Harvey NO and Others v Crawford NO and Others (1016/2017) [2018] ZASCA 147; 2019 (2) SA 153 (SCA) (17 October 2018)

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[2018] ZASCA 147
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Harvey NO and Others v Crawford NO and Others (1016/2017) [2018] ZASCA 147; 2019 (2) SA 153 (SCA) (17 October 2018)

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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 1016/2017
In
the matter between:
GAVIN
CHARLTON HARVEY
NO
FIRST
APPELLANT
DAVID
LOUIS AYSCOUGH
WILKINSON
SECOND
APPELLANT
AMANDA
BRIDGET
TRUTER
THIRD
APPELLANT
and
GEORGINA
ELIZABETH CRAWFORD NO
FIRST
RESPONDENT
PETER
DAVIS
NO
SECOND
RESPONDENT
(In
their capacities as duly appointed trustees for the
time
being of the L J DRUIFF TRUST Registration No. T 1280)
ANNE-MARIE
VIVIENNE STEVENS
THIRD
RESPONDENT
GEORGINA
ELIZABETH CRAWFORD
FOURTH
RESPONDENT
GERALDINE
MARLAND
FIFTH
RESPONDENT
ANTHONY
LEWIN
SIXTH
RESPONDENT
MASTER
OF THE HIGH
COURT
SEVENTH
RESPONDENT
RUTH
JESSICA
DRUIFF
EIGHT
RESPONDENT
JED
MICHAEL
DRUIFF
NINTH
RESPONDENT
JED
MICHAEL
DRUIFF
TENTH
RESPONDENT
PHILLIPA
ANN
CAMERON
ELEVENTH
RESPONDENT
Neutral
citation:
Gavin Charlton
Harvey NO v Georgina Elizabeth Crawford NO
(1016/2017)
[2018] ZASCA 147
(17 October 2018)
Bench:
Ponnan, Tshiqi, Zondi, Dambuza and
Molemela JJA
Heard:
4 September 2018
Delivered:
17 October 2018
Summary:
Trust Deed – interpretation of –
whether ‘children’, ‘issue’, ‘descendant’,
‘legal
descendant’ include adopted children.
ORDER
On
appeal from
:
Western
Cape Division of the High Court, Cape Town (Dlodlo J sitting as court
of first instance):
The
appeal is dismissed with costs.
JUDGMENT
Molemela JA:
[1]
In
January 1953, Mr Louis John Druiff (the donor) executed a Notarial
Deed of Trust (the Trust Deed), which was subsequently amended
in
part. It would appear that on the same day, the donor also executed a
Will (the Will).
[2]
The salient provisions of the Trust Deed, as amended, are as follows:
‘
4.
Duties of Trustees
A.
The trustee or trustees shall stand possessed of the trust fund and
shall invest and re-invest the capital of the trust fund,
and the
nett revenue and income derived therefrom, or part thereof, shall
either be allowed to accumulate, and the amount so accumulated
added
to the capital of the trust fund, or the whole of the nett income and
revenue, or part thereof, shall be applied for the
benefit of all or
any of the following persons, who may be alive at that time, namely:-
(a)
Gladys Elizabeth Clark (born Druiff)
Married
without community of property to Robert Bruce Clark.
(b)
Nina Dorothy Lewin (born Druiff)
Married
without community of property to Leo Lewin.
(c)
Lester Philip Druiff.
(d)
Dulcie Helena Wilkinson (born Druiff)
Married
without community of property to Michael Ayscough Wilkinson.
(e)
The child or any children of the said Gladys Elizabeth Clark (born
Druiff).
(f)
The child or any children of the said Nina Dorothy Lewin (born
Druiff).
(g)
The child or any children of the said Lester Philip Druiff.
(h)
The child or any children of the said Dulcie Helena Wilkinson (born
Druiff).
It
shall be entirely at the discretion of the trustees as to how much of
the revenue shall be accumulated and how much applied for
the benefit
of the aforesaid beneficiaries and no beneficiary shall be entitled
to dispute the authority of the trustees in the
exercise of the
discretion hereby conferred upon them.
The
trustees shall have the power in their absolute discretion at any
time during the trust period to apply for the benefit of any

beneficiary above referred to, part or the whole of the capital of
the trust fund.
B.
On the death of the said Louis John Druiff the discretionary powers
set out above shall cease and the nett revenue and income
shall be
divided equally between and paid to the said four children of the
donor. If any child has died at such time, his or her
share shall
devolve upon his or her descendants per stirpes.
5.
Period of Trust
If
the whole of the capital has not been applied for the benefit of the
beneficiaries, as provided in paragraph 4 hereof, the trust
shall
remain in force for a period of one year after the death of the said
Louis John Druiff.
6.
Termination of Trust
At
the expiration of the trust period as hereinbefore provided the
trustees shall realise the capital, or balance of capital, and
divide
the amount so realised equally between the said four children of the
said Louis John Druiff. In the event of any child dying
prior to the
termination of the trust, his or her share shall devolve upon his or
her legal descendants per stirpes. If such child
has no legal
descendants, his or her share shall be divided equally between the
remaining children or their legal descendants per
stirpes. If at such
time there are no children alive and no legal descendants of such
children, then the trustees shall divide
the capital between such
persons as may be nominated as the heirs in the will of the donor, or
if the donor has failed to make
a will, between the next-of-kin of
the said donor.’
[3] It is
undisputed that at the time of execution of the Trust Deed, the donor
had four children, three of whom already had children
of their own.
One of his daughters, Ms Dulcie Helena Harper (Ms Harper) was married
but did not have any children. Subsequent to
the donor’s death,
Ms Harper lawfully adopted two children. Upon the respective deaths
of Ms Harper’s siblings, their
quarter shares of the capital
duly devolved upon their children. When it became evident that there
was uncertainty as to whether
her adopted children would, upon her
death, receive her quarter-share of the capital, Ms Harper decided to
approach the Western
Cape Division of the High Court (Dlodlo, J) (the
court a quo) for relief. She was cited as the first applicant and her
two adopted
children as the second and third applicants (the second
and third appellants). The trustees of the Trust (trustees) and the
Master
of the High Court (the Master) were cited as the respondents.
The trustees opposed the application and the Master opted not to do

so. The children of Ms Harper’s siblings were later joined
as co-respondents.
[4]
Ms Harper, inter alia, averred in her founding affidavit that during
the donor’s lifetime she had confided in him about
the fact
that she had had two miscarriages and was therefore considering
adoption. The donor had advised her not to make a hasty
decision, as
she was still young. The relief sought by Ms Harper and the second
and third appellants in the court a quo was an
order declaring that
the words ‘children’, ‘descendants’, ‘issue’
and ‘legal descendants’
used in the Trust Deed, be
interpreted so as to include the second and third appellants
notwithstanding that they were adopted.
They contended that
excluding them would amount to unfair discrimination on account of
their birth. The
basis
for the relief they were seeking was threefold: (a) that it was not
evident from the Trust Deed that the donor intended to
exclude
adopted children from benefiting under the Trust (b) that the Trust
Deed should be interpreted to include rather than exclude
adopted
children, which would be in line with the spirit, purport and object
of the Bill of Rights, particularly s 9 of the Constitution
[1]
and public
policy (c) that at the time the Trust Deed was executed, the donor
did not know for sure that Ms Harper was unable to
bear children.
[5] Before the
court a quo, i
t was contended on behalf of
the appellants that
if the terms of the
Trust Deed were interpreted only to include the donor’s
biological descendants, that interpretation would
bring about
consequences that the donor did not
contemplate or foresee. It
was
argued that the exclusion of the second and third appellants would
amount to unfair discrimination, thus falling foul of s 9(4)
of the
Constitution. The court a quo was accordingly requested to, in the
alternative, grant an order
varying the
terms of the Trust Deed as contemplated in s 13 of the Trust Property
Control Act.
[6]
The respondents’ opposition of the
matter was essentially premised on the following grounds: (a) the
locus standi
of Ms Harper to launch this application; (b) that even if the donor
was aware that adoption was an option for Ms Harper, this imputed

knowledge did not justify the inference that the donor intended
adopted children to be included as beneficiaries of the Trust:
(c)
that whereas the donor enjoyed legal assistance in the execution of
the Trust Deed and the subsequent Amendment to such Trust
Deed, he
did not take steps to make express provision for the inclusion of
adopted children in the Trust Deed. The court a quo
delineated the
issues it had to determine as follows:
‘
(a)
Whether or not the second and third applicants should be considered
‘
children’,
‘
descendants’,
‘
issue’
or
‘
legal
descendants
for
purposes of the Trust Deed; or (b) Whether, upon the first
applicant’s death, her one-fourth share is to be dealt with
as
if she had died childless.’
[7] The court a quo
dismissed the point in limine raised in respect of Ms Harper’s
locus standi. That finding has not been
attacked on appeal. In
respect of the merits, the court a quo reiterated that when
interpreting a trust deed, consideration had
to be paid to the
ordinary meaning of the words, which must be read in the context of
the whole trust deed.  It also considered
the circumstances
existing at the time when the trust deed and its amendment were
executed, as well as Ms Harper’s averment
that the donor was
aware of the fact that she was considering adoption. Having examined
previous cases where the courts were prepared
to interfere with the
provisions of the will, it found that all those cases related to
trusts with a public purpose and nature.
It concluded that the
right to equality was, in those instances, of more importance than
the present matter where the trust created
is of a private nature.
[8] The court a quo
found no basis for a conclusion that the Trust Deed brought about
consequences that the donor could not have
foreseen.  The donor
was aware that adoption was an option for Ms Harper and could have
included adopted children as beneficiaries
if that had been his
intention.  Having had regard to the accepted dictionary meaning
of the words ‘descendant’,
‘progeny’ and
‘issue’, the court held that the Trust Deed under
discussion had the effect that only the
biological descendants of the
donor’s children were capital beneficiaries of the Trust. The
court a quo was satisfied that
that was the clear intention of the
donor.
[9] The court a quo
highlighted the protection under s 25 of the Constitution of a
person’s right to property, including the
right to dispose of
their assets as they wish upon their death. It warned that inroads
into freedom of testation are not to be
made lightly. It stated that
courts have no competency to vary the provisions of the donor’s
Trust Deed just as they have
no power or authority to change a
testator’s will. Effect should always be given to the wishes of
the testator. On the other
hand the court a quo stressed that courts
will refuse to give effect to a testator’s directions where
such are contrary to
public policy.
[10]
The court a quo stated that the Trust Deed must be interpreted in
accordance with the intention of the donor.  It held
that the
words used by the donor in the Trust Deed related to biological
children but nevertheless found that this did not constitute

