Ruling by Constitutional Court in Bhe and Others v Magistrate Khayelitsha Magistrate and Others, Case No. 49/03

The Constitutional Court’s decision of Bhe and Others v Magistrate Khayelitsha Magistrate and Others, Case No. 49/03 handed down on 15 October 2004 declared Section 23 of the Black Administration Act 38 of 1927 and Regulation R200 as amended of the regulations published in Government Notice 10601 of 6 February 1987 unconstitutional.

The decision requires that the Department of Justice design and implement a system for the supervision of the administration of deceased estates that complies with the spirit of the Constitution.

The new system requires the following changes:

  1. The Master of the High Court will take over the powers of supervision in all deceased estates.

  2. All estates will be administered in terms of the Administration of Estates Act 66 of 1965, as amended.

  3. All intestate estates will be administered in terms of the intestate Succession Act 81 of 1987, as amended.

  4. The Intestate Succession Act is supplemented by the Bhe-decision to accommodate cases where the deceased was married in terms of customary law.

  5. The Magistrates lose their powers to supervise and administer deceased estates. They will however be required to finalise matters reported to them on or before 15 October 2004. They must, however, finalise these estates in terms of the Intestate Succession Act.

  6. Magistrate offices will, however, remain designated service points of the Master with limited jurisdiction. The following estates will be transferred to the Master's office, namely:

    • Estates with wills

    • Estates with a value of more than R50 000,00

    • Insolvent estates

    • Estates where one or more of the beneficiaries are minors and is not assisted by a legal guardian and the cash assets in the estate is worth more than R20 000,00.

11/11/2004