Administration of Estates Amendment Bill: Deliberations

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Justice and Correctional Services

30 May 2001
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Meeting Summary

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Meeting report

30 May 2001

Chairperson: Adv de Lange

Relevant Documents :
Administration of Estates Amendment Bill


The Committee voted on two protocols to the International Convention on Political and Civil Rights. The Chairperson alluded to the Criminal Procedure Amendment Bill, saying that this matter would be left for discussion at a later date. Adv de Lange raised the issue of the suspended magistrate. He said that this matter should not be considered by the Committee and insisted that he would make a concerted effort to have the matter removed from the Committee's agenda.

The Committee focused on the Administration of Estates Amendment Bill. The Bill was discussed in its entirety and few significant amendments were suggested. The original Act must be amended to make the South African Administration of Estates Act applicable in the former TBVC states. The amendments are also needed to bring the Act in line with certain rationalisation measures that will be instituted. A number of amendments were purely technical in nature.


Convention on Political and Civil Rights

The Committee voted on two optional protocols on the Convention on Political and Civil Rights. The first protocol concerned the protection of political and civil rights. All ANC representatives present voted for the inclusion of the protocol while all the opposition representatives abstained.

The second protocol concerned the abolition of the death penalty. Again all ANC members voted for all the inclusion of the protocol. Five out of six opposition parties abstained while one opposition member, namely Mr S N Swart (ACDP), voted against the inclusion of the protocol.

Suspended Magistrate

Adv de Lange explained that he had had a meeting with the Magistrates Commission with regards to the suspended magistrate, after which he felt that the matter had been improperly dealt with. He said that the procedure dealing with the issue displayed irregularities. Adv de Lange said he would move to have the matter removed from the Committee's agenda.

Criminal Procedure Amendment Bill

This Bill dealt with the matter of juvenile detention. Adv de Lange said that this Bill was the first to be introduced by a Committee. Adv de Lange said that he had sent a letter to the Minister of Social Development and that the proceedings would be initiated at a later stage

Administration of Estates Amendment Bill

Many of the clauses were unproblematic. Clauses that warranted discussion are mentioned below.

Mr de Lange discussed a letter by Dr P M Maduna. The letter indicated that certain pieces of legislation are not included in the Justice Laws Rationalisation Act due to sensitivities and complexities. This Act now faces the same rationalisation that other Acts had previously undergone. The letter also spoke of the need for a single Administration of Estates Act.

Adv de Lange said that the manner in which the issue was being dealt with, was not ideal but that the subject matter was in need of immediate attention.

Mr Labuschagne , State Law Advisor and member of the drafting team, said that when the TBVC states became independent, they borrowed from the South African Act, but did in fact have their own Administration of Estates Acts. He said that these Acts had to be repealed and the South African Act made to apply in those areas where separate Acts had been applied in the past.

Clause 2

Adv de Lange explained that clause 2 is problematic. This problem was as a result of the fact that the courts had not yet been rationalised. This clause provided for the appointment of masters for all High Courts. Adv de Lange pointed out that in terms of the Constitution, all courts, whether they were provincial or local divisions, would now become known as High Courts. The original Act provided for the appointment of masters for all Provincial Divisions, but the amendment spoke only of the "High Court".

All Courts would be High Courts with no distinction between Provincial and Local Divisions. Many of the former Local Divisions did not have masters. According to clause 2, masters would have to be appointed for all the new High Courts of equal status. This would create problems of practicality and jurisdiction.

Clause 4

The problem in clause 2 is presented again in clause 4. Clause 4 purports to amend s 12 of the original Act. Adv de Lange suggested that perhaps the drafters should give "High Court" a specific definition applicable within the confines of this Act.

Clause 9

Clause 9 purports to amend s 28 of the original Act. An amount changes from R100 to R1000. This amount relates to the minimum amount of money that would oblige an executor to open a cheque account. Adv de Lange enquired as to whether the increase was sizeable enough in light of the consumer price index and other relevant considerations. The issue of bank charges were also discussed. It was suggested that R1000 would be exhausted by bank charges and hence was too small.

It was also suggested that the since the Bill did not specify a cheque account, there should be a wider discretion as to what form of account could be opened.

Clause 10

Clause 10 amends s 34 of the Act and also seeks to raise an amount of money stipulated. This clause raises the minimum sum of money that a creditor can claim for, from R100 to R1000.

Adv de Lange asked to what extent the changing of amounts in this Act would affect amounts that could be found in other Acts.

Mr Labuschagne said that the schedule in the Bill provided for these matters and brought other legislation, such as the Insolvency Act, into line with the new legislation.

Dr J T Delport (DP) remarked that he was not pleased with a schedule in one Act making substantial changes in other Acts. Adv de Lange agreed but said that he was not sure whether this situation could be avoided.

Mr J H Jeffrey asked who had been consulted in relation to the changing of this amount. Mr Labuschagne said that the drafters had consulted the Insolvency Practitioners Association. He said that this body had replied saying they had no detailed comments since they felt that the change in legislation would not affect them.

Clause 17

This clause was flagged, as it too was subject to the problem experienced in clause 2.

Clause 21

Clause 21 extended the application of the Act to the TBVC states. Mr Labuschagne explained that when the TBVC states became independent, they adopted pieces of the South African Act and included these pieces into their own Acts. Now under the new structure, jurisdiction problems were being experienced, in turn calling for rationalisation through the bringing into application of one Administration of Estates Act.

Clause 22

Adv de Lange wanted to know the effect of Clause 22(1)(a).

Mr Labuschagne said that the 1993 Act had a similar provision. Essentially the clause provides that estates which existed before the coming into force of the Act would still be subject to the Act under which that estate was formed. So only estates which are formed after the coming into force of the Act would have the new law applying to it.

The meeting was then adjourned.


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