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Wills, trusts and the distribution of the estates of deceased persons

Administration of Deceased Estates

What is a deceased estate?

A deceased estate comes into existence when a person dies and leaves property or a document, which is a will or is intended as a will. Such an estate must then be administered and distributed in terms of the deceased’s will or, in the absence of a valid will, in terms of the Intestate Succession Act, 81 of 1987.

The procedure that must be followed to administer a deceased estate is prescribed by the Administration of Estates Act, 66 of 1965 (as amended).

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Which deaths must be reported to the Master of the High Court?

The death of a person who dies within the Republic of South Africa and leaves property or any document that is a will or is intended as a will; and the death of a person who dies outside of the Republic of South Africa, but who leaves property and/or any document that is a will or is intended as a will, in the Republic of South Africa, must be reported to the Master of the High Court.

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Where must estates be reported?

Where the deceased was living in the Republic of South Africa, the estate must be reported to the Master of the High Court in whose area of jurisdiction the deceased was living at the time of his/her death. Where the deceased was not living in the Republic of South Africa at the time of his/her death, the estate may be reported to any Master of the High Court, provided it is reported to only one Master. An affidavit in which it is stated that the letters of executorships have not already been grated by any other Master of the High Court in the Republic of South Africa must accompany the reporting documents. From 5 December 2002, all Magistrates’ Offices are designated service points for the Master of the High Court and estates can be reported there. However, these service points have limited jurisdiction. All estates with wills, as well as estates that exceed R50 000 in value, will be transferred to the provincial Master’s Office. Therefore, it is advisable to report these estates directly the Master's Office.

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When and by whom must estates be reported?

The estate of a deceased person must be reported to the Master of the High Court within 14 days of the date of death. The death is to be reported by any person having control or possession of any property or documents that is or intends to be a will of the deceased. The estate is reported by lodging a completed death notice with the Master. The death notice and other reporting documents may be obtained from any Office of the Master of the High Court or Magistrate’s Office.

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How do you report an estate to the Master or to a service point of the Master of the High Court?

The reporting documents will differ slightly depending on the value of the estate and the type of appointment required. If the value of the estate exceeds R125 000, letters of executorship must be issued and the full process prescribed by the Administration of Estates Act must be followed.

However, if the value of the estate is less than R125 000, the Master of the High Court may dispense with letters of executorship, and issue letters of authority in terms of Section 18(3) of the Administration of Estates Act, (Act 66 of 1965). The Magistrates’ Office service points will only have jurisdiction if the deceased did not leave a valid will and the gross value of the estate is less than R50 000. Letters of authority entitle the nominated representative to administer the estate without following the full procedure set out in the Administration of Estates Act.

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What documents will be required in the event of the value of the estate exceeding R125 000?

The following reporting documents are required (these forms are available online at http://www.justice.gov.za/master/forms.html):

  • Completed death notice (form J294)
  • Original or certified copy of the death certificate
  • Original or certified copy of a marriage certificate (if applicable)
  • All original wills and codicils or documents intended as such (if any)
  • Next-of-kin affidavit if the deceased did not leave a valid will (form J192)
  • Completed inventory form (form J243)
  • Nominations by the heirs for the appointment of an executor in the case of an intestate estate, or where no executor has been nominated in the will, or the nominated executor has died or declines the appointment.
  • Completed acceptance of trust as executor forms in duplicate by the person(s) nominated as executor(s) (form J190)
  • Undertaking and bond of security, unless the nominated xecutor has been exempted from providing security in the will, or is the parent, spouse or child of the deceased (form J262)
  • Affidavit by the next-of-kin of a deceased person who has died without leaving a valid will, to the effect that the estate has not already been reported to another Master or service point (if applicable)

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What documents will be required in the event of the value of the estate being less than R125 000?

