Uninsured and Hit by Another Driver? What Are Your Rights Under South African Third-Party Insurance Law?

 

Key Takeaways •      Your claim is against the driver who damaged your car, not against that driver's insurance company. You are not a party to their policy, so you cannot sue the insurer directly. •      You are entitled to be put back, in money, in the position you were in immediately before the collision, which normally means the reasonable cost of repair, or the pre-collision value of the car less the salvage if it is written off. •      The other driver's excess is not your problem. You never agreed to it, and as the innocent third party you should not be asked to carry it. •      You have three years to sue, and negotiating with an insurer does not stop that clock. Around 65 to 70 percent of vehicles on South African roads carry no cover at all, so act early and in writing.

 

A client wrote to us recently with a problem thousands of South Africans face every month. Her neighbour reversed into her parked car in the complex parking area. He admitted fault, he has insurance, she does not, and she is now dealing with his insurer. What should she expect to be paid, and what happens if the insurer refuses to cover the full repair cost?

The question reaches far beyond one parking bay. South Africa had more than 13,3 million registered vehicles at the end of 2024, and the Automobile Association, drawing on South African Insurance Association figures, puts the proportion carrying no cover at roughly 65 to 70 percent. In a queue of three cars at a Johannesburg robot, two are probably uninsured. If one damages your car, everything then depends on the law of delict and on your evidence.

What is third-party insurance, and is it compulsory in South Africa?

Third-party insurance is cover a driver buys to protect themselves against claims brought by other people, and it is not compulsory in South Africa. Three people feature in every such claim: the insurer, the insured (the driver who bought the policy), and the third party (you, whose property was damaged). The policy promises to indemnify the insured, which means to reimburse them for what they are legally obliged to pay you. It promises you nothing.

Where does the Road Accident Fund fit in, and what is a delict?

The Road Accident Fund compensates people for bodily injury caused by negligent driving. It pays nothing for damage to your vehicle. Property damage is recovered from the wrongdoer personally, under the law of delict.

A delict is simply a civil wrong. If someone carelessly damages your property, the law obliges them to pay. You must prove four things: that the other driver acted unlawfully, that they were negligent (they did not drive as a reasonable driver would have), that this caused your loss, and the amount in rands. Lawyers call that money loss your patrimonial loss, a formal way of describing the dent in your pocket.

Can I claim directly from the other driver's insurance company?

No. Your legal claim lies against the driver who damaged your car, not against that driver's insurer. The policy is a contract between the driver and the insurer, and you are a stranger to it. In practice the insurer will usually step in, because it will end up paying the bill, but if it stalls, under-pays or goes quiet, your remedy is against the driver.

The Supreme Court of Appeal set out this structure in Truck and General Insurance Co Ltd v Verulam Fuel Distributors CC [2006] ZASCA 85. Liability insurance, the court observed, involves three parties, the insurer, the insured and the third party making a claim, and the insured's right to be reimbursed is tied to the insured's own legal liability. The proper course for an injured person is to sue the wrongdoer and then look to the insurance company.

So address your letter of demand to the driver and copy the insurer. The driver, not you, is the insurer's client, and the driver has the leverage to make the insurer settle.

Where should I take my claim, and what will it cost me?

Almost entirely on how much you are claiming.

Route	Best suited to	Your cost	Is the outcome binding?	Watch out for
Negotiate with the insurer	Almost every claim, as a first step	Nothing, unless you brief an attorney	Only once a written settlement is signed	Never sign in full and final settlement until hidden damage has been checked
Small Claims Court	Claims up to R30 000 (raised from R20 000 on 1 August 2026)	No attorney's fees at all	Yes, and enforceable through the Magistrates' Court	You sue the driver, not the insurer, and lawyers may not appear for you
Magistrates' Court	Up to R200 000 (district) and up to R400 000 (regional)	Attorney and sheriff's fees, usually recoverable if you win	Yes	You must prove negligence and the amount, with evidence
High Court	Claims above R400 000, and complex fleet losses	The most expensive route	Yes	Costs can outrun the claim on smaller matters
National Financial Ombud (Non-Life division)	Policyholders unhappy with their own insurer	Free	Binding on the insurer if you accept the ruling	It serves policyholders, so an uninsured third party has limited access

 

How much am I entitled to be paid?

