As was the case in Batavia, the establishment of the Orphan Chamber at the Cape of Good Hope arose out of the need to provide for the collection and administration of the property of persons who died intestate and left heirs who were absent from the Colony or who were under age. The property of persons who died on the voyage to and from Europe and found on board, was also subject to the jurisdiction of the Orphan Chamber. However, the Government was advised in a letter dated 30th March, 1711 that the Chamber was not to be burdened with deceased estates of Company’s servants and burgers who had died on the voyage.
The main functions and duties of the Orphan Chamber were:
The administration of the estates of persons dying intestate in the Colony or on the voyage and leaving absent or minor heirs, as well as estates of those who had not specifically
excluded the Orphan Master in their will, or had specifically appointed them even where their heirs were majors and resident here;
The registration of wills of deceased persons;
The administration of minors’ property;
Receiving and paying to present and absent claimants the portions or legacies due to them;
Keeping a death register of persons who died at the Cape;
Recording the resolutions and transactions of the Board.
After the devastating effect of the smallpox epidemic of 1713, the Council of Policy empowered the Orphan Chamber to protect the transfer of property of all free individuals at the Cape. All wills and deaths at the Cape had to be registered with the Orphan Chamber but the Chamber only inventoried and acted as executor for the categories of estates listed below.
The Orphan Chamber was the executor of the estates of free persons:
who left heirs under 25 (and unmarried) or of unsound mind;
who left heirs who were either out of the country or not apparent;
who died ab intestato or ex testamento (without a will or testament);
if there was a specific request in the will or testament for the Chamber to act as executor;
if the will did not specifically exclude the Chamber from acting as executor.
The Orphan Chamber had to track down any possible heirs. Heirs residing outside of the country of death had to send a power of attorney proving their relationship to the deceased, and the Orphan Chamber would then pay out what was rightfully theirs. If an individual died without children or spouse, then the inheritance went to their next of kin, whether brothers, sisters, parents, or cousins (sometimes even to the 10th degree). If an inhabitant, or a stranger, died at the Cape without any acknowledged relatives, the property, after discharging the debts, was sold, and reserved for the unknown heirs, and every method was taken for their discovery. If no heir was found within 50 years from the date of death, the estate reverted to the Government.
In 1714 the Government issued to the Orphan Masters a set of rules and Regulations by which they were to be guided in the carrying out of their duties (Resolutions, Council of Policy, 26 June 1714). These instructions were taken from the Statutes of Batavia, together with a tariff of fees which were to be charged in administering an estate.
In 1793 renewed instructions were issued and compiled from the 1714 rules, from those of the Orphan Chamber at Batavia, from a sketch of instructions submitted to the Government by the Orphan Masters, and from a report relative to the improvement to the Chamber.
Provisional instructions were framed for the Orphan Chamber by Commissioner General Jacob de Mist but these show that they were evidently framed more with a view to confirm the existing rules than to introduce new regulations.
The following are two of the articles of the instructions laid down: Immovable property of orphans could only be sold by an order of Court, and such property had to be put up for public auction and sold to the highest bidder. A minor, absent from the country for sixteen years, could be publicly summonsed at his last-known place of residence. If it was ascertained what had happened to him, his heirs could receive his property upon giving security de restituendo. Persons had to obey a summons to appear before the Masters as if it had emanated from a Court, and upon a third default to appear they could be brought before the Court of Justice. From the resolutions sent from time to time by the Government to the Board and the instructions framed in 1793, it would appear that the Orphan Masters were given almost the same portion of authority and jurisdiction in testamentary matters as was exercised in earlier periods by the spiritual Courts in England.
According to the provisions of Ordinances 104 and 105 of 1833, the Orphan Chamber was abolished and its duties were transferred to the newly appointed office of Master of the Supreme Court. The Supreme Court of the Cape of Good Hope was established in 1827. Subsequently a code for the administration and distribution of insolvent estates was enacted on behalf of minors and persons under curatorship.
The Master controls the administration of deceased and insolvent estates. In this connection he protects the property rights of creditors and heirs and especially of minors. The acts which mainly control his functions are the Administration of Estates Act, 1965 (Act 66 of 1965), the Insolvency Act, 1936 (Act 24 of 1936), the Companies Act, 1973 (Act 61 of 1973), the Close Corporations Act, 1984 (Act 69 of 1984) and the Trust Property Control Act, 1988 (Act 57 of 1988). He appoints executors and trustees in estates and liquidators of companies. He has in respect of minors to a limited extent the function of upper guardian, especially in regard to alienation of hypothecation of their immovable property. The interests of mentally affected persons and persons under curatorship are also protected by him. The most important task of the Master~s office is to check liquidation and distribution accounts. He has wide powers to enforce proper administration by executors, liquidators and trustees. There were six Master~s offices in South Africa prior to 1997, one in each of the provincial capitals and one at Kimberley and also Grahamstown.
