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[2017] ZAWCHC 79
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King NO and Others v De Jager and Others (21972/2015) [2017] ZAWCHC 79; [2017] 4 All SA 57 (WCC); 2017 (6) SA 527 (WCC) (10 August 2017)

THE
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH
AFRICA
(WESTERN CAPE DIVISION, CAPE
TOWN)
REPORTABLE
Case
No:  21972/2015
Before
the Hon. Mr Justice Bozalek
Hearing:
10 and 14 November 2016
Judgment
Delivered:  10 August 2017
In
the matter between:
JAMES
KING
N.O
1
st
Applicant
TRUDENE
FORWORD
N.O.
2
nd
Applicant
ANNELIE
JORDAAN
N.O.
3
rd
Applicant
ELNA
SLABBER
N.O.
4
th
Applicant
KALENE
LE ROUX
N.O.
5
th
Applicant
SURINA
SERFONTEIN
N.O.
6
th
Applicant
and
CORNELIUS
ALBERTUS DE
JAGER
1
st
Respondent
JOHANNES
FREDERICK DE
JAGER
2
nd
Respondent
ARNOLDUS
JOHANNES DE
JAGER
3
rd
Respondent
HENDRICK
CHRISTIAAN
SLABBER
4
th
Respondent
JACOBUS
HENDRIK
SERFONTEIN
5
th
Respondent
DAVID-JOHN
FORWORD
6
th
Respondent
CHARL
WYNAND
ROUX
7
th
Respondent
KALVYN
ROUX
8
th
Respondent
THE
MASTER OF THE HIGH COURT, CAPE
TOWN
9
th
Respondent
JUDGMENT
BOZALEK
J
[1]
This
application raises as a primary issue whether a Court can amend the
wording of a will which established a
fideicommissum
containing a condition discriminating against female descendants. The
issue brings to the fore two potentially competing rights,
the right
to freedom of testation on the one hand and the right to equality
(more specifically the right not to be unfairly discriminated

against) on the other.
THE
PARTIES
[2]
The
first applicant is an attorney and one of the six co-executors in the
deceased estate of the late Kalvyn de Jager who died on
5 May 2015
(‘the deceased’). The deceased, who died testate, had no
sons but left five daughters who are the second
to sixth applicants
and are co-executors with the first applicant in the deceased’s
estate.
[3]
The
first to third respondents are the sons of the deceased’s late
brother, John de Jager, who died on 6 October 2005.
[4]
The
fourth to eighth respondents are the sons of the second to sixth
applicants i.e. the deceased’s grandsons.
[5]
The
Master of the High Court is the ninth respondent.
[6]
Only
the first to third respondents oppose the application.
THE
FACTUAL BACKGROUND
[7]
The
dispute arises out of a joint will (‘the will’) executed
on 28 November 1902 in Oudtshoorn by the deceased’s

grandparents, Carel de Jager and Catherina de Jager (‘the
testators’) who were married in community of property. The

testators had six children comprising four sons and two daughters. In
the will they bequeathed various fixed properties, including
many
farming properties, to their four sons and two daughters subject,
however, to
fideicommissa
governed
by clause 7 thereof
.
According
to its provisions all of the fixed properties, both those
specifically named as well as unnamed properties (save for a
certain
piece of property bequeathed to one daughter under clause 5) were
made subject to the
fideicommissa
.
Until the deceased’s death the terms of the
fideicommissa
were
interpreted and applied as appointing only the sons of the testators’
children, and thereafter their sons, as
fideicommissary
beneficiaries. In other words both the first and the second
substitutions limited the
fideicommissary
beneficiaries
to descendants of the male gender.
[8]
The
present application is said by the applicants to concern only certain
farming properties which were initially bequeathed to
the deceased’s
father, Cornelius de Jager, one of the testators’ four sons.
[9]
It
is not known when the co-testatrix died but according to an abridged
family tree, the co-testator died in 1904 and presumably
some time
thereafter the farms which were bequeathed to Cornelius de Jager were
inherited by him as fiduciary heir. According to
the family tree,
Cornelius de Jager died in 1957. He had three sons, Corrie de Jager
(who died on 19 March 1984 or 1998 - the papers
are contradictory),
John de Jager (who died on 6 October 2005) and the deceased, Kalvyn
de Jager (who died on 5 May 2015).
Cornelius de Jager
also had six daughters but details of when they died and what
progeny, if any, they had are not given in the
papers nor reflected
in the family tree. This is presumably so because on the long
accepted interpretation of clause 7 of the will,
they never became
fideicommissary
beneficiaries
to any property. As a result Cornelius de Jager’s
abovementioned three sons each became fiduciary heirs to a
one third
share in the farms, subject to the
fideicommissum
in clause 7 of the will. Put differently, the first substitution of
fiduciaries in respect of those properties i.e. to the testators’

grandsons, occurred after Cornelius’ death in 1957.
[10]
Of
those three grandsons, Corrie de Jager left no children upon his
death and his one third share in the properties devolved, in
terms of
clause 7 of the will, in equal parts upon his two surviving brothers,
namely John de Jager and the deceased. Upon the
death of John de
Jager in 2005 his half share of the properties in question (i.e. his
original one third share plus his one sixth
share which he inherited
from his brother, Corrie) devolved upon his three sons, the first to
third respondents, but now free of
any
fideicommissum
.
This was the second in the series of substitutions of fiduciaries,
namely, to the testators’ great grandchildren in their
capacity
as
fideicommissaries
.
[11]
After
the first to third respondents received their inheritance they, and
one of their trusts, concluded an agreement with the deceased

dividing up their respective interests in the
fideicommisary
property. According to the first applicant’s founding affidavit
the result is that in terms of certain title deeds the deceased

became the co-owner in undivided shares of three specific properties,
namely, the farms Nieuwdrift Nr 88, Doornkuil and Buffelsdrift
Nr
260, all in the district of Oudtshoorn. The title deeds in terms of
which the deceased held his respective half shares in each
of the
three properties stipulate that his title in each case was subject to
clause 7 of the will.
[12]
The
deceased was the last grandson of the testators in whose estate a
fiduciary asset in terms of the will fell to be dealt with.
The
substitution following his death will therefore be the last
substitution as required by the terms of the will and thus the
heirs
in terms of this substitution inherit the property free of the
fideicommissary
burden. For ease of reference I shall henceforth refer to the
deceased’s half share in each of these properties as ‘the
fideicommissary
property’.
After advertisement of the estate, 13 persons making up the three
groups of claimants described below laid claim
to the
fideicommissary
property.
THE
VARIOUS CLAIMANTS AND THE BASIS OF THEIR CLAIMS
[13]
The
first applicant deposed to the founding affidavit and expressed the
view that the terms of the
fideicommissum
which discriminate against the female descendants of the testators
are against public policy and cannot stand.
[14]
He
explains that there are three groups of claimants to the
fideicommissary
property.  The first group comprises the deceased’s
daughters (second to sixth applicants) who contend that those
provisions
of clause 7 of the will which refer to ‘
sons’
and ‘
male
descendants’
discriminate against them unfairly as members of the female gender.
They seek the deletion and amendment of these provisions in
clause 7
of the will thereby making them the heiresses to the
fideicommissary
property
.
[15]
The
second group of claimants (the first to third respondents) comprises
the three sons of the deceased’s late brother, John
de Jager
(the testators’ great grandsons). They base their claim to the
fideicommissary
property
on the fact that the deceased left no sons and they contend that
according to the
fideicommissum’s
terms
they are the lawful heirs to it.
[16]
The
third group of claimants (the fourth to eighth respondents) comprises
the grandsons of the deceased (i.e. the great great-grandsons
of the
testators) namely, the five sons of the first group of claimants.
Their claim is based on the assumption that the claim
of their
mothers based on unfair discrimination against female descendants
does not succeed. They contended that in such event
clause 7 of the
will must be interpreted in such a way that the
fideicommissary
property
devolves on them as the deceased’s male descendants (‘
manlike
nakomelinge’
to use the phrase which appears in the Afrikaans translation of
clause 7) rather than upon the second group of claimants.
THE
CASES MADE OUT IN THE PAPERS
[17]
The
first applicant stated that he is not certain to whom he and his
fellow executors must transfer the
fideicommissary
property pursuant to his duty as a co-executor. For this reason he
was advised to approach the Court for a declaratory order. He

expressed the view that the will clearly provided for an indefinite
fideicommissum
restricted to male descendants but explained that in terms of sec
7(1)(b) of the Immovable Property (Removal or Modification of

