Justice must be more than rights on paper.
The Detail of Justice
Justice must be more than rights on paper. Public interest law organisations, or PILOs, such as Lawyers for Human Rights (LHR), seek to enforce the rights contained in Chapter Two of South Africa’s constitution, the Bill of Rights. These organizations use the law to promote social justice in what is optimistically termed constitutional transformation.
Constitutional transformation rests on Section Two of the Constitution, which proclaims that; “The Constitution is the supreme law of the Republic: law or conduct which is inconsistent with it is invalid…” With this injunction taken to heart, constitutional transformation aims to bring law into line with the Constitution. Strategic litigation is the flagship of PILO’s legal fleet; cases carefully and deliberately taken to challenge law, or conduct, that impedes people from accessing the key 27 sections of the Bill of Rights. Success in strategic litigation comes with Constitutional Court judgements; high profile and prestigious legal victories.
Putting aside the widening de facto gap between law and social practice in South Africa, a focus on strategic litigation narrows down what justice entails. A well-established principle of democracy is the separation of powers within the state. Parliament, the executive, that is, the president, ministers and their departments, and the judiciary are allotted different functions. These three branches of the state need to understand their roles and limitations in ensuring justice for citizens. This separation of powers provides checks and balances that prevent an over concentration of power and the erosion of the rule of law. The classic example of where the separation of powers is absent is dictatorship. Justice is replaced by the whims of (usually) one man.
The point made in this article is that democracy and justice depend on more than the separation of powers. It also requires each of these three institutions of state to work efficiently. I home in on detail to illustrate the far wider problem: to a lesser or greater extent all three organs of South Africa’s state are not efficient and are increasingly less so.
The detail around which this argument is made in microcosm is the failure of government ministers, and the departments they lead, to efficiently maintain or update regulations that form a vast corpus of subsidiary law, with very real impact on justice for citizens. We start to explore this with a problem brought to the advice office in Orange Farm, a township south of Johannesburg where I work one day a week. Here we assist township residents with legal, and sometimes other, problems.
A Frozen Bank Account
Bafana’s mother, Dorcas Gwebu, died in August 2025. Bafana came to the advice office in early December. It was a busy morning and he had waited, under the lean-to shelter that serves as a waiting room, for his turn to see me. As the eldest son, he was of sorting out his mother’s affairs.
His mother died with some R5,000 in her bank account. A significant amount if, like Bafana, you’ve been unemployed for two years and are managing on social grants. When he went to the bank, they told him that he needed a Letter of Authority to access the funds. This document empowers the holder to take control of the deceased’s assets or estate. To step, as it were, into the shoes of the departed. A Letter of Authority is often misunderstood to be giving the holder the right to distribute the assets of the deceased estate as they see fit. In law however, the holder of the letter must follow the wishes of the deceased should they have written a will. If not, the South Africa’s Intestate Inheritance Act must be followed.
As well as the bank account, Bafana’s mother’s name was on the title deed of a four-bedroomed township house.
Legally, the house had been transferred into her name under the 1988 Conversion of Certain Rights into Leasehold or Ownership Act. Since Dorcas Gwebu’s name was on the title deed, it fell, on her death, into the deceased estate. Its value, for official purposes, was taken to be that determined by the municipality’s rateable value. This figure, which only approximates to market value is used to calculate the municipal rates, effectively a tax on property collected by local government. In the township, rates are still referred to as ‘rent;’ a legacy of apartheid urban policy in which Africans could only rent municipal property in townships, not own them on a freehold basis with title deed.
Politically, the legislated transfer of township properties held under permits to freehold ownership, under the Conversion Act, was a last ditch effort by the apartheid state to promote a property-owning black middle class as a bulwark against revolution. With revolution avoided and democracy in place, the transfer of title deeds to residents has been framed as political philanthropy.
Socially, the transfer or bargain sales of apartheid housing to occupiers has assisted the rise of an African middle class, but unevenly. A title deed and permanent employment is double-double good, but a title deed alone is ambiguous. While it is a significant asset it is also a common source of disputes among families who otherwise have limited resources.