You are entitled to be put back, in money, in the position you were in immediately before the collision, no better off and no worse off. That single principle answers most of the arguments that arise.

Repair cost, or the value of a written-off car

If the vehicle can be repaired, the measure is the reasonable cost of repair, supported by two independent quotes or an assessor's report. If the insurer's panel beater quotes less, ask in writing for the assessment and the reasons for the difference. If repairs would cost more than the car is worth, you claim its market value immediately before the collision, less whatever the wreck fetches as salvage. A write-off is an economic decision, not a legal ruling, and you may test the values relied on.

The excess, and what else you can claim

An excess is the first slice of a claim a policyholder agrees to carry under their own policy. You never agreed to it, so as the innocent third party you should not be asked to absorb it. You can also claim reasonable towing, storage and car hire, proved with invoices. Two cautions: you carry a duty to mitigate, meaning you must take sensible steps to stop the damage growing, and once you sign in full and final settlement you cannot return for the balance.

What have the courts decided recently, and what does it mean for me?

Three judgments, two from the Supreme Court of Appeal within the past year, shape how these disputes run today.

An insurer is held to the words it agreed to

In AIG South Africa Limited and Others v Azrapart (Pty) Ltd and Another [2025] ZASCA 172, delivered on 14 November 2025, the owners of Fourways Mall held a policy covering business interruption caused by infectious and contagious disease. When Covid-19 lockdowns stopped their tenants trading, they claimed. The insurers argued the cover had found its way into the policy by mistake, and asked the court to rectify the contract, meaning to correct it by deleting the clause.

The Supreme Court of Appeal refused. A party asking a court to rewrite a signed contract must prove the mistake in the clearest and most satisfactory manner. Negotiations had ended with a signed placing slip and a policy that both included the cover, so the contract said what the parties had agreed. The insurers raised the point nearly two years after the claim was lodged, and called no witness. The appeal was dismissed with costs.

Why this matters to you: an insurer cannot rewrite a policy after the accident because honouring it has become expensive, so ask for the wording. Older authority quoted in Truck and General goes further, holding that a genuine ambiguity is read against the insurer who drafted the document. That is the contra proferentem rule, meaning, in plain terms, against the party who put the wording forward.

Do not let the three-year clock run out while you negotiate

In Janse van Vuuren v WJB Stieger Konstruksie (Pty) Ltd [2026] ZASCA 102, handed down on 24 July 2026, a homeowner sued his builder over major structural cracks. The builder argued the claim had prescribed, meaning expired, because three years had passed since the owner first knew of the defects. The Supreme Court of Appeal disagreed. Prescription runs only once a creditor has the minimum facts needed to sue and is in a position to enforce the claim. Because the builder kept attempting repairs until October 2018, the claim only became enforceable when those repairs plainly failed, and so had not prescribed. A claim for damage to your vehicle normally prescribes three years after you know who is responsible and the facts you need to sue on, and waiting politely while an insurer considers your file does not stop that clock.

A split-second reaction is not automatically negligence

In Molaoa v Road Accident Fund [2025] ZAFSHC 2, a driver was confronted by a car overtaking towards him at speed on the wrong side of the road. He swerved, and a collision followed. The Free State High Court restated the sudden emergency principle: someone placed in immediate danger by another's carelessness is not negligent merely because they did not choose the best response in that moment. At worst it was an error of judgment. Fault is therefore not decided by who hit whom, but by what a reasonable driver would have done on the evidence.

What should I do, step by step, if an uninsured or insured driver damages my car?

Claims that settle quickly are almost always those where the paperwork was done properly in the first week.

1.   At the scene, photograph both vehicles, the damage, the number plates and the road position, and take the other driver's full name, identity number, address, cellphone number, vehicle registration and insurer.

2.   Get witness names and cellphone numbers before people drive away. Independent witnesses win these cases.

3.   Report to the police within 24 hours, obtain the accident report number, and get any admission of fault in writing. A WhatsApp saying 'sorry, I did not see your car' is evidence.