Restrictions) Act 94 of 1965, since there had been one substitution
prior to 1 October 1965 in terms of the existing
fideicommissum
,
it was restricted to only one further substitution. In the present
instance this first substitution had occurred when the
fideicommissary
property devolved upon the deceased in 1957 following the death of
his father, Cornelius de Jager.
[18]
On
my reading of the will, however, the
fideicommissa
were not indefinite but were intended to terminate after the second
substitution i.e. when the property devolved upon the third
line of
heirs. It is common cause that the next substitution of fiduciaries
will be the last.
[19]
The
will was executed in Dutch but the parties accept as correct an
English translation of the key provision, clause 7, reading
as
follows:
‘
With
respect to the bequest of grounds/land to their sons and daughters,
as referred to under Clauses 1, 2, 3, and 4 of this, their
Testament,
it is the will and desire of the appearers that such grounds/land
will devolve, following the death of their children,
to said
children’s sons and following the death of the said grandsons
again and in turn to their
sons
,
in such a way that, in the case of the death of any son or son’s
son who does not leave
a
male descendant
,
his share/portion will fall away on the same conditions as above and
therefore pass to his brothers or their sons in their place
and in
the case of the death of a grandson without any brothers, to the
other Fidei Commissaire heirs from the lineage of the sons
of the
appearers by representation, in continuity, and in the case of the
death of a daughter or a daughter’s son without
leaving a male
descendant, her or his share will fall away in the same way and on
the same conditions, and go to the other daughters
or their sons, by
representation, or
[1]
the deceased’s son’s brothers or their sons “per
stirpes”, respectively. And they stipulate furthermore
that
none of their heirs down to the third generation will renounce, by
leasing, donating, selling, or in any other way whatsoever,
his (or
in the first generation, her) life right or any interest therein/on
and should any heir who is subject to the Fidei Commissum,
attempt
such renunciation, or should such life right or any interest therein
be arrested or be seized under the order/sentence
of a court or as a
result of insolvency of the person to whom the above belongs, then
his right will, with immediate effect take
an end and will be
accepted by the hereinafter appointed administrators, who will, as
they deem fit and at their discretion, from
time to time, pay out the
fruits thereof to such person, or invest said capital until his death
when the said amount will devolve,
together with the grounds/land, to
the nearest and next heir in line.’
[my
underlining]
[20]
The
case of the second to sixth applicants, supported by the first
applicant, is based on the contention that clause 7 of the will

discriminates unfairly against women by limiting the
fideicommissary
beneficiaries
to sons and male descendants. This is reflected in the dominant
provision of clause 7 and in particular in the words
‘
to
said children’s sons and following the death of said grandsons
again and in turn to their sons’
.
They ask that the terms of the will be amended so that the words
‘
seuns’
in the fifth line and the phrase ‘
manlike
nakomeling’
in the seventh line of the agreed (modern) Afrikaans version of
clause 7 be amended to read as follows:
‘
[7]
Met betrekking tot die vermaking van  die gronde aan hul seuns
en dogters in klousule 1,2, 3 en 4 van hierdie testament
is dit die
wil en begeerte van die komparante dat sodanige gronde sal oorgaan na
die dood van hul kinders op die se seuns en na
die dood van die
kleinseuns weer op hulle [seuns]
kinders
op sodanige wyse dat in geval van die oorlyde van enige seun of seuns
sonder [manlike] nakomelinge na te laat, sy aandeel sal verval
op
dieselfde voorwaardes aan sy broers of hulle seuns by plaasvervulling
…’
(deleted
words in brackets and substituted words underlined).
[21]
The
effect of these amendments would be that the
fideicommissary
property
will devolve upon the second to sixth applicants, the deceased’s
daughters
.
The
applicants seek a declaration as invalid of what they regard as the
offending portions of the will and the amendment thereof,
both in
terms of the common law and by a direct application of the
Constitution, in particular, sec 9 thereof. They contend that
even
before the new constitutional dispensation, testators’ freedom
of testation was limited where provisions in a will were
found to be
contrary to public policy. The common law, they argue further, has
developed extensively since 1902, particularly as
a result of the
values which have been adopted in the Constitution, with the result
that a testator’s freedom of testation
is limited to the extent
that provisions in a will amount to unfair discrimination.
[22]
The
case for the second group of claimants to the property, namely, the
three sons of the late John de Jager, is that the testators’

intention as expressed in the will was that the
fideicommissary
property would remain in the De Jager family up to and including the
third generation and more specifically, after the testators’

children, devolving upon their grandsons and thereafter upon their
great grandsons. Where the condition relating to
fideicommissary
property could not be met because the fiduciary or substituted
fiduciary left no son, then the property would devolve upon any

brother/s or his/their son/s.
[23]
These
respondents contend furthermore that the will draws a line under the
third generation with the result that searches for male
descendants
in the fourth (or a later) generation (the case made on behalf of the
fourth to the eighth respondents) is misconceived.
[24]
The
first to third respondents contend therefore that, the deceased
having left no sons, the
fideicommissary
property
devolves upon them. They point out also that it was based on this
interpretation of the will, long held by all, that in
2007 they and
the deceased entered into an agreement in terms whereof the deceased
became the owner of a half share in three properties,
his share still
being subject to the
fideicommissum
.
They assert that the first applicant’s duty is to transfer the
deceased’s half share in the
fideicommissary
property to them and they dispute both the claim of the deceased’s
daughters as well as the alternative interpretation of
clause 7
contended for by the applicants in terms whereof the
fideicommissary
property would devolve upon the deceased’s grandsons as the
final substitutes to the
fideicommissary
property.
[25]
In
his replying affidavit the first applicant conceded that the deceased
had initially interpreted the will as excluding his daughters
as
heiresses to the
fideicommissary
property. The first applicant stated that it was in 2014, upon
receiving legal advice from him that either his daughters or his

grandsons qualified as
fideicommissary
heirs, that the deceased thereupon instructed him to draw up a new
will disposing of the property in question. Even after it was

explained to the deceased that he could not legally dispose of these
fiduciary assets in a will, he had insisted on drawing up
a new will,
‘
bequeathing’
the property to his five daughters, his thinking being that his
grandsons should be aware of his wishes in this regard.
[26]
The
Master filed a report advising that the deceased died testate and
that in terms of his will his five daughters inherited equally.
She
confirmed the appointment of the applicants as executors in the
estate and advised furthermore that she did not wish to oppose
the
present application and abided the Court’s decision.
THE
RELIEF SOUGHT
[27]
The
applicants seek in the first place a declaratory order that those
provisions of the will that exclude the deceased’s daughters
as
fiduciary heiresses to the
fideicommissary
property are
contra
bonos mores
,
unconstitutional and therefore subject to amendment. They further
seek orders in terms whereof, as described above, certain wording
in
clause 7 is amended so as to remove the discriminatory provision of
the
fideicommissum
and
cause the deceased’s daughters to be declared the fiduciary
heiresses to the
fideicommissary
property. In the alternative an order is sought declaring the
deceased’s grandsons the fiduciary heirs to the
fideicommissary
property,
per
stirpes
.
THE
LAW
[28]
Freedom
of testation, according to which testators are free to dispose of
their assets in a will in any manner they see fit, is
a basic
principle of our law of succession.  More than a century ago in
Robertson
v Robertson’s Executors
[2]
Innes ACJ noted:
‘
Now
the golden rule for the interpretation of testaments is to ascertain
the wishes of the testator from the language used. And
when these
wishes are ascertained the Court is bound to give effect to them,
unless we are prevented by some rule or law from doing
so.’
This
dictum was quoted with approval by Watermeyer JA in
Jewish
Colonial Trust Ltd v Estate Nathan
[3]
also a matter concerning a
fideicommissum
and remains good law to this day.
The
principle of freedom of testation is, however, not completely
unrestricted since our law allows for limitations on this freedom

based on what Professor De Waal describes as relevant social and
economic considerations, some statutory, others founded in common
law
principles.
[4]
One such
restriction is that the courts will not give effect to testamentary
provisions if they offend against public policy. The
introduction of
the new constitutional dispensation and the importance which it gives
to the concept of equality has, potentially
at least, set the scene
for a re-evaluation of the primacy hitherto given to the principle of
freedom of testation.
[29]
This
is illustrated by four cases dealing with testamentary trusts which
have come before the Courts under the new constitutional