Culturally, the house in Dorcas Gwebu’s name was a ‘family house.’ Legally in the name of his mother, yes, but belonging to the family. A family house is not to be sold. It must be available for family members in need to live in and for any family member to hold mesebetsi (Sesotho) or imisebenzi (isiZulu) ceremonies that call on the ancestral spirits who reside there.
The bank directed Bafana to the deceased estates office at the Sebokeng Magistrates’ Court for a Letter of Authority. However, the clerk there looked at the rates bill and told Bafana that he needed not a Letter of Authority but a Letter of Executorship. This could only be issued by the Master’s Office in Johannesburg. What swung the matter between the two letters was the rateable value of the house.
At the Master’s Office Bafana was provided with a photocopied A4 sheet listing the requirements for a Letter of Executorship. This he brought to the advice office. Unfortunately, this document makes frequent, and unwelcome, appearances at the clinic.
When Bafana pulled this document from the plastic wallet in which he was keeping the various papers concerning his mother’s estate, my heart sank. I immediately knew that his mother’s money would remain where it was in the bank account, earning interest and attracting charges but out of Bafana’s reach. A zombie account in Dorca Gwebu’s name. The reason was Section 18(3) of the Administration of Estates Act. This empowers the Minister of Justice[1] to:
- Publish a notice in the Government Gazette,
- Which proclaims a regulation,
- That specifies the amount at which the value of an estate requires,
- The appointed executor to hold,
- A Letter of Authority or a Letter of Executorship.
Subsidiary Legislation: Regulations
Much South African law is made of regulations; subsidiary legislation made in terms of powers conferred by acts of parliament or statues, the primary legislation. Regulations are proclaimed into law by means of notices in the Government Gazette. They provide the detail necessary for implementation of the primary legislation.
This has advantages. Regulations can be detailed and lengthy, if included in the primary act this would become voluminous and unwieldy. They also allow for flexibility; details can be changed easily, for example adjustments to monetary amounts to account for inflation. Proclaiming regulations in the Government Gazette bypasses the lengthy process of amending legislation through parliamentary procedure.
The 2014 government notice set the Authority-Executorship letter threshold, in terms of Section 18(3) of the Administration of Estates Act, at R250,000.[2] It consists of just five lines and a table and resets four different threshold figures in the act including Section 18(3).
Details Matter
The quantum set in terms of Section 18(3) has real effects. The rateable value of Bafana’s mother’s house was over the line at R270,000. With a Letter of Authority, the bank would have followed his instructions as to where the money should be transferred. However, if required, as he now was, to get a Letter of Executorship, the necessary steps, as outlined on the Master’s Office sheet of A4 paper, was going to cost considerably more than that what was in the account. Key in this regard was that he was required to appoint a lawyer to oversee the estate. This lawyer is entitled by law to 3.5 percent of the value of the estate (plus VAT) and expenses that include publishing legal notices in newspapers. This was very unlikely to come under R15,000. Even then, there would be a similar figure to fork out to have the name on the title deed changes by a conveyancer.
Bafana was hardly the first person to come into the advice office with a problem pivoting around the 2014 quantum of R250,000 between letters of Authority and Executorship. After I started working at the advice office, it didn’t take long to work out how this threshold regulation was causing grief for many township residents. As I put it in a Business Day opinion piece; “In South Africa getting family affairs in order after the death of a loved one is a privilege of the privileged.” This focused, not on Bafana’s problem of his mother’s R5,000 (generally the deceased estates that we advise on have little if anything in cash assets), but how families owning old apartheid-stock houses cannot afford the costs associated with a Letter of Executorship. The result is that township houses remained in the name of now deceased parents, or grandparents, and before too long likely great-grandparents. ‘Ghost houses’ as I described them, that increasingly create problems for rate collection, bylaw enforcement and the licensing of businesses.
In the Op-Ed, I pointed out that the 2014 regulation had not been adjusted for inflation. If house inflation was to be the measure use (since this made up almost all the value of these township estates), the threshold between Authority and Executorship should now be set at around R420,000. Such a recalibration would not solve all the problems that are presented over houses and succession in Orange Farm or elsewhere. But it would help. In this case would have allowed Bafana, with a Letter of Authority, to claim his mother’s money instead of it staying in the bank. Held hostage as it were by a dilatory department.