4.   Obtain two independent repair quotes, or an assessor's report if the car may be written off, and keep every receipt for towing, storage and transport.

5.   Send a written letter of demand to the driver, copied to the insurer, attaching the quotes and photographs and giving a deadline, usually 14 days.

6.   If the offer falls short, sign nothing in full and final settlement, diarise the three-year prescription date at once, and consult an attorney well before that deadline.

What if the other driver has no insurance and no money?

A judgment against someone with no assets is a hollow victory, so the practical question is whether the driver can pay at all. A payment arrangement made an order of court is often worth more than a judgment you cannot execute, and where a judgment is unpaid, a financial enquiry under section 65 of the Magistrates' Courts Act lets the court examine the debtor's income and order instalments. If the driver was working at the time, the employer may be liable for the employee's negligence, which matters greatly to businesses running fleets. Prevention is cheaper than litigation: basic third-party-only cover costs far less than comprehensive insurance.

Conclusion: know the rules before you accept the offer

Third-party claims turn on four things: proof of negligence, proof of the amount, the wording of a policy you are entitled to see, and a three-year deadline you cannot afford to miss. For the client who wrote to us the answer was reassuring. Her neighbour admitted fault, her car was repairable, and she was entitled to the reasonable cost of putting it right without contributing to his excess. Where an insurer under-pays, the offer is a starting position and not a verdict, and a properly supported demand very often moves the number.

Frequently asked questions

Can I claim from the other driver's insurance if I have no insurance in South Africa?

Yes, you can recover your loss even if you are uninsured. Your legal claim is against the driver who caused the damage, not against the insurer, although in practice the insurer will usually handle the matter on the driver's behalf. Being uninsured yourself does not reduce what you are entitled to be paid.

How long do I have to claim for damage to my car after an accident in South Africa?

Generally three years, running from the date you know who caused the damage and know the facts you need in order to sue. Negotiations with an insurer do not suspend that period. If you have not settled the claim, issue summons before the three years expire, or the claim will prescribe and fall away permanently.

Do I have to pay the other driver's excess if the accident was not my fault?

No. An excess is the first portion of a claim that a policyholder agrees to carry under their own policy with their own insurer. You are not a party to that contract and received no benefit from it. As the innocent third party, you should not be asked to contribute towards the other driver's excess.

What can I do if the insurance company offers less than my repair quote?

Do not sign. Ask in writing for the assessor's report and for the reasons behind the reduction, then respond with two independent quotes supporting your figure. If the insurer will not move, your remedy is to sue the driver in the appropriate court. A written, well-supported demand often closes the gap without litigation.

Can I take a car damage claim to the Small Claims Court in South Africa?

Yes, if your claim does not exceed R30 000, the limit that took effect on 1 August 2026. The Small Claims Court is free, informal and quick, and it does hear minor motor accident claims. You must sue the driver personally, not the insurer, and attorneys may not represent either side.

Speak to us before you accept an offer

At Bregman Moodley Attorneys Inc. we have been helping South Africans recover what they are owed since 1974. Whether you are a private motorist facing a short settlement offer, or a business with a fleet and a growing file of uninsured-driver losses, we will tell you plainly what your claim is worth and what it will cost to pursue it.

Call us on +27 (0)11 646 0335, email roy@bmalaw.co.za, or visit bregmans.co.za. The first conversation costs you nothing but a few minutes, and it may be the difference between a partial payment and a full recovery.

This article provides general information on South African law and is not legal advice. Every collision turns on its own facts. Please consult an attorney about your specific circumstances.

Intestate Succession in South Africa: Who Inherits When There Is No Will?

A plain-English guide to the Intestate Succession Act 81 of 1987, the Constitutional Court judgments that reshaped it, and what the family of someone who died without a will actually has to do.