dispensation. In
Minister
of Education and Another v Syfrets Trust Ltd NO and Another
[5]
(‘
Syfrets’
)
the Court was faced with a challenge to a charitable testamentary
trust established by a will executed in 1920. It provided for

bursaries for study abroad but restricted them to persons of
‘
European
descent’
and specifically excluded persons of ‘
Jewish
descent’
and ‘
females
of all nationalities’
.
The Minister of Education and the University of Cape Town, which
administered the trust, sought an order deleting the discriminatory

provisions from the trust deed.
[30]
In
upholding the challenge Griesel J dealt with it on the basis of
existing principles of the common law rather than directly applying

the provisions of the equality clause in the Constitution. The
question which the Court asked was whether the contested provisions

were contrary to public policy and thus unenforceable. It found that
since the advent of the constitutional era, public policy
was rooted
in the Constitution and the fundamental values it enshrined, thus
establishing an objective normative value system.
It held that
present day public policy, as opposed to that when the will was
executed, was decisive to the application.
[31]
Ultimately
the Court found that the limitation of eligibility for the bursaries
on the basis of ‘
European
descent’
constituted indirect discrimination based on race or colour whilst
the exclusion of Jews and women constituted direct discrimination
on
the grounds of gender and religion. The latter grounds of
discrimination were presumed to be unfair in terms of sec 9(3) of
the
Constitution.
[6]
The Court then
applied the limitations test as set out in
Harksen
v Lane NO and Others
[7]
thereby enquiring into the fairness of the discrimination and it had
regard to international conventions ratified by Parliament
dealing
with discrimination. It concluded that in the final analysis the
Court was required to weigh up competing constitutional
values and
principles of public policy: on the one hand the right to equality
and freedom from unfair discrimination, and on the
other the
principle of private ownership together with its corollaries of
private succession and freedom of testation.
[8]
The Court’s conclusion was that the challenged testamentary
provisions constituted unfair discrimination and as such were

contrary to public policy with the result that the Court was
empowered, in terms of the existing principles of the common law,
to
order a variation of the trust deed by the deletion of the offending
provisions from the will.
[9]
[32]
In
Ex
Parte:  BOE Trust Ltd
[10]
the trustees of a charitable testamentary trust which provided for
bursaries for ‘
White
South African students’
who met certain qualifications to study overseas, were unsuccessful
in persuading the Court to delete the word ‘
White’
on the basis that it directly or indirectly discriminated against
potential beneficiaries of the bursaries on the basis of race
or
colour. The trustees contended that the offending provision was
contrary to public policy and/or the public interest and that
it
infringed the right to equality embodied in sec 9(1) of the
Constitution (and in other legislation) or the principle set
out in
the
Syfrets
case.
[33]
The
Court, per Mitchell AJ, held that although the right to property
included the right to give enforceable directions as to its
disposal
on the death of the owner, freedom of testation could be restricted
by laws of general application and considerations
of public policy.
It held nevertheless that the provisions in question were not
contrary to public policy since although sec 9(3)
of the Constitution
proscribed unfair discrimination, discrimination designed to achieve
a legitimate objective was not unfair.
One of the conditions for the
awarding of a bursary was that the candidate had to return to South
Africa for a period stipulated
by the selectors. In interpreting the
challenged provisions the Court held that it was at least possible
that the testatrix was
seeking to ameliorate the trend whereby
university graduates emigrated upon completion of their education,
thereby depriving the
country of the benefit of their skills.
Mitchell AJ held further that freedom of testation had to include the
right to benefit
a particular class of persons and not others and
that only where that conduct could be categorised as unfair
discrimination would
it be held contrary to public policy.
[11]
[34]
In
Curators,
Emma Smith Educational Fund v University of KwaZulu-Natal and
Others
[12]
,
a decision of the Supreme Court of Appeal, the Court dealt with an
offending provision in a testamentary charitable trust which
was
created in 1938. It was intended to provide funding for the higher
education of poor ‘
European
girls born of British South African or Dutch South African parents,
who have been resident in  Durban for a period
of at least three
years immediately preceding the grant’
.
As trustee of the Fund, the University argued that the racially
discriminatory provisions in the trust were contrary to public
policy
and had to be deleted. In doing so it relied on sec 13 of the Trust
Property Control Act, 57 of 1988. The Court found that
the racially
restrictive nature of the trust was not only at odds with public
policy but prevented the testator’s objectives
being achieved.
In concluding that the offending provisions were against the public
interest the Court had regard to existing case
law, notably the
Syfrets
case, the right to equality, public policy and the fact that the
trust was a public charitable fund administered by a public
institution.
[13]
[35]
The
Court held ultimately that the constitutional imperative of removing
racially restrictive provisions takes precedence over freedom
of
testation and, for that reason, does not amount to unlawful
deprivation of property as constitutionally defined. The Court stated

in this regard that:
‘
The
constitutional imperative to remove racially restrictive clauses that
conflict with public policy from the conditions of an
educational
trust intended to benefit prospective students in need and
administered by a publicly funded educational institution
such as the
University, must surely take precedence over freedom of testation,
particularly given the fundamental values of our
Constitution and the
constitutional imperative to move away from our racially divided
past. Given the rationale set out above,
it does not amount to
unlawful deprivation of property’
.
[14]
The
question of whether or not the Constitution applied directly to the
law of succession was, however, left unanswered.
[36]
Similar
questions were addressed in
In
re: Heydenrych Testamentary Trust and Others
[15]
where the Court was again required to deal with certain charitable
testamentary trusts which made provision for the allocation
of
scholarships on the discriminatory grounds of race, descent and
gender. The applicants, the administrators of the trust, sought
an
order deleting those provisions of the trusts which discriminated
directly on the grounds of race and colour but not those provisions

which discriminated directly on the grounds of sex and/or gender and
indirectly on racial grounds on the basis that such discrimination

should be treated ‘
more
circumspectly’
by the Court than direct discrimination on the grounds of race.
[16]
All of the testamentary trusts were executed in terms of wills
executed prior to the new constitutional dispensation, one in 1943

and the other two during the 1980’s. However, the Women’s
Legal Centre intervened as amicus curiae and took issue with
those
discriminatory provisions not challenged by the applicant, including
those based on the ground of gender in respect of two
of the trusts.
[37]
The
Court found that the impugned provisions in two of the trusts
constituted unfair discrimination on the grounds of gender and
race
and were in conflict with sec 9(4) of the Constitution and the public
interest.
[17]
It held further
that the unfairly discriminatory provisions of the trusts had brought
about consequences which the founders had
not contemplated or
foreseen. Goliath J stated as follows in this regard:
‘
All
the wills in question were executed before the advent of our
democracy and the introduction of the Constitution. The testators

would not have foreseen that the allocation of scholarships by the
trusts on a discriminatory basis would be rendered unconstitutional

and unlawful.’
[18]
In
the result the Court varied the terms of the trusts inter alia so as
to delete those provisions which discriminated against persons
on the
grounds of gender or sex.
[38]
These
developments in our law of succession based on our new constitutional
values have been welcomed by academic commentators although
some
concerns have been expressed that the principle of freedom of
testation should not be adulterated. The question which arises
is to
what extent challenges to testamentary dispositions based on the
right to equality (and in particular, not to be unfairly

discriminated against) will be recognised outside the area of
charitable testamentary trust having a public nature.
[39]
I
am aware of only one recent case dealing with a testamentary
disposition having no public character, namely, the recent decision

of my brother Dlodlo in
Harper
and Others v Crawford NO and Others
[19]
which is instructive. In
Harper’s
case Dlodlo J had to consider, amongst other issues, whether the
Court could amend the wording of a testamentary trust so as to
make
certain adopted children beneficiaries of the trust in circumstances
where it appeared that the donor had not intended this
result. The
applicants also relied on sec 9 of the Constitution and on
post-constitutional changing public policy. Dlodlo J noted
that the
relief sought was far-reaching inasmuch as it would require the Court
to intervene in the right of an owner to dispose
of his property as
he saw fit.
[20]
He regarded it
as an important factor that the line of cases commencing with
Syfrets
dealt with trusts having a public character as opposed to the
instrument in question which was a private trust deed.
[21]
[40]
The
learned judge also noted the significant parallels between
testamentary freedom and contractual freedom and that whilst a
contract
may be declared invalid for being contrary to public policy,
this occurs in only the rarest of cases.
[22]
He found support for the Court’s reluctance to interfere with
choices made by individuals in the private law areas of their
lives
in the following passage from the writings of
HLA
Hart, The Concept of Law (1961)
at pp 40 – 41, quoted with approval by Cameron JA in
Brisley
v Drotsky
:
[23]
‘
Rules
conferring private powers must, if they are to be understood, be
looked at from the point of view of those who exercise them.
They
appear then as an additional element introduced by the law into
social life over and above that of coercive control. This
is so
because possession of these legal powers makes of the private
citizen, who, if there were no such rules, would be a mere

