THE REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
[WESTERN CAPE DIVISION , CAPE TOWN]
In the matter between: Before ALLIE, J
Hearing: 13 February 2025
Judgment Delivered :
MADELEINE LOUISE GERNTHOLTZ
LINDSAY CAROLINE TEGROEN
ROGER DAVID BRAY
GREGORY JON BRAY
and
JACOBUS NICOLAAS JOHANNES PIETERSE N.O.
in his capacity as the executor the estate of
GRANTLAND MICHAEL BRAY
BOERELEGIOEN RSA (PTY) LTD
BOERELEGIOEN NPC
PATHFINDER BUSHCRAFT & SURVIVAL (PTY) LTD
MADELEINE GERNTHOLZ N.O.
in her capacity as a trustee for the time being of the
BRAY FAMILY TRUST
LINDSAY CAROLINE TEGROEN N.O. REPORTABLE
CASE NO: 3958/2023
First Applicant
Second Applicant
Third Applicant
Fourth Applicant
First Respondent
Second Respondent
Third Respondent
Fourth Respondent
Fifth Respondent
in her capacity as a trustee for the time being of the
BRAY FAMILY TRUST
ROGER DAVID BRAY N.O.
in his capacity as a trustee for the time being of the
BRAY FAMILY TRUST
GREGORY JOHN BRAY N.O.
in his capacity as a trustee for the time being of the
BRAY FAMILY TRUST
DARRON WEST N.O.
In his capacity as a trustee for the time being of the
BRAY FAMILY TRUST
MASTER OF THE HIGH COURT
THE MINISTER OF JUSTICE
THE MINSTER OF POLICE
THE MINISTER OF STATE SECURITY 2
Sixth Respondent
Seventh Respondent
Eighth Respondent
Ninth Respondent
Tenth Respondent
Eleventh Respondent
Twelfth Respondent
Thirteenth Respondent
JUDGEMENT DELIVER ELECTRONICALLY ON 18 FEBRUARY 2025
ALLIE, J:
Relief sought
1. This is an application in which the Applicants seek the following relief:
1.1. The bequest to second, third alternatively fourth respondent in paragraph
3 of the last Will and Testament of the late Grantland Michael Bray, dated
15 December 2020, as read with the Codicil thereto, dated 2 June 2021,
is invalid on the basis that:
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1. 1.1 the bequest is vague; and
1.1 .2 the bequest is contrary to public policy.
1.2. Declaring that the assets bequeathed in terms of the said paragraph 3,
devolve by intestate succession;
1.3. Costs be awarded to Applicants on Scale C, to be paid by the second and
third respondents , jointly and severally, the one paying the other to be
absolved, such costs to include the costs of two counsel.
2. A few days before the hearing of this application , second and third respondents,
who are the only respondents (hereinafter referred to as "the respondents ")
who opposed the application, caused their attorney to withdraw.
3. The erstwhile attorney informed the Court that the respondents were aware that
the case would be heard on the set down date but there was no appearance by
the respondents or anyone on their behalf.
Factual Background
4. The applicants are the two sisters and two brothers of the testator, who are all
trustees and beneficiaries of the family trust.
5. The family trust is cited as a respondent in the event that this application is
unsuccessful , in which event, the applicants intend to bring an action to have
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the entire Will declared invalid, then the prior Will of the testator made in 2001,
may become relevant and in that Will, he made a bequest to the Trust.
6. At age 26, the testator was involved in a motor vehicle accident while doing
military service.
7. As a consequence of that accident, the testator became a quadriplegic .
8. Prior to the accident, according to the first applicant, the testator was difficult
and unpleasant. After their dad's death in December 2020, first applicant
visited the testator weekly, hence her allegations concerning the physical and
mental health of the testator, his lifestyle, interests and political views, are
within the personal knowledge of the first applicant.
9. The testator was diagnosed with Borderline Personality Disorder and was
prescribed medication known as, Arizofy.
10. From approximately 2012 until 2022 the testator allegedly became obsessed
with the idea of an impending genocide of white people in South Africa. That
idea was further fuelled by his already present racism and the online content
that he was exposed to.
5
11. He viewed far-right YouTube channels constantly. He allegedly became
paranoid and believed that the "day" of impending genocide of white people
would arrive soon.
