South Africa's Master of the High Court and the Guardian Fund plays a crucial role in safeguarding the rights and welfare of minors within the context of inheritance law. This blog discusses these institutions historical journey, that reveals a stark contrast between its original exclusionary practices and its modern-day commitment to inclusivity.

Introduction

Societies around the world have long recognised the importance of protecting the rights and well-being of minors, particularly in the realm of inheritance law. In South Africa, the institution responsible for overseeing deceased estates and safeguarding the rights of minors within this context is known as the Master of the High Court. The Guardian Fund, under the management of the Master's Office, serves to safeguard and manage the finances of minors. To truly understand the significance of these institutions and their role in protecting minors, we must delve into their historical backdrop and the institutional framework that has evolved over time.

The Origins of the Master of the High Court

The roots of the Master of the High Court can be traced back to approximately 1673 when it emerged from what was then called the Orphan Chamber or Weesheer. This institution had a primary focus on the well-being of orphans, widows, and, at times, absent or unknown heirs. Its mandate extended to cases where individuals passed away without a will, and it oversaw the placement of orphans. Intriguingly, the Chamber also had the responsibility of overseeing the upbringing, education, and trade training of minors. The Orphan Chamber officials were even authorised to employ corporal punishment as a disciplinary measure for undisciplined orphans after their appearance before the Chamber. However, the Orphan Chamber did not function as a government institution as we understand it today.

The Emergence of the Guardian Fund

Around 1696, a further development occurred with the establishment of the Guardian Fund. While initially not a government institution by legislation, the Guardian Fund served as a repository for the assets and monies belonging to orphans and absent or unknown heirs. Financially sustained through administration fees, including officials' salaries, and generating profits through investments, the fund also accepted donations, viewing itself as a philanthropic institution.

Despite its noble purpose, the Guardian Fund encountered challenges over the years, including instances of fraud, such as the shortfall discovered after the secretary's demise. Additionally, the fund's assets, which were stored in an iron trunk in those days, were tapped into by the authorities on two occasions to cover government budget shortfalls. However, even in August 2021, a catastrophe that can only happen in modern times occurred when the Master and Guardian Fund, as part of the Department of Justice and Constitutional Development, experienced a ransomware attack that had a negative impact on the fund's operations throughout the year. The Guardian Fund, in particular, lost all its users and service points during the attack.

Evolution of the Legal Landscape

Returning to the historical context of the Master and Guardian Fund, as South Africa underwent significant historical changes, including British annexation, the legal landscape underwent transformation. The establishment of the Supreme Court of the Cape of Good Hope in 1827 marked a pivotal moment. The office of the Master of the Supreme Court was established by the Ordonnansies 103, 104, 105 and 106 of 1833, that replaced the Orphan Chamber. The function of this statutory designation shifted to the supervision over the administering of the estates of deceased persons, minors, and individuals unable to manage their own affairs.

With South Africa's expansion and the movement of Voortrekkers to other parts of the country, the Master of the High Court, known as the Weesheer, also found a place in these regions, and those holding these positions as a “Weesheer” were sought after. In 1910, the establishment of the Union of South Africa brought about further changes, with four offices coexisting. Section 6(2) of the Administration of Estates 24 van 1913 provided that the administration of a deceased estate shall be conducted by an executor "onder het uitsluitend toezicht van de Meester" (translated as "under the exclusive supervision of the Master"). As the country continued to grow, more Master's offices were established, resulting in a total of 16 Master's offices today, with 6 of them housing the Guardian Fund. This expansion aims to enhance customer interaction and service accessibility, underscoring the importance of effective public service. 

The Contemporary Role of the Master of the High Court

Today, the Master of the High Court operates as a designated statutory office, exercising jurisdiction over various facets of estate administration mandated by the Admininstration of Estates Act 66 of 1965. This includes supervising the administration of deceased estates, insolvent estates, the estates of minors and individuals legally incapable of managing their own affairs, overseeing liquidations and sequestrations and facilitating the registration of trusts. The Guardian Fund, under the management of the Master's Office, operates in accordance with Chapter V of the Administration of Estates Act 66 of 1965. It serves to safeguard and manage the finances of minors, as well as undetermined, unknown, or absent and untraceable heirs. The Guardian Fund's funds are invested through the Public Investment Corporation (PIC), which provides an official financial report to the public annually.

Historical Exclusion and Discrimination

However, the history of the Master of the High Court system in South Africa is marked by exclusion, particularly of the majority of the population, namely black South Africans. In the past section 23(7)(a) of the Black Administration Act 34 of 1927 reading with its regulation 3(1) intentionally denied protection to black individuals who passed away without a will, along with their minor children. This discriminatory practice persisted even onwards when the new era dawned on South Africa with the acceptation of its new Constitution in 1994.

Championing Change: The Moseneke Case

In 1999, Judge Dikagang Moseneke encountered a striking injustice while dealing with his late father's estate. He discovered that, in cases where no will was present, reporting was not directed to the Master of the High Court but to a lower court division, specifically the magistrate's court. Outraged by this discrimination, Judge Moseneke initiated a process to challenge this unjust practice. This journey culminated in the landmark Constitutional Court case of Moseneke and Others v Master of the High Court 2001 (2) SA 18 (6 December 2000). In this significant legal battle, the court ruled that this rule was discriminatory and in direct violation of the new South African Constitution.

Transformation and Its Challenges

Following this groundbreaking ruling, the Master's Office underwent sweeping changes to ensure inclusivity for all South Africans, regardless of their racial background. However, this transformation brought with it formidable challenges. The office, once responsible for serving approximately 20 percent of the population, now had the monumental task of serving the remaining 80 percent. Consequently, the Master of the High Court's office currently finds itself in a dire crisis, struggling to realise its ambitious objectives. Despite a sincere desire to serve, the system is grappling with severe challenges that threaten its ability to fulfil its mission effectively.

Conclusion

In conclusion, the historical journey of the Master of the High Court and the Guardian Fund in South Africa reflects the nation's commitment to protecting the interests of minors and those unable to safeguard their own financial well-being. This institution, deeply rooted in history, continues to adapt to meet the evolving needs of society and to ensure that the rights and welfare of minors are upheld within the context of inheritance law.

For further reading
Nel JJA Boedeladministrasie en die Regsberoep De Rebus October 1978 539-541
Bankorp Trust Bpk v Pienaar en 'n Ander 1993 (4) SA 98 (AD)