discrimination against the appellants. It stated that insofar as it
could be found that they indeed constituted discrimination,
such
discrimination as might be found to exist in this case, was not
unfair. It
also held that the requirements
set out in s 13 of the Trust Property Control Act were not satisfied
and that it could therefore
not amend the Trust Deed. The application
was dismissed, the effect of which was that Ms Harper’s quarter
share of the Trust
property would devolve upon her nephews and
nieces. With leave of the court a quo, the appellants now appeal
against that decision.
Ms Harper passed
away before the hearing of this appeal and was substituted by the
executor of her estate.
[11]
Before
us the appellants attacked all the findings of the court a quo except
the one in relation to Ms Harper’s locus standi
in this matter.
Their principal argument was that the court a quo did not properly
apply the rules relating to the interpretation
of contracts.
[12] It was argued
on behalf of the respondents that the fact that the donor had made
specific provision for an eventuality of a
beneficiary dying without
issue and that he did not expressly make provision for adopted
children despite a discussion he had had
with Ms Harper regarding her
inability to carry a baby to term fortified the submission that the
donor did not intend to benefit
adoptive children.
[13] It is clear
from the court a quo’s delineation of the issues and the
submissions made on behalf of the appellants and
the respondents that
t
his matter turns on the interpretation of
the provisions of the Trust Deed.
This
court’s task is to determine
whether
the donor, by using the words ‘children’, ‘issue’,
‘descendant’, “legal descendant”
in the Trust
Deed, intended to benefit the adopted children of his daughter (Ms
Harper) within the contemplation of s 71(2) of
the Children's Act 31
of 1937 (the 1937 Act). Put differently, the issue in this appeal is
whether this court should declare the
words ‘children’,
‘issue’, ‘descendant’, ‘legal
descendant’ to include the second
and third appellants
.
[14] Before I
interpret the Trust Deed, it is helpful to trace the development of
the law pertaining to adopted children. The first
statute that gave
legal recognition to adoption of children in South Africa was the
Adoption of Children Act 25 of 1923 (the 1923
Act). Section 8(1) of
that Act provided
as
follows:
‘
8.(1)
An order of adoption shall, unless otherwise thereby provided, confer
the surname of the adopting parent on the adopted child
and the
adopted child shall for all purposes whatsoever be deemed in law to
be the child born in lawful wedlock of the adopting
parent: Provided
that, unless the contrary intention clearly appears from any
instrument (whether such instrument takes effect
inter
vivos
or
mortis
causa
),
such adopted child shall not by such adoption –
(
a
)
acquire any right, title or interest in any property –
(i)
devolving on any child of the adopting parent by virtue of any
instrument executed prior to the date of such order of adoption:
(ii)
burdened with a
fidei-commissum
in favour of the descendants
of the adopting parent; or
(iii)
devolving on the heirs
ab intestato
of any child of lawful
wedlock of the adopting parent;
(b)
become
entitled to any succession (whether by will or
ab
intestato
)
jure
representationis
his
adopting parent.’
[15]
In
Cohen
v Minister of Interior
,
[2]
the Transvaal Provincial Division (as it was then known) had occasion
to interpret the effect of an adoption order as governed
by the 1923
Act. I find it quite remarkable that, as far back as 1942, the court
aptly described an adopted child in the following
terms: ‘Such
a child has all the rights and all the liabilities appertaining to a
child born in lawful wedlock subject to
the exceptions which I have
mentioned. As far as the law possibly can make it so, the law has in
fact said:
that
strange child you have adopted is in fact your own flesh and blood.’
(Own emphasis.)
[16]
The 1923 Act was repealed by the 1937 Act, which was in force when
the Trust Deed was executed. The 1937 Act simply defines
a child as
‘a person under the age of nineteen years and includes an
infant. . . . ’. There is no reference to blood
ties.
[17]
Section 71(2) of the 1937 Act, which is central to the issues in this
appeal, provided as follows:
‘
Subject
to the provisions of section 79, an adopted child shall for all
purposes whatsoever be deemed in law to be the legitimate
child of
the adoptive parent: Provided that an adopted child shall not by
virtue of the adoption –
(a)
become entitled to any property devolving on any child of his
adoptive
parent by virtue of any instrument executed prior to the
date of the order
of adoption (whether the instrument takes effect
inter vivos
or
mortis causa
), unless the instrument
clearly conveys the intention that that property shall devolve upon
the adopted child;
(b)
inherit any property
ab intestato
from any relative of his
adoptive parent.’
This is the
provision that was applicable when the Trust Deed was executed. I
will revert later to this aspect.
[18] The 1937 Act
was in due course replaced by the Children’s Act 33 of 1960
(the 1960 Act). Section 74(2) of the 1960 Act
re-enacted in identical
terms s 71(2) of its predecessor, the 1937 Act. The 1960 Act was
later
replaced by the
Child Care Act 74 of 1983 (the 1983 Act). The corresponding section
in the 1983 Act to sections 71(2) and 74(2)
of the 1937 and 1960 Acts
respectively was s 20(2). The provisos that were attached to its
predecessors were omitted, and s 20(2)
simply read: ‘An adopted
child shall for all purposes whatever be deemed in law to be the
biological child of the adoptive
parent, as if he was born of that
parent during the existence of a lawful marriage.’
[19]
The legal provisions regulating adoption
were
later embodied in chapter 4 of the 1983 Act. Several provisions of
the 1983 Act were declared unconstitutional by the Constitutional

Court. The Child Care Act was ultimately repealed and replaced with
the Children’s Act 38 of 2005 (the 2005 Act), which sets
out
rights and responsibilities in respect of matters concerning all
children. The 2005 Act infuses a democratic and child-centred
ethos
into South African adoption law.  Its constitutional compliance
is most evident in s 242(3), which provides that ‘an
adopted
child must for all purposes be regarded as the child of the adoptive
parent and an adoptive parent must for all purposes
be regarded as
the parent of the adoptive child.’ This provision unequivocally
places adopted children on the same footing
as biological children
.
[20]
Section 2D of the Wills Act 7 of 1953 (the
Wills Act) introduced
a
rule of interpretation which was aimed at addressing uncertainties
arising in respect of
inter alia
adopted children. 2D1 reads:
‘
2D(1)
In the interpretation of a will, unless the context otherwise
indicates –
(a)
An adoptive child shall be regarded as being born from his adoptive
parent or parents and, in determining his relationship to
the
testator or another person for purposes of a will, as the child of
his adoptive parent or parents and not as the child of his
natural
parent or parents or any previous adoptive parent or parents, except
in the case of a natural parent who is also the adoptive
parent of
the child or who was married
[3]
to
the adoptive parent of the child concerned at the time of the
adoption;’
These
provisions are not applicable to a will of a testator who died before
the commencement of the 1992 Act (1 October 1992).
[21]
I mention, for the sake of completeness, that insofar as intestate
succession is concerned, the legislature has, in keeping
with its
constitutional imperative, recognised the right of adopted children
and altered the law of intestate succession. In terms
of
s 1(4)(e)
and
1
(5) of the
Intestate Succession Act 81 of 1987
:
‘
1(4)
In the application of this Section –
.
. .
(a)
an adopted child shall be deemed –
(i)
to be a descendant of his adoptive parent or parents;
(ii)
not to be a descendant of his natural parent or parents, except in
the case of a natural parent who is also the adoptive parent
of that
child or was, at the time of adoption, married to the adoptive parent
of the child.
(5)
If an adopted child in terms of subsection (4)(e) is deemed to be a
descendant of his adoptive parent, or is deemed not to be
a
descendant of his natural parent, the adoptive parent shall be deemed
to be an ancestor of the child, or shall be deemed not
to be an
ancestor of the child, as the case may be.’
ANALYSIS
[22]
It is appropriate to explain from the outset that I agree with the
court a quo’s exposition of freedom of testation as
a deeply
entrenched principle of our law. This court in
BOE
Trust Ltd and another NNO
[4]
held
that freedom of testation enjoys protection not only under s 25 of
the Constitution, but also in terms of the founding constitutional

value of dignity. In the same judgment it was also recognized
that
one of the incidents of ownership is the right of the owner of
property to dispose of their assets as they wish upon their
death. It
was further stated that the right to dignity allows the living and
the dying the peace of mind of knowing that their
last wishes will be
respected after they have passed on. Indeed, dignity, like the right
to equality is a core value of our Constitution.
I share those
sentiments. Certainly, even in this constitutional dispensation, the
law recognizes that the testator or donor still
has the freedom to
dispose of his or her property as he or she wishes
[5]
.
To the extent that there is no legal obligation on a testator or
testatrix to make provision for their adult next of kin, they
remain
free to disinherit their adult biological child(ren). However, it is
undeniable that as sacrosanct as freedom of testation
may appear to
be, it is not absolute. Courts have, in appropriate circumstances,
interfered with the exercise of such right, thereby
limiting it
within the contemplation of the provisions of the Constitution
[6]
.
[23]
The
importance of testamentary freedom and the reluctance of the courts,
internationally, to interfere with a clearly expressed
intention of
the testator is reflected in the soundly reasoned judgment of the
Court of Appeals for Ontario in
Spence
v BMO Trust Company.
[7]
From
my point of view, a significant factual aspect that makes that case
distinguishable from the one under consideration is evident
from the
following passage of that judgment
‘
.
. . this is not a wills construction case.  The terms of the
Will gifting the residue of Eric’s estate to Donna and
her sons
and disinheriting Verolin are unequivocal and unambiguous.
No
interpretive question arises concerning the meaning of the Will
.
[8]
’
In this matter, the interpretation of the provisions of the Donor’s
Trust Deed is the central issue for determination.
The
question whether a court interpreting a testamentary provision must
always apply the law that was applicable when the will or
trust deed
was executed has already been answered by our courts
[9]
.
The courts have indeed amended testamentary or trust provisions that
were considered to be discriminatory and thus against public
policy
despite having been executed before the advent of the
Constitution
[10]
.
As correctly observed by the court a quo, a determining factor in the
weighing up process in those specific cases was the public
nature of
the objectionable benefit. I agree that the matter under
consideration
is
distinguishable as it pertains to a private trust for which no
condition is applicable. As will appear from my reasoning later,
the
issue of public policy does not arise because the language of the
Trust Deed and the surrounding circumstances do not reveal
an
intention to exclude adopted children and are thus not discriminatory
in effect. I therefore do not deem it necessary to discuss
all the
cases in which the courts intervened on the basis of public policy in
relation to conditional trusts of a public nature.
[24]
As stated before, this matter turns on the interpretation to be given
to the relevant phrases used by the donor to describe
the capital
beneficiaries of his Trust. In interpreting such phrases, a court
must be careful not to follow an approach in terms
of which it offers
nothing more than the dictionary definition of the words used in
order to support the result. It is a trite
principle of our law that
in order to determine what the author of a document intended, courts
must examine the language used in
the document, as well as all the
facts which give it context. As correctly pointed out in
Novartis
v Maphil
[11]
in relation to the interpretation of contracts, courts must consider
all the facts and context in order to determine what the parties