The following reporting documents are required (these forms are available online at http://www.justice.gov.za/master/forms.html):

  • Completed death notice (form J294)
  • Original or certified copy of the death certificate
  • Original or certified copy of a marriage certificate (if applicable)
  • All original wills and codicils or documents intended as such (if any)
  • Next-of-kin affidavit if the deceased did not leave a valid will (form J192)
  • Completed inventory form (form J243)
  • List of creditors of deceased (if applicable)
  • Nominations by the heirs for the appointment of a Master’s representative in the case of an intestate estate or where no executor has been nominated in the will or the nominated executor declines the appointment.
  • Undertaking and acceptance of Master’s directions (form J155)
  • Declaration confirming that the estate has not already been reported to another Master’s Office or service point of the Master

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Intestate Succession

What happens if I do not leave a will (intestate succession)?

If you die without leaving a valid will, your estate will devolve in terms of the rules of intestate succession, as stipulated in the provisions of the Intestate Succession Act, (Act 81 of 1987). In case of a marriage in community of property, one half of the estate belongs to the surviving spouse and, although it forms part of the joint estate, will not devolve according to the rules of intestate succession. For more information on the Intestate Succession Act, please consult the Act or your legal representative.

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In the event of intestate succession, what happens if the deceased is survived by a spouse or spouses but not by (a) descendant/s?

The spouse or spouses will be the sole intestate heirs.

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In the event of intestate succession, what happens if the deceased is survived by a descendant/s, but not by a spouse?

The descendant will inherit the intestate estate.

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In the event of intestate succession, what happens if the deceased is survived by a spouse/s as well as (a) descendant/s?

The spouse or spouses inherit the greater of R125 000 per spouse or a child’s share, and the children the balance of the estate. A child’s share is determined by dividing the intestate estate by the number of surviving children of the deceased and deceased children who have left issue, plus the number of surviving spouses.

Example of the child’s share in the event of a polygamous marriage:

In this case the value of the intestate estate is R1 000 000. The deceased is survived by two spouses and three children. A child’s share amounts to R200 000 (being R1 000 000 divided by five: the three children and the two spouses). The child’s share is greater than R125 000. Therefore each spouse will inherit R200 000 and each child will inherit R200 000 (R1 000 000 less R400 000 to the spouses, divided by three).

Example of the child’s share in the event of a monogamous marriage:

In this case, the same calculation will apply as in the previous example, only the child’s share is calculated by dividing the value of the intestate estate by four. The surviving spouse and each child will each inherit R250 000.

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In the event of intestate succession, what happens if the deceased leaves no spouse or descendants, but both parents are still alive?

His/her parents will inherit the intestate estate in equal shares.

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In the event of intestate succession, what happens if the deceased leaves no spouse and no descendants but leaves one parent, while the deceased parent left descendants (brothers/sisters of the deceased)?

The surviving parent will inherit one half of the intestate estate and the descendants of the deceased parent the other half.

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In the event of intestate succession, what happens if the deceased leaves no spouse or descendants but leaves one surviving parent, while the deceased parent did not leave any other descendants?

The surviving parent will inherit the whole estate.

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In the event of intestate succession, what happens if the deceased does not leave a spouse or descendants or parents, but both his parents left descendants?

The intestate estate will be split into equal parts. One half of the estate is then divided among the descendants related to the deceased through the predeceased mother and the other half among the descendants related to the deceased through the predeceased father.

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In the event of intestate succession, what happens if the deceased does not leave a spouse, descendant or parents, but only one of the predeceased parents left descendants?

The descendants of the predeceased parent, who left descendants, will inherit the entire intestate estate.

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In the event of intestate succession, what happens if the deceased does not leave a spouse, descendants, parents or descendants of his parents?

The nearest blood relation inherits the entire intestate estate.

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In the event of intestate succession, what happens if the deceased is not survived by any relative?

Only in this instance will the proceeds of the estate devolve on the state.

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What is the position with regard to an illegitimate child of the deceased?

An illegitimate child can inherit from both blood relations, the same as a legitimate child.

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What is the position with regard to an adopted child of the deceased?

An adopted child will be deemed to be a descendant of his adoptive parent or parents; and not to be a descendant of his natural parent or parents, except in the case of a natural parent who is also the adoptive parent of that child or was, at the time of the adoption, married to the adoptive parent of the child.

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Will

What is a will?

A will is a specialised document, which should preferably be drawn up by an expert like an attorney or trust company.

