22 April 2020 by Trusts & Estates Alert

Services of the Master of the High Court during lockdown

After declaration of a national lockdown, now extended to the end of April, only essential services, as defined, are permitted to continue operating, albeit subject to certain restrictions and obligations.

On 18 March 2020, regulations were issued under section 27(2) of the Disaster Management Act 57 of 2002 (Act). These regulations dictate that services relating to the “essential functioning” of the Master of the High Court (Master) are essential. The definition is broad and unclear.

On 26 March 2020 the Minister of Justice and Correctional Services issued certain directions in terms of the regulations under the Act. These directions were repealed by a further direction on 31 March 2020 (Directions). The Directions serve to limit the services provided by the Master during the lockdown.

Paragraph 7 of the Directions set out as follows [sic] –

Only the following services in terms of the Administration of Estates Act will be rendered during the lockdown period:

(a) Payments to natural guardians, tutors and curators, or for, and on behalf of, minors and persons under curatorship in the following instances -

(i) Where payments in respect of maintenance and education, which have been approved and payments are made electronically, these payments will continue to be made electronically; and

(ii) only applications for payment, if the quarterly payments have not already been received, for the benefit of child-headed house-holds, orphans and the elderly, will be attended.

(b) Other services in respect of the Administration of Estates Act:

(i) Only documentation required for the burial of a deceased person will be processed; and

(ii) only urgent appointment of curators will be processed.

A media statement, issued on 1 April 2020 by the Department of Justice and Correctional Services, seems to indicate that “urgent appointments in terms of deceased estates” would be processed. The statement, however, refers back to the Directions and therefore, on a reading of both the statement and the Directions, no such appointments in terms of deceased estates will be issued. In practice, this has appeared to be the case.

During this time of confusion and uncertainty, the decision to limit the services provided by the Master will have ripple effects for weeks and months to come. There will certainly be a bottleneck at the Master which will extend the period of uncertainty for those waiting on the services of the Master, particularly in respect of the administration of deceased estates.

Effectively, the administration of deceased estates is put on hold until the lockdown has been lifted and services at the Master are able to resume at full capacity. Families having to cope with the loss of a loved one will now have to deal with the frustrations of an extended process of administration. In addition, beneficiaries of a deceased estate often heavily rely on the inheritance they will receive.

The Legal Practice Council (previously the Law Society of South Africa) has proposed that, inter alia, the Master’s offices be reopened, and all services be restored to avoid compounding the delays of an already strained justice system. This is subject, of course, to social distancing, strict hygiene and minimum staff requirements. This will ensure at least some progress (albeit slower), preventing the inevitable backlog looming ahead, and granting people some relief during these troubled times.

 

download PDF

The information and material published on this website is provided for general purposes only and does not constitute legal advice.

We make every effort to ensure that the content is updated regularly and to offer the most current and accurate information. Please consult one of our lawyers on any specific legal problem or matter.

We accept no responsibility for any loss or damage, whether direct or consequential, which may arise from reliance on the information contained in these pages.

Please refer to the full terms and conditions on the website.

Copyright © 2020 Cliffe Dekker Hofmeyr. All rights reserved. For permission to reproduce an article or publication, please contact us cliffedekkerhofmeyr@cdhlegal.com

You may also be interested in