intended. It is expected to do so whether or not the words of the
contract are ambiguous or lack clarity
[12]
.
[25]
In
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[13]
this Court stated as follows:-
‘
The
present state of the law can be expressed as follows. Interpretation
is the process of attributing meaning to the words used
in a
document, be it legislation, some other statutory instrument, or
contract, having regard to the context provided by reading
the
particular provision or provisions in the light of the document as a
whole and the circumstances attendant upon its coming
into existence.
Whatever the nature of the document, consideration must be given to
the language used in the light of the ordinary
rules of grammar and
syntax; the context in which the provision appears; the apparent
purpose to which it is directed and the material
known to those
responsible for its production. Where more than one meaning is
possible each possibility must be weighed in the
light of all these
factors.’
[26]
The following remarks made by this Court in
Bothma-Botho
Transport (Edms) Bpk v S Bothma & Seun Transport (Edms) Bpk
[14]
are apposite
:
‘
While
the starting point remains the words of the document, which are the
only relevant medium through which the parties have expressed
their
contractual intentions, the process of interpretation does not stop
at a perceived literal meaning of those words, but considers
them in
the light of all relevant and admissible context, including the
circumstances in which the document came into being. The
former
distinction between permissible background and surrounding
circumstances, never very clear, has fallen away. Interpretation
is
no longer a process that occurs in stages but is “essentially
one unitary exercise. . . .  ‘.
[27]
With the principles enunciated in those cases in mind, I now turn to
consider whether the provisions of the Trust Deed reveal
an intention
to exclude adopted children from benefitting from the donor’s
Trust Deed. As stated before, the Act that was
in force at the time
of the execution of the Trust Deed was the 1937 Act. The vexed
question of determining the interpretation
of the provisions of s
71(2) of the 1937 Act came to the fore in
Boswell
en andere v van Tonder
,
[15]
where the court was tasked with
determining
whether the testator’s usage of the word ‘afstammelinge’
in his description of his beneficiaries revealed
an intention to
include adopted children. That court pointed out that s 71(2) created
a legal fiction in terms of which adopted
children were deemed to be
the biological children of their adoptive parents. The court inter
alia stated as follows:
‘
The
effect of this legal fiction of being a biological child can indeed
bring about that, on the application of the provisions of
an
instrument, an adopted child can also be regarded as a “child”
– not so much because of there being, by way
of an extensive
interpretation, a departure from the ordinary everyday meaning of
“child” and an attachment of a wider
meaning thereto,
but
precisely because the adopted child must be deemed to be a biological
child as a result of the legal fiction and consequently
must be
covered by the ordinary everyday meaning of the word “child”
in the instrument.
A case like
Venter
v. Die Meester en ‘n Ander
,
1974 (4) S.A. 482
(T), where adopted children placed under the
heading of “children born of the marriage of us the testators”,
must be
declared as such on that basis. . . .
The
proviso to s 74(2) does not detract from the main provision, but
rather serves to support it
.
It is noteworthy that it is not here generally expressly determined
that in instruments executed before adoption, the word ‘child’

must be read not to include an adopted child unless the instrument
clearly expresses the contrary. The wording indicates that the

legislature viewed the matter as follows: the legal fiction of being
deemed to be a biological child should not benefit an adopted
child
where, in terms of the provisions of such instrument, according to
the normal rules of interpretation, the biological child
is entitled
to the property of the adoptive parents. The legislature apparently
did not wish to encroach on the intention (established
by ordinary
rules of interpretation) of those who, before the adoption, had
disposed of property, hence the words “unless
the instrument
clearly conveys the intention that the property shall devolve upon
the adopted child”. …..
To
rebut the presumption that the “legal fiction applies, it would
be enough if the contrary intention appears by application
of the
rules of interpretation’
[16]
.
(My emphasis.)
[28]
The legal fiction referred to above was applied by this Court in
Cohen
NO v Roetz NO and others
.
[17]
In that matter, the testators had executed a mutual will in 1947 in
terms of which they bequeathed certain properties to their
three (3)
children subject to the following conditions: (a) If any of the said
children predeceased the testators, without leaving
descendants, the
testators’ surviving children or grandchildren would succeed in
equal shares
per
stirpes
to such deceased child’s share. (b) The respective portions of
the said farms would devolve on the eldest child of each of
the three
children after their death. The testatrix died in 1948 and the
testator in 1973. The one-third share of the farm which
devolved to
the testators’ son, Andries Johan Adam Heyns
(the
“deceased”),
was
transferred to him in 1949.  The second respondent (born in
1956), was adopted by the deceased on 1 March 1967 under the

provisions of the Children’s Act 33 of 1960. The third
respondent was born to the deceased and his wife on 6 May 1967 and

was the eldest child born of their marriage. The court reiterated
that
the
golden rule for the interpretation of wills is to ascertain the
wishes of the testator from the language used. It further emphasized

that in endeavouring to ascertain the wishes of the testator or
testatrix, the will must in general be read in the light of the

circumstances prevailing at the time of its execution. It considered
the reference to the words “descendant” and “eldest

child” to be some of the
strong
indicators that the testators only intended to benefit blood
relations. It also took into account that the will was drafted
by a
professional person and reasoned that if the testators had intended
the property to devolve to an adopted child, the drafter
of the will
would presumably have advised them to include same in express terms.
It held that it was clear from the provisions
of the will, applying
the normal rules of interpretation, that the testators had not
intended to include an adopted child within
the meaning of ‘eldest
child’.
[29]
As stated by this court in
Boswell,
the
legal fiction of an adopted child being deemed to be a biological
child is rebutted if the instrument, read as a whole, reveals
a
contrary intention, i.e. an intention to exclude the adopted
children. In this matter, the question is whether the application
of
ordinary rules of interpretation to the provisions of the donor’s
Trust Deed reveals a testamentary intention that displaces
or rebuts
that legal fiction.
The court a quo made
the following findings in its judgment:
‘
In
the light of the factual similarities to the Cohen decision it would
be prudent (in any event) that a similar finding should
follow for
these reasons: (a) the initial beneficiaries of the Trust Deed were
the Donor’s own biological children; (b) the
words
‘
descendants’
,
‘
children’
and ‘issue’ are used repeatedly their meaning being as
described above; (c) the Donor had the professional assistance
of an
attorney and notary when executing both Trust Deed and Amendment
thereto. In the light of the statutory provisions then in
effect, the
Donor might well be supposed to have been advised of the effect of
the statutory provisions and of the need to include
adopted children
in express terms in the Trust Deed. In any event the Donor was
already aware that the first applicant was having
difficulty carrying
a child to term. His subsequent omission expressly to include adopted
children should, in my view, be held
to indicate his intention not to
include adopted children. Accordingly, the Trust Deed stands to be
interpreted in accordance with
authorities canvassed in para 24-26
above. It is pertinent that the Trust Deed under discussion has the
effect that only the biological
descendants of the Donor’s
children are capital beneficiaries of the Trust.’
I
respectfully disagree with these findings for the reasons set out
hereunder.
[30]
In interpreting the donor’s Trust Deed, it must be borne in
mind that although other courts’ decisions on the
interpretation of words and phrases can be of assistance in the
interpretation of another will, ultimately every will has to be

interpreted according to its own language and context. In this
regard, Innes CJ aptly remarked as follows: ‘The truth is
that
a decision upon the meaning of one will is often of no assistance in
ascertaining the meaning of another, in spite of surface
similarities
between the two. Each document must be read as a whole and must stand
upon its own language’
[18]
.
Another
important consideration is that although indications and pointers
must be sought in the instrument itself, it is permissible
to
interpret it in the light of the relevant circumstances existing at
the time of its making.
[19]
The circumstances and other external facts which may be taken into
consideration include the degree of the skill of the draftsman
and
other circumstances of which the donor or testator was aware of and
which were uppermost in his or her mind at the time of
the making of
the will.
[20]
[31]
In this matter,
the
donor used the
neutral
term ‘child’, which is the same term that would be used
even if an adopted child was expressly included in a
testamentary
instrument.
[21]
There is no reason why the mere reference to the term ‘child’
should be regarded as being one of the pointers that
leads to the
conclusion that the donor intended to benefit the biological children
only. With respect, the court a quo seems not
to have sufficiently
heeded the warning sounded in
Boswell
that:
‘it is
not
here generally expressly determined that in instruments executed
before adoption, the word ‘child’ must be read not
to
include an adopted child unless the instrument clearly expresses the
contrary’
[22]
(own emphasis).
[32]
I am also of the view that the court a quo paid no consideration
whatsoever to the fact that the capital beneficiaries were
described
as follows in clause 4 of the Trust Deed: ‘
(e)
The child or
any
children of the said Gladys Elizabeth Clark (born Druiff).
(f)
The child or
any
children of the said Nina Dorothy Lewin (born Druiff).
(g)
The child or
any
children of the said Lester Philip Druiff.
(h
)
The child or
any
children of the said Dulcie Helena Wilkinson (born Druiff) [Mrs
Harper].’ (Own emphasis).
Notably,
one of the meanings attributed to the word
‘any’ in the Oxford Dictionary is ‘whichever of a
specified class might
be chosen’. In my view, the usage of the
pronoun
any
as a prefix to the grandchildren lends an inclusive character to the
class of grandchildren the donor had in mind at the time of
execution
of the Trust Deed. This, in my view is a clear pointer to inclusion
of adopted children as income beneficiaries of the
donor’s
trust.
[33]
Furthermore,
the
background circumstances are key.
As
was correctly observed by this court years ago
[23]
,
‘context is everything’. Ms Harper had already had a
conversation with the donor pertaining to a desire to adopt children,