duty-bearer, a private legislator. He is made competent to determine
the course of the law within the sphere of his contracts,
trusts,
wills and other structures of rights and duties which he is enabled
to build.’
[41]
Dlodlo
J found that it would be anomalous were the Constitution, whose
primary purpose is to secure the freedom of individuals from
undue
State interference, to be used to curtail an individual’s
freedom, in this case the freedom to dispose of one’s
property
as one chose. He added that any attack on a will or trust instrument
based on allegedly discriminatory provisions should
provide a cogent
answer to the question of why different consequences should apply to
the distribution of property of a deceased
person than applies to
that of a living person.
[24]
[42]
The
learned judge then conducted the limitation test envisaged in sec 36
of the Constitution
[25]
on the
assumption that the provisions of the trust deed did unfairly
discriminate, observing that such an enquiry must be concluded
before
there can be a finding that a particular testamentary provision is
contrary to public policy. Dlodlo J concluded that the
Court had no
competency to vary the relevant provisions of the trust deed just as
it would have no power or authority to change
any testator’s
will.
[26]
[43]
The
general principle is that courts will not authorise the variation of
the provisions of a will which are capable of being carried
out and
are not contrary to law or public policy, save in exceptional
circumstances or under statutory authority. This applies,
as the
authors of the leading textbook on the law of succession
[27]
,
puts it, ‘
(n)o
matter how capricious, unreasonable, unfair, inconvenient or even
absurd they may be’
.
[28]
‘
Now
the golden rule for the interpretation of testaments is to ascertain
the wishes of the testator from the language used. And
when these
wishes are ascertained, the Court is bound to give effect to them,
unless we are prevented by some rule or law from
doing so.’
[44]
In
his chapter on the
Law
of Succession and the Bill of Rights
in the Bill of Rights Compendium
[29]
and in the section dealing with freedom of testation and the equality
clause, Professor De Waal concludes that the equality clause
in the
Constitution does not provide a basis for an attack on the validity
of a will on grounds such as the fact that only female
descendants
have been instituted as heirs.
[30]
[45]
Corbett
and his fellow authors align themselves with Professor De Waal’s
views, inter alia for the reasons that no beneficiary
has a
fundamental right to inherit, that disherison does not detract from
the beneficiary’s rights, and noting that two constitutional

rights, namely, freedom of testation and the right to equality are
involved. They point, as does Professor De Waal, to the practical

difficulties which would be involved in such a challenge not least
relating to the remedy, such as whether the Court could ‘
rewrite’
the will and where the line would be drawn between deserving and
undeserving would-be beneficiaries.
[31]
DISCUSSION
[46]
Against
this background I turn to consider the challenge to the provisions of
the will in the present matter. One notes firstly
that the bequests
made by the testators more than 100 years ago have not yet been
completed in the sense that the
fideicommissary
property
is yet to devolve upon the final heirs. It is apparent moreover that
the
fideicommissa
established
by the testators discriminate against certain of their female
descendants i.e. all but their own daughters, solely on
the grounds
of their gender. There was no real disagreement between the parties
that clause 7 of the will broadly discriminates
against the
testators’ female descendants beyond the first generation
inasmuch as they are precluded from being substituted
as the
fiduciaries to the
fideicommissary
property by reason of their gender alone. Nor did the first to third
respondents attempt to make out a case, either on the papers
or in
argument, that such discrimination against the applicants was fair.
Their case is rather that the common law should not be
developed,
either by way of a direct constitutional challenge or through the
doctrine of public policy, to limit the testators’
freedom of
testation in the present circumstances.
[47]
It
is important to note that this is not a case of a testamentary trust,
let alone one with a public character and an indefinite
life,
containing provisions which discriminate against one or more sectors
of society as was the case in at least three of the
four cases
beginning with
Syfrets
.
It is rather a case of disherison of certain descendants.
[48]
The
Constitution and legislation flowing therefrom turns its face against
discrimination on the grounds of sex or gender. Section
1 of our
Constitution establishes as founding values of our new democratic
state ‘
(h)uman
dignity, the achievement of equality and the advancement of human
rights and freedoms’
as
well as ‘
non-racialism
and non-sexism’
.
The democratic values of human dignity and equality are restated in
sec 7 which introduce the Bill of Rights, whilst sec 8 provides
that
the Bill of Rights applies to all law and also binds the judiciary.
Section 8(2) proclaims that a provision of the Bill of
Rights binds a
natural person ‘
if,
and to the extent that, it is applicable, taking into account the
nature of the right and the nature of any duty imposed by
the right’
.
Subsection 8(3) enjoins a court, when applying a provision of the
Bill of Rights to a natural or juristic person:
‘
(a)
in order to give effect to a right in the Bill,
[to]
apply,
or if necessary develop, the common law to the extent that
legislation does not give effect to that right;’
and
provides that such court
‘
(b)
may develop rules of the common law to limit the right, provided that
the limitation is in accordance with section 36(1)’.
[49]
The
right to equality is guaranteed by sec 9 of the Constitution which
provides inter alia as follows:
‘
(1)
Everyone is equal before the law and has the right to equal
protection and benefit of the law.
(2) Equality
includes the full and equal enjoyment of all rights and freedoms. To
promote the achievement of equality, legislative
and other measures
designed to protect or advance persons, or categories of persons,
disadvantaged by unfair discrimination may
be taken.
(3) The state may
not unfairly discriminate directly or indirectly against anyone on
one or more grounds, including race, gender,
sex, pregnancy, marital
status, ethnic or social origin, colour, sexual orientation, age,
disability, religion, conscience, belief,
culture, language and
birth.
(4) No person may
unfairly discriminate directly or indirectly against anyone on one or
more grounds in terms of subsection (3).
National legislation must be
enacted to prevent or prohibit unfair discrimination.
(5)
Discrimination on one or more of the grounds listed in subsection (3)
is unfair unless it is established that the discrimination
is fair.’
[50]
National
legislation was duly enacted pursuant to sec 9 (4) of the
Constitution in the form of the Promotion of Equality and Prevention

of Unfair Discrimination Act, 4 of 2000 (‘the Equality Act’).
[51]
Section
4(2) prescribes that, in applying the Act ‘
(t)he
existence of systematic discrimination and inequalities, particularly
in respect of race, gender and disability in all spheres
of life as a
result of past and present unfair discrimination, brought about by’
amongst others factors, colonialism and patriarchy, must be taken
into account. It also refers to ‘
the
need
to
take measures at all levels to eliminate such discrimination and
inequalities’.
[52]
Listed
amongst the prohibited grounds of discrimination are gender and sex,
or any other ground where discrimination based on such
ground
‘
undermines
human dignity’
.
Section 8 deals with the prohibition of unfair discrimination on the
ground of gender and provides, insofar as it is material,
that:
‘…
no
person may unfairly discriminate against any person on the ground of
gender, including –
…
(c)
the
system
of preventing women from inheriting family property;
(d) any
practice
,
including traditional, customary or religious practice, which impairs
the dignity of women and undermines equality between women
and men,
including the undermining of the dignity and well-being of the girl
child’.
[53]
It
is not without significance that sec 8(c) of the Equality Act
expressly addresses gender discrimination in the context of
succession,
but only in respect of discrimination by means of a
system and not private wills. An example of such a discriminatory
system is
that of primogeniture which has since been tempered by the
Constitutional Court in
Bhe
v Magistrate, Khayelitsha.
[32]
In
that matter the Constitutional Court declared that
the
customary law rule of male primogeniture and the legislative
provisions relating thereto were unconstitutional and invalid
inasmuch as they amounted to violations of women’s right not to
be unfairly discriminated against on the ground of gender
as well as
their right to dignity. It ordered that the
Intestate Succession Act,
81 of 1987
be applied to all customary law estates. The
discrimination in that case, however, was an incident of the
operation of law. The
case did not engage the issue of freedom of
testation. The present matter, however, does not involve any
testamentary ‘
system’
or ‘
practice’
which prevents women from inheriting family property or impairs their
dignity.
Notwithstanding
the fact that the
fideicommissary
structure
in the pending matter has endured for more than a 100 years it would
be a strained interpretation thereof to describe
it as ‘
system’
or
‘
practice’
as
is contemplated by sec 8(c) of the Equality Act as opposed to a
one-off, private testamentary disposition by the testators.
[54]
Freedom
of testation is not directly referred to in the Constitution and must
be seen primarily as a corollary of the right to property.
That right
is embodied in sec 25 of the Bill of Rights in the following general
terms:
‘
(1)
No
one may be deprived of property except in terms of law of general
application, and no law may permit arbitrary deprivation of