Written by Roy Bregman, admitted attorney and founding director of Bregman Moodley Attorneys Inc., with over 51 years' experience in succession law. Read Roy's biography

KEY TAKEAWAYS •      If someone dies without a valid will, the Intestate Succession Act 81 of 1987 decides who inherits. It is a formula, not a discussion. •      The order is: spouse, descendants, parents, the parents' descendants, then more distant blood relations, and finally the Guardian's Fund. •      Almost all of the litigation has been about one word — “spouse”. Six Constitutional Court judgments between 2004 and 2021 widened it to cover Muslim, Hindu and customary marriages, same-sex life partners and, in Bwanya, permanent opposite-sex life partners. •      Parliament caught up on 3 April 2024, when the Judicial Matters Amendment Act 15 of 2023 wrote life partners into the Act itself. •      Two 2025 High Court judgments sharpen the edges: an heir can be shut out for unworthiness, and a customary adoption only counts if the customary formalities were actually observed. •      The estate must be reported to the Master of the High Court within 14 days of the death.

 

What happens when someone dies without a will in South Africa?

When a person dies without a valid will, the Intestate Succession Act 81 of 1987 takes over and decides who inherits and in what shares. This is called intestate succession. The estate devolves according to a statutory formula rather than according to anyone's wishes.

The formula is rigid. It does not care what the family agreed around the kitchen table, what the deceased said out loud, or what anyone thinks is fair. Heirs who are all of age and all agree can afterwards redistribute what they have inherited among themselves by way of a redistribution agreement, and the Master will accept that. But the starting point is always the Act.

The Act also applies partially. If someone made a will but left an asset out of it, or a beneficiary in the will died first with no substitute named, that portion devolves under the Act even though a will exists.

Who inherits, and in what order?

Section 1(1) of the Act sets out the order of heirs. Work down the list and stop at the first category that produces a living heir.

Spouse but no descendants — section 1(1)(a)

The surviving spouse inherits the whole intestate estate. Where the marriage was in community of property, remember that the survivor's own half of the joint estate is not inherited at all; it already belongs to them. Only the deceased's half is distributed.

Descendants but no spouse — section 1(1)(b)

The descendants inherit the whole estate in equal shares. Where a child died before the parent but left children of their own, that branch takes the deceased child's share between them. This is division per stirpes, by branch rather than by head. With three children, one of whom predeceased leaving two children of their own, the estate still splits three ways, and that third is then shared by the two grandchildren. It does not become a four-way or five-way split.

Spouse and descendants — section 1(1)(c)

The spouse takes a child's share or R250 000, whichever is greater, and the descendants take the balance. A child's share is calculated by dividing the estate by the number of surviving children, plus children who died first leaving descendants, plus the number of surviving spouses. The R250 000 figure is fixed by the Minister of Justice by notice in the Gazette and has stood at that amount since November 2014.

Because most South African estates are worth less than R250 000, the practical effect in many intestate estates is that the surviving spouse takes everything and the children take nothing.

No spouse and no descendants — section 1(1)(d)

The parents inherit in equal shares. If only one parent survives, that parent takes half and the other half goes to the deceased parent's descendants — in other words, the deceased's siblings and half-siblings. If the surviving parent is the only one left standing, that parent takes the whole estate.

No spouse, descendants or parents — section 1(1)(e)

The estate is divided into two halves, one going to the relatives on the mother's side and one to the relatives on the father's side, each half devolving on the nearest relations in that line.

Nobody at all — section 1(1)(f) and section 1(2)

The nearest blood relation inherits. If no relation comes forward, the estate is paid into the Guardian's Fund and held for 30 years, after which it goes to the State.

Who counts as a “spouse”? Thirty years of constitutional litigation

This is where almost all the case law sits. The Act itself has never defined “spouse”, and for the first decade after 1994 the Master read it narrowly, to mean a party to a civil marriage under the Marriage Act. A series of Constitutional Court judgments dismantled that reading.

Daniels v Campbell NO (2004) — monogamous Muslim marriages

Citation: Daniels v Campbell NO and Others (CCT 40/03) [2004] ZACC 14; 2004 (5) SA 331 (CC), 11 March 2004.

Mrs Daniels was married by Muslim rites only. The Master refused to treat her as a spouse. The Constitutional Court held that “spouse” in the Act should be given its ordinary meaning, which comfortably includes a party to a monogamous Muslim marriage. She could inherit intestate and claim maintenance from the estate.