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Who is competent to make a will?

The person who draws up a will is called the testator/testatrix. All persons 16 years and older are competent to make a will in order to determine how their estate should devolve upon their death, unless they were mentally incapable of appreciating the consequence of their actions at the time of making the will.

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Who is competent to act as a witness to a will?

All persons of 14 years and over are competent to act as a witness to a will, provided that at the time they witnessed the will they were not incompetent to give evidence in a court of law.

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What are the requirements for a valid will?

Since 1 January 1954 all wills must be in writing. They can be written by hand, typed or printed. The signature of the testator/testatrix must appear at the end of the will. This signature must be made in the presence of two or more competent witnesses. The witnesses must attest and sign the will in the presence of the testator/testatrix and of each other. If the will consists of more than one page, each page other than the page on which it ends must be signed anywhere on the page by the testator/testatrix. Although the testator/testatrix must sign all the pages of the will, only the last page of the will needs to be signed by the witnesses.

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What are the requirements for a valid will if the testator/testatrix cannot sign his/her name?

If the testator/testatrix cannot sign his/her name, he/she may ask someone to sign the will on his/her behalf or he/she can sign the will by making a mark (a thumbprint or a cross). When the will is signed by someone on behalf of the testator/testatrix or by making a mark, a Commissioner of Oaths must certify that he/she has satisfied him/herself as to the identity of the testator/testatrix and that the will so signed is the will of the testator/testatrix. The Commissioner of Oaths must sign his/her certificate and he/she must also sign every other page of the will, anywhere on the page. The Commissioner of Oaths must also be present when the will is signed and must append his/her certificate as soon as possible after the will is signed even if the testator/testatrix dies soon after signing the will.

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What is a codicil?

A codicil is a schedule or annexure to an existing will, which is made to supplement or amend an existing will. A codicil must comply with the same requirements for a valid will. A codicil need not be signed by the same witnesses who signed the original will.

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What if I want to amend my will?

Amendments to a will can only be made while executing a will or after the date of execution of the will. Amendments to a will must comply with the same requirements for a valid will and, if a testator/testatrix cannot sign it, with the same requirements that apply for persons who cannot sign a will. When amending a will, the same witnesses who signed the original will need not sign it again.

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Must I amend my will after a divorce?

A bequest to your divorced spouse in your will, which was made prior to your divorce, will not necessary fall away after divorce. The Wills Act stipulates that, except where you expressly provide otherwise, a bequest to your divorced spouse will be deemed revoked if you die within three months of the divorce. This provision is to allow a divorced person a period of three months to amend his/her will, after the trauma of a divorce. Should you, however, fail to amend your will within three months after your divorce, the deemed revocation rule will fall away, and your divorced spouse will benefit as indicated in the will.

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Who is disqualified from inheriting under a will?

The following people are disqualified from inheriting under a will: a person or his/her spouse who writes a will or any part thereof on behalf of the testator; and a person or his/her spouse who signs the will on instruction of the testator or as a witness. Consult your legal representative for more information in this regard.

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Customary Law

What happens in the case of a customary union?

When a spouse alleges that he or she is a partner in customary union, proof in the form of a certificate of registration must be lodged (see Section 4(5)(b) of the Recognition of Customary Marriages Act 120 of 1998, as amended).

Application for a registration certificate can be made to the Department of Home Affairs. The service point of the Master can assist with advice in this regard. When a certificate of registration cannot be lodged, the spouse must approach an appropriate court for a remedy (see Section 4(7) of the Recognition of Customary Marriages Act 120 of 1998, as amended). The abovementioned reporting documents must be posted to, or handed in at the Master’s Office or service point.

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How has customary law and the distribution of estates of deceased persons been affected by the Bhe decision?

Customary law has been dramatically affected by the decision in the Bhe and others vs. the Magistrate Khayelitsha and another case, which changed the way estates of deceased persons will be distributed. It also changed the way the Department of Justice and Constitutional Development will supervise the administration of deceased estates.

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What happened in the Bhe decision?