given that she was struggling to carry babies to term.
His
advice was that she must not be too hasty as she was still young. Ms
Harper was at that stage 30 years old and therefore still
of
child-bearing age. There is no reason to consider the donor’s
advice as a reflection of any aversion towards benefitting
adopted
grandchildren. To my mind, the conversation between Ms Harper and the
donor meant that at the time of the execution of
the Trust Deed, the
donor was aware of the possibility of Ms Harper adopting in the
future.
The
use of the phrase
any
child
of
used
in relation to the grandchildren must therefore be seen in that
context. In other clauses of the Trust Deed, the donor refers
to the
latter class as ‘descendants’ and in one clause as ‘legal
descendants’. The usage of the term ‘legal
descendant’
must also be considered in that context. I find it highly improbable
that a donor would prefer to refer to his
or her
existing
or
future
biological grandchildren and great-grandchildren as ‘
legal
descendants’
.
I am therefore of the view that the prefix
legal
in relation to descendants served to broaden the class of capital
beneficiaries to include adopted children. Of crucial importance
is
the fact that the concept of adoption was not unknown in the era in
which the donor executed the Trust Deed. Furthermore, there
was no
absolute bar to adopted children benefitting in terms of any
instrument. On the contrary, a court had even gone to the extent
of
describing an adopted child using the phrase ‘flesh and
blood’
[24]
.
[34]
An equally important consideration is that the Trust Deed does not
explicitly disinherit any person. The donor did not expressly
exclude
any person or class of beneficiaries from benefitting in terms of the
Trust Deed. He used neutral words like ‘children’,

‘issue’, ‘descendants’ and ‘legal
descendants’. Unlike in
Cohen
,
where the donor specified that the bequests were to devolve on ‘the
eldest child’ right up to the fourth generation,
here the donor
did not show a preference for a specific child and named all his
children as the income beneficiaries of the Trust.
As
correctly observed by the court a quo, on the same day on which the
donor executed the Trust Deed, he executed a Will in terms
of which
he made several charitable bequests to various entities, including an
orphanage. The Will stipulated that his four children
were his
residual heirs and further that ‘
(i)n
the event of any of my said children predeceasing me, his or her
share shall devolve upon his or her descendants
per
stirpes.
Significantly, in the Trust Deed the donor stated that should all his
beneficiaries not be available to take up the bequests, then
the
Trust benefits should devolve on the residual heirs he had appointed
in terms of his Will. The residual heirs nominated in
the Will
happened to be the same people indicated in the Trust Deed.
[35]
I disagree with the contention that
the
fact that the donor had made specific provision for an eventuality of
a beneficiary dying without issue clearly showed his intent
not to
benefit adoptive children. In my view, the aforesaid phrase is
included in many testamentary instruments to cater for instances

where the nominated beneficiaries, for whatever reason, do not have
surviving children at the time when the disposition vests upon
them.
It is not confined to instances where the nominated beneficiary was
unable to bear biological children. This view is buttressed
by the
very words used by the donor: ‘if
any
of the said four children of the donor dies without leaving issue. .
. ’. (own emphasis)
[36]
The respondents’ contention that the omission of the donor to
expressly include adopted children in the Trust Deed despite
his
conversation with Ms Harper must be construed to imply that he did
not want them to benefit from his Trust has no merit, as
it fails to
appreciate the instructive approach laid down by this Court in
Boswell.
That
seminal judgment makes it clear that the mere fact that the donor did
not make express reference to adopted children in his
Trust Deed
cannot, without more, lead one to infer that the donor did not intend
to provide for adopted children. As stated by
this court in that
judgment and re-iterated in
Cohen,
the
legal fiction created by the main provision in s 71(2) of the 1937
Act was that an adopted child was for all purposes deemed
to be a
biological child, and the effect of the proviso in that section was
that the presumption in favour of the operation of
that legal fiction
could be rebutted by a contrary indication emerging from the will on
an application of the ordinary rules of
interpretation. Having
applied the ordinary rules of interpretation,
I
am unable to find anything in the language used in the Trust Deed,
read in the context of the surrounding circumstances, which
indicates
that the donor’s intention was to exclude adopted children from
benefiting from his Trust Deed. It follows that
the words ‘
children’
,
‘
descendants’
,
‘
issue’
and ‘
legal descendants’
in the donor’s Trust Deed, which are not discriminatory by
their nature, must be interpreted in such a way as to include
adopted
children. This finding is dispositive of the matter. Thus, on this
ground alone, the second and third appellants ought
to be successful
in this appeal.
[37]
Further, and in any event,
a narrower
interpretation purely on the basis that there was no express
inclusion of the adopted children in the Trust Deed would
be contrary
to other tools of interpretation like context and surrounding
circumstances, which have already been alluded to earlier
in this
judgment. Such an unduly restrictive interpretation would, in any
event, be contrary to the
ratio
decidendi
of
Boswell
which is so clearly captured in the
passage quoted in para 27 of this judgment
.
The majority judgment inter alia states as follows in relation to s
71(2) of the 1937 Act: ‘The effect of the first proviso
thereto
was clear. Adopted children were not entitled to any property unless
‘the instrument clearly conveys the intention
that the property
shall devolve upon the adopted child’. With respect, the
application of the legal fiction presented in
Boswell
(at 38D – 39D) is not evident
from the majority judgment and neither is it clear what factors
clearly served to rebut the
presumption of the operation of that
legal fiction. In my view, the approach adopted by the majority
judgment is in fact stricter
than that laid down in a
pre-constitution authority (
Boswell
).
[38]
An approach in terms of which neutral provisions of a Trust Deed are
interpreted in a manner that discriminates against a class
of
beneficiaries (adopted children) when this was not the clear
intention of the donor fails to take the provisions of s 39(2)
[25]
of the Constitution into account. It also flies in the face of all
the statutes that have, over the years, placed adopted children
on an
equal footing with biological children. In expressing that view, I
find persuasion in the judgment of the European Court
of Human Rights
in
Pla
and Puncernau v Andorra
[26]
,
where the court stated that
the
testamentary disposition as drafted by the testatrix made no
distinction between biological and adopted children and held that
“it
was not necessary to interpret it in that way”. It considered
such an interpretation to be tantamount “to
the judicial
deprivation of an adopted child’s inheritance rights”.
It
further stated as follows:
‘
The
Court reiterates that the Convention, which is a dynamic text and
entails positive obligations for States, is a living instrument,
to
be interpreted in the light of present-day conditions and that great
importance is attached today in the member States of the
Council of
Europe to the question of equality between children born in and
children born out of wedlock as regards their civil
rights (see
Mazurek
,
cited above, § 30). Thus, even supposing that the testamentary
disposition in question did require an interpretation by the
domestic
courts, that interpretation could not be made exclusively in the
light of the social conditions existing when the will
was made or at
the time of the testatrix’s death, namely in 1939 and 1949,
particularly where a period of fifty-seven years
had elapsed between
the date when the will was made and the date on which the estate
passed to the heirs. Where such a long period
has elapsed, during
which profound social, economic and legal changes have occurred, the
courts cannot ignore these new realities.
The same is true with
regard to wills: any interpretation, if interpretation there must be,
should endeavour to ascertain the testator’s
intention and
render the will effective, while bearing in mind that “the
testator cannot be presumed to have meant what he
did not say”
and without overlooking the importance of interpreting the
testamentary disposition in the manner that most
closely corresponds
to domestic law and to the Convention as interpreted in the Court’s
case-law.’
[39] The approach
laid down in the aforementioned dictum was applied by the High Court
of Justice, Chancery Division in
Hand
and another v George and another.
[27]
In this matter the testator, Mr Henry Hand, had executed a will in
1946. At the time of its execution, the law relating to adoption
in
England and Wales was set out in the Adoption of Children Act of
1926. That Act provided that a child remained the child of
his or her
birth parents rather than becoming, in law, the child of their
adoptive parents. The testator’s will stipulated
that his
residuary estate was to be held in a trust. The income thereof was to
be paid to his three children, Gordon, Kenneth and
Joan, respectively
and, upon their deaths, the remaining income and capital fell to be
paid to their children (the testator’s
grandchildren). The
testator died in 1947 and was survived by all his children. Kenneth
and his wife subsequently adopted two children.
After Kenneth’s
death, his adopted children lodged a claim in terms of which they
sought to benefit from the will, arguing
that they ought to be
treated as equals with the biological grandchildren of the testator.
They contended that the provisions of
s 5(2) of the Adoption Act of
1926
[28]
violated their rights to equality and respect for privacy and family
life as afforded to them in terms of the European Convention
on Human
Rights
[29]
(the Convention). Kenneth’s nephews and nieces defended the
claim, arguing that if the testator had wished to include adopted

grandchildren as potential beneficiaries then he could have done so
expressly. They contended that there was no justification for

applying the Convention to interpret a will that was executed before
the drafting of that Convention. They argued that doing so
would
subvert the intention of the testator. The Chancery Division of the
High Court considered whether adopted children could
be regarded as
‘children’ for the purposes of the will. That court
allowed the adopted grandchildren’s claim
on the basis that the
Convention guaranteed the adopted children’s right not to be
discriminated against by the application
of a statute which caused
the ambiguous reference in the testator’s will to his
grandchildren to be construed as excluding
adopted grandchildren.
[40]
For all the above reasons, I find that there is no basis for finding
that the donor’s manifest intention was to exclude
adopted
children from benefitting from his Trust. It follows that I would
uphold the appeal with costs and would
therefore
grant an order declaring that the words ‘
children’,
‘descendants’, ‘issue’
and ‘
legal descendants’
in the Trust Deed of the donor include the adopted children (the
second and third appellants).
___________________
M
B Molemela
Judge
of Appeal
Ponnan
JA (Tshiqi, Zondi and Dambuza JJA concurring):
[41]
The question raised by this appeal is the extent to which freedom of
testation, a fundamental principle of the law of succession,
must
yield to freedom from unfair discrimination enshrined in the equality
clause of the Bill of Rights (s 9 of the Constitution).
Resolving the
question depends upon the construction to be placed upon the words
‘children’, ‘descendants’,
‘issue’
and ‘legal descendants’ in a Notarial Deed of Trust (the
deed), executed on 28 January 1953 by
the late Louis John Druiff (the
donor).
[42]
The donor created the trust ‘for the benefit of his children
and their descendants by reason of the love and affection
which he
bears for them.’ The pertinent provisions of the deed - clauses
4, 5 and 6 – are set out in the judgment of
Molemela JA.
[30]
At the time of the execution of the deed, one of the donor’s
beneficiaries, his daughter, the first applicant in the court
a
quo
,
Ms Dulcie Helena Harper, was childless. Ms Harper was then married to
Michael Ayscough Wilikinson, who died during 1986. In 1993,
she
remarried and took the surname of her second husband, Harper.
Although she had fallen pregnant on more than one occasion prior
to
the execution of the deed, she was unable to carry a baby to full
term. She accordingly informed the donor that she was considering

