A recent study has shown that two out of every three deceased estates in SA are never reported, says a Mail & Guardian report.

‘As the primary occupants – and caretakers – of family homes, women and children are disproportionately at risk of losing their tenure security or being rendered homeless in evictions,’ reads the report.

Titled A Gendered Analysis of Family Homes in SA, the study was anchored by the Socio-Economic Rights Institute of SA (Seri) and written by legal researcher Michael Clark with assistance from the Seri Women’s Spaces team.

The idea of a family home in SA involves extended family members, not just the immediate family.

This complicates matters when a family member dies and their estate (property and assets) needs to be managed.

Nkosinathi Sithole, a senior attorney at Seri, said many disputes come to light only when they reach the litigation stage, often as eviction cases.

All of the legal experts interviewed believed that the number of disputes over family homes taken to the courts is increasing.

As senior attorney Thulani Nkosi said: ‘I think these cases have always been there, especially in Soweto. But more of them are finding their way through the court system nowadays. The problem is endemic.’

A major issue is poor investigations by officials when managing deceased estates, adds the M&G report.

The Master’s Office gives a letter of authority to a family member, allowing them to distribute the deceased’s assets without court supervision. According to the report, many family disputes involve arguments over who should get the letter.

In some cases, the letter is misused to claim ownership of the family home. 

The Master’s Office has limited powers to investigate and often accepts the first family member who approaches the office at their word.

This leads to disputes and potentially unfair decisions being made. The report recommends that the concept of a family home deserves legal recognition and protection as a customary form of possession.

Another proposed intervention is to amend the system of land administration, including the registration of title through the Deeds Registries Office, to enable families to obtain strong rights over family homes. 

It further advises the amendment procedure of the administration of deceased estates and transfer of ownership.

Full Mail & Guardian report