Bhe v Magistrate, Khayelitsha (2004) — the end of male primogeniture

Citation: Bhe and Others v Magistrate, Khayelitsha and Others (CCT 49/03) [2004] ZACC 17; 2005 (1) SA 580 (CC), 15 October 2004. Read on SAFLII

This is the most far-reaching succession judgment of the constitutional era. Until Bhe, the estates of black South Africans who died intestate were dealt with under section 23 of the Black Administration Act 38 of 1927 and the customary rule of male primogeniture, under which only a male relative inherited. Women and extramarital children were excluded entirely.

The Court struck down section 23 and its regulations and struck down section 1(4)(b) of the Intestate Succession Act, which had carved those estates out of the ordinary regime. The result is the position we have today: one law of intestate succession for everybody, in which widows, daughters and extramarital children inherit on the same footing as anyone else. The Court also laid down how estates are divided where the deceased was in a polygamous customary marriage.

Gory v Kolver NO (2006) — same-sex life partners

Citation: Gory v Kolver NO and Others (Starke and Others Intervening) [2006] ZACC 20; 2007 (4) SA 97 (CC).

At a time when same-sex couples could not marry, the Court held that excluding the survivor of a permanent same-sex life partnership with reciprocal duties of support was unconstitutional and read those words into section 1(1) of the Act.

Hassam v Jacobs NO (2009) — polygynous Muslim marriages

Citation: Hassam v Jacobs NO and Others (CCT 83/08) [2009] ZACC 19; 2009 (5) SA 572 (CC), 15 July 2009. Read on SAFLII

Daniels had dealt with a monogamous Muslim marriage and left the polygynous case open. In Hassam the Court closed it, holding that the exclusion of widows of polygynous Muslim marriages discriminated unfairly on religion, marital status and gender. The remedy was to read the words “or spouses” into the Act after each use of “spouse”, so that more than one surviving spouse can inherit.

A parallel line of High Court authority, Govender v Ragavayah NO 2009 (3) SA 178 (D), reached the same conclusion for a Hindu marriage.

Laubscher NO v Duplan (2016) — the Gory order survives the Civil Union Act

Citation: Laubscher NO v Duplan and Another (CCT 234/15) [2016] ZACC 44; 2017 (2) SA 264 (CC), 30 November 2016. Read on SAFLII

Once the Civil Union Act 17 of 2006 allowed same-sex couples to marry, an executor argued that Gory had done its work and fallen away, so that only a registered civil union would do. The Constitutional Court disagreed. The Gory reading-in had not been impliedly repealed, and an unmarried same-sex partner in a permanent partnership with reciprocal duties of support could still inherit intestate.

This left an anomaly that lasted five years: an unmarried same-sex partner could inherit, but an unmarried opposite-sex partner in an identical relationship could not.

Bwanya v Master of the High Court (2021) — permanent life partners

Citation: Bwanya v Master of the High Court, Cape Town and Others (CCT 241/20) [2021] ZACC 51; 2022 (3) SA 250 (CC), 31 December 2021. Read on SAFLII

Jane Bwanya and Anthony Ruch lived together as though married and were engaged when he died. His will left everything to his mother, who had died before him, so the estate fell to be distributed intestate. The executor rejected her claim on the basis that she was not a spouse.

The Constitutional Court held that section 1(1) of the Act was unconstitutional in so far as it excluded the survivor of a permanent life partnership in which the partners had undertaken reciprocal duties of support. Noting evidence that more than three million South Africans are in life partnerships, the majority found the exclusion to be unfair discrimination on marital status, and departed from its own earlier decision in Volks v Robinson. The Court also held that “support” must be given a wide meaning — it covers care and the emotional dimension of a relationship, not only money.

The declaration of invalidity was suspended for 18 months to let Parliament legislate.

What Parliament did about it: the Judicial Matters Amendment Act

Parliament gave statutory effect to Bwanya through the Judicial Matters Amendment Act 15 of 2023, which came into operation on 3 April 2024. Section 14 amends the Intestate Succession Act to include the surviving partner of a permanent life partnership in which reciprocal duties of support were undertaken; section 15 makes the equivalent change to the Maintenance of Surviving Spouses Act 27 of 1990.

