Moseneke and Others v The Master of the High Court

Mr Sedise Samuel John Moseneke, a black South African, died intestate in October 1999. In terms of section 23(7)(a) of the Black Administration Act 38 of 1927 and regulation 3(1) made under it, the estates of black persons who died intestate were administered by magistrates, while the Master of the High Court administered intestate estates of all other racial groups. The applicants, being the widow and children of the deceased, objected to the magistrate administering the estate and sought to have the Master do so, arguing that the racially differentiated system was unconstitutional. Proceedings in the High Court resulted in regulation 3(1) being declared invalid, but section 23(7) was not expressly dealt with, creating an administrative impasse. The matter came before the Constitutional Court, where the applicants sought direct access to challenge the constitutionality of both provisions.

Direct access was granted. Section 23(7)(a) of the Black Administration Act and regulation 3(1) were declared unconstitutional and invalid. The declaration of invalidity was suspended for a period to allow Parliament to correct the defect and to ensure continuity in the administration of intestate estates during the transitional period.

The case is a leading authority on the unconstitutionality of racially based legislation inherited from apartheid, particularly in the administration of deceased estates. It affirms that differential treatment based on race in civil administration is presumptively unfair and incompatible with the Constitution. The judgment is also significant for its pragmatic remedial approach, demonstrating how constitutional invalidity can be managed through suspended declarations to prevent administrative collapse.