A Legal Diversion: Remote Commissioning of Affidavits
A recent Supreme Court of Appeal case, on a different matter, also illustrates the problem of out-of-date regulations.
In the case of LexisNexis v The Minister of Justice, LexisNexis, sought to appeal a ruling of the Pretoria High Court that affidavits could not be commissioned remotely. Affidavits are sworn statements used in myriad ways, including court cases where they serve as the evidence. Affidavits are sworn (or affirmed) before a commissioner of oaths. The swearing of affidavits is governed by the Justices of the Peace and Commissioners of Oaths Act of 1963. This act also has its regulations. Those currently in force can be found in the Government Gazette of 21st July 1972. These stipulate who may act as a commissioner of oaths and how an affidavit must be commissioned.
Section 3(1) of the1972 regulations say that “The deponent [i.e. the person making the affidavit] shall sign the declaration in the presence of the commissioner of oaths.” Which means in plain English that the commissioner and the deponent must be together. Physically.
A lot has changed since 1972, not least in terms of communication technology. Much of what we do is no longer in each other’s physical presence. Indeed, motion courts, which rely on affidavits for evidence (rather than have witnesses testify under oath), can and are held online.
So, when LexisNexis went to court to challenge these regulations made more than half a centenary ago, you could see this as a public service. Allowing a commissioner of oaths and the deponent to be in each other’s virtual presence when commissioning an affidavit brings us into the 21st Century
Virtual commissioning has practical and financial advantages. Affidavits may not be commissioned by an interested party. So, attorneys can’t commission our own clients’ affidavits. That means lawyers need to go with the client, or clients, to another commissioner of oaths outside their organization. For human rights lawyers, this gets tricky with poor clients unable to afford transport and when there are multiple affidavits that need to be commissioned. With remote commissioning, I could take the affidavits to the clients, having arranged for a video call with a commissioner of oaths.
I doubt LexisNexis was thinking about human rights lawyering when it launched it court case. LexisNexis is a major commercial provider of legal services, notably its extensive data bases. While I might set up a video call to provide for remote commissioning, LexisNexis has developed LexisSign, a web-based platform that allows deponents and a commissioner of oaths to commission online.
Whether for commercial or pro bono legal services, remote commissioning will make things quicker, easier and cheaper for all involved. LexisNexis challenged what it described as the antiquated regulations governing the commissioning of affidavits and cited, as respondent, the Minister of Justice. The Minister however did not file papers. The case went on the unopposed court roll, but still LexisNexis lost the case. To boot, the High Court refused leave to appeal its judgement. Undeterred, and with deep pockets, LexisNexis petitioned the Supreme Court of Appeal in Bloemfontein.
The Supreme Court huffed and puffed as to why the court a quo (as lawyers call the court from which an appeal originated) should not have entertained the case in the first place. Nevertheless, it reached the same conclusion. Both courts rejected LexisNexis’ arguments on the grounds of the separation of powers. The pertinent regulations, archaic or not, were clear. As crystal clear as the Oxford English dictionary, which the court a quo quoted. This venerable bastion of the English taal defines presence as “the fact or condition of being present; the state of being with or in the same place as a person or thing…”
The courts, the courts asserted, had their hands tied by the clarity of these words. It was, the High Court said, tempting to grant LexisNexis their application. What was being asked made sense. Mara, it would be crossing the line between interpretating and making the law. At first brush, this ruling recalls the aphorism that the law is an ass. We all know the way things are going, digitally speaking. Whatever the motivations for LexisNexis’ application, what they were seeking made sense.
However, on reflection, the courts’ argument holds water. The words they were being asked to re-interpret were those of regulations which the current minister could revise. If the courts were to make this call, they would be out of their lane. Mindful of how the institutions of democracy play their separate roles, the courts opted not substitute themselves for the executive.[3]
LexisNexis’s prayers, that is what they asked the court to do, are going to happen, in some form or other, at some point. When the Minister of Justice opted not participate in the High Court case but agreed to abide by what the court ruled,[4] they were delegating executive powers to the courts. The courts, however declined to accept.