12. Applicants believe the training arm of the Boerelegioen ("BL") was housed in
Pathfinder Bushcraft and Survival (Pty) Ltd of which Mr Steytler, is the sole
director.
13. The testator met Steytler and Jonck on 3 December 2020.
14. At that meeting, the testator allegedly told Clinton, an employee of the testator,
to hand a bag of Krugerrands to Steytler and Jonck, which Clinton did.
15. Second and third respondents deny have receiving any Kruggerrands from the
testator and filed an affidavit by Mr Jonck also denying that he and Mr Steytler
received it.
16. In 2021 Steytler again visited the testator and gave him a BL beret and flag.
17. Clinton reported that Steytler told the testator he had been granted membership
of the BL and gave him an alleged fictitious membership number but, according
to Clinton and the Applicants, he was not granted membership because the
Manifest of the BL proclaims that a person can only become a member if he or
she has was of Boer-blood.
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18. The testator made the Codicil of June 2021 after Clinton expressed
reservations about the BL.
19. Since the testator met Steytler and Jonck, he became more and more paranoid
about an impending genocide.
20. The testator, who was living in a security estate in Noordhoek, bought a house
in Fish Hoek without seeing it because he felt he would better, be able to be
rescued there by the BL.
21. The testator allegedly told an employee, Yolanda that his money would be used
for an organization that would exterminate every black person.
22. Later, the testator tried to question the authenticity of the "Generals" in the BL
and that was when Yolanda told him he was being scammed by crooks.
23. Between February / March 2022, the testator called his attorney who couldn't
take the call. When the call was returned, the testator was too ill to speak.
24. On 3 March 2022 the testator had first applicant obtain a copy of the Will and
read through the Will with him, but he passed away on 5 March 2022.
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25. In March 2022 the attorney could not contact Steytler and Jonck and
established that they had resigned from the BL.
26. In May 2022 Van Zyl, the alleged founder of the BL came to inspect the
testator's property with his wife. Clinton asked why the testator had to pay a
monthly membership fee if he had already given R6000 000,00 in gold coins
and why he was not formally made a member.
27. Van Zyl was furious that Steytler and Jonck had received the coins. He was not
aware of it. Once they received the coins, they resigned from the BL without
disclosing the gold coins.
28. Van Zyl allegedly told Clinton that the testator could not be made a member
because he did not have "Boer blood".
29. The first applicant's research revealed that the BL renders vigilante security
services to farmers without being registered in terms of the Private Security
Industry Regulation Act 56 of 2001 ("PSIRA").
30. The applicants allege that the Will is vague on what portion must be given to
Pathfinder and which Boerelegioen organisation or entity is the intended
beneficiary .
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31. Applicants allege that the bequest to the Boerlegioen and Pathfinder are
contrary to public policy. In support of that allegation , the applicants make the
following allegations in the papers.
32. Those allegations of the BL's operations, manifest and ideology being contrary
to public are as follows:
33. The fundamental purpose of the BL is allegedly, to undo, through unlawful
means, the prescripts of the Constitution of the RSA.
34. The BL is a far-right, white supremacist group, that states in its manifest that it
is a:
"Civil defence movement that enables citizens to resist the promised
slaughter of whites in RSA as well as the theft of their property."
"The BL will assist the policy of the Department of Justice and the police
force and thus assist with tracking and successful prosecution of hit
squads that murder innocent boere."
35. It is in substance and effect, a paramilitary civil defence force.
36. Applicants conclude that the BL is mired in racial hatred and military training to
actively arm themselves against black South Africans. The leader proclaims he
is ready to lead his people to war. Therefore, their aims and objectives are not
in accordance with public policy.
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37. White supremacy mobilises around imagined threats to white people and sees
itself in a war for the survival of white people.
38. It is unlawful to train a paramilitary or to provide training for security service
without being registered under PSIRA
39. What white supremacy does, is to "recycle the discourse of black,
incompetence and whites being under threat thereof."
40. The literature relied on by applicants explain that when the out-group can be
constructed as a genuine threat to the existence of the in-group, that is when
extreme acts can be justified as noble and just, although this discursive step
was not taken by participants in the study under consideration in the material
under discussion in that study.