adoption. His response, so she stated, was that she was still young
and should not rush into anything, rather she should wait to
see what
the future holds. As Ms Harper put it, ‘[t]he deceased
therefore was aware at the time of the execution of the trust
deed,
that adoption was an option.’ After the execution of the deed
by the donor and his subsequent death, Ms Harper did
indeed adopt two
children, the second appellant, David Louis Ayscough Harper, in 1955
and the third appellant, Amanda Bridget Truter,
in 1957.
[43]
During May 2015 the appellants approached the Western Cape Division
of the High Court, Cape Town for the following relief:
‘
3.1
Declaring that the words ‘children’, ‘descendants’,
‘issue’ and ‘legal descendants’
used in the
notarial trust deed include second and third appellants;
alternatively
3.2
That in terms of s 13 of the Trust Property Control Act, 57 of 1998,
the trust deed be amended, declaring the word ‘children’,

‘descendants’, ‘issue’ and ‘legal
descendants’ used in the trust deed to read second and third

appellants.’
Dlodlo
J dismissed the application, but granted leave to the appellants to
appeal to this court.
On 10 December 2017,
and after the grant of leave to appeal, Ms Harper died. She
accordingly came to be substituted by the executor
of her estate,
Gavin Charlton Harvey NO, as the first appellant in the appeal.
[44]
Molemela JA concludes that the appeal should succeed. She proposes
that the order of Dlodlo J be set aside and substituted
by: ‘an
order declaring that the words ‘
children,
‘descendants’, ‘issue’
and
‘
legal descendants’
in
the Trust Deed of the donor include the adopted children (second and
third appellants)’. I regret that I cannot agree with
my
learned colleague.
[45]
It is a principle of trust law that ‘the trustee must give
effect to the trust instrument, properly interpreted, as far
as it is
lawful and effective.
[31]
A
trust deed must be construed in accordance with the well-known and
time honoured rules regarding the interpretation of written

contracts.
[32]
In
Sea
Plant Products Limited and others v Watt
2000
(4) SA 711
(C) at 720D-G, Van Heerden J (Hlophe JP and Motala J
concurring) stated:
‘
As
with the interpretation of a written contract, the point of departure
in interpreting a trust deed is therefore the grammatical
or ordinary
meaning of the words used, read within the context of the trust deed
as a whole.’
[46]
Some sixty years ago, Caney J observed in
Moosa v Jhavery
1958
(4) SA 165
(N) at 169D-F:
‘
In
my opinion the trust speaks from the time of its execution and must
be interpreted as at that time. It is the settlor’s
intention
at that time that must be ascertained from the language he used in
the circumstances then existing. Subsequent events
(and in these are
included statutes) cannot, I consider, be used to alter that
intention.’
Likewise,
a will falls to be interpreted by giving words and phrases used by
the testator the meaning which they bore at the time
of
execution.
[33]
[47]
It is necessary to first ascertain the intention of the donor. The
beneficiaries listed in clause 4 of the deed, were the donor’s

own biological children. Clause 4 then proceeds to list the ‘child’
or ‘children’ of the donor’s
biological children,
in other words the grandchildren of the donor. As Smalberger JA
observed in the context of a will in
Cohen NO v Roetz NO and
others
[1991] ZASCA 173
;
1992 (1) SA 629
(A) (
Cohen v Roetz)
at 639E,
‘[t]here is much to be said for the view that the ordinary
meaning of the word ‘child’ or ‘grandchild’

does not go beyond a testator’s own child (his bloedkind) or an
own child of such child.’ Indeed, as Vivier J pointed
out in
Brey v Secretary for Inland Revenue
1978 (4) SA 439
at 442H –
443D:
‘
Accordingly,
in statutes and other instruments relating to the law of succession,
the word “child” has been interpreted
by our Courts as
referring to a legitimate child only.’
[34]
[48]
Clauses 5 and 6 of the deed, employ the words ‘descendants’
and ‘legal descendants’. According to
Cohen
v Roetz
(at
640 A-C), the word ‘descendant’ in its ‘normal or
usual meaning, includes only blood relations in the descending
line
and excludes adopted children’.
Cohen
v Roetz
did
not deal with the meaning of the word ‘issue’. One
meaning of the word is ‘children, progeny without the male

issue’. ‘Progeny’ is defined as: ‘1. The
offspring of a person or other organism. 2. A descendant or
descendants.
3. An outcome or issue.’
[35]
The ordinary meaning of the word ‘issue’ thus also
connotes blood descendants.  Each of the words ‘descendants’,

‘children’ and ‘issue’ appear more than once
in the deed. The donor was armed with the knowledge that Ms
Harper
might not be able to bear children when he executed the deed.
Moreover, he made express provision in clause 6 for the eventuality

that one or more of his children might die without issue.
Accordingly, the ordinary meaning to be ascribed to the words must
be,
as found in
Cohen
v Roetz
,
that the donor had in mind descendants through the bloodline.
[49]
The Children’s Act 31 of 1937 (the 1937 Act) was in force at
the time of the execution of the deed. Section 71(2) of
the 1937 Act
provided:
‘
Subject
to the provisions of s 79, an adopted child shall for all purposes
whatsoever be deemed in law to be the legitimate child
of the
adoptive parent:
Provided
that an adopted child shall not by virtue of the adoption –
(a)
become entitled to any property devolving on any child of his
adoptive parent by virtue of any instrument executed prior to
the
date of the order of adoption (whether the instrument takes effect
inter vivos
or
mortis causa
), unless the instrument
clearly conveys the intention that the property shall devolve upon
the adopted child;
(b)
inherit any property
ab intestato
from any relative of his
adoptive parents.’
The
1937 Act was replaced by the Children’s Act 33 of 1960, which
contained an identically worded provision to that set out
above.
[50]
When the deed was executed, the provisions of s 71(2) of the 1937 Act
were operative. The effect of the first proviso thereto
was clear;
adopted children were not entitled to any property unless ‘the
instrument clearly conveys the intention that the
property shall
devolve upon the adopted child.’
The
test, according to
Cohen v Roetz
(at
641F) is ‘not whether they were specifically excluded by the
will, but rather whether the will clearly conveyed an intention
to
include them (so that any property under the will might devolve upon
them).’
[51]
The similarity of the language used in
Cohen
v Roetz
to that used in the deed in the present matter is clear. The deed
appears to have been drawn up by a professional person, probably
an
attorney. If the donor had intended to benefit adopted children he
would presumably have been advised of the need to include
such class
of children in express terms in the deed.
[36]
His omission to do so is indicative of the fact that he had no such
intention. All of the above considerations lead ineluctably
to the
conclusion that by the employment of the words ‘children’,
‘descendants’, ‘issue’ and
‘legal
descendants’, the donor did not manifest an intention to
benefit adopted descendants.
[52]
It is the above intention that must be given effect to unless there
are considerations that preclude this from happening. The
appellants
contend that the high court failed ‘to take into consideration
the radical developments which have taken place
in our law . . .
which indicate an overall shift in public policy’. ‘Public
policy’, so the argument proceeds,
‘has been shaped,
since 1994, by the values incorporated into the Constitution’.
The relief sought by the appellants
is far-reaching. They seek
to have a court intervene in the right of an owner to dispose of his
property as he desires to a far
greater extent than any court in this
country has previously done. More importantly, they seek to do so by
resort to a direct application
of the Constitution.
[53]
South African courts enjoy no general jurisdiction to authorize a
variation of the terms of a will or trust deed. But it has
always
been recognised that effect will not be given to a provision that is
contrary to public policy. Since the advent of our
constitutional
era, public policy is rooted in the Constitution and the fundamental
values it enshrines. The Constitutional Court
has stated that ‘the
normative influence of the Constitution must be felt throughout the
common law.’
[37]
Public policy has to be moulded to meet the conditions of an
ever-changing world. Given its dynamic nature, present day notions
of
public policy, must be infused by constitutional values such as human
dignity, equality and freedom. Thus some testamentary
provisions that
have been accepted as valid in the past, may no longer pass muster in
light of our Constitution’s equality
and non-discrimination
imperatives.
[54]
Professor Du Toit suggests that a proper evaluation of the limits
imposed upon freedom of testation through the application
of a
constitutionally-founded boni mores criterion is indeed appropriate.
In the last of his trilogy of articles on the subject,
he observes
(and here I loosely summarise): (i) where a litigant asserts an
infringement of a particular constitutionally protected
right the
court must weigh the freedom of testation against the right in terms
of section 36 of the Constitution; (ii) if the court
finds that the
particular constitutional right should prevail over the freedom of
testamentary disposition, it must apply the common
law in order to
resolve the situation; (iii) where appropriate, the court can limit
freedom of testation to give due effect to
the countervailing
constitutional right; (iv) in a direct challenge under the Bill of
Rights, once a court has found that there
has been unfair
discrimination it is customary, in accordance with the provisions of
the Bill of Rights, for the court to enquire
whether it would
nevertheless be
justifiable in terms of the limitation clause (s 36(1))
.
[38]
[55] The appellants
contend that the approach of the high court ‘has endorsed
unfair discrimination of the second and third
appellants based on
their birth, which falls foul of s 9(4) of the Constitution.’
The Constitution’s equality clause
directs that discrimination
on any one or more of the grounds stated in s 9(3) of the Bill of
Rights is unfair unless it is established
that the discrimination is
in fact fair.
In
Harksen
v Lane NO and others
[1997] ZACC 12
;
1998
(1) SA 300
(CC) para 54,
the
Constitutional Court distilled three criteria to guide the inquiry
into fairness.
[39]
MC Wood­Bodley
[40]
asserts that the s 36(1) enquiry must take place before
there can be a finding that a particular provision or part particular

