ProBono.Org
The unresolved estates’ crisis
Earlier in the year ProBono.Org was invited to meet Magistrate Lamprecht at the Family Court in downtown Johannesburg.After offering us tea, Lamprecht began to tell us about a problem she was facing. She opened a doorway on the side of her office, and invited us to take a look. What we saw was a room lined with bookshelves and thousands and thousands of files – about 15 000 in all. They were the old fashioned khaki soft files that you find in many courts, only these ones dated back to the 1980s.
Lamprecht told us that they are all unresolved black estate files, some from Soweto, others the old East and West Rand administration boards. She was not sure what was in the files but knew that they were never closed or finalised. She wanted to see if ProBono.Org could assist her in checking what was in each file.
She was not sure why these files were stacked as they were, in the shelves on the side of her office and not dealt with. Some officials at her court, she told us, believed that after the Bhe Constitutional Court judgment of 2004 the files should have been sent to the Master of the High Court, because the judgment held that the administration of all estates, black and white, ought to be the same. Up until that judgment black estates were administered by magistrates, and white estates by the Master of the High Court.
But the judgment was not retrospective. So estates that were currently being administered by magistrates in terms of section 23 of the Black Administration Act could continue to be administered by those magistrates. From the date of the judgment, new estates were be administered by the Master of the High Court in terms of the Administration of Estates Act.
But these estates, all 15 000 of them, were not finalised as they ought to have been. Perhaps, she said, officials mistakenly sent them to the Johannesburg Magistrate’s Court from other magistrates courts that had been administering them instead of to the High Court. She wasn’t sure what had happened.
The consequence of the non-finalisation of these estates has led to on-going conflicts and uncertainty among heirs many of whom we see at our offices. Almost all these estates contain very little except for one major asset – a house. Heirs come forward many years after a parent has died, sometimes two decades later, with a highly charged dispute on their hands. Perhaps someone has fraudulently managed to obtain the title deeds and now the true heir, possibly a child of the deceased, is facing eviction.
Sometimes the person trying to evict the true heir, is the heir’s own relative. Take for example the case of Ms C. She was the daughter of Mr C. Mr C and his wife had died years ago, but their estate was never finalised. One day, Ms C was faced with an eviction order. The person evicting her was her own brother. He had, unbeknown to her, wound up his father’s estate, obtained title of the house and was now evicting her and her two small children. Because the estate was never finalised, and she was unaware of the legalities, she had continued to live in the house uninterrupted for many years. Her brother who had moved out and married, managed to persuade a magistrate that he was the sole heir, and to make an order that he be given the title deeds of the house.
There are other complications in regard to these incomplete estates.
As apartheid crumbled, the South African state enacted a series of overlapping processes aimed at privatising government owned residential housing stock. Houses that had been rented to tenants through the male head of household permit holder, were to be transferred to that permit holder. The transfers took place from around 1990 onwards.
Now, decades later, we see that as an increasing number of original permit holders have died, disputes over the legitimate ownership of these houses have become intense. For instance, we have a case where the father was the original title holder of a Certificate of Occupation during the apartheid years. On his death the next permit holder was his wife. She too passed away, with the next holders being the son and daughter. The son left Johannesburg many years ago, and his sister, the daughter lived in the house. But the estate was never finalised, and she has no title or documented rights. She lives with the uncertainty that her brother (or members of his family) could lay claim to the house at any time. Were the estate to have been finalised, the only asset, being the house would have been transferred into the names of the two siblings, or possibly the son could have been paid out by the daughter. Whatever would have happened there would have been more certainty than there is at the moment.
The lack of finality in these estate files means that thousands of people live in houses in the old “township” areas around Johannesburg without knowing how to acquire title of the houses, without being able to leave these houses to their heirs, without being able to sell these houses, and without being able to use these houses as collateral to raise loans and finance. All in all the housing market is sterilised and there is an enormous amount of insecurity and conflict that arises, and in many cases among family members.
ProBono.Org has started a conversation with the relevant officials at the court and with private pro bono lawyers to see if there is a practical and efficient manner in which to finalise these estates. This is not going to be an easy task, as each file will require its own investigation. It is however a job that has to be undertaken.
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