While he was still alive, the deceased lived with Ms Bhe and one of their two daughters in Khayelitsha. There was some doubt whether Ms Bhe and the deceased were married or not. Their second daughter lived with the father of the deceased in Berlin in the Eastern Cape. The deceased died without a will, and his estate was to be distributed in terms of customary law. This meant that the father of the deceased would have inherited the estate to the exclusion of Ms Bhe and her two daughters. The estate consisted of a shack and the property on which the shack was built.The father wanted to sell the property to pay for his son’s funeral. If he proceeded, Ms Bhe and her children would have been destitute.

Ms Bhe applied to Court to have her two daughters declared the only beneficiaries of her husband’s estate. The Constitutional Court held that the customary law of succession was constrained by Section 23 of the Black Administration Act, and was not allowed to develop to meet the changes in the society that it was meant to serve. As a result it stagnated and became out of touch with the realities of urbanisation and changing family relationships. In its current guise it is unconstitutional since it discriminates on the basis of gender and birth.

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How did the Bhe decision change the way estates will be distributed?

All deceased estates will be distributed in terms of the Intestate Succession Act. This means that the beneficiaries in order of reference are: the spouse of the deceased; the descendants of the deceased; the parents of the deceased (only if the deceased died without a surviving spouse or descendants); and the siblings of the deceased (only if one or both parents are predeceased). The Intestate Succession Act should be read in such a way that it could accommodate cases where the deceased was a husband in a polygamous customary union. When the deceased leaves only spouses and no descendants, the wives will inherit the estate in equal shares. When the deceased leaves spouses and descendants the spouses and descendants will inherit the estate in equal shares but each wife shall inherit at least R125 000.

When the estate is not large enough to allow each wife to inherit the R125 000, the spouses will inherit the estate in equal shares while the descendants will not receive anything.

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How did the Bhe decision change the way the administration of estates will be supervised?

After the Bhe decision, deceased estates will all be administered in terms of the Administration of Estates Act (Act 66 of 1965, as amended). This implies that Magistrates will no longer supervise and administer deceased estates; only the Master of the High Court will do so. It also implies that the Master of the High Court does not have the power to administer estates on behalf of beneficiaries. The Master will appoint a suitable person to administer the estate.

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Has the customary law of succession been abolished?

No, when planning his/her estate, a person may still arrange that his/her estate be distributed in terms of customary law. This should be done by making a will. The Master of the High Court has a constitutional obligation to ensure the development of customary law. This should be done by allowing the family of a deceased to agree on the way the estate should be distributed. The Master of the High Court may not, however, allow vulnerable groups like women and children to be exploited as a result of a family agreement.

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How are deceased estates now administered and distributed?

The Bhe decision fundamentally changed the way deceased estates will be administered and distributed. All estates will not be administered in terms of the Administration of Estates Act (Act 66 of 1965, as amended) and will be distributed in terms of the intestate Succession Act (Act 81 of 1987, as amended). It is important that all South Africans be made aware of these changes, so that they can plan their estates accordingly. The Chief Master of the High Court has established a helpline where more information can be obtained. The number of this helpline is 012 315 1880.

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Trusts

How are trusts administered?

The administration of trusts is governed by the provisions of the Trust Property Control Act, Act 57 of 1988. There are two types of trusts, inter-vivos and testamentary trusts. An inter-vivos trust is created between living persons. A testamentary trust derives from the valid will of a deceased.

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What documents must be lodged in order to enable the Master of the High Court to register an inter-vivos trust and to issue letters of authority to the nominated trustee(s)?

The following documents must be lodged :

  • The original trust deed or notarial certified copy thereof
  • R100 in uncancelled revenue stamps, affixed on the trust document or by impressing stamps by means of a franking machine on the trust document, approved by the Commissioner for Inland Revenue
  • Completed acceptance of trusteeship by each trustee
  • Bond of security by the trustees, if required by the Master (form J344)
  • All the requirements listed on form JM21
  • An undertaking by an auditor on form JM21 (if applicable).

For the testamentary trust only the completed acceptance of trusteeship by each trustee and all the requirements listed on form JM21 have to be lodged. There are no fees involved and the deceased’s last will serves as the trust document.