property
.’
[55]
In
Syfrets
Griesel J raised, but did not decide, the question of whether,
despite neither sec 25 nor any other provision in the Constitution

specifically referring to freedom of testation or the right of
persons to dispose of their assets upon death, freedom of testation

forms an integral part of a person’s right to property and must
therefore be taken to be protected in terms of sec 25. However,
in
dismissing the appeal in
In
re:  BOE Trust Ltd and Others NNO
[33]
the Supreme Court of Appeal affirmed the view that sec 25 of the
Constitution protects a person’s right to dispose of their

assets as they wish upon their death. It held that if the contrary
were to obtain, a person’s death would mean that the courts
and
the state would be able to infringe a person’s property rights
after he/she has passed away, unbounded by the strictures
which
obtained while that person is still alive.
[34]
The Court also found that freedom of testation was underpinned by the
founding constitutional principle of human dignity. Although
not
relied upon by the Court, freedom of testation arguably also bears
upon aspects of the right to privacy, freedom of expression
and
freedom of association. The Court held further that freedom of
testation is a founding principle of the law of testate succession
in
that a testator enjoys the freedom to dispose of the assets which
form part of his/her estate upon death in any manner he/she
deems
fit. The Court qualified this endorsement, however, in stating that
freedom of testation is not absolute and that a court
is not obliged
to give effect to the wishes of the testator if there is some rule of
law preventing it from doing so.
[35]
In doing so it was in effect reaffirming the principle stated by
Innes ACJ in
Robertson
v Robertson’s Executors
[36]
that once the testator’s intention had been determined in
accordance with the language of a will the courts are bound to
give
effect to it ‘unless [they] are prevented by some rule or law
from doing so’.  The primary question in the
current case
is thus whether the Constitution affords such a law to negate the
impugned terms of the
fideicommissum
.
[56]
I
proceed therefore on an acceptance that the constitutionally
protected right to property includes a right to freedom of testation

(with the qualification that this is not absolute), and further
accepting that the wishes of the testators in this matter were
that,
beyond the first generation, the
fideicommissary
property would, as far as the second and the third generations were
concerned, not devolve upon their female descendants.
[57]
The
enquiry remains whether the challenged provisions of the will are
contrary to public policy or susceptible to a direct challenge
in
terms of the equality provisions of the Constitution.
[58]
Perhaps
the first question is whether the impugned provisions are
discriminatory. Having regard to the terms of sec 9(4) of the

Constitution read with 9(5) and its presumption of unfairness where a
listed ground is involved, the conclusion must be drawn that
clause 7
of the will effects unfair discrimination against the testators’
female descendants, at least in the second and
third generations.
Certainly the first to third respondents did not seek to advance any
facts or arguments suggesting that such
discrimination was fair. The
question remains, however, whether in the absence of any legal right
by any of the testators’
descendants to testamentary
inheritance, the discriminatory effect can be said to be legally
relevant.  Professor de Waal
has argued in favour of the
constitutional justifiability of freedom of testation apparently
assuming that it is.
[59]
In
defending the testators’ right to freedom of testation the
first to third respondents relied on the arguments advanced
by
Professor De Waal who concludes that a limitation of the right to
equality by the testators’ right to freedom of testation
can
be justified in terms of sec 36(1) of the Constitution. He cites the
following reasons:
‘
(a)
An opposite conclusion would not only reduce the concept of freedom
of testation to a fiction, but would also render the guarantee
of
freedom of testation in the Bill of Rights meaningless.
(b) Nobody has a
fundamental “right to inherit”. The exclusion of a person
as beneficiary does not, therefore, result
in an encroachment upon or
taking away of existing rights. A potential beneficiary at most
possesses a spes or hope which, by its
nature, can easily be
frustrated.
(c) It seems to
be a sound proposition, both as a matter of principle and common
sense, that a testator or testatrix should, within
the limits set by
social and economic considerations, be free to institute
beneficiaries of his or her own choice.
(d)
An opposite conclusion would lead to nearly insurmountable practical
difficulties, some of which may be mentioned…’
[37]
In
this latter regard Professor De Waal refers to difficulties in
fashioning an appropriate remedy e.g. whether the Court should

‘
rewrite’
the will and whether to institute the
aggrieved person as heir or rather declare the will invalid.
[60]
Professor
De Waal’s first reason, although possibly somewhat overstated,
undoubtedly has force. Granting the primary relief
sought will herein
require a rewriting of the testators’ will. The testators’
freedom of testation, although nominally
recognised, will be
subjected to an overriding right on the part of the court to amend
their will. By any measure this will amount
to a far-reaching inroad
upon the right to freedom of testation and set a weighty precedent.
[61]
On
behalf of the applicants it was sought to ameliorate the problematic
implications of the courts having the power to rewrite discriminatory

provisions of a will with the argument that each case must be dealt
with on its own facts and that there might well be cases where

discrimination against the female gender would be fair. One of the
many difficulties with this approach, however, is that it would
make
a court the final arbiter in the choice of beneficiaries in
testamentary dispositions of a non-public nature in a particularly

private and personal area, namely, one’s last wishes as to how
and to whom to dispose of one’s property. It would give
rise to
situations where a testator’s last wishes are second-guessed by
a court which might have little inkling as to why
the testator or
testatrix provided as he or she did. Another possible consequence of
the courts assuming a power to intervene in
situations such as the
present would be that testators/testatrices might then seek to
justify, in their wills, certain dispositions
with the courts then
being asked to analyse or go behind these explanations. The spectre
of a Pandora’s box of litigation
regarding private testamentary
dispositions thereby being opened is by no means far-fetched. I can
see no basis in legal principle
for a court to purport to exercise on
a surrogate basis any person’s
ius
disponendi
.
In the context of testation to do so would be to impute obligations
to the testator that had not subsisted when he was alive,
again a
far-reaching proposition.  Such a notion contemplates the
exercise of a power that is wholly distinguishable from
that of
amending the terms of a charitable or educational trust even if such
trust were established in terms of a will.  The
latter case
involves determining altered terms for how property that has been
bequeathed should be administered, something quite
different from
determining whether the property should have been bequeathed to a
particular person.
[62]
Testation
is a field where the courts will proceed, I would respectfully
suggest, from the starting point that a testator has maximum
freedom
to dispose of his or her property upon their death as he or she sees
fit subject to existing rules of law as set out in
case law and any
statutory constraints which exist.
[63]
Professor
De Waal’s second reason, namely, that nobody has a fundamental
‘
right
to inherit’
also
carries considerable weight inasmuch as the right to equality and the
hope or expectation of inheriting should not be conflated.
The
applicants argue, in response, that this argument cuts both ways
since, on the facts of the present matter the favoured male

descendants also had no inherent ‘
right
to inherit’
.
This, however, misses the point since, on the assumption that the
interpretation of clause 7 of the will adopted up until present
is
correct, the first to third respondents enjoyed at least contingent
rights to the
fideicommissary
property until, on the deceased’s death, the right to claim
such property vested in them.
[64]
The
applicants also point to the fact that persons who, but for
discriminatory provisions would qualify as potential beneficiaries
of
a testamentary charitable trust (such as dealt with in the line of
cases beginning with
Syfrets)
also have no inherent right to inherit either. This is not a true
equivalence however. The beneficiaries of such a trust do not
stand
on the same footing as an heir or heiress. They must first apply to
benefit from the provisions of a trust of a public character