41. Rhetoric of an impending cataclysm is meant to impel Afrikaner white South
Africans to take that step.
42. The intention of BL is to utilise funds received from the bequest to further train
at their camps and to further its messages of racial hatred and separation.
43. The BL provides private security services unlawfully because they are not
registered the PSIRA.
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44. In an email, one Jardim informed the testator that the BL trains people for a
protection force for when the day arrives.
45. Section 38(3) (a) PSIRA creates an offence to provide security service without
being registered in terms of Section 20(1) (a).
46. Applicants allege that the bequest, if left undisturbed, would fund unlawful and
prohibited training and activity.
47. Applicants allege that a private organisation can't be allowed to undermine the
spirit purport and objects of the Bill of Rights with impunity and to train a private
army with the express purposes of returning to Apartheid.
48. Applicants allege that the BL expressly rejects the preamble to the Constitution.
by allying themselves with people who seek a separation from the Republic to
establish an enclave. Conduct of seeking to separate parts of the country into
an enclave separate from the Republic, contravenes section 1 of the
Constitution and is antithetical to section 9 of Constitution, where the BL
announces that only persons with Boer-blood exclusively can be members.
49. The applicants alleges that the BL trains and radicalises people who identify as
white Afrikaners to take up arms in defence of the Afrikaner nation, thereby
laying themselves open to a contravention of section 12(1 )(c) of the
Constitution .
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50. Hate speech and speech that incites violence are not included in protection of
free speech under section 16 of Constitution.
51. Applicants allege that the operations of the BL are contrary to the rule of law.
52. Applicants allege that the common law already prohibits testamentary
dispositions that are contrary to public policy.
53. Undoubtedly, conduct and speech that offends the spirit purport and objects of
Bill of Rights, are contrary to public policy.
54. Second and third respondents, for their part, allege in the answering affidavit
that to find that all conduct that offends the Constitution are contrary to public
policy, will require that every organisation that receives any bequest or
donation, should be subjected to scrutiny to establish if their aims and
objectives are contrary to the Constitution and to public policy.
55. Applicants allege that it is not open to the BL to contend that there's an
impending genocide and every white Afrikaner needs to defend themselves
against a coming race war.
56. Applicants allege that to do so, is to seek to actively stoke racial hatred.
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57. Respondents allege that the second respondent is dormant and not functional
because it has not yet registered under the Private Security Industry Regulation
Act 56 of 2001 {"PSIRA").
58. Respondents allege that the BL provides security and training services to
communities .
59. They allegedly train farmworkers and security guards with the SAPS.
60. They train on self-awareness, self-defence , first aid and firearm law.
61. Respondents allege that the deceased re-thought the Will on four different
occasions and did not make the bequest randomly.
62. Respondents allege that the BL does not exclude any race I gender I religion.
63. Respondents deny that the BL is a white supremacist organisation.
64. Respondents say that the BL also trains people on welding machines, tractor
maintenance, farming, firefighting and self-discipline.
65. In describing how the BL was conceptualised, the deponent to the answering
affidavit says that the BL developed from white Afrikaners for their benefit.
13
More and more other races and cultures have allegedly reached out for
training. The BL now have 15 percent members who are not Afrikaners, for
example during the July 2021 riots, they assisted all races.
66. Respondents however annex no documentary proof of membership by other
races nor of collaboration with the S.A.P.S.
67. Respondents allege that obedience to all the laws, is not a requirement to
receive a bequest or legacy. In that submission, the Respondents misconceive
the purpose and import of public policy.
68. Respondents deny that the BL has any affiliation with the Boeremag .
69. Respondents assert that the family trust paid legatees who were employees
and paid their salaries, therefore they made confirmatory affidavits. However,
the deceased estate is legally obliged to pay unpaid salaries and the executor
is obliged to pay legatees.
70. Respondents deny that the BL has anything to do with Camp Phoenix and say
its not an arm of BL.
71. Respondents explain that the BL rented Camp Phoenix premises from time to
time.
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72. According to Respondents, Jonck denied to Van Zyl, that any Krugerrands
were handed to him and Steytler.
73. The respondents allege that the testator is reflected as a member of the BL and
challenge how first applicant established he was not a member.