The inter-vivos trust must be registered with the Master in whose area of jurisdiction the greatest portion of the trust assets are situated. If more than one Master has jurisdiction over the trust assets, the Master in whose office the trust was first registered will continue to have jurisdiction. On receipt of all the required documents, the Master may issue the nominated trustees with letters of authority to administer the trust. No trustee may act as such without the written authority of the Master. Financial statements must be kept and, if requested by the Master, must be lodged with him/her, especially when queries regarding the administration of the trust are received by him/her.

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Guardian's Fund

What is the Guardian’s Fund?

The Guardian’s Fund falls under the administration of the Master of the High Court. It is a fund created to hold and administer funds that are paid to the Master on behalf of various persons, known or unknown (for example, minors, persons incapable of managing their own affairs, unborn heirs, missing or absent persons or persons having an interest in the moneys of a usufructuary, fiduciary or fidei-commissiary nature).

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What happens with the moneys when deposited in the Guardian’s Fund?

When the Master receives or accepts any money he/she must open an account in the books of the Guardian’s Fund in the name of the person to whom the money belongs or the estate of which that money forms part. If it is not known to whom such money belongs, the account may be opened in the name of the person from whom the money is derived, as the estate from which the money has been received, or the estate from which the money is derived, as the case may be. The money in the Guardian’s Fund is invested with the Public Investment Commission and audited annually.

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What is the position with the payment of interest?

Interest is payable on amounts paid into the Guardian’s Fund on behalf of any minor, persons incapable of managing their own affairs, unborn heirs and persons having an interest in the moneys of a usufructuary, fiduciary or fideicommissiary nature. The interest is calculated on a monthly basis at a rate per annum determined from time to time by the Minister of Finance. The interest is compounded annually at 31 March. Interest is paid for a period from a month after receipt up to five years after it has become claimable, unless it is legally claimed before such expiration.

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Can I claim any maintenance from the Guardian’s Fund, and if so, how?

An account holder can claim maintenance from the Guardian’s Fund. The Master is entitled to pay all accrued interest, as well as up to R100 000 from the invested capital for maintenance, like school and university fees, clothes, medical fees, boarding and lodging and any other needs that can be motivated. Maintenance can be claimed by the guardian/tutor/curator/person looking after the person of the account holder by way of an application on form J341, supported by quotations and accounts. Payments can be made directly to the service provider, like schools, universities and bookshops.

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When can an account holder claim the invested money, and how?

A minor can claim the invested money, as well as the accrued interest on reaching the age of majority (on his/her eighteenth birthday, marriage or declaration of majority by the High Court). However, a testator can stipulate another age when a beneficiary is entitled to the invested capital. Money can be claimed by the account holder when entitled by way of an application on form J251, supported by a certified copy of the account holder’s identity document/passport/ marriage certificate/order of court.

In the case of usufructuaries/fideicommissaries, those entitled to the interest can claim the accrued interest on an annual basis after 31 March of each year by way of a written application giving full particulars of the instrument, which created the usufructuary/fideicommissary interest. The owner can claim the invested capital when entitled thereto (usually after the death of the usufructuary/fideicommissary) by way of an application on form J251, supported by a certified copy of the account holder’s identity document/passport.

In the case of untraced or undetermined beneficiaries, money can be claimed by the account holder when the account comes to his/her attention. The application must be made on form J251, supported by a certified copy of the account holder’s identity document/passport.

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How do payments take place?

Money/interest/maintenance is paid by means of a crossed cheque to the payee personally, or by a deposit in the payee’s banking account.

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What happens with the money if not claimed in time?

After the lapse of a period of five years after the money has become claimable, the Master pays the unclaimed money to the Receiver of Revenue Payment Register. This does not mean that the owner of the money cannot claim the money from the Guardian’s Fund. However, after the lapse of a period of 30 years after the money has become claimable, the money is forfeited to the state. Every year during September the Master advertises accounts that have been unclaimed in the Government Gazette.