So the position is now written into the statute rather than read into it by a court. But recognition is not automatic. A surviving partner still has to prove that the partnership existed and that there were reciprocal duties of support — and where other relatives stand to lose out, that is exactly what they will dispute. In practice these claims turn on evidence, not on principle.

A partner who has already received an equitable share of the estate by inheritance may not also have a maintenance claim on top of it. The two remedies interact, and it is worth taking advice on which to pursue.

What the Supreme Court of Appeal has said

The Supreme Court of Appeal has been comparatively quiet on the Intestate Succession Act itself, largely because the important challenges have gone straight to the Constitutional Court as confirmation proceedings. Its main contribution is now of historical rather than practical importance.

In Mthembu v Letsela and Another 2000 (3) SA 867 (SCA) the Court declined to strike down the customary rule of male primogeniture, holding that the challenge had not been properly made out on the facts. Four years later the Constitutional Court took the opposite view in Bhe and invalidated the rule outright. Mthembu is worth knowing about because it is still occasionally cited by people who have not caught up: it does not represent the law today.

Practitioners should therefore not expect to find recent appellate authority on the core distribution rules. Since Bwanya, the movement has been legislative rather than judicial, and the working out of the detail has happened in the High Courts.

Who counts as a “descendant”?

The second recurring question is who qualifies as a descendant. The answer is broader than many families assume, but it is not unlimited.

•      Biological children inherit whether or not their parents were married. The historical discrimination against extramarital children is gone.

•      Legally adopted children inherit from their adoptive parents and not from their biological parents.

•      Children conceived by artificial insemination or born of a surrogacy arrangement have full capacity to inherit.

•      A child conceived but not yet born at the date of death is protected, and takes if subsequently born alive.

•      Grandchildren take by representation where their own parent died before the deceased.

•      Stepchildren who were never adopted do not inherit. Nor do foster children.

Customary adoption sits in a category of its own. Section 1 of the Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009 treats a person who was accepted by the deceased, in accordance with customary law, as his or her own child, as a descendant. That is a genuine route in — but the words “in accordance with customary law” are doing real work, as the next case shows.

Two 2025 High Court judgments worth knowing

Jacobs NO v Adams (2025) — an heir can be declared unworthy

Citation: Jacobs NO and Another v Adams and Another (2024-127653) [2025] ZAGPJHC 860; [2025] 4 All SA 655 (GJ); 2026 (2) SA 170 (GJ), Gauteng Division, Johannesburg, 24 August 2025. Read on SAFLII

Ivan died at 29 without a will, leaving no spouse, no children and no siblings, and a net estate of about R716 000. Under section 1(1)(d) his two surviving parents would each have taken half. His mother had raised him. His father had a brief relationship with her when she was eighteen, made a handful of maintenance payments extracted through the Maintenance Court in the first year, visited the hospital once, and then had no involvement in his son's life for the remaining 29 years.

Snyckers AJ declined to read the word “parent” in the Act normatively — the court would not hold that a biological father stops being a parent in the statutory sense simply because he behaved badly. But the court applied the common-law doctrine of indignus, an extension of the old maxim that the bloody hand does not inherit. Relying on Pillay v Nagan, it held that modern public policy allows unworthiness to reach beyond violence to extreme parental neglect. The father was declared unworthy, and the mother took the whole estate.

The lesson: unworthiness applies to intestate estates as much as to wills, and it now clearly covers serious dereliction of parental duty. A blood tie alone does not guarantee an inheritance.

Tshali v Nandi (2025) — customary adoption must actually be customary

Citation: Tshali and Another v Nandi and Others, case no 5307/2022, Eastern Cape Division, Mthatha, 2025. [Confirm the neutral citation on SAFLII before publication — see the note at the end.]

A woman and her son claimed to be the customarily adopted children, and therefore the intestate heirs, of her late aunt, who had raised her from a young age. They pointed to the deceased's medical aid card, her employer's records and her retirement annuity, all of which named them as her children, and relied on section 1 of the Reform of Customary Law of Succession Act.

