Functions and duties of the Orphan Chamber
As was the case in Batavia, the establishment of the Orphan Chamber at the Cape of Good Hope arose out of the need to provide for the collection and administration of the property of persons who died intestate and left heirs who were absent from the Colony or who were under age. The property of persons who died on the voyage to and from Europe and found on board, was also subject to the jurisdiction of the Orphan Chamber. However, the Government was advised in a letter dated 30th March, 1711 that the Chamber was not to be burdened with deceased estates of Company’s servants and burgers who had died on the voyage.
The main functions and duties of the Orphan Chamber were:
- the administration of the estates of persons dying intestate in the Colony or on the voyage and leaving absent or minor heirs, as well as estates of those who had not specifically excluded the Orphan Master in their will, or had specifically appointed them even where their heirs were majors and resident here
- the registration of wills of deceased persons
- the administration of minors’ property
- receiving and paying to present and absent claimants the portions or legacies due to them
- keeping a death register of persons who died at the Cape
- recording the resolutions and transactions of the Board.
After the devastating effect of the smallpox epidemic of 1713, the Council of Policy empowered the Orphan Chamber to protect the transfer of property of all free individuals at the Cape. All wills and deaths at the Cape had to be registered with the Orphan Chamber but the Chamber only inventoried and acted as executor for the categories of estates listed below.
The Orphan Chamber was the executor of the estates of free persons:
- who left heirs under 25 (and unmarried) or of unsound mind
- who left heirs who were either out of the country or not apparent
- who died ab intestato or ex testamento (without a will or testament)
- if there was a specific request in the will or testament for the Chamber to act as executor
- if the will did not specifically exclude the Chamber from acting as executor.
The Orphan Chamber had to track down any possible heirs. Heirs residing outside of the country of death had to send a power of attorney proving their relationship to the deceased, and the Orphan Chamber would then pay out what was rightfully theirs. If an individual died without children or spouse, then the inheritance went to their next of kin, whether brothers, sisters, parents, or cousins (sometimes even to the 10th degree). If an inhabitant, or a stranger, died at the Cape without any acknowledged relatives, the property, after discharging the debts, was sold, and reserved for the unknown heirs, and every method was taken for their discovery. If no heir was found within 50 years from the date of death, the estate reverted to the Government.
In 1714 the Government issued to the Orphan Masters a set of rules and Regulations by which they were to be guided in the carrying out of their duties (Resolutions, Council of Policy, 26.6.1714). These instructions were taken from the Statutes of Batavia, together with a tariff of fees which were to be charged in administering an estate.
The following is a translation of the title and contents of a booklet (MOOC3/1/1, Received Instructions 1714-1831): Instruction of the Orphan Chamber of the Cape of Good Hope, which gives one a good indication of the various aspects involved in this institution:
|Instruction of the Orphan Chamber of the Cape of Good Hope
Pupils instituted as heirs
Delivering of evidence of caution and punishment
Who were orphans
How not and how to place orphans
To collect debts and inheritances by summation and other means through deeds of the Master of the Orphan Chamber as binding as for ships
Not to allow letters from orphans to lapse
Guardianship and investment of money
To sell the property of those orphans without income
The property of orphans remains common property until one of them comes of age, etc.
An orphan absent for 16 years disqualifies himself (herself) from inheritance
Litigation of orphans
Estates of unknown heirs
To keep the secrets of the Chamber
Fines deriving from litigation in the Chamber
Application for fines
Caution of the Secretary and salary
Salary of Orphan Masters
2 to 8
9 and 10
11 and 12
13 to 16
27 to 32
36 to 38
40 to 42
47 to 51
52 to 54
In 1793 renewed instructions were issued and compiled from the 1714 rules, from those of the Orphan Chamber at Batavia, from a sketch of instructions submitted to the Government by the Orphan Masters, and from a report relative to the improvement to the Chamber.
Provisional instructions were framed for the Orphan Chamber by Commissioner General Jacob de Mist but these show that they were evidently framed more with a view to confirm the existing rules than to introduce new regulations.
The following are two of the articles of the instructions laid down: Immovable property of orphans could only be sold by an order of Court, and such property had to be put up for public auction and sold to the highest bidder. A minor, absent from the country for sixteen years, could be publicly summonsed at his last-known place of residence. If it was ascertained what had happened to him, his heirs could receive his property upon giving security de restituendo. Persons had to obey a summons to appear before the Masters as if it had emanated from a Court, and upon a third default to appear they could be brought before the Court of Justice. From the resolutions sent from time to time by the Government to the Board and the instructions framed in 1793, it would appear that the Orphan Masters were given almost the same portion of authority and jurisdiction in testamentary matters as was exercised in earlier periods by the spiritual Courts in England (Botha, 1928: 20).
In 1822 William Wilberforce Bird, Secretary to the Governor, explained the system and process of inheritance at the Cape:
Under the laws of the colony the widow takes one-half, whether it be real or personal property, and the other half is divided equally between the children, whether male or female; and if no children, to the nearest relatives of both father and mother. No one by will can deprive a child of its share ... But a man can leave to his widow, in addition to the half she inherits, one child’s portion. At the death of the widow unmarried, her half descends, in like manner, to the children; but if she has a second husband, and children by him, her property goes equally between such husband and the children of both beds, as does the property of the husband at her death.