established by the testators’ will, to my mind a quite
different situation.
[65]
Thirdly,
Professor De Waal argues that within the limits set by social and
economic considerations a testator/testatrix is free
to institute
beneficiaries of his or her own choice. The limits which exist are
those set by statute, relating to the duty of support
in the main,
and curtailed by the doctrine of public policy. The scope for this
doctrine to operate in the area of private testation
will be more
limited however since the Constitution affords a great deal of
autonomy to citizens in respect of their own right
to dignity and
self-determination. Autonomy in this respect is an important part of
what gives substance to the right to human
dignity.
[66]
Finally,
Professor De Waal argues that any incursion into the principle of
freedom of testation such as is sought in the present
matter would
lead to nearly insurmountable practical difficulties. Whilst this
might not always be the case there can be no doubt
that such cases
will present themselves.
[67]
Any
incursion will also inevitably create uncertainty in the minds of
some testators as to whether their testamentary dispositions
will be
fully executed or not, in itself an inherently unsatisfactory
situation. In this regard the first to third respondents
also place
emphasis on the right to dignity, an incident of which would be to
allow the living, and the dying, the peace of mind
of knowing that
one’s last wishes will be respected upon one’s death. It
was argued that the right to dignity, similar
to the right to
equality, is one of the core values on which the Constitution rests.
In terms of sec 1(a) of the Constitution such
values include human
dignity. Dignity is also enshrined in the Bill of Rights, sec 10 of
the Constitution providing ‘
(e)veryone
has the inherent dignity and the right to have their dignity
respected and protected’
.
[68]
In
other instances the result of a court intervening could be a somewhat
arbitrary outcome. For example, in the present matter if
the relief
sought is granted it will have the effect of making the second to
sixth applicants the heiresses to the
fideicommissary
property. However, this would at the same time favour them over many
other female (and male) descendants of the testators. According
to
the abridged family tree provided in the papers, the testators’
three grandsons inherited the property at the expense
of their six
sisters and, assuming some of those sisters had children, in all
probability at the expense of their sons and daughters
as well. Thus
granting the relief sought in an effort to give effect to the right
to equality and not to be unfairly discriminated
against would,
notionally at least, arbitrarily favour a small group of female
descendants at the expense of many other prior descendants,
both
female and male.
[69]
This
matter could be seen as involving a choice between the lesser of two
evils: perpetuating gender discrimination or undue interference
with
the right to freedom of testation. However, whilst the terms of the
fideicommissum
discriminate against the testators’ female descendants simply
on the grounds of their gender, allowing the right to equality
to
trump the right to freedom of testation in the present circumstances,
although superficially equitable, would produce an arbitrary
result.
At the same time it would represent a broad incursion into a vital
corollary of the right to property, a fundamental constitutional

right.
[70]
A
further argument made on behalf of the applicants was that the
constitutionally protected status of the right to equality as well
as
the fact that it does not, in principle, rank lower than the right to
freedom of testation, should be taken into account when
the two
rights are weighed against each other in an instance such as the
present. The situation of competing rights elicited the
following
dictum from the Constitutional Court:
[38]
‘
Rights
sometimes compete, as we know. The right to equality, for instance,
often competes with the rights to free expression, dignity,
privacy
and freedom of association. Even values like freedom and equality may
compete. Therefore they often have to be weighed, balanced
and
limited. The limitation clause provides for this.’
[71]
Applying
and adapting the approach set out by the Constitutional Court in
Harksen
v Lane
,
[39]
the next stage of the enquiry is a determination whether the
provision, in this case the impugned provision of clause 7 of the

will, can be justified under the limitation clause in sec 36 of the
Constitution.
[72]
Section
36(1) of the Constitution, in the present case read with sec 8(2) and
8(3)(b), provides as follows:
‘
(1) The
rights in the Bill of Rights may be limited only in terms of law of
general application to the extent that the limitation
is reasonable
and justifiable in an open and democratic society based on human
dignity, equality and freedom, taking into account
all relevant
factors, including-
(a)
the
nature of the right;
(b)
the
importance of the purpose of the limitation;
(c)
the
nature and extent of the limitation;
(d)
the
relation between the limitation and its purpose; and
(e)
less
restrictive means to achieve the purpose.’
[73]
In
applying the limitation test it is significant that two of the three
values mentioned in sec 36, human dignity and freedom, are
engaged
when exercising one’s right to freedom of testation. The right
to equality or to equal treatment, although fundamental,
is a broadly
stated right and must, in appropriate instances, give way to
competing rights.
[74]
As
far as the importance of the limitation is concerned, no material has
been placed before the Court to indicate whether similar

discriminatory provisions in private wills are a common-place problem
which justifies such a potentially far-reaching limitation.
The
envisaged limitation, namely, that one cannot dispose of one’s
property without first complying with an equality equation,
would
make a significant inroad upon the right to freedom of testation and
may well produce unintended consequences including those
referred to
above.
[75]
As
regards the nature and extent of the limitation, weight must be given
to the fact that the discriminatory provisions of the will
occur in
the private and limited sphere of the testators and their direct
descendants. It thus affects only a limited number of
persons, is of
limited duration and is not manifestly directed at infringing the
complainants’ dignity. In
De
Lange
[40]
the Court highlighted the need for a sensitive approach where
concerned with an individual’s private sphere and autonomy,

stating as follows:
‘
[79]
It is of course one thing to say that the Constitution with its
values and rights reaches everywhere, but quite another
to
expect the courts to make rulings and orders regarding people's
private lives and personal preferences.
…
[80] The closer
courts get to personal and intimate spheres, the more they enter into
the inner sanctum and thus interfere with
our privacy and autonomy.’
[76]
Whilst
the relationship between the limitation of the right to freedom of
testation in the present matter and its purpose is clear,
it is
difficult to conceive of a less restrictive means to achieve the
purpose.
[77]
The
applicants’ advanced two reasons why the right to equality
should prevail over the right to freedom of testation. The
first was
that sec 9 of the Constitution does not refer directly to freedom of
testation as a guaranteed right. In my view this
takes too narrow a
view of the property clause in the Bill of Rights, particularly in
light of the Supreme Court of Appeal’s
endorsement of the right
to freedom of testation in
BOE
Trust Limited
.
[41]
[78]
The
second reason advanced was that public policy had transformed
dramatically since 1902 when the testators executed their will.
This
is of course so, not least in the area of gender discrimination. It
is also trite that public policy must be determined in
relation to
present day mores. Notwithstanding these factors the question must be
whether public policy has advanced to the extent
that courts should
be empowered to act as the final arbiter of whether a testator may
discriminate, even unfairly so, in his or
her private will.
[79]
The
circumstances of the present matter constitute a quite different
situation to that where prescriptive conditions are attached
to
testamentary provisions which may have the effect of influencing the
conduct of a beneficiary, for example, conditions that
are calculated
to cause the breakup of a marriage. In such instances, as our courts
have prescribed in the past, the courts will
intervene and treat the
condition as pro non scripto.
[42]
[80]
For
all these reasons I consider that, even if it assumed in favour of
the female descendants of the testators that they notionally
have a
right to be treated equally with the male descendants in the exercise
by the testators of their freedom of testation, the
limitation on the
second to sixth applicants’ rights to equality in the form of
the discrimination against them effected
by clause 7 of the will is
reasonable and justifiable, particularly given the importance
accorded to the right to freedom of testation.
The direct
constitutional challenge to the disputed provisions of the will must
therefore fail.
[81]
Nor
am I persuaded, for similar reasons, that the disputed provisions of
clause 7 are against public policy. In the particular circumstances

of this matter, I do not consider that the general public would
regard that the testators’ decision to impose the
fideicommissary
condition discriminating against female descendants as so
unreasonable and offensive that such provisions must be considered as

offending against public policy.
[82]
In
the result I conclude that the applicants have failed to make out
their case for the primary relief sought.
THE
CLAIM OF THE FOURTH TO EIGHTH RESPONDENTS
[83]
This
brings me to the alternative argument advanced on behalf of the
applicants, one in favour of the fourth to eighth respondents,

namely, that on a proper interpretation of clause 7 of the will the
deceased’s grandsons must be substituted as fiduciary
heirs to
the property.
[84]
The
interpretation contended for centres around the words ‘
a
male descendant’
in the first sub provision of clause 7 which reads in full ‘…
in
the case of the death of any son or son’s son who does not
leave a male descendant (‘manlike nakomelinge’),
his
share/portion will fall away on the same conditions as above and
therefore pass to his brothers or their sons in their place…’.
[85]
In
essence the argument is that the use of the words ‘
manlike
nakomelinge’
(in the official translated Afrikaans version) instead of ‘
seun’
is a clear indication that the testators had a different (and wider)
category of persons in mind rather than sons
,
namely,
any male descendants. The words ‘
manlike
nakomelinge’
must, on this interpretation also include the grandsons of the
deceased Kalvyn de Jager i.e. remoter descendants than merely the