The application was dismissed. The court accepted expert evidence that customary adoption is not something that happens quietly or by conduct. It requires the child's natural parent and the adoptive parent to enter into an adoption agreement at a meeting of the families, in the presence of a community leader, at which the adoptive parent announces that the child is being taken as his or her successor. None of that had happened, and the applicant's own father testified that he had never relinquished his parental rights. The court accepted that they had genuinely regarded the deceased as their mother, and made no order as to costs.

The lesson: customary law is fully recognised, but it must be followed properly. Being raised in the household, and being named on a medical aid or a beneficiary nomination, does not on its own make someone a descendant.

The case law at a glance

Judgment	Court	What it settled
Mthembu v Letsela (2000)	SCA	Declined to strike down male primogeniture; overtaken by Bhe and no longer good law
Daniels v Campbell NO (2004)	ConCourt	A party to a monogamous Muslim marriage is a “spouse”
Bhe v Magistrate, Khayelitsha (2004)	ConCourt	Male primogeniture and s 23 of the Black Administration Act struck down; one intestate regime for everyone
Gory v Kolver NO (2006)	ConCourt	Permanent same-sex life partners read into the Act
Hassam v Jacobs NO (2009)	ConCourt	Widows of polygynous Muslim marriages included; “or spouses” read in
Laubscher NO v Duplan (2016)	ConCourt	The Gory order survived the Civil Union Act
Bwanya v Master (2021)	ConCourt	Permanent life partners with reciprocal duties of support may inherit; Volks departed from
Judicial Matters Amendment Act 15 of 2023	Legislation	In force 3 April 2024; writes life partners into the Act itself
Jacobs NO v Adams (2025)	High Court	An heir may be declared unworthy for extreme parental neglect
Tshali v Nandi (2025)	High Court	Customary adoption only counts if the customary formalities were observed

Who inherits in each scenario?

Scenario	Who inherits?	Legal basis
Spouse, no descendants	The spouse takes the whole intestate estate	Section 1(1)(a)
One child, no spouse	That child takes the whole estate	Section 1(1)(b)
Several children, no spouse	Equal shares, with a predeceased child's share going to their own descendants	Section 1(1)(b), per stirpes
Spouse and children	The spouse takes a child's share or R250 000, whichever is greater; the children take the balance	Section 1(1)(c)
Two or more spouses and children	Each spouse takes a child's share or R250 000, whichever is greater	Section 1(1)(c) read with Hassam and Bhe
Permanent life partner, no marriage	May inherit as a spouse if reciprocal duties of support are proved	Section 1(1) as amended on 3 April 2024; Bwanya
No spouse or descendants	Both parents in equal shares; failing that, the surviving parent and the deceased's siblings	Section 1(1)(d)
No spouse, descendants or parents	Half to the mother's side, half to the father's side	Section 1(1)(e)
No traceable relations	Guardian's Fund for 30 years, then the State	Section 1(1)(f), section 1(2)
Heir found unworthy	Treated as if they had predeceased; inherits nothing	Common-law indignus; Jacobs NO v Adams

What the family has to do

The administration process is the same whether one person inherits or twenty.

1. Report the estate to the Master of the High Court within 14 days

You will need the death certificate, the deceased's identity document, a death notice, an inventory of assets, a next-of-kin affidavit and, if relevant, the marriage certificate and antenuptial contract. The estate is reported to the Master for the area where the deceased was ordinarily resident.

2. Establish who the heirs actually are

This is the step that goes wrong most often. Check for a customary or religious marriage, a life partnership, children from earlier relationships and children born outside a marriage. Anyone who may qualify should be identified now, not after the account has been advertised.

3. Get an executor or a Master's Representative appointed

If the gross value of the estate is R250 000 or less, the Master may appoint a Master's Representative under section 18(3) of the Administration of Estates Act — a shorter and cheaper route. Above that threshold, letters of executorship must be issued. Nothing should be dealt with before the appointment comes through.

4. Open an estate late bank account and gather the estate

Every rand must move through a dedicated account in the name of the estate. Obtain date-of-death balances, valuations of fixed property and vehicles, and details of every policy and retirement fund. Policies with a living nominated beneficiary usually fall outside the estate, and retirement fund benefits are distributed by the fund's trustees under section 37C rather than by the executor.