7 4. Respondents allege that the BL consists of retired policemen who are able to
gather intelligence on political tension in the country. However, no lawful
authority for that activity is alleged. Gathering intelligence unlawfully and using
it to undermine the authority of the state has treason related consequences .
75. Respondents allege that the BL focuses on crime prevention , disaster
management and protection of communities .
76. Respondents allege that the SL concentrates on fact not fiction nor far-right
wing myths and they deny discrimination based on race. They allege that they
only act against criminals. That allegation begs the question of how private
citizens can determine who is a criminal or not, and exact punishment on
people suspected of committing crimes.
77. Respondents deny that they have a policy to extenninate black people.
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78. Respondents allege that it's slanderous to allege that they are crooks, as
Yolanda did.
79. The BL denies holding aberrant racist views.
80. The respondents allege that the second respondent, the company of the BL
was not even registered when the will was signed and therefore it can't be a
beneficiary.
81. Respondents allege that there is no factual proof of racism and discrimination
provided by Applicants. That allegation is persisted with despite the
respondents annexing to their founding affidavit, the BL's Manifest which was
discussed earlier.
82. Respondents seek to suggest that first applicant is equally guilty of racism or
undermining the objectives of the government in that she made a Facebook
post in 2017 saying that Zuma's not her president. As it turned out, many
people held similar views to what was expressed in that post and subsequently
Mr Zuma resigned as President.
83. Respondents allege that the Ranger courses offered by BL is intended to make
people proficient in handling firearms and in self-defence. The BL nonetheless
do not address how they can be lawfully entitled to do so without registration
under the PSIRA.
16
84. Respondents admit the content of the webpage created in 2018 for the BL but
say that they don't have the skills to change it.
85. Respondents admit mentioning EFF and BLF specifically but say it's because
of farm attacks.
86. Respondents point out that the BLF posts were declared as hate speech by
SAHRC in September 2022.
87. Van Zyl admits that he said in the video in the "old day there was crime control,
successful prosecutions and better service delivery, " but he says that does not
mean that he supports Apartheid. It is allegedly, his opinion.
88. In reply, the applicants made the following averments:
89. The BL is an organised army containing regiments, battalions and platoons.
90. No evidence is attached to support the claim of 15 percent non-white
membership nor that it trained Zulu men.
91. The dispute is not about a mere difference of opinion, as respondents suggest,
it is about ideology and the extent to which that ideology is being promoted to
undermine the rule of law.
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92. Respondents attach no evidence to support their claim that the BL provides
protection and security training in collaboration with the SAPS.
93. The Manifest of the BL, would precludes the testator from becoming a member.
94. No basis is provided for the respondents' contention that named beneficiaries
were paid twice
95. Respondents allegedly provide no bona tide grounds on which they dispute the
facts alleged by Applicants. Applicants allegations are supported by the BL's
Manifest annexed to the answering affidavit, that the BL are white
supremacists.
96. Respondents provide no basis for denying Yolanda's close relationship with the
testator.
97. Jonck was surprised that the bequest was only to BL as he thought it was to
Pathfinder as well. That underscores the vagueness of the bequest in the Will.
98. There is no lawful basis for BL to provide crime prevention and protection of
communities when they are not register with PSIRA nor are they a police force.
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99. There is no lawful basis upon which the BL can arrogate to themselves , the
right to identify and deal with criminals.
100. The BL's alleged love for culture, religion and language can't be used as a
cover for racist ideology.
101. No proof was provided that Dennis Clinton Van Der Loo was intoxicated when
Van Zyl visited the home of the testator for the purposes of an inspection.
102. Respondent provide no reasonable explanation why PSIRA registration could
not occur some 7 to 9 years after the BL was established .
103. Applicants say their challenge relates to whether the bequest is competent as
the Will does not state to which entity of the BL it is made, therefore it is
allegedly both vague and contrary to public policy.
104. Applicants state that while one may have a right to life and property, there is no
basis to form a paramilitary group to protect same.
105. Applicants allege that the Constitution only allows one defence force.
106. The BL website shows that they seek to undermine the laws of the country.
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107. A call for a return to the old days by the BL, can only be a call for the return to
Apartheid.
108. The BL's racial exclusionary policy of Boer blood membership only, together
with their training to defend and protect Boer-blood people and their chant of
"die boere kom" shows a militaristic stance. The motto of Apartheid South
Africa is used by the BL.
