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.
Regulation and administration have since become vehicles for transformation. During apartheid’s 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.
Central is increasing ‘access’ to fair, shared regulation.
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 ‘to the people’. Central is increasing ‘access’ to fair, shared regulation.
In Johannesburg, senior officials promote access through public education, in community events and on television. ‘Access points’ – satellite offices – bridge geographic barriers. During my 2017 fieldwork, access applied to the bureaucratic building, the Master’s Office – although it meant files went missing. One official explained: ‘We’re trying to change the lives of our people by being more accessible and providing the service required’.
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 ‘system’ breaks down beyond those preliminary encounters.
People must be appointed to act in the interests of the deceased and their successors.
Key is inheritance regulation’s peculiar character. An inheritance system depends not only on bureaucratic infrastructure, but on fiduciary obligations – 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.
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 ‘standards of conduct to which a fiduciary must conform, including requirements of loyalty, zeal, and self-sacrifice’ (FitzGibbon 1999: 303).
What founders is state regulation not just of procedure, but of roles, relationships, interpersonal duties and motivations.
In property inheritance, post-apartheid access relies on fiduciary conduct. ‘The people’ are asked to enact the system, as its reach and promised protections extend. That inseparability is fundamental to access’s paradox. What founders is state regulation not just of procedure, but of roles, relationships, interpersonal duties and motivations.
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’ domestic struggles; understanding them; mediating between disputants; and bringing those matters into legal redress.
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 ‘good faith’ 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.
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’ interests and being paid. South Africa’s rapid privatisation of homes means many estates have a house but no money.
Regulatory crisis here is not simply of procedure and informational infrastructure. Formalisation founders because fiduciary relations founder.
The figure of the fiduciary
Scholarship on the concept of the fiduciary is disjointed. Anthropological conceptualisation of ‘fiduciary cultures’ distinguishes trust (‘a range of feelings’) from entrustment (Shipton 2007: 36), the latter amenable to ‘ritualized disciplinary practices’ (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, ‘ special obligations of loyalty, care, and selfless service align fiduciaries closely with the family logic’ (Harrington and Strike 2018: 5).
Such heightened moral standards have led law scholars to describe fiduciary roles through virtue ethics, ongoing ‘social morality and practice’ (FitzGibbon 1999: 338) – and, in South Africa, ubuntu (Nel 2024). The double obligation involved is sharpened in ‘the role of the lawyer – Janus-faced as a private agent of a client but also an officer of the court bound by public oath’ (Leib and Kent 2021: 1344). But fiduciaries need not be professionals. South African inheritance administration reaches out by entrusting responsibility broadly.
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.
Attention to regulating and performing roles, not just rules, is prefaced in anthropological writing on states’ 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).
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.
South Africa’s inheritance system
The Master of the High Court is South Africa’s administrator of inheritance. Confusingly, it is not a court, although it has ‘quasi-judicial’ functions. It oversees fiduciary matters – also including trusts and insolvency. As put to an official in a TV interview, ‘you basically look after people’ – the projected ethos. In inheritance officials’ self-understandings, bureaucratic work is fiduciary, entrusted to act in the interests of those who cannot act for themselves – not least, the dead.
The Master’s deceased estates work was once relatively small-scale. Under apartheid, black people were directed to magistrates’ courts for a crude bureaucratic rendering of ‘custom’. Prevented from owning land in ‘white’ South Africa, there was anyway limited point to their formalising inheritance.
Post-apartheid deracialisation meant overstretch. The Johannesburg office, created for Pretoria’s 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.
However, most South Africans follow a separate small estates procedure, with the opposite problem. A ‘Letter of Authority’ appoints one or more beneficiaries as a fiduciary ‘Master’s Representative’, 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.
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’s Representatives will apply law once unsupervised.
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 (£15,000 in 2017), the estate is no longer ‘small’. The full supervised, more closely regulated procedure means a costly attorney and a long administrative journey.
Confusion and complexity are amplified by the way township houses were transferred to inhabitants at apartheid’s end. Residents, called to tribunals, typically sent ‘custodians’ as representatives – 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’s bureaucratic intricacies.
A relatively coherent regulatory process at the point of access turns out to be an infrastructural fragment.