conduct is contrary to public policy.
As
Deputy Chief Justice Moseneke put it: ‘When two constitutional
rights . . . butt heads it is not a matter of determining
which right
is more deserving so that courts may declare a victor and jettison
the loser.’
[41]
Instead, according to
Midi
Television (Pty) Ltd t/a E-TV v Director of Public Prosecutions
(Western Cape)
[2007] ZASCA 56
;
2007 (5) SA
540
(SCA) para 9
,
‘
where
constitutional rights themselves have the potential to be mutually
limiting - in that the full enjoyment of one necessarily
curtails the
full enjoyment of another and vice versa - a court must necessarily
reconcile them.’ There can thus be no hard
and fast rules,
rather there has to be a careful analysis in each situation that
arises and an appropriate balancing of the relationship
between
guaranteed rights, public policy and freedom of testation.
[42]
[56]
The right of ownership permits an owner to do with her thing as she
pleases, provided that it is permitted by the law. The
right to
dispose of the thing is central to the concept of ownership and is a
deeply entrenched principle of our common law.
[43]
Disposing of one’s property by means of executing a will or
trust deed are manifestations of the right of ownership. The
same
holds true under the Constitution.  This court expressed the
view that ‘freedom of testation enjoys the protection
not only
of s 25 of the Constitution, but also the founding constitutional
value of dignity.’
[44]
In
Moosa
NO and others v Minister of Justice and Correctional Services &
others
[2018] ZACC 19
;
2018
(5) SA 13
(CC), the court was concerned with the constitutionality of
s 2C(1)
of the
Wills Act 7 of 1953
, which regulates the distribution
of benefits renounced by the descendants of a testator. The
Constitutional Court was invited
to make a finding in the context of
a polygamous Muslim marriage, that such renounced benefits should
always be divided equally
among the surviving spouses of the testator
on the basis that this would advance the value of equality. It
declined to do so. Holding,
instead (para 18):
‘
But
a ruling of this nature may infringe on the principle of freedom of
testation, which is fundamental to testate succession. It
would
therefore be ill-advised for this Court to make any such
pronouncement.’
[57]
Other jurisdictions have also been grappling with the problem.
[45]
The Supreme Court of Canada has emphasised that testamentary
autonomy, should not lightly be interfered with, but only to the
extent the law requires.
[46]
In
Tataryn
v Tataryn Estate
[1994] 2 SCR 807
the court was required to consider the principles to
be applied to s 2(1) of the British Columbia Wills Variation Act.
Under that
section, if a testator failed to make adequate provision
for the proper maintenance and support of a surviving spouse and
children,
including independent adult children, the court was
authorized to order provision from the estate that it considered
‘adequate,
just and equitable in the circumstances’. Even
when required to enforce a statutory requirement of that kind,
Tataryn
emphasised that the courts should be cautious in interfering with a
testator’s testamentary freedom:
‘
In
many cases, there will be a number of ways of dividing the assets
which are adequate, just and equitable. In other words, there
will be
a wide range of options, any of which might be considered appropriate
in the circumstances. Provided that the testator
has chosen an option
within this range, the will should not be disturbed. Only where the
testator has chosen an option which falls
below his or her
obligations as defined by reference to legal and moral norms, should
the court make an order which achieves the
justice the testator
failed to achieve. In the absence of other evidence a will should be
seen as reflecting the means chosen by
the testator to meet his
legitimate concerns and provide for an ordered administration and
distribution of his estate in the best
interest of the persons and
institutions closest to him. It is the exercise by the testator of
his freedom to dispose of his property
and is to be interfered with
not lightly buy only in so far as the statute requires.’
[58]
However, despite its salutary social interest dimensions, Canadian
courts have come to recognise that testamentary freedom
can on
occasion be constrained by public policy considerations.
[47]
In
Canada
Trust Co v Ontario Human Rights Commission (C.A.)
1990
CanLII 6849 (ON CA)
; 74 OR (2d) 481 (
Canada
Trust
),
[48]
which was concerned with whether the terms of a scholarship
trust were contrary to public policy. Robins JA held:
‘
In
my opinion, the trust is couched in terms so at odds with today’s
social values as to make its continued operation in its
present form
inimical to the public interest.
.
. .
To
say that a trust premised on these notions of racism and religious
superiority contravenes contemporary public policy is to expatiate

the obvious.
.
. .
The
settlor’s freedom to dispose of his property through the
creation of a charitable trust fashioned along these [discriminatory]

lines must give way to current principles of public policy under
which all races and religions are to be treated on a footing of

equality and accorded equal regard and equal respect.’
The
learned judge took the view that those terms were antithetical to
Canadian values and its continued operation was against the
public
interest. He accordingly concluded that the ‘settlor’s
freedom to dispose of his property . . . must give way
to current
principles of public policy under which all races and religions are
to be treated on a footing of equality and accorded
equal regard and
equal respect.’
[59]
Canada Trust
thus
endorsed the approach that contemporary values may be applied to
instruments of the kind encountered here to impugn dispositions
on
grounds of public policy. The approach espoused in
Canada
Trust
was echoed by this court in
Curators, Emma Smith Educational Fund v
The University of KwaZulu-Natal
[2010]
ZASCA 136
;
2010 (6) SA 518
(SCA) (
Curators,
Emma Smith Educational Fund).
In the
latter matter the court was confronted with an application to amend a
deed by the deletion of provisions that discriminated
on the grounds
of race and gender. It was submitted that the anti-discriminatory and
equality provisions of s 9 of the Constitution,
as also public
policy, authorised the court to do so.  This court took the view
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, 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.’
[60]
It is important to emphasise that we are not concerned here with
matters of the ilk of
Canada
Trust
and
Curators,
Emma Smith Educational Fund.
Those cases concerned charitable public trusts subject to overt
discriminatory conditions based on race, religion and gender. As
the
former case made clear (per Tarnopolsky JA), the general rule is that
in order to achieve charitable status, a trust must be
wholly and
exclusively charitable and it must promote a public benefit. To
satisfy the public benefit requirement, the trust must
be beneficial
and not harmful to the public and its benefits must be available to a
sufficient cross section of the public. In
the latter case, there are
also repeated references to the public element involved in the trust
and to the university as an institution
funded by the public.
[49]
Notably, the court stated:
‘
In
the public sphere there can be no question that racially
discriminatory testamentary dispositions will not pass constitutional

muster.
[50]
.
. .
It
bears repetition that the university is a publicly funded institution
that is obliged to serve all sections of society and cannot
be seen
to associate itself with racially discriminatory practices.’
[51]
[61]
Importantly,
Canada Trust
did draw the following important
distinction:
‘
A
finding that a charitable trust is void as against public policy
would not have the far-reaching effects on testamentary freedom
which
some have anticipated. This decision does not affect private, family
trusts. By that I mean that it does not affect testamentary

dispositions or outright gifts that are not also charitable trusts.
Historically, charitable trusts have received special protection
. .
. This preferential treatment is justified on grounds that charitable
trusts are dedicated to the benefit of the community.
It is this
public nature of charitable trusts which attracts the requirement
that they conform to the public policy against discrimination.
Only
where the trust is a public one devoted to charity will restrictions
that are contrary to the public policy of equality render
it void.’
[62]
Similar sentiments were expressed by this court in
Curators, Emma
Smith Educational Fund
(at para 41):
‘
The
curators argued that the judicial amendment of a public charitable
trust’s provisions will have a chilling effect upon
future
private educational bequests. I cannot agree. We are not called upon
to decide the case of a testator who is a member of
a congregation
wishing to create a trust for members of his faith or a club member
intending to benefit the children of fellow
members.’
There
is much to be said for public trusts being judged more strictly than
private trusts. Unlike the dispositions in
Canada
Trust
and
Curators,
Emma Smith Educational Fund
, we are
concerned here with what occurs in the private and limited sphere of
the donor and his direct family. It affects a limited
number of
people, is of limited duration and is not manifestly discriminatory.
Nor, can it be said that at the time when the deed
was executed it
was intended to infringe the dignity of the second and third
appellants.
[63]
According to Professor Thomas, ‘the divide between public and
private sphere should be the deciding factor if freedom
of testation
is to be taken seriously.’
[52]
He adds that the ‘extension of the priority of equality over
freedom in the private sphere will drastically limit the freedom
of
testation and the freedom to distribute your personal charity in
accordance with your own personal wishes, foibles and
prejudices.’
[53]
‘Regardless of the tenability of the public-private-divide’,
according to Professor Du Toit, ‘adjudication of
“private
bequests” of the kind to which the court referred [in
Curators,
Emma Smith Educational Fund
(para 41)] may well introduce additional or different, typically
subjective, testator-centred considerations to the unfair
discrimination
discourse; factors that may tip the balance of the
unfair discrimination inquiry in favour of testamentary freedom and
away from
its limitation on the ground of public policy.’
[54]
[64]
Freedom of testation, which is an important facet of the right to
dignity, protects an individual’s right not only to

unconditionally dispose of her property, but also to choose her
beneficiaries as she wishes. Hence, counsel for the appellants
was
constrained to accept that the donor in this case was free to
expressly exclude adopted children, if he so desired. For that

matter, he was equally free to expressly exclude one or more of his
biological children. In any unfairness analysis the extent
to which
rights and interests have been affected is relevant. No beneficiary
has a fundamental right to benefit. We are concerned
here with free
gifts to which no person has any entitlement. Benefitting a class
necessarily entails excluding persons who do not
belong to that
class. But, there is a subtle, yet significant, distinction between
making that sort of choice and discriminating
against people who do
not belong to that class.
[55]
It has thus come to be suggested that ‘a so-called out-and-out
disinheritance can probably not be challenged on constitutional

grounds and the testator’s freedom of testation should have
priority in such a situation.’
[56]
[65]
However, the same does not necessarily apply where a beneficiary has
been included, but some or other condition is attached
to the
benefit. It is so that courts have recognised various categories of
cases where public policy may be invoked to void a conditional