109. At paragraph 1.5 of their Manifest they promote the rhetoric of an impending
cataclysm.
110. The purpose of PSIRA is to ensure that people offer security services for
reward in an appropriate manner that complies with the law but the SL does not
comply with the law because it is not registered with PSIRA.
111. Providing security training is in fact providing security services.
112. The SL attempts to incite violence based on race and does not seek to uphold
the rule of law.
113. The BL's aims are contrary to the Constitution and therefore, contrary to the
public policy.
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114. The Biowatch principle applies to Constitutional litigation. Applicant seeks only
party and party costs.
115. Condonation for late filing of the replying affidavit was sought and the reason
for it being filed late is that the Applicants had to respond to a wide range of
factually disputed issues set out in the answering affidavit.
116. In the absence of any opposition to the condonation, the condonation is
granted with no order as to costs.
Applicable Law
117. In considering whether the disputes of fact raised by the respondents are bona
fide, material, far-fetched and untenable, regard must be had to the well­
established principles set out in Plascon- Evans1 in determining those disputes
in motion proceedings.
118. In NDPP v Zuma,2 the following was said co~cerning determinat ion of disputes
of fact in motion proceedings:
'126} Motion proceedings, unless concerned with interim relief, are all
about the resolution of legal issues based on common cause facts.
Unless the circumstances are special they cannot be used to resolve
factual issues because they are not designed to determine
1 Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at [634] -[635]
2 NDPP V Zuma 2009(2) SA277 ( SCA) at (26)
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probabilities. It is well established under the Plascon-Evans rule that
where in motion proceedings disputes of fact arise on the affidavits, a
final order can be granted only if the facts averred in the applicant's (Mr
Zuma's) affidavits, which have been admitted by the respondent (the
NDPP), together with the facts alleged by the latter, justify such order. It
may be different if the respondent's version consists of bald or
uncreditworthy denials, raises fictitious disputes of fact, is palpably
implausible, far-fetched or so clearly untenable that the court is justified
in rejecting them merely on the papers. 13 The court below did not have
regard to these propositions and instead decided the case on
probabilities without rejecting the NDPP's version."
119. The "official" flag of the Boerelegioen is the "Vierkleur' ', named, the old
Apartheid South Africa's flag, which can't be displayed publicly as decided in
the case of Afriforum 3
120. In Afriforum, the Supreme Court of appeal opined as follows:
" [39] The message conveyed by gratuitous public displays of
the old flag is plainly one based on race -apartheid and white
supremacy. Indeed, this is common ground ...
[40] The old flag is an awful reminder of the anguish suffered by
millions of people under apartheid South Africa before the
advent of democracy in 1994. It symbolises, clearly and
painfully, the policy and manifestation of apartheid. In fact,
Afriforum's answering affidavit states: 'During Apartheid the old
flag was held aloft as a symbol of the past regime's power. At
the time it was seen as a constant reminder of an oppressive
and racist system'. As stated in the founding affidavit of the
SAHRC, the old flag represents precisely that racist and
repressive regime, and the dehumanising ideologies espoused
during its rule -the racial superiority of white South Africans and
the corresponding inferiority of black South Africans.
[41 J As a revered icon of apartheid, the old flag represents hate,
pain and trauma for most people, particularly black South
Africans. The gratuitous public displays by people of the old flag
3 Afriforum NPC v Nelson Mandela Foundation Trust and Others 2023 (4) SA 1 {SCA).
22
-a provocative symbol of repression, authoritarianism and racial
hatred -brings into unmistakeable view their affinity and
mourning for the apartheid regime, characterised by its
degrading, oppressive and undignified treatment of black South
Africans. The message conveyed is a longing for the days of
apartheid and the restoration of white minority rule.
[47] Racist conduct, the Constitutional Court said in South
African Revenue Service, must be dealt with firmly:
'[R]acist conduct requires a very firm and unapologetic
response from the courts, particularly the highest courts.