An Indaba
Returning to the problem of Section 18(3) of the Administration of Estates Act, the opinion piece I wrote on this and the ghost houses that resulted gained some attention. I was delighted when it was spotted by a Director in the Department of Human Settlements. LHR’s Land, Housing and Property program was invited to a meeting, and I was then asked to present at a two-day Indaba organized by the department to deal with issues in their white paper on human settlements.
The indaba followed a similar pattern of government consultation processes. Our presentations were rigorously choreographed by department officials in pre-indaba online sessions. The event took place in a smart conference venue with generous catering. There was a carefully selected cross section of invited delegates. The Minister[5] made a speech and then left the venue. People networked with greater or lesser enthusiasm. The size of the audience steadily decreased as the two days progressed. A professionally produced five-minute video of the event was later circulated (in which I made a cameo appearance, spliced in to nod sagely at something).
The indaba’s focus didn’t touch the threshold regulation level between Letter of Authority and Executorship. At the risk of belabouring the point, these are contained in an act that is the responsibility of a different minister. But the problem created by this out-of-date regulation was already appreciated. Much as my piece had been welcomed, the Department of Human Settlements were aware of the problem. Indeed, they had already asked the Treasury to provide what an appropriate threshold figure should now be. This fell short of my thumb suck calculation by around R20,000, a variance of just five or so percent.[6]
On the one hand, I felt deflated…I might have put the matter into the press, but I wasn’t a prophet with breaking news. On the other hand, I was delighted. There was going to be change. A notice would be published in the Government Gazette, and the Section 18(3) threshold figure would be raised. One problem preventing township residents getting affairs in order after the death of a loved one would be removed.
No Blue Lights In South Africa’s Democratic Institutions
The indaba was held in March 2025. Over a year later the 2014 figure remains in place. All that is needed is for the Minister of Human Settlements, or realistically a delegated official, to request that the Minister of Justice, issue a notice revising Section 18(3) of the Administration of Estates Act. If they had, Bafana would have got a Letter of Authority to deal with his departed mother’s estate, the bank would have released the R5,000 in her bank account, he would not have come to us for advice, and I would not have had to tell him that there was no realistic solution to his problem.
In the matter of remote commissioning, the earlier it is permitted the better. Yet the relevant Minister of Justice has, to date done nothing, even though it was the respondent in a court case on this very matter that was first hear in November 2023.
These are two examples of a much wider problem: the failure of government ministries to regularly monitor and revise regulations. This, as we have seen, has a real impact on the lives of citizens. It is tempting to see justice in grand terms. Human rights lawyering all too easily falls into this trap: focusing on strategic litigation cases at the Constitutional Court. But achieving justice involves more than this. It is also about detail, such as ensuring the contemporary relevance of regulations.
Earlier, I talked about how those responsible for the key institutions of democracy needed to understand their roles and keep in lane. In the LexisNexis matter, the court did just that. The problem illustrated here is that such thoughtful and measured reflections by the courts are not reciprocated by administrate efficiency in the executive. Cabinet ministers are infamous for speeding on our highways in blue light convoys. However, when it comes to their responsibilities, such as keeping regulations in line with the present, there are no blue lights in sight.
A Wider Understanding of Justice
It’s crystal clear that Bafana is denied justice because of an outdated regulation. It is wrong that the R5,000 belonging to his departed mother will remain indefinitely in a bank account that cannot be accessed. Equally obvious is that the commissioning of affidavits should be brought into the digital age. I have not been cherry picking with these two examples of dated regulations that impose burdens on citizens. Labour legislation, another issue that makes a frequent appearance in advice offices, has the same problem. Beyond the high-profile annual increase in the national minimum wages other, important, thresholds are updated sporadically and allowed to lag inflation for years on end.
We need to conceptualized justice as deeper than the promulgation of just laws and the rulings of the Constitutional Court. It is also about efficiency in the bureaucratic procedures that citizens must undertake over their lives. This includes having regulations in step with the present, not the past.
What is to be Done?
The obvious response is that we need an efficient executive. This entails not only ministers who will take their responsibilities seriously, but a capable and conscientious cadre of civil servants. Unfortunately, this oft repeated remedy for a myriad of South Africa’s ills is circular. A form of fetishism in which the solution proposed is the problem identified. Eventually, if there is to be justice, an efficient executive is needed but simply saying that doesn’t take us forward.