If a married person dies intestate, and leaves children under age, the Orphan Chamber is at liberty, on the application of the surviving husband or wife, to suffer him or her to remain in possession of the whole estate, on condition that an inventory be taken, and a fair valuation be made of the same, according to which valuation, the half of the net balance is assigned to the children in equal shares, and left in the hands of the survivor, provided good security be given, that the share of each of the children will be forthcoming at their becoming of age. The principle of this regulation is, that it is in the interest of the children themselves to have their parent remaining in the undisturbed possession of his concern, in order to prevent the danger of loss, arising from a sudden disposal of the estate; and also to preserve more fully to the surviving parent, the means of educating his children (Bird, 1823: 54).
He also mentioned the following regarding the estates of military, which deviated
from the rest:
Orphan Masters are in general to take charge and administer all estates ... with the exception, however, of the estates of military, leaving no children in the colony, which are to be administered by the judge-advocate of the garrison, or any other person duly authorised (Ibid: 53).
By proclamation of 26 April 1816, offices for the enregisterment of slaves were established in Cape Town and the various districts. That in Cape Town was under the superintendence of an Inspector and Deputy, that in Stellenbosch under the Secretary and that in the other districts under the District Clerks. Slave owners were obliged to report births, deaths, etc. of their slaves; all sales and exchanges of slaves were to be registered at the office and a register kept of all proprietors and the names of their slaves. The district registers were to be sent up every month to the Inspector, afterwards known as the Registrar and Guardian (or Protector) of Slaves, at Cape Town.
This enactment had been passed owing to the numerous manumissions which had taken place and the increase of manumissions and “large class of Negro Apprentices, (which has of late years been, by decisions of the Court of Vice-Admiralty, greatly increased), and the expediency that the most minute precautions should be taken to prevent the possibility of such free persons, or their offspring, merging into Slavery, or being confounded with the domestic or other Slaves, the property of individuals in this Settlement” (Index to Slave Office 1/21). These Negro Apprentices, i.e. ‘prize negroes’ were people confiscated from slavers after Britain abolished the slave trade in 1808, and brought to the Cape to serve as ‘apprenticed’ labour.
Immediate freedom was not given to slaves with the abolishment of slavery, but ex-slaves had to remain with their owners for a specified period of time. The social and economic life of the apprentice remained unchanged. Regulations regarding food and clothing remained intact. The apprentices were able to receive a wages and the master could be fined for additional and unpaid labour. Since the abolition act, domestic punishment was no longer exercised by the master, but by the Special Magistrate. In Breaking the chains apprenticeship offences punished by these Special Magistrates are listed (Worden, 1994: 138-140). Isobel Edwards describes the status of the apprentice as follows: “From a judicial standpoint the apprentice was in a sorrier plight than he had been as a slave of recent years” (Edwards, 1942: 181). The privilege of the apprentices was that they had the right to complain to the Office of Guardian of Slaves against their owners and to purchase their freedom. In 1833 during the debates at Parliament, proposals of manumissions were for deserving slaves, freedom to children born of slave women and self purchase schemes.
Prize Negroes were kept along with the other slaves in the Slave Lodge and indentured to colonists for periods of up to 14 years. The concept of indenture was sanctioned in 1812, and also used for Khoi children who worked as farm labourers to learn skills. Manumitted slaves were also often apprenticed to their owners for a number of years. There were instances where a slave had an apprentice in order to teach him a trade (McCall, 1904: 449). The slave, Carel of Mr de Klerk testified that he had to pay 150 rixdollars to the Clerk, Mr Ingram, six months after the boy landed in the Colony. Owing to this, he had the services of Farrel, the apprentice, for seven years and fed, clothed and taught him his trade. It was believed that slaves should be prepared for the labour market and society after their freedom.
An example of an apprentice is Mamsie, given to Thomas Melvill (MOOC8/32.14) by the Government for fourteen years and given back to the Clerk C: Blair at his death in 1814.
In another case, James Keeva was described by the agent of the Orphan Chamber, Christiaan Lind as a “prysneger of apprentice” in his inventory (MOOC8/40.27) at his death on 16 June 1824. James Keeva received Rd:s307:6:0 1/4 from the First Clerk, Thomas Drury, at the Vischratie Departement.
Evidence of nuances of slavery existed. It becomes clear where mention is made of slaves who were sent to the “banditen” in 1802 (MOOC8/23.30). Robert Shell mentions that there were a few important ex-sultans at the top of the prisoner slave hierarchy (Shell, 1994: 197).
In the inventory of Joseph Davey, 12 apprentices are listed in 1820 who were handed over to the Customs collector (MOOC8/34.46). In most inventories of the VOC period there were requests for slaves to remain in the families or be freed after the death of the owner, unlike in the case of these apprentices.
According to the provisions of Ordinances 104 and 105 of 1833, the Orphan Chamber was abolished and its duties were transferred to the newly appointed office of Master of the Supreme Court. The Supreme Court of the Cape of Good Hope was established in 1827. Subsequently a code for the administration and distribution of insolvent estates was enacted on behalf of minors and persons under curatorship.
The Minister of Justice appointed a master for every provincial division of the Supreme Court. Masters of the Supreme Court dealt with:
- deceased and insolvent estates
- cases under the Farmer’s Assistance Act
- companies in liquidation and under judicial management
- guardianships and trusts in terms of the various acts.
They also assessed estate duty under power of delegation by the Director-General of Finance.
In 1833 during the Parliamentary debates, proposals of manumissions were for deserving slaves, freedom to children born of slave women and self purchase schemes.
Slavery as such was abolished in the Cape Colony in 1834 (Botha, 1928: 51).