testamentary gift.
[57]
A feature of those cases is that the conditions at issue required a
beneficiary to act in a manner contrary to the law or public
policy
in order to benefit or obliged the executors or trustees to act in a
manner contrary to law or public policy. Such conditions
are treated
as
pro
non scripto.
Importantly, the setting aside of such a condition does not have the
effect of disinheriting the beneficiary. The beneficiary receives
the
benefit free of the condition.
[58]
Prof De Waal
[59]
holds the view that where prescriptive conditions are attached that
have the effect of influencing the conduct of the beneficiary
in some
way (for example, a condition that prohibits a beneficiary from
marrying outside a particular race or religion), freedom
of testation
may have to yield to the right of equality.
[66]
Here, despite the fact that no such conditions or stipulations have
been imposed the appellants seek to extend that principle
to this
case. In
Spence v BMO Trust
,
the Court of Appeal for Ontario dealt with argument that ‘the
courts have an overarching authority to examine the validity
of a
testamentary residual bequest on public policy grounds’, in
these terms: ‘[o]n their argument, this authority
extends to
cases
where the terms of the bequest do not
include discriminatory conditions but evidence is tendered that a
testator’s alleged
motive in making the bequest offends public
policy. I see no support in the established jurisprudence for the
acceptance of such
an open-ended invitation to enlarge the scope of
the public policy doctrine in estates cases.’
[67]
The facts in
Spence v BMO Trust
were
these: The appellant, Verolin and her son, AS, sought a declaratory
order that the will of her late father, Eric, was void
because it was
contrary to public policy. Verolin asserted that her father, a
Jamaican by birth, had disinherited the two of them
because AS’s
father was a white. The court held:
‘
[73]
. . . Here, assuming that Eric’s testamentary bequest had been
facially repugnant in the sense that it disinherited Verolin
for
expressly stated discriminatory reasons, the bequest would
nonetheless be valid as reflecting a testator’s intentional,

private disposition of his property – the core aspect of
testamentary freedom.’
[68]
Prof De Waal argues persuasively that provisions of the kind
encountered here are immune to attack. After reviewing the
comparative
German law, he concludes that where freedom of testation
and equality are in conflict, the German law draws a distinction
between
dishersion, on the one hand, and conditions, on the other.
That distinction is often decisive.
[60]
In cases where our courts have intervened thus far to eliminate
discriminatory provisions in the deeds of charitable educational

trusts of a public nature, the effect of the relief granted did no
more than widen the pool of prospective applicants for bursaries.
The
relief granted did not take away benefits conferred on the selected
beneficiaries, nor confer those benefits on other specified
persons.
The appellants ask this court to do exactly that in the context of a
private family trust deed.
[69]
It must not be forgotten that when the deed was executed in 1953, the
terms were certain and valid and not contrary to public
policy.
It
goes without saying that
a
blunt application of the right to equality could lead to a range of
insurmountable practical difficulties. One can well imagine
a host of
deeds, which when executed were also certain and valid and not
contrary to public policy.
[61]
If adopted children in this instance, what about illegitimate
children in the next? As illustrative of the insurmountable practical

difficulties, Corbett et al state: ‘Consider what might ensue
were the validity of a will or a provision in it is open to
challenge
by A, as, say, turning out to institute only male children as heirs;
or leaving legacies to grandchildren who happened
to be white in
appearance . . .’
[62]
Examples abound. Where is the line to be drawn? And, more
importantly, what is the remedy to be? Must a court rewrite the deed

by inserting those aggrieved as beneficiaries? ‘In short’,
as Professor Thomas puts it, ‘the enigma what the
testators
actually intended has been compounded by the anachronistic
determinant of what they should have intended.’
[63]
[70]
In any balancing process, the principle of freedom of testation must
be given appropriate weight. To once again borrow from
Professor Du
Toit
:
‘[a] careful reading of the South African judgments . . .
reveals that testamentary intent, motive or purpose still have
a role
to play to temper the rigidity that could result from an objective,
normative, strictly policy-based approach to the limitation
of
freedom of testation in regard to discriminatory gifts and trusts . .
. makes it explicit that South African testators still
enjoy the
freedom to accommodate differentiation in their dispository plans, as
long as it does not occasion unfair discrimination
in constitutional
terms.’
[64]
We are not
here concerned with a deed that contains gratuitously discriminatory
provisions of an egregious kind.
[65]
That notwithstanding, the appellants would have us rewrite the deed,
by instituting persons as beneficiaries, who have been excluded
by
the donor. I can find no juridical basis for us to do so. ‘To
conclude otherwise would undermine the vitality of testamentary

freedom and run contrary to established judicial restraint in setting
aside private testamentary gifts on public policy grounds.’
[66]
Public policy, it bears remembering, does not depend on the
‘idiosyncratic inferences of a few judicial minds.’
[67]
Thus, although there are cases where the interests of society require
a court’s interference on the grounds of public policy,
this is
manifestly not such a case.
[71]
The appellants rely in the alternative, on s 13 of the Trust Property
Control Act 57 of 1988. That section headed ‘Power
of court to
vary trust provisions’ reads:
‘
If
a trust instrument contains any provision which brings about
consequences which in the opinion of the court the founder of a
trust
did not contemplate or foresee and which –
(a)
hampers the achievement of the objects of the founder; or
(b)
prejudices the interests of beneficiaries; or
(c)
is in conflict with the public interest,
the
court may, on application of the trustee or any person who in the
opinion of the court has a sufficient interest in the trust
property,
delete or vary any such provision or make in respect thereof any
order which such court deems just, including an order
whereby
particular trust property is substituted for particular other
property, or an order terminating the trust.’
[72]
For a court to intervene, two requirements need to be met. First, the
offending provision must bring about consequences which
in the
opinion of the court the founder did not contemplate or foresee.
Second, the provision must either hamper the achievement
of the
object of the founder or prejudice the interests of the beneficiaries
or be in conflict with the public interest. My earlier
conclusion is
destructive of the contention that the provisions of the deed bring
about consequences which the donor did not contemplate
or foresee.
That means that the first requirement has not been met.
[73]
As regards the second requirement: The object of the donor was
clearly to provide income to his children and capital to their

descendants. Since the language used in the trust deed has exactly
that effect, it cannot be suggested that the relevant provisions

hamper the achievement of that object. Nor, in my view, are the
relevant provisions in conflict with the public interest. Finally,

the relevant provisions plainly do not prejudice the interests of the
beneficiaries. This requirement falls to be applied in relation
to
persons who are indeed beneficiaries. It is doubtful whether it is
intended to be a means by which non-beneficiaries can seek
to be made
beneficiaries. The interests of the true beneficiaries are not
prejudiced by the relevant provisions.
[74]
There remains the question of the costs of appeal. Although the
appellants failed in the court
a quo
, that court ordered that
the costs should be borne by the trust. It was submitted on behalf of
the appellants that, in the event
of the appeal failing, a similar
approach should be followed by this court. I cannot agree. In
Abraham-Kriel Kinderhuis v Adendorff N.O.
1957 (3) SA 653
(A)
at 657A-C, Schreiner ACJ stated:
‘
It
is well recognised that the fact that the obscurity of the testator’s
language has led to litigation often justifies an
order, even in the
absence of consent, that the costs of all parties should come out of
the estate. But if the matter is taken
on appeal different
considerations arise. It may be reasonable to seek the decision of
one Court, even if one’s view is wrong,
but unreasonable to
persist in one’s wrong view to the extent of appealing. Other
parties interested in the estate should
not be made to suffer for
one’s persistence. This distinction has often been
recognised.’
In
the circumstances costs should abide the result.
[75]
In the result, I would dismiss the appeal with costs.
__________________
V M Ponnan
Judge of Appeal
APPEARANCES:
For
the Appellants: A Beyleveld SC (with him Miss T Rossi)
Instructed
by:
Kaplan
Blumberg Attorneys, Port Elizabeth
McIntyre
Van der Post, Bloemfontein
For
the Respondents: J P White
Instructed
by:
Herold
Gie Attorneys, Cape Town
EG
Cooper Majiedt Inc, Bloemfontein
[1]
Act No. 108
of 1996.
[2]
Cohen v
Minister of Interior
1942
TPD 151
para 153–154.
[3]
Section 2D
(1) of the
Wills Act was
added to that Act in terms of s 4 of the
Law of Succession Amendment Act 43 of 1992.
[4]
BOE
Trust Ltd NO and another (in their capacities as co-trustees of the
Jean Pierre De Villiers Trust
5208/2006) (846/11)
[2012] ZASCA 147
;
2013 (3) SA 236
(SCA) para
26.
[5]
Moosa
NO and others v Minister of Justice and Correctional Services and
others
[2018] ZACC 19
;
2018 (5) SA 13
(CC) para 18.
[6]
Minister
of Education and another v Syfrets Trust Ltd NO
and
another
[2006] ZAWCHC 65; 2006 (4) SA 205 (C); [2006] 3 All SA 373 (C); 2006
(10) BCLR 1214 (C).
[7]
Spence
v BMO Trust Company
(2016)
ONCA 196.
[8]
Spence v
BMO
para 52 (Own
emphasis).
[9]
Boswell
en andere v van Tonder
1975
(3) SA 29
(A);
Cohen
NO v Roetz NO In Re: Estate Late AJA Heyns and others
[1991] ZASCA 173
;
1992
(1) SA 629
(AD);
Pienaar
and another v Master of the Free State High Court, Bloemfontein and
others
[2011] ZASCA 112; 2011 (6) SA 338 (SCA).
[10]
Minister
of Education and another v Syfrets
para 24.
Board
of Executors v Benjamin
Heydenrych
Testamentary Trust and others
2012 (4) SA 103
(WCC);
Canada
Trust Co. v Ontario Human Rights Commission
(1990) CanLII 6849 (ON CA)
at 495.
[11]
Novartis
v Maphil
[2015]
ZASCA 111; 2016 (1) SA 518 (SCA); [2015] 4 All SA 417 (SCA).
[12]
Novartis
para
27-28.
[13]
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[2012] ZASCA 13
;
[2012] 2 All SA 262
(SCA);
2012 (4) SA 593
(SCA)
para 18.
[14]
Bothma-Batho
Transport (Edms) Bpk v S Bothma & Seun Transport (Edms) Bpk
[2013] ZASCA 176
;
[2014] 1 All SA 517
;
2014 (2) SA 494
(SCA) para
12.
[15]
Boswell
above.
[16]
Boswell
above
para 38H-39D (Own translation).
[17]
Cohen
2 above.
[18]
Estate
Kemp and others v McDonald’s Trustee
1915 AD 491
at 505.
[19]
Lello
and others v Dales NO
1971
(2) SA 330
(A) para 335D-335E.
[20]
Dison
NO and others v Hoffmann and others NNO
1979 (4) SA 1004
at 1036. Corbett, Hahlo, Hofmeyer and Kahn
The
law of Succession in South Africa
(1980)
at 481.
[21]
Venter v
Die Meester en ‘n ander
1971 (4) SA 482 (T).
[22]
Boswell
at
38.
[23]
KPMG
Chartered Accountants (SA) v Securefin Limited and another
[2009] ZASCA 7
;
2009 (4) SA 399
(SCA);
[2009] 2 All SA 523
(SCA)
para 39.
[24]
Cohen
v Minister of Interior
(supra).
[25]
Section
39(2) of the Constitution enjoins courts to interpret legislative
provisions in a manner that promotes the spirit, purport
and objects
of the Bill of Rights.
[26]
(Appn no
6848/01) ECHR 13 July 2004 para 62. Article 14 of the Convention
largely corresponds with the provisions of s 9 of our
Constitution.
[27]
Hand and
another v George and another
[2017] EWHC 533 (Ch).
[28]
Section
5(2) of the Adoption of Children Act of 1926 provided as follows:
‘An adoption order shall not deprive the adopted
child of any
right to or interest in property to which, but for the order, the
child would have been entitled under any intestacy
or disposition,
whether occurring or made before or after the making of the adoption
order, or confer on the adopted child any
right to or interest in
property as a child of the adopter, and the expressions "child,"
"children" and "issue"
where used in any
disposition whether made before or after the making of an adoption
order, shall not, unless the contrary intention
appears, include an
adopted child or children or the issue of an adopted child.’
[29]
The claimants had relied on the provisions of Articles 8 and 14 of
the European Convention on Human Rights. These provisions
largely
correspond with Articles 2 and 16 of the United Nations Convention
on the Rights of a Child, 1989, which South Africa
ratified on 16
June 1995. Similar provisions are also embodied in the African
Charter on the Right and Welfare of the Child,
1990.
[30]
See paragraph 2 of the judgment of Molemela JA.
[31]
Corbett, Hofmeyr & Kahn
The
Law of Succession in South Africa
2ed
(2001) at
405 and 423; Kalshoven v Kalshoven NO
1966 (3) SA 466 (R) at 469A­B.
[32]
Ally v
Mohamed NO and Others
[1998]
JOL 3393
(D) at 10.
[33]
Greeff v
Estate Greeff
1957
(2) SA 269 (A).
[34]
Vivier
J added: ‘[T]he explanation for this restrictive
interpretation of the word “child”, when used in this