first generation after the deceased.
[86]
The
applicants rely in part on the decision in
Du
Plessis NO v Strauss
[43]
where the Court held that in terms of the law of Holland a
si
sine liberis decesserit
clause
attached to a conditional
fideicommissum
gives rise to a rebuttable presumption that a testator tacitly
appointed the
liberi
(children, descendants or issue) as
fideicommissary
beneficiaries,
provided that the
liberi
are descendants of the testator although the presumption gives way
where the intention of the testator to a different effect can
be
determined with reasonable certainty.
[87]
The
applicants argue by analogy that even though the sub-provision does
not expressly state that the
fideicommissary
property
is left to the male descendants of the deceased (i.e. including his
grandsons),  such a term will be implied and in
the absence of a
son, as in this instance, will be inherited by the deceased’s
grandsons. The applicants point out that the
ordinary meaning of
‘
descendants’
is not limited to sons alone i.e. the first generation of
descendants, but includes remoter beneficiaries.
[88]
In
arguing against  the interpretation contended for by the
applicants, the first to third respondents break up clause 7 into
its
component parts of a dominant provision, three sub-provisions and a
prohibition. The dominant provision or grammatical main
sentence of
the
fideicommissum
ends with the words ‘
again
and in turn to their sons’
.
The three sub-provisions are introduced by the phrase, ‘
in
such a way that’
and each provides for a particular contingency, as opposed to an
inevitable future occurrence. Then follows the prohibition against

alienation with which we need not be concerned for present purposes.
The first to third respondents contend then that the scheme
of the
fideicommissum
appears clearly from the dominant provision, namely, that the
properties were bequeathed to the testators’ sons and
daughters,
whereafter it devolves sequentially on the testators’
grandsons and great grandsons.
[89]
The
first sub-provision deals with the eventuality of a son or grandson
dying without leaving ‘
manlike
nakomelinge’
,
the second with such a grandson dying without leaving brothers and
the third with a death of a daughter or a daughter’s
son
without leaving ‘
manlike
nakomelinge’
.
[90]
The
first sub-proviso is relevant given that the contingency it deals
with, the death of a grandson, has come to pass and in that
context
the meaning of the phrase ‘
manlike
nakomeling’
must be determined. The first to third respondents contend that it
must be construed as referring to sons only and not to the deceased’s

grandsons for a number of reasons; firstly the introductory phrase –
‘
in
such a way’
–
emphasises that the sub-provisions are subservient to the dominant
provision and do not create an exception, extension or
a proviso to
the dominant provision which might allow for the wider construction
contended for by the applicants.
[91]
Secondly,
as a matter of grammar and syntax it is contended that the phrase ‘
in
such a way’
provides the method (the way) in the event of any of the three
contingencies to still nevertheless achieve the result of the
dominant
provision. The result, the first to third respondents
contend, is to give effect to the overall scheme established by the
relevant
provisions of the will which is to ensure that the property
ends up in the hands of either grandsons or great grandsons. In this

regard they argue that the testators intended to draw a line under
the third generation. This would indeed appear to be the case
given
the concluding prohibition in clause 7 against the alienation of the
fideicommisary
property by any heir up to the third generation.
[92]
Should
the
fideicommisary
property devolve on the fourth generation i.e. by skipping the third
generation, the number of
fideicommissary
beneficiaries will potentially increase at a much greater rate
leading to smaller and smaller shares in the property, presumably
a
result which the testators wished to avoid or ameliorate by
terminating the
fideicommissum
at
the third generation. It is also argued that since the testators knew
none of their grandsons or great grandsons they would have
regarded
their great grandsons as a single class of beneficiaries and it was
therefore unlikely that upon the death of a grandson
(such as the
deceased) they intended that their great grandsons would be passed
over in favour of remoter heirs, namely, great
great-grandsons.
DISCUSSION
[93]
As
a starting point it should be noted that the rebuttable presumption
endorsed in
Du
Plessis NO v Strauss (supra)
gives way where the will as a whole shows that the testator did not
intend to create a tacit
fideicommissum
(in
this case extending to the fourth generation i.e. the great
great-grandchildren of the testators).
[94]
Corbett
et
al
point out that the general rule of construction which raises a
presumption against the creation of a
fideicommissum
applies also to questions concerning its ambit with the result that a
fideicommissum
is strictly interpreted and a construction favoured which imposes the
least possible burden upon the fiduciary. The presumption
and
approach to a
fideicommissum’s
construction applies only where there is a reasonable doubt as to the
intention of the testator, having regard to the will’s
wording.
[95]
Regarding
problems in identifying the
fideicommisary,
the
authors point out that problems of interpretation in regard to the
identity of the
fideicommissary
usually arise where a number of
fideicommissaries
have been indicated by the testator, not by name but by some generic
description. The main point to be decided is the meaning and
ambit of
the descriptive words used. This is primarily a question of
interpreting the intention of the testator as expressed in
the will.
[96]
If
not for the existence of the three sub-provisions, the terms of the
fideicommissum
would be clearly indicated in what the first to third respondents
describe as the dominant clause. The difficulty arises where
the sub
provisions make use of the phrase ‘
manlike
nakomelinge’
in the first and third sub provisions. That phrase has a wider
meaning than that of son and the question is whether the effect
must
be given to the wider meaning or the narrower meaning.
[97]
In
this regard it is a principle of testamentary interpretation that a
court is entitled to depart from the primary meaning of the
word
where the context so directs. In addition the Appellate Division has
also remarked that it is a common phenomenon that a drafter
of a
will, may use different words to express the same idea or
intention.
[44]
[98]
Ex
Parte: Estate van der Ven
[45]
is
a case in point. It involved the provisions of a trust deed in terms
of which the founder (appearer) bequeathed a sum of money
to his
sister in law. It further provided that upon her death the sum would
go to his godchild, Henri, and that upon the latter’s
death the
sum ‘
shall
devolve upon his (Henri’s) children, should he, however, depart
this life, without leaving issue, in such case, the
said sum …
shall devolve … upon the said appearer’s children…’
.
[46]
[99]
Henri
passed away without leaving children but did leave a granddaughter.
The issue which the Court had to determine was whether
the word
‘
issue’
had the effect of extending the meaning of the preceding reference to
‘
children’
or whether the word ‘
children’
had the effect of narrowing the meaning of the word ‘
issue’
so as to include children only. The Court referred to the ordinary
and primary meanings of ‘
children’
and ‘
issue’
respectively and stated: ‘
In
other words, “issue” is a word of wider meaning than
“children” in that it includes not only children
but also
grandchildren and remoter descendants’.
[47]
Upon
consideration of the context and the clause’s provisions as a
whole, the Court concluded that the word ‘
children’
bore its ordinary meaning and that the word ‘
issue’
should be construed as referring to children only. One of the factors
which brought the court to this conclusion was stated as
follows:
‘
In
the first place, by adopting this construction it is possible to read
the will without giving a strained meaning to either word.
The word
“children” is given its ordinary meaning, and the word
“issue” is also given one of its ordinary
meanings, for
it would be perfectly correct to refer to one’s children as
one’s issue.’
[48]
[100]
By
analogy in the present matter the words ‘
manlike
nakomeling’
(male descendant) has as an acceptable meaning, a son, and can be
read as referring to a son by using different phraseology. It
is
indeed so that the words ‘
manlike
nakomelinge’
can bear the wider meaning of any male descendant i.e. male
descendants beyond the first degree (in relation to the deceased).