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Guardian's Fund Contact Details

Bloemfontein
Tel: (051) 448 2128
E-mail: zfololo@justice.gov.za


Cape Town
Tel: (021) 410 8390/1
E-mail: hgxalaba@justice.gov.za

Grahamstown
Tel: (047) 531 2361
E-mail: tmbadu@justice.gov.za or dpicane@justice.gov.za

Pietermaritzburg
Tel: (033) 342 0614/43/56/72/73
E-mail: Isehemo@justice.co.za

Pretoria
Tel: (012) 339 7843
E-mail: gmarais@justice.gov.za

Master of High Court of South Africa Contact Details

Pretoria
Office of the Chief Master
Tel: 012 3151220
Fax: 012 3151901
Private Bag X81
Pretoria
0017
Momentum Building (South Tower)
329 Pretorius Street
Pretoria

Pretoria
Tel: 012 339 7700
Fax: 012 326 1977
Private Bag X60
Pretoria
0001
Sanlam Forum Bldg
Corner Church and Queen Streets
Pretoria
0002

Mmabatho
Tel: 018 381 0006
Tel: 018 381 0003
Fax: 018 381 3617
Private Bag X42
Justice Chambers
44 Shippard Street
Mafikeng
Mmabatho
2745

Cape Town
Tel: 021 410 8300
Fax: 021 465 2574
Private Bag X9018
Cape Town
8000
High Court
Parade Street
Cape Town
8001

Grahamstown
Tel: 046 603 4000
Fax: 046 622 9990
Private Bag X1010
Grahamstown
6140
5-9 Bathurst Street
Dicks Building
Grahamstown
6139

Kimberley
Tel: 053 831 1942
Fax: 053 833 1586
Private Bag X5015
Civic Centre
Jan Smuts Boulevard
Kimberley
6300

Bloemfontein
Tel: 051 448 2128
Fax: 051 447 6575
Private Bag X20584
Bloemfontein
9300
Southern Life Bldg
Corner Aliwal and Maitland Streets
Bloemfontein
9301

Bhisho
Cell: 083 491 2255
Tel: 040 639 2079/87
Fax: 040 639 2100
Private Bag X 0002
Bisho
5605
No 254 Corner Phalo and Rarhabe Avenue
Bisho

Pietermaritzburg
Cell: 083 654 3522
Tel: 033 264 7007
Fax: 033 342 3129
Tel: 033 264 7006
Fax: 033 342 3129
Tel: 033 264 7000
Private Bag X9010
Pietermaritzburg
3200
Court Gardens,
Corner Commercial Road and Church Streets
Pietermaritzburg
3201

Thohoyandou
Tel: 015 962 1027
Tel: 015 962 1032
Fax: 015 962 1033
Private Bag X 5015
Venda Government Building Complex
Thohoyandou
Venda
0950

Mthatha
Tel: 047 532 3716
Fax: 047 532 2040
Private Bag X 5023
Metropolitan Place
Corner Craister and Leeds Streets
Mthatha
5100

Port Elizabeth
Tel: 041 502 7407
Fax: 041 582 1497
No 29 Western Road
Private Bag X2
Centrahill
Port Elizabeth
6006
523 Govan Mbeki Avenue
Corner Crawford and Govan Mbeki Avenue,
North End

Durban
Cell: 082 337 3254
Tel: 031 306 0175
Fax: 031 306 0126
Tel: 031 306 0123
Fax: 031 306 0126
Tel: 031 306 5330
Private Bag X54325
Durban
4000
No 2 Devonshire Place
2nd Floor, Opposite Salisbury Centre
Smith Street, Between Gardner and Field Streets
Durban

Polokwane
Tel: 015 291 4300
Fax: 015 291 4320
Private Bag X9670
Polokwane
0700
Library Garden
Corner Grobler and Schoeman Streets
1st Floor, Room 105

Johannesburg
Tel: 011 220 2500
Fax: 011 220 2508
Private Bag X5
Corner Von Brandis and Kerk Street
Inner Court Building
4th Floor
Johannesburg
2000
No 66 Marshall Street
Hollard Building
Johannesburg

Source: Department of Justice and Constitutional Development

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Last modified: 21 July 2009 10:12:20.

 
 

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