If there were the resources, public interest law groups, such as LHR, could mount legal challenges against each out-of-date regulation. These would need to find a way around the court’s reasoning that they should not attempt to substitute themselves for the executive. But even if this can be achieved, what it amounts to is the executive being substituted not only by the courts but also by civil society forcing ministers’ hands, regulation by regulation, in a draining process that could not be sustained.
A more systematic approach to deal with the need to update monetary amounts would be to draft laws with any monetary regulation automatically updating from an initial base by an identified index. Indeed, this could be done though a ministerial notice, meaning that no more notices on this amount would need to be gazette while the legislation was in place. The correct figure for any year could then be calculated.
The hardest bit to such a response might be identifying the appropriate index. In the case of Section 18(3) of the Administration of Estates Act, the appropriate index is not the Consumer Price Index, but housing inflation. At least for the many deceased estates in which property forms the bulk of the deceased property.[7] Much labour law regulation would be best indexed to the rise in earnings, rather than CPI, and so on. Such indexes exist. An overarching piece of legislation could also be crafted to amend existing legislation along these lines.
Such semi-automated mechanisms would not anticipate changes in technology, such as with the virtual commissioning of affidavits. Here, ministerial or department competence will remain critical. Nevertheless, the indexing of monetary amounts would contribute significantly to the details of justice.
A Frustrating Circle
One piece of legislation that operates an index, in a specific context, is the Adjustment of Fines Act of 1991. It doesn’t get around the need for the updating of regulation (again in this case by the Minister of Justice), but one regulatory update does apply to all laws in which a term of imprisonment or the alternative of a fine can be imposed.
Barring changes in social attitudes over the severity of specific crimes, there is no need to change the maximum prison sentence stipulated in any legislation for a particular crime. But there is a need to update the maximum fine if it is not to become meaninglessly low over time. The Adjustment of Fines Acts empowers the minister to revise the relationship between the term of imprisonment applicable and a fine in the alternative.[8] In other words, the maximum term of imprisonment remains the same, but the fine keeps pace, provided the minister attends to this one regulation.
Unfortunately, the last time this regulation was updated was on the 1st June 2014. Which means that using CPI as the inflation index, the maximum fine that can be imposed in 2026, linked to the alternative period of imprisonment that could be imposed, is in real terms 70 percent less than when last adjusted in 2014.[9] Which, frustratingly, brings us back full circle to how ministers are failing the country; happy to use blue lights to get from one indaba to the next, but unwilling to apply the same priority to the detail that is necessary for justice.
[1] I use the title ‘Minister of Justice’ throughout this article. In fact, the title has changed over time, always including ‘Minister of Justice’ but also over different periods having responsibilities, reflected in their title, for correctional services and constitutional development.
[2] Up from the regulated 2003 threshold of R125,000.
[3] If there had been an argument that the 1972 regulations were in some way unconstitutional it would have been a different matter. The courts could have declared this and used one of the available mechanisms to ensure that the regulations were brought in line with the Constitution. But that wasn’t raised by LexisNexis.
[4] Initially the minister said they would oppose the appeal but then agreed to abide.
[5] As it happens the Minister of Justice who agreed to abide by the Supreme Court’s ruling was Thembi Simelane who was subsequently appointed as Minister of Human Settlements very shortly after the Supreme Court hearing and who was, therefor the minister at the Indaba. I make no inference about this, the point I am making about the need for the executive to efficiently maintain regulations is a general one and not a specific criticism of any one minister, justified as that might be.
[6] Which does raise whether a Treasury investigation into the figure was really necessary.
[7] A social fact supported by the practice of magistrates’ courts and the Master’s Office using the rateable value of the deceased property to establish whether a Letter of Authority or of Executorship is required.
[8] Via the Magistrates Courts Act. The minister sets the maximum fine that magistrates courts can impose. This is linked to the maximum custodial sentence they can impose and this ratio (currently a maximum of R40,000 for each year that could be imposed as a custodial sentence) applies to all fines where there is the alternative of custodial sentence.
[9] The ratio set in 2014 was R40,000 for each year of sentence that could be imposed. Using CPI as the index, the maximum fine for each year of incarceration should now be just under R68,000.