However to give the phrase ‘
manlike
nakomelinge’
the wider meaning of any male descendant is, in my view, to give it a
strained and artificial interpretation and one at odds with
the
clause’s earlier use of the word and its overall structure. It
would place it at odds with the use of the word ‘
seuns’
in the main and dominant provision of clause 7. If the drafter had
intended the wider meaning contended for by the applicants then
one
would have expected the words ‘
manlike
nakomelinge’
to have been introduced into the dominant provision of clause 7 from
the outset i.e. by stating ‘
op
hulle manlike nakomelinge’
rather
than ‘
weer
op hulle seuns’.
[101]
I
find persuasive the syntactic breakdown of clause 7 as advanced on
behalf of the first to third respondents which identifies a
dominant
provision and three sub-provisions. Support for an approach which
seeks to identify the dominant clause in order to interpret
the
intent of a testator as expressed in a will is to be found in
Raubenheimer
v Raubenheimer.
[49]
There, having performed this exercise, Leach JA stated of other
provisions seemingly at odds with the dominant clause that the

latter’s ‘
effect
should not be modified nor its meaning strained’
unless
a contrary intention is clearly indicated by other provisions in the
will.
[50]
Adopting this
approach the structure of the
fideicommissum
thereby
revealed turns around the phrase ‘
in
such a way’
and indicates that each of the three sub-provisions provides a
method, in the event of a particular contingency, to still achieve

the purpose of the dominant provision namely, for the
fideicommissary
property to end up in the hands of the testators’ grandsons or
great grandsons, as the case may be. If the phrase ‘
manlike
nakomelinge’
is
given a wide meaning i.e. extending beyond a son/s, then that purpose
is defeated.
[102]
It
is also significant that if the wider meaning is attributed to the
words ‘
manlike
nakomelinge’
then
the final prohibition in clause 7 ‘
tot
in die derde geslag’
against alienation of the
fideicommissary
property
becomes inaccurate inasmuch as its true reach in the present
circumstances  would be up to the fourth generation.
This
required the applicants to contend that ‘
third
generation’
should not bear its primary meaning but rather refer to the third
line of successors. No other reason is given for this strained

meaning of ‘
third
generation’
.
[103]
I
am persuaded that the proper interpretation of clause 7 is that the
testators intended to limit the
fideicommissum
or the
fideicommissaries
to their grandsons and great grandsons, drawing the line at the third
generation. The applicants’ interpretation of the words

‘
manlike
nakomelinge’
requires, by contrast, somewhat strained meanings of the phrases, ‘
in
such a way’
and ‘
third
generation’
referred to in clause 7 as well as the reading in of a tacit
fideicommissum
in
the first sub-provision in favour of the fourth generation (or even
beyond it). By contrast the interpretation contended for
by the first
to third respondents entails merely that one of the ordinary meanings
of ‘
male
descendants’
be applied, namely, a son or sons.
[104]
For
these reasons I find that the applicants have failed also to make out
a case for the relief sought on the alternative basis
put forward.
[105]
Although
the first applicant and his fellow applicants purported to come to
court seeking a declaratory order on the meaning of
the will insofar
as it affected the
fideicommissary
property, no provision is made in the notice of motion for an order
which favours the first to third respondents’ interpretation
of
the challenged provisions. Furthermore, the first to third
respondents have not brought a counter application seeking a
declaratory
order in their favour but merely asked that the
application be dismissed with costs, which accordingly will be the
appropriate
order.
COSTS
[106]
At
various stages the parties sought costs orders in different forms.
Ultimately, however, the applicants sought an order that all
parties
pay their own costs, irrespective of the outcome of the application.
By contrast the first to third respondents sought
an order that all
parties costs be paid out of the estate, again irrespective of the
outcome. In the alternative they proposed
that the costs of the
successful parties be paid out of the estate and that the
unsuccessful parties bear their own costs.
[107]
Although
the first to third respondents have been successful in their
opposition, the applicants’ case was by no means frivolous
or
obviously without merit. At its heart, moreover, lay a constitutional
challenge in the field of private testamentary dispositions
based on
the right to equality in which field, since the adoption of the
Constitution, there has been little or no litigation directly
on
point.
Harper’
s
case, which as I have found gave relevant guidance, was decided well
after the present matter was argued.
[108]
In
the circumstances to visit the applicants with a costs order does not
strike me as appropriate or equitable. Since the second
to sixth
applicants are the testate heiresses to the deceased’s estate,
which estate excludes the
fideicommissary
property, the effect of granting either of the costs orders proposed
on behalf of the first to third respondents would in effect
be to
grant an order against the second to sixth applicants personally.
[109]
Taking
all relevant circumstances into account I consider that the most
appropriate result would be that all parties pay their own
costs.
That would be achieved by directing that there shall be no order as
to costs.
ORDER
[110]
In
the result, the following order is made:
1.
The
application is dismissed.
2.
There
shall be no order as to costs.
____________________
BOZALEK
J
APPEARANCES
For
the Applicants : Adv JA van der Merwe (SC)
As
Instructed by : Visagie Vos Attorneys
Ref:
PS Basson
For
the 1
st
– 3
rd
Respondents : Adv H du Toit
As
Instructed by : Harmse Kriel
Ref:
JW Harmse
[1]
The
actual translated English version states “of” but
subsequent to the hearing the parties agreed that it should
be “or”.
[2]
1914 AD 503
at 507.
[3]
1940 AD 163
at 183.
[4]
MJ de Waal
‘The social and economic foundations of the Law of Succession’
(1997)
Stellenbosch
LR
162.
[5]
2006 (4) SA 205 (C).
[6]
Syfrets
n
5 para 33.
[7]
[1997] ZACC 12
;
1998 (1) SA 300
(CC) para 53.
[8]
Syfrets
n
5 para 39.
[9]
Syfrets
n
5 para 47.
[10]
2009 (6) SA 470 (WCC).
[11]
BOE Trust
n
10 paras 14-16.
[12]
2010 (6) SA 518 (SCA).
[13]
Emma Smith Educational Fund
n
12 paras 34-42.
[14]
Emma Smith Educational Fund
n
12 para 42.
[15]
2012 (4) SA 103 (WCC).
[16]
Heydenrych
n
15 para 2.
[17]
Heydenrych
n
15 para 20.
[18]
Heydenrych
n
15 para 21.
[19]
Unreported decision (Case No:
9581/2015), handed down on 30 June 2017.
[20]
Harper
n
19 para 22.
[21]
Harper
n
19 para 30.
[22]
Harper
n
19 para 32.
[23]
2002 (4) SA 1
(SCA) para 94.
[24]
Harper
n
19 para 32.
[25]
Harper
n
19 para 33. See also
Holomisa
v Argus Newspapers Ltd
1996
(2) SA 588
(W) at 607D-E.
[26]
Harper
n
19 para 34.
[27]
MM
Corbett,
G Hofmeyr and E Khan
The
Law of Succession in South Africa
2ed (2001) at 485.
[28]
Citing Halsbury 4 ed Reissue
vol 50 (1998) sv ‘Wills’ para 482
.
[29]
MJ de Waal
‘The Law of Succession and the Bill of Rights’ in
Bill
of Rights Compendium
(June 2012) 3G1-G15.
[30]
De Waal ‘Law
of Succession’ n 29 3G8-3G12.
[31]
Corbett
et
al
Law
of Succession in South Africa
n
27 at 134.
[32]
Bhe and Others v Magistrate,
Khayelitsha, and Others (Commission for Gender Equality as Amicus
Curiae)
;
Shibi
v Sithole and Others; South African Human Rights Commission and
Another v President of the Republic of South Africa and
Another
[2004] ZACC 17
;
2005 (1) SA 580
(CC) paras 75 - 78.
[33]
2013 (3) SA 236 (SCA).
[34]
BOE Trust (SCA)
n
33 para 26.
[35]
BOE Trust (SCA)
n
33 para 28.
[36]
Robertson
n
2 at 507.
[37]
De Waal ‘Law
of Succession’ n 29 3G19-3G20.
[38]
De Lange v Methodist Church
and Another
2016 (2) SA 1
(CC) para 77.
[39]
Harksen
n
7.
[40]
De Lange
n
38.
[41]
BOE Trust (SCA)
n
33 para 28.
[42]
Levy, NO and Another v
Schwartz, NO and Others
1948
(4) SA 930
(W) at 938.
[43]
1988 (2) SA
105 (A).
[44]
Harter v Epstein
1953 (1) SA 287
(A) at 295G.
[45]
1968 (4) SA
772 (C).
[46]
Estate van der Ven
n
44 at 773D.
[47]
Estate van der Ven
n
44 at 774G-H.
[48]
Estate van der Ven
n
44 at 777A-C.
[49]
2012 (5) SA
290
(SCA) at para 18.
[50]
See also the
authorities relied upon by the Court in
Ex
parte Melle and Others
1954 (2) SA 329
(A) at 344 and
Schaumberg
v Stark NO
1956
(4) SA 462
(A) at 468D–G.