context, and in relation to this subject-matter, is to be found in
the rule of Roman-Dutch law that only a legitimate child succeeds

intestate to his parent’s estate. With regard to a mother,
however, the general rule of Roman-Dutch law was that she “makes

no bastard” so that any child of hers, whether born in or out
of wedlock, succeeded to her
ab
intestato
.
In earlier law the illegitimate child’s right of testamentary
succession was limited. As Beadle J in
Todd’s
case
supra
puts it (at 234), the illegitimate child was under the common law
not regarded as his father’s descendant. It was therefore

held,
In
re
Russo
(
supra
),
that notwithstanding the rule that a mother makes no bastard, the
presumption is that generally speaking, in the absence of
clear
indications in the will of a different intention, the term “issue”
or “children” when used in relation
to a mother refers
only to her legitimate issue or children.’
[35]
Concise
Oxford Dictionary 9ed.
[36]
Kinloch
NO and Another v Kinloch
1982 (1) SA 679
(A) at 693H.
[37]
NK v
Minister of Safety & Security
[2005] ZACC 8
;
2005 (6) SA 419
(CC);
2005 (9) BCLR 835
(CC) para 17.
[38]
François Du Toit
‘
The
constitutionally bound dead hand? The impact of constitutional
rights and principles on freedom of testation in South African
law
’
2001 12 Stell LR 222.
[39]
The
criteria being:
a. Does the contested conduct
differentiate between people or categories of people? If so, does
the differentiation bear a rational
connection to a legitimate
purpose? If it does not, the conduct violates the Bill of Rights’
non-discrimination directive.
However, even if the conduct bears a
rational connection, it may nevertheless amount to unfair
discrimination.
b. Does the differentiation amount to
unfair discrimination? This question demands a two-stage analysis:
First, does the differentiation
amount to discrimination? If
differentiation occurred on one of the grounds specified in the
equality clause, then discrimination
will have been established. If
it did not occur on one of the specified grounds, then whether or
not there is discrimination
will depend on whether, objectively, the
ground is based upon attributes and characteristics that have the
potential to impair
the fundamental human dignity of persons or to
affect them adversely in a comparably serious manner. Secondly, if
the differentiation
amounts to discrimination in the aforementioned
sense, does it amount to unfair discrimination? If the
discrimination occurred
on a specified ground, unfairness is
presumed. If on an unspecified ground, the complainant must
establish unfairness. The test
in this regard focuses primarily on
the impact of the discrimination on the complainant and others
similarly situated.
c. If discrimination is found to be
unfair, a determination must be made as to whether justification can
be found under the Bill
of Rights’ limitation clause.
(paraphrased)
[40]
Michael Cameron Wood­Bodley
‘
Freedom
of testation and the bill of rights: Minister of Education v Syfrets
Trust Ltd NO
’
2007 SALJ 687.
[41]
Deputy
Chief Justice Moseneke ‘The Media, Courts and Technology:
Remarks on the Media Coverage of the Oscar Pistorius Trial
and Open
Justice’ 15 May 2015 available at
http://www.constitutionalcourt.org.za/site/judges/justicedikgangmoseneke/The-Media-CourtsandTechnology-Speech-by-DCJ%20Moseneke-on-15-May-2015.pdf;

c/f
Van Breda v
Media 24 and Others; National Director of Public Prosecutions v
Media 24 Limited and Others
(425/2017,
426/2017)
[2017] ZASCA 97
para 42.
[42]
Above fn
40.
[43]
In that
regard South Africa is not unique.
In
a survey of English, Australian, Dutch and German legal systems,
Professor Du Toit concludes that
‘freedom of testation is regarded as the founding

principle of the law of testate succession
in all four systems. This freedom is supported
by
the recognition of private ownership and private
succession in all four legal systems.’
(François Du Toit
‘
The limits imposed
upon freedom of testation by the boni mores: Lessons from Common Law
and Civil Law (continental) legal
systems’
2000 11 Stell LR 358).
[44]
In re
BOE Trust Ltd and others NNO
[2012]
ZASCA 147
;
2013
(3) SA 236
(SCA) paras 26-29.
[45]
See, inter alia, François Du Toit above fn 43.
[46]
Spence v
BMO Trust Company
2016
ONCA 196
(
Spence
v BMO Trust
)
para 31.
[47]
Id
para 38.
[48]
Canada
Trust Co. v Ontario Human Rights Commission (C.A.),
1990
CanLII 6849 (ON CA)
;
74
OR (2d) 481; 69 DLR (4th) 321;
38 ETR 1
;
12 CHRR
184
;
[1990] CarswellOnt 486
; [1990] OJ No 615 (QL).
[49]
See
paragraphs 30, 38, 42 and 43 of the judgment.
[50]
Paragraph 38.
[51]
Paragraph
43.
[52]
Jan
Hallbeek, Martin Schermaier, Rorberto Fiori, Enerst Metzger and
Jean-Pierre Coriat
Inter
Cives Necnon Peregrinos Essays in honour of Boudewijn Sirks; Phillip
Thomas’ The intention of the testator: from the
causa Curiana
to modern South African law
(2014)
at 727-738.
[53]
Id
at 738.
[54]
François
du Toit ‘
Constitutionalism,
Public Policy and Discriminatory Testamentary Bequests—A Good
Fit Between Common Law and Civil Law in
South Africa’s Mixed
Jurisdiction?
’
Tulane European & Civil Law Forum [Vol 27 2012] 97 at 126.
[55]
Above fn
40.
[56]
De Waal & Schoeman-Malan
Law
of Succession
5ed at 136.
[57]
As was
pointed out in
Spence
v BMO Trust
,
t
hese
include cases involving: i) conditions in restraint of marriage and
those that interfere with marital relationships, e.g.,
conditional
bequests that seek to induce celibacy or the separation of married
couples; ii) conditions that interfere with the
discharge of
parental duties and undermine the parent-child relationship by
disinheriting children if they live with a named
parent; iii)
conditions that disinherit a beneficiary if she takes steps to
change her membership in a designated church or her
other religious
faith or affiliation; and iv) conditions that incite a beneficiary
to commit a crime or to do any act prohibited
by law.
[58]
Above fn 31 at 48.
[59]
Prof MJ De Waal
Bill of
Rights Handbook
edited by
Mokgoro & Tlakula para 3G-10.
[60]
Id para 3G-8.
[61]
In this
regard, we may need to remind ourselves, as Middleton JA did in
Re
Millar
[1936] OR 554
, ‘
I
take it for granted that a judgment dealing with questions of public
policy would be regarded as unsatisfactory and incomplete
if it made
no reference to Chief Justice Hobart's unruly horse. I shall pay my
respects to that animal by quoting from Burrough
J. in Richardson v.
Mellish
[1824] EngR 715
;
(1824), 2 Bing. 229
, at p. 252:
“I,
for one, protest . . . against arguing too strongly upon public
policy; it is very unruly horse, and when once you get
astride it
you never know where it will carry you. It may lead you from the
sound law. It is never argued at all but when other
points fail.’
[62]
Above fn 31 at 434.
[63]
Above fn 52.
[64]
Above fn 54
at 126.
[65]
Above fn
40.
[66]
Spence v
BMO Trust
para
75.
[67]
Public
policy should be invoked only in clear cases, in which harm to the
public is substantially incontestable, and does not
depend on the
idiosyncratic inferences of a few judicial minds (per Crocket J,
In
Re
Millar
[1938] SCR 1
at 7, quoting Lord Atkin in
Fender
v Milday
[1937]
3 All ER 402).