Courts cannot therefore afford to shirk their constitutional
obligation or spurn the opportunities they have to
contribute meaningfully towards the eradication of racism
and its tendencies'
[48] These two cases, it was held in Qwelane, 'demonstrate the
presence of deeply rooted structural subordination in relation to
race'. The Court went on to say:
'In these cases, the Court underscored how facially
innocuous words or notorious words have to be
understood based on the different structural positions in
post-apartheid South African society. This is an approach
which takes cognisance of how words perpetuate and
contribute towards systemic disadvantage and
inequalities. In essence, this is the corollary of our
substantive equality demands that flow from the
Constitution. The purpose of hate speech regulation in
South Africa is inextricably linked to our constitutional
object of healing the injustices of the past and
establishing a more egalitarian society. This is done by
curtailing speech which is part and parcel of the system
of subordination of vulnerable and marginalised groups in
South Africa.
[49] The message communicated by gratuitous public displays
of the old flag is not innocuous, let alone facially innocuous.
Rather, those who publicly hold up or wave the old flag, convey
a brazen, destructive message that they celebrate and long for
the racism of our past, in which only white people were treated
as first-class citizens while black people were denigrated and
demeaned. It is a glorification and veneration of the hate-filled
system that contributed to most of the ills that beset our society
today. The message is aimed at intimidating those who suffered,
and continue to suffer, the ravages of apartheid; and poses a
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direct challenge to the new constitutional order. This, when, as
stated in the Minister's affidavit, it has been determined that
apartheid is a crime against humanity. And when Afriforum itself
states: 'Most South Africans recoil from the old flag and openly
denounce Apartheid as a crime against humanity'.
[50] Such displays of the old flag are calculated to be harmful: it
results in 'deep emotional and psychological harm that severely
undermines the dignity of the targeted group' -black people. It
also incites harm: it is able to ignite exclusion, hostility,
discrimination and violence against them. It can, 'have a
severely negative impact on the individual's sense of self-worth
and acceptance. This impact may cause the target group
members to take drastic measures in reaction, perhaps avoiding
activities which bring them into contact with non-group members
or adopting attitudes and postures directed towards blending in
with the majority'. This, in turn, not only perpetuates systemic
disadvantage and inequalities, but also obstructs the
constitutionally mandated objective of building a non-racial
society based on human dignity and the achievement of
equality; and impairs the pursuit of national unity and
reconciliation ... "
121. The Boerelegioen attempts to glorify the Apartheid government by adopting its
motto, namely, Ex Unitate Vires, which is a further painful reminder to the
majority of South Africans, of the brutal and odious past regime that ruled them.
122. Stripped of all its ostensible niceties, white nationalism is the belief that national
identity should be built around white ethnicity and that white people should
maintain a superior dominance over the country's culture and ethos.
123. For white nationalism to gain traction, it fosters a false narrative of an imagined
threat to its cultural identity that it contends is being erased. That narrative
enables it to frame its ideology as a just cause and a war for survival.
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124. South Africa's own oppression and exploitation of the majority was sold to the
more privileged sectors of society as being based on the alleged need to
suppress, the so-called "swart-gevaar''. While the words swart-gevaar are no
longer prevalent, the fear-mongering now takes the form of persuading white
people that farm murders are the designed commenced of a white genocide,
which genocide is allegedly, imminent.
125. The Boerelegioen 's use of these tactics to garner support for their
organisation, which is an admitted white supremacist organisation has, at its
core objective, activity such as, the training of paramilitary and/or a vigilante
groups, in violation of the law.
The void for vagueness issue
126. The Will read with the Codicil provides as follows:
"I appoint as heir to the whole of the balance of my estate the
Boerelegioen with specific instruction that the bulk a portion of the
inheritance be utilised for the Pathfinder Bushcraft and Survival
Training Camps or any other training by the Boerelegioen ... "
127. It is trite that in the interpretation of a will, the testator's intention is the primary
consideration, as expressed by the Court Van Aardt.,4 where it was held that:
4 Settlers 1820 National Monument Foundation v Van Aardt and Others 1977 (2) SA 368 (E )
25
"In interpreting a will a Court is not limited to considering the
words in which the bequest is couched but may also have
regard to certain extrinsic evidence in order to determine the
intention of the testator . The extent to which such evidence may
be used has been succinctly stated by CORBETT, J.,
in Allen and Another, NN.O. v Estate Bloch and Others, 1970 (2)
SA 376 (C) at p. 380, as follows:
"Basically the duty of