5. Advertise for creditors

A notice to creditors is published in the Government Gazette and a local newspaper, giving creditors 30 days to lodge claims. Do not pay creditors out of turn.

6. Lodge the liquidation and distribution account

Normally within six months of appointment. The account sets out the assets, the liabilities, the administration costs and the distribution. Once the Master approves it, it must lie open for inspection for at least 21 days, advertised in the Gazette and a local newspaper, so that anyone with an objection can raise it.

7. Distribute, transfer and close

If no objection is lodged, the debts are paid, the assets are transferred or paid out, transfer of any immovable property is registered, and the executor lodges proof with the Master, who files the estate as finalised.

Where this leaves you

Intestate succession in South Africa is now a single, gender-neutral regime that recognises a far wider range of families than it did thirty years ago. Muslim, Hindu and customary marriages count. Same-sex partners count. Since April 2024, permanent life partners count. Daughters and extramarital children inherit on the same footing as anyone else.

But wider recognition is not the same as certainty. A life partner has to prove the partnership. A customarily adopted child has to prove the adoption. An heir who neglected the deceased may be shut out. Every one of those questions is decided after the death, by people who were not there, on affidavit.

A properly drafted will removes all of it. It lets you choose who inherits, who administers the estate and on what terms, and it spares your family the cost, delay and bitterness of arguing about it afterwards. If you have been meaning to make one, the case law above is a fair summary of what happens if you do not.

Frequently asked questions

Does my partner inherit if we were never married?

Possibly. Since the Judicial Matters Amendment Act came into force on 3 April 2024, giving effect to the Constitutional Court's decision in Bwanya, the survivor of a permanent life partnership in which the partners undertook reciprocal duties of support is treated as a spouse for intestate succession. But the survivor must prove the relationship, and relatives who stand to lose out often dispute it.

Does a customary or Muslim marriage count?

Yes. A customary marriage recognised under the Recognition of Customary Marriages Act qualifies, as do monogamous Muslim marriages after Daniels v Campbell, polygynous Muslim marriages after Hassam v Jacobs, and Hindu marriages after Govender v Ragavayah. Where there is more than one surviving spouse, each takes a child's share or R250 000, whichever is greater.

How much does a surviving spouse get if there are children?

A child's share or R250 000, whichever is the greater. A child's share is the estate divided by the number of surviving children, plus children who died first leaving descendants of their own, plus the number of surviving spouses. Because most estates are worth less than R250 000, the spouse frequently takes everything.

Do grandchildren inherit?

Only by representation. If a child of the deceased died first but left children, those grandchildren share their parent's portion between them. Grandchildren whose own parent is still alive do not inherit directly.

Can an heir be disqualified from inheriting?

Yes. An heir found “unworthy” at common law is treated as though they had predeceased and inherits nothing. The doctrine traditionally covered unlawfully causing the deceased's death, but Jacobs NO v Adams (2025) confirms it also reaches extreme neglect of a parental duty.

What happens to the estate if nobody can be traced?

The proceeds are paid into the Guardian's Fund administered by the Master and held for 30 years. If no relation comes forward in that period, the money goes to the State.

What happens if the deceased had debts?

Debts, funeral expenses and administration costs are paid before anything is distributed, and the heirs receive the net balance. If the estate is insolvent it follows a different procedure. The heirs inherit nothing, but are not personally liable for the shortfall.

Do we need a lawyer to administer an intestate estate?

Not always. A small estate under section 18(3) can often be handled by a family member. But once there is fixed property, a business interest, a trust, a foreign asset, more than one possible spouse, or a dispute between heirs, professional help saves time and prevents errors the Master will send back.

 

SPEAK TO US ABOUT A DECEASED ESTATE We have been guiding families through deceased estates since 1974. Whether you need an intestate estate reported and administered, a disputed claim to heirship dealt with, or simply a will drawn so that none of this arises, we can help. Call +27 (0)11 646 0335  •  Email info@bregmans.co.za  •  www.bregmans.co.za Bregman Moodley Attorneys Inc., Suite 316, Killarney Mall, Riviera Road, Killarney, Johannesburg