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.
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’s 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.
The legal field and the limits of fiduciary care
A wider legal field is committed to access. On the edges are chancers: attorneys waiting in the Master’s 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.
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: ‘if maybe there’s 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’s files and then I go with the family to Master’s to explain the situation’. Official connections then lend authority to advice: ‘I will call the Master of the High Court and put them on the speaker for all of them to listen … “I’ve got this family that is asking one, two, three, four and one is saying he’s not satisfied about that so can you explain further to them?” And [the Deputy Master] will do it.’
Officials and advisors address gaps between a recently included population and alien institutions.
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’s Representatives in families actually do – the fiduciary roles that an inheritance system fundamentally requires. Meanwhile, officials’ and advisors’ own sense of responsibility for others’ interests is only informally fiduciary – trusted advice at the point of access, not formal entrustment of people’s affairs. Poorer South Africans are lost in the cracks.
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’s 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 – and a fiduciary state – they promise testators control over assets’ futures. Large banks undertook to promote, draft and securely store basic wills – all free of charge. Offered in public places, these became known as ‘taxi-rank wills’. Banks, in one specialist’s words, ‘wrote wills for everyone who walked the streets’.
Wills’ increased prominence is substantially the result of post-apartheid financialisation. From the 1990s, they became enmeshed with ‘banking the unbanked’ in a newly enfranchised majority. Wills drafted for free could entice new customers. Money transferred during inheritance could be retained in banks’ accounts. Banks typically wrote their services into wills as executors – professional fiduciaries in return for a statutory fee of 3.5% of the estate.
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’s Office contends with a distinct form of fiduciary crisis: estates that, now lacking an executor, are stuck.
Once again, there was access, but fiduciary support faltered. Clients’ 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.
Featured image: Soweto in the Johannesburg area, where many houses at the heart of inheritance disputes are located. Photo by Author.
References
Bear, L. and N. Mathur. 2015. ‘Remaking the public good: a new anthropology of bureaucracy’, Cambridge Journal of Anthropology 33(1): 18–34.
FitzGibbon, S. 1999. ‘Fiduciary relationships are not contracts’, Marquette Law Review 82(2): 303–354.
Harrington, E.B. and V. Strike. 2018. ‘Between kinship and commerce: fiduciaries and the institutional logics of family firms’, Family Business Review 31(4): 417–440.
Leib, E.J. and A. Kent. 2021. ‘Fiduciary law and the law of public office’, William and Mary Law Review 62(4): 1297–1348.
Morrison, E. 2023. ‘Rescue plan for the Master’s Office’, GroundUp, 20 November (accessed 1 February 2024).
Nel, E. 2024. ‘Fiduciary law in South Africa: a good time to come of age’, Journal for Juridical Science 49(1): 53–76.
Schiocchet, L. 2018. ‘Essay on an anthropology of the fiduciary’, pp.93–104 in F. Mühlfried (ed.), Mistrust: ethnographic approximations. Bielefeld: transcript.
Shipton, P. 2007. The Nature of Entrustment: intimacy, exchange, and the sacred in Africa. New Haven, CT: Yale University Press.
Abstract: In post-apartheid South Africa, the regulation of property inheritance was deracialised, and 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 ‘to the people’. Central is increasing ‘access’ to fair, shared regulation. But post-apartheid access reveals a paradox. While effort is poured into legal advice, mediation and intake procedures, the ‘system’ breaks down beyond those preliminary encounters. Key is inheritance regulation’s peculiar character. An inheritance system depends not only on bureaucratic infrastructure, but on fiduciary obligations. People are appointed to act in the interests of the deceased and their successors, and to apply the law. As regulation’s reach and promised protections extend, it is ‘the people’ who are asked to enact that system. But rapid changes in homeownership and inheritance produce deeply conflicting interests. Legal principles and customary norms jostle in inheritance claims. Adherence to, and acceptance of, fiduciary roles are fragile. Officials’ and legal practitioners’ commitments to ‘access’ – care in the name of legal regulation – are no substitute for the reliable delegation of authority to fiduciaries. A regulatory crisis here is not just of procedure, but of roles and relationships.
