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Administration has a difficult history in South Africa: apartheid was centrally an administrative project, through segregation and exclusion. Areas of formalisation that made life more secure and predictable excluded the black majority. One was a dedicated system for supervising property inheritance.<\/p>\n
Regulation and administration have since become vehicles for transformation. During apartheid\u2019s demise, urban property ownership changed rapidly. Houses in historically segregated townships were transferred to long-term black tenants, which meant incorporation into property registration. Soon, attention turned to passing them on. Homes became the most common major asset in inheritance, a preeminent reason for its formalisation.<\/p>\n
\nCentral is increasing \u2018access\u2019 to fair, shared regulation.<\/p>\n<\/blockquote>\n
As administration was deracialised, the system expanded to serve a new public. Today, a distributed network of institutions extends beyond state officialdom to civic and for-profit services, aiming to bring the system \u2018to the people\u2019. Central is increasing \u2018access\u2019 to fair, shared regulation.<\/p>\n
In Johannesburg, senior officials promote access through public education, in community events and on television. \u2018Access points\u2019 \u2013 satellite offices \u2013 bridge geographic barriers. During my 2017 fieldwork, access applied to the bureaucratic building, the Master\u2019s Office \u2013 although it meant files went missing. One official explained: \u2018We\u2019re trying to change the lives of our people by being more accessible and providing the service required\u2019.<\/p>\n
Public availability has wider purchase. It sustains a legal-administrative field: legal NGOs, community advice officers, lawyers doing pro-bono service, and financial institutions collaborate with the state to bring people into a protective system. But post-apartheid access reveals a paradox. Systematic measures expand initial contact: advice, mediation, intake procedures. Yet what is systematic about the \u2018system\u2019 breaks down beyond those preliminary encounters.<\/p>\n
\nPeople must be appointed to act in the interests of the deceased and their successors.<\/p>\n<\/blockquote>\n
Key is inheritance regulation\u2019s peculiar character. An inheritance system depends not only on bureaucratic infrastructure, but on fiduciary<\/em> obligations \u2013 formally entrusted duties. The work of property distribution is devolved. People must be appointed to act in the interests of the deceased and their successors.<\/p>\n
Appointees may be professionals, but more often in South Africa they are family members. Private individuals are routinely expected to span personal dedication and impersonal process. Fiduciary obligations, grounded in trust and confidence, stress ethical commitment. The state strives to oversee \u2018standards of conduct to which a fiduciary must conform, including requirements of loyalty, zeal, and self-sacrifice\u2019 (FitzGibbon 1999: 303).<\/p>\n
\nWhat founders is state regulation not just of procedure, but of roles, relationships, interpersonal duties and motivations.<\/p>\n<\/blockquote>\n
In property inheritance, post-apartheid access relies on fiduciary conduct. \u2018The people\u2019 are asked to enact the system, as its reach and promised protections extend. That inseparability is fundamental to access\u2019s paradox. What founders is state regulation not just of procedure, but of roles, relationships, interpersonal duties and motivations.<\/p>\n
Access-oriented work operates in its own fiduciary-like mode. Inheritance officials and the legal practitioners surrounding them share an ethos of entrusted care in a field committed to assistance and advice. This drives dedication to delving into South Africans\u2019 domestic struggles; understanding them; mediating between disputants; and bringing those matters into legal redress.<\/p>\n
Yet such care cannot substitute for the reliable delegation of authority by the state to actual fiduciaries. Executors and the like are a necessary bridge, part of legal administration and entrusted to act in \u2018good faith\u2019 in the interests of beneficiaries and the dead. That means bracketing out their own interests, and applying the law. In theory, they represent a form of access to regulatory protection.<\/p>\n
It is a tall order, and especially in post-apartheid South Africa. Rapid changes in homeownership and inheritance produced deeply conflicting interests. Popular dissensus about the very meaning of property and succession undermine law as common ground. Legal principles and customary norms jostle in claims to inherit houses. Kin members are often already divided when they enter legal administration. Officials struggle to stabilise the entrusted authority on which the edifice depends. Adherence to, and acceptance of, fiduciary roles are fragile. For-profit professional fiduciaries bring their own contradictions: between serving beneficiaries\u2019 interests and being paid. South Africa\u2019s rapid privatisation of homes means many estates have a house but no money.<\/p>\n
Regulatory crisis here is not simply of procedure and informational infrastructure. Formalisation founders because fiduciary relations founder.<\/p>\n
The figure of the fiduciary<\/h5>\n
Scholarship on the concept of the fiduciary is disjointed. Anthropological conceptualisation of \u2018fiduciary cultures\u2019 distinguishes trust (\u2018a range of feelings\u2019) from entrustment (Shipton 2007: 36), the latter amenable to \u2018ritualized disciplinary practices\u2019 (Schiocchet 2018: 96). But it does not explore legal roles or formal government. Complementary ethnographic research, among fiduciary wealth managers and trustees, shows how legal responsibilities and intimate registers interweave. In family firms, \u2018 special obligations of loyalty, care, and selfless service align fiduciaries closely with the family logic\u2019 (Harrington and Strike 2018: 5).<\/p>\n
Such heightened moral standards have led law scholars to describe fiduciary roles through virtue ethics, ongoing \u2018social morality and practice\u2019 (FitzGibbon 1999: 338) \u2013 and, in South Africa, ubuntu<\/em> (Nel 2024). The double obligation involved is sharpened in \u2018the role of the lawyer \u2013 Janus-faced as a private agent of a client but also an officer of the court bound by public oath\u2019 (Leib and Kent 2021: 1344). But fiduciaries need not be professionals. South African inheritance administration reaches out by entrusting responsibility broadly.<\/p>\n
\nIn South African inheritance, fiduciary roles combining personal and formal obligations should extend the reach of a regulating state. In practice, they are key to its crisis.<\/p>\n<\/blockquote>\n
Attention to regulating and performing roles, not just rules, is prefaced in anthropological writing on states\u2019 professional ethics (e.g. Bear and Mathur 2015). The figure of the fiduciary takes legal-administrative responsibilities beyond the state. After all, theories of private trusteeship and public office developed together: trusteeship shaped arguments about accountability; trust law drew on a notion of public office (Leib and Kent 2021).<\/p>\n
In South African inheritance, fiduciary roles combining personal and formal obligations should extend the reach of a regulating state. In practice, they are key to its crisis.<\/p>\n
South Africa\u2019s inheritance system<\/h5>\n
The Master of the High Court is South Africa\u2019s administrator of inheritance. Confusingly, it is not a court, although it has \u2018quasi-judicial\u2019 functions. It oversees fiduciary matters \u2013 also including trusts and insolvency. As put to an official in a TV interview, \u2018you basically look after people\u2019 \u2013 the projected ethos. In inheritance officials\u2019 self-understandings, bureaucratic work is fiduciary, entrusted to act in the interests of those who cannot act for themselves \u2013 not least, the dead.<\/p>\n
The Master\u2019s deceased estates work was once relatively small-scale. Under apartheid, black people were directed to magistrates\u2019 courts for a crude bureaucratic rendering of \u2018custom\u2019. Prevented from owning land in \u2018white\u2019 South Africa, there was anyway limited point to their formalising inheritance.<\/p>\n
Post-apartheid deracialisation meant overstretch. The Johannesburg office, created for Pretoria\u2019s overflow, became the busiest at over 32,000 estates annually. Administration is an unwieldy apartheid legislative legacy, essentially unchanged for almost 60 years. Notices are posted twice in two publications, not necessarily in languages parties can understand. Files collect assets, claims and debts, eventually entering (theoretically) public archives. The fiduciary role of executor should be fulfilled or assisted by a lawyer or equivalent professional, prohibitively costly for many. Their services may be required for a while. Insufficient oversight contributes to years of administration, especially if files go missing.<\/p>\n
However, most South Africans follow a separate small estates procedure, with the opposite problem. A \u2018Letter of Authority\u2019 appoints one or more beneficiaries as a fiduciary \u2018Master\u2019s Representative\u2019, taking possession of assets and distributing them without supervision. Once, this was seen as an avenue for simple surviving-spouse circumstances, mitigating the conflict of interest between fiduciary and beneficiary. But it now caters to an estimated 85% of reported estates (Morrison 2023), including many where homeownership has precipitated bitter family disputes. Estates are less likely to get stuck in procedure, but because the system is largely the initial appointment.<\/p>\n
For officials, this point of access means determining whom to trust and whom the family trusts. In an overcrowded walk-in section, they turn competing accounts into classifications of entitlement, and they instruct families on succession rules. They attempt to persuade family members about how matters should proceed, and themselves that Master\u2019s Representatives will apply law once unsupervised.<\/p>\n
Complications abound. Customary marriages are official even when unregistered, although relatives sideline spouses by denying the marriage existed. Yet divorce from an unregistered customary marriage needs paperwork. Making property administrable becomes intricate. Many township houses, never previously sold, lack market prices. Standard valuations are estimates on taxation certificates, which emphasise physical dimensions. If they take the estate value over R250,000 (\u00a315,000 in 2017), the estate is no longer \u2018small\u2019. The full supervised, more closely regulated procedure means a costly attorney and a long administrative journey.<\/p>\n
Confusion and complexity are amplified by the way township houses were transferred to inhabitants at apartheid\u2019s end. Residents, called to tribunals, typically sent \u2018custodians\u2019 as representatives \u2013 their own fiduciary figures. But those custodians were registered as sole and exclusive owners, even without their knowledge. When they later died, their siblings often still lived in the house, and they would claim it collectively. The allocation of individual title had excluded them. So did intestate succession law, which was deracialised by collapsing everyone into rules premised on the nuclear family. The resulting disputes bring families to brave the Master\u2019s bureaucratic intricacies.<\/p>\n
\nA relatively coherent regulatory process at the point of access turns out to be an infrastructural fragment.<\/p>\n<\/blockquote>\n
All this occurs amidst informational uncertainty. Claimants omit relatives. Official information contains errors. People arrive having been declared dead. Authorising stamps are reportedly forged at a nearby stationer. The Master lacks coercive or subpoena powers. A relatively coherent regulatory process at the point of access turns out to be an infrastructural fragment. Its purchase loses force as it opens out into devolved fiduciary responsibility.<\/p>\n
A demand for mediation leaves Assistant Masters inundated. They offer quasi-fiduciary care, not just administrating but arbitrating, investigating, advising and explaining. They try to ascertain that no beneficiary risks marginalisation. But it is impossible to be remotely sure. Sufficient information can mean endless delay when kin have lost touch in dispersed families. Officials try to persuade Master\u2019s Representatives to honour fiduciary obligations, but they cannot check. And they are keenly aware that fights intensify popular dissensus over inheritance rules. Disputants may simply withdraw from the whole process. If procedural control quickly dissipates, fiduciary delegation falters still more precipitously.<\/p>\n
The legal field and the limits of fiduciary care<\/h5>\n
A wider legal field is committed to access. On the edges are chancers: attorneys waiting in the Master\u2019s lobby, soliciting bewildered clients. But there is a coherent legal assistance network. Young law-firm attorneys staff a pro-bono helpdesk, offering advice. They pass matters to a legal NGO that, staffed largely by paralegals, offers its own advice and allocates cases to attorneys. This offers access to professionals, and potentially to formal fiduciary services. Yet it, too, falters. Clients drop out, entangled in family disputes and unable to skip work and travel into the city. Their grievances may not fit eligibility criteria for free assistance. Even if they do, firms with limited capacity may be reluctant to take them on. The result may be advice in a fiduciary register, a concern about protecting people, rather than proper undertakings to act in their interests.<\/p>\n
Equally crucial are legally informed non-lawyers, such as Community Advice Officers, committed to address personal struggles through protective regulation. CAOs organise access-focused events in community halls, where state departments explain their briefs, hold Question-and-Answer sessions, and run helpdesks. One CAO described the care she brings to assistance: \u2018if maybe there\u2019s any dispute or we see that this is a Letter of Authority written with your name and according to us [this is incorrect], we know the family tree, we know everything about this household, I have done my research first at the municipality office\u2019s files and then I go with the family to Master\u2019s to explain the situation\u2019. Official connections then lend authority to advice: \u2018I will call the Master of the High Court and put them on the speaker for all of them to listen \u2026 \u201cI\u2019ve got this family that is asking one, two, three, four and one is saying he\u2019s not satisfied about that so can you explain further to them?\u201d And [the Deputy Master] will do it.\u2019<\/p>\n
\nOfficials and advisors address gaps between a recently included population and alien institutions.<\/p>\n<\/blockquote>\n
Officials and advisors address gaps between a recently included population and alien institutions. They connect kin dynamics to official procedure, trying to ground popular appeals and disputes in state thinking and law, and extending the reach of regulated process. But the lack of popular consensus, and of agreed standards and authorities, creates demand for mediators while rendering that influence provisional and easily challenged. The difficulty is not only with getting people into the system. Among those who report estates, officials lack purchase on what unsupervised Master\u2019s Representatives in families actually do \u2013 the fiduciary roles that an inheritance system fundamentally requires. Meanwhile, officials\u2019 and advisors\u2019 own sense of responsibility for others\u2019 interests is only informally fiduciary \u2013 trusted advice at the point of access, not formal entrustment of people\u2019s affairs. Poorer South Africans are lost in the cracks.<\/p>\n
There was an avenue to bring historically marginalised South Africans into formal fiduciary arrangements. Here, however, a crisis of fiduciary regulation has been thrown into especially stark relief. After apartheid, the Master\u2019s Office and banks converged on an understanding of public access. Wills promise to bring people, plans and property transfer into legal administration. By directing fiduciaries \u2013 and a fiduciary state \u2013 they promise testators control over assets\u2019 futures. Large banks undertook to promote, draft and securely store basic wills \u2013 all free of charge. Offered in public places, these became known as \u2018taxi-rank wills\u2019. Banks, in one specialist\u2019s words, \u2018wrote wills for everyone who walked the streets\u2019.<\/p>\n
Wills\u2019 increased prominence is substantially the result of post-apartheid financialisation. From the 1990s, they became enmeshed with \u2018banking the unbanked\u2019 in a newly enfranchised majority. Wills drafted for free could entice new customers. Money transferred during inheritance could be retained in banks\u2019 accounts. Banks typically wrote their services into wills as executors \u2013 professional fiduciaries in return for a statutory fee of 3.5% of the estate.<\/p>\n
But 3.5% of a small estate leaves no profit. When wealth is restricted to a house, the estate is likely complicated and without cash. Business interests soon intervened. Banks renounced executorship of innumerable wills. The Master\u2019s Office contends with a distinct form of fiduciary crisis: estates that, now lacking an executor, are stuck.<\/p>\n
Once again, there was access, but fiduciary support faltered. Clients\u2019 interests contended with generating revenue. Meanwhile, as we have seen, countless other people are informally assisted but cannot secure fiduciary services. Kin-turned-fiduciaries are left to their own devices. In South African inheritance, from the state to the wider legal field, access represents legal protections that apartheid withheld. But, beyond initial formalisation, post-apartheid regulation founders on fiduciary crises.<\/p>\n
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