, persons incapable of managing their own affairs, unborn heirs, missing or absent persons or persons having an interest in the moneys of a usufructuary, fiduciary or fideicommissary nature.  Each Master has its own Guardian's Fund.

The purpose of the Guardian’s Fund is to protect the funds of minors, persons lacking legal competence and capacity, known or unknown, absent as well as untraceable heirs.

It is important to note that money which remains unclaimed in the Guardian’s Fund for a period of 30 years as from the date, upon which the person became entitled to claim it, is forfeited to the state.

1. What happens with the moneys when deposited in the guardian's fund?

  • When the Master receives or accepts any money he / she must open an account in the books of the Guardian's Fund in the name of the person to whom the money belongs or the estate of which that money forms part. If it is not known to whom such money belongs, the account may be opened in the name of the person from whom the money has been received, or the estate from which the money is derived, as the case may be.
  • The money in the Guardian's Fund is invested with the Public Investment Commission and audited annually.

2. What is the position in respect of the payment of interest?

  • Interest is payable on amounts paid into the Guardian’s Fund on behalf of any minor, persons incapable of managing their own affairs, unborn heirs and persons having an interest in the moneys of a usufructuary, fiduciary or fideicommissiary nature.
  • The interest is calculated on a monthly basis at a rate per annum determined from time to time by the Minister of Finance. The interest is compounded monthly.
  • Interest is paid for a period from a month after receipt up to five years after it has become claimable, unless it is legally claimed before such expiration.
  • Current interest rate as from 01 April 2016 is 9%

3. Can I claim any maintenance from the guardian's fund and if, how?

  • A minor account holder as well as a person who cannot look after his / her own affairs can claim maintenance from the Guardian's Fund. The Master is entitled to pay all accrued interest as well as up to R250 000 from the invested capital for maintenance, like school and university fees, clothes, sporting and computer equipment, medical fees, board and lodging and any other needs that can be motivated.
  • Maintenance can be claimed by the guardian / tutor / curator / or person looking after the person of the account holder by way of an application in the form of form J341, supported by quotations and accounts. Payments can be made directly to the service deliverer, like schools, universities, bookshops, etc.

4. When can an account holder claim the invested money and how?

  • Minors
    In the ordinary course a minor can claim the invested money as well as the accrued interest on reaching the age of majority, i.e. on the 18th birthday, marriage or declaration by the High Court of majority. However, a testator can stipulate another age as majority when a beneficiary is entitled to the invested capital, i.e. twenty- five years or even thirty years. (in the latter case interest will only accrue to the age of twenty five years.)

    Money can be claimed by the account holder when entitled by way of an application in the form of form J251, supported by a certified copy of the account holder's identity document / passport / marriage certificate / fingerprints / order of court.

  • Usufructuaries / Fidei commissaries
    Those entitled to the interest can claim the accrued interest on a annual basis after the 31st March of each year by way of a written application giving full particulars of the instrument which created the usufructuary / fidei commissary interest.

    The bare dominium holder can claim the invested capital when entitled thereto (usually after the death of the usufructuary / fidei commissary) by way of an application in the form of form J251, supported by a certified copy of the account holder's identity document / passport.

  • Untraced or undetermined beneficiaries
    Money can be claimed by the account holder when the account comes to their attention and when entitled by way of an application in the form of form J 251, supported by a certified copy of the account holder's identity document / passport.

5. How do payments take place?

  • Money / interest / maintenance is paid by means of a crossed cheque to the payee and posted or by deposit in the payee's banking account.

6. What happens with the money if not claimed in time?

  • After the lapse of a period of five years after the money has become claimable the Master pays the unclaimed money to the Receiver of Revenue Payment Register. This does not mean that the owner of the money cannot claim the money from the Guardian's Fund!
  • However, after the lapse of a period of thirty years after the money has become claimable the money is forfeited to the State.

7. How will I know that I am entitled to money in the guardian's fund?

  • The Master advertises in the Government Gazette every year during September all accounts that have become claimable. Each account is advertised three times.

8. What is the administration costs for account holders?

  • The Master administers all funds in the Guardian's Fund free of charge and no administration cost is paid by account holders.
  • The only commission that the Master claims - and pays over to the Receiver of Revenue - is a 5% commission on dividends paid to the Guardian's Fund by trustees and liquidators on behalf of missing creditors in insolvent estates.

9. Tracing agents

  • A practise whereby persons search the registers of unclaimed monies, seek out the persons entitled thereto and obtain cession of their rights is prohibited by a direction of the Minister of Trade and Industry in terms of the Harmful Business Practice Act 71 of 1988. Notice 69 of 1965 (Government Gazette 16193 of 27 January 1995) declaring unlawful any agreement whereby a person cedes to any person charges, sets off against any debt or alienates in any other manner, his right or title to any claim against the Guardian's Fund. Any person is prohibited for instituting a claim in any Court of law based on such an unlawful agreement. Therefore, if money is claimed on behalf of a person / institution by a trading agent the cheque must still be made payable to the person / institution reflected in our records.
  • No tracers are allowed to collect cheques on behalf of beneficiaries.
  • No posting of cheques will be done.

Follow this link for more forms relating to the Guardian's Fund.