FILTERS:

Customary Law estate transfers

4 October 2018

There is a maelstrom of dynamics and relative transitional measures surrounding the aspect of transfer of ownership from an intestate estate of an indigenous person whose marriage was governed by customary law.

These dynamics are extremely crucial in order to have a proper construction and cognition of the relevant deeds practice.

The point of departure is that the deceased might have died testate or intestate.

Testate Succession
If the deceased died testate, obviously the provisions of the will be followed and there has never been any degree of quandary pertaining thereto.

Such estates have always been treated the same as the estates of other racial groups envisaged in the Administration of Estates Act 66 of 1965.

In other words; the Administration of Estates Act 66 of 1965 has always applied without any prohibitions to testate estates of persons governed by indigenous law.

Intestate Succession
However, in the case of intestate succession, there is a plethora of variants and dynamics that determine how the property must devolve and thus the manner of registration.

The date of death is crucial for the purposes of determining the dynamics that are applicable per case.

The date of death is key-critical in this regard.

If the deceased died intestate before 27 April 1994 but the deceased estate was reported after 27 April 1994, the deceased estate will be administered by the Master of the High Court in terms of the laws that were applicable before that date, e.g. Reg 4(1) Proc R200/87. See RCR40/2013.

Most importantly, this means that the relevant deeds will be accompanied by a Certificate of Determination of Heir in terms of Regulation 4(1), and a Certificate of Approval in terms of Section 4(2) Proc R200/87.

If the deceased died between 6 December 2001 and 15 October 2004, the deceased estate can be administered either by the Master of the High Court or the Magistrate.

Court in terms of the Black Administration Act 38 of 1927
If the deceased died after 15 October 2004 the estate will only be administered by the Master in terms of the Administration of Estates Act 66 of 1965.

If the deceased died after 20 September 2010 the estate will be administered by the Master in terms of the Administration of Estates Act 66 of 1965 read with Section 2(1) of the Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009 and the Intestate Succession Act 81 of 1984.

NB: from 6 December 2001-24 November 2014, where the deceased estate was valued under R125 000 the Master would appoint a representative in terms of Section 18(3) Act 66 of 1965.

With effect from 24 November 2014, where the deceased estate is valued under R250 000, the Master may appoint a representative in terms of Section 18(3) Act 66 of 1965.

These letters of authority under S18(3) are not lodged in the Deeds Office. Should they be lodged the examiners in the deeds office will mark them “R” for expungement by the relevant conveyancer.

The transfer ownership may take the form of a Deed of Transfer or a simple Application for endorsement in terms of S45(1) Act 47 of 1937 or Section 39(3) Act 66 of 1965.

The latter only applies to property which is an asset in a joint estate between the transferee and the deceased.

The relevant deed or application must be accompanied by the following documents:

  • Proof of intestacy;
  • Proof of intestate heirs (next of kin affidavit);
  • Certificate of Determination of Heir in terms Regulation 4(1), and a Certificate of Approval in terms of Section 4(2) Proc R200/87 where the deceased estate was reported before 27 April 1994;
  • Conveyancers Certificate in terms of Section 42(1) Act 66 of 1965 in the case of an estate above R250 000 where the person died after 24 November 2014 or in the case of an estate valued R125 000 if the person died before 24 November 2014;
  • Redistribution agreement where applicable; and
  • Any other relevant documents.

Wiseman Bhuqa
Law Lecturer Legal Support & Deeds Training

Reader Comments: 3
H Moller 05/10/2018:

Does it matter whether the value of the estate is a gross value or a net value? What is the situation where a deceased died intestate during 2007 and the estate was only reported during 2016?

Zelna le Roux 05/10/2018:

Good day We do not have a marriage certificate. The wife died intestate. The property was sold and our documents stated that the husband signed as representative in the estate "as surviving spouse" and in his own capacity. The deeds office rejected our documents, calling for proof that the parties were married. The only document we could obtain was the "lobola" letter signed by the families. The deeds office did not want to accept this as proof. What else can we lodge to prove the marriage?

John Christie 09/10/2018:

Thank you, Mr Bhuqa, for this useful article. I have always thought it a great pity that Constitutional Court stepped in here and effectively abolished the law of succession of black law and custom - which the previous dispensation had attempted to preserve in the case of intestate estates.

Submit your comment:
 
Name
EMail
Comments
Security Picture (click to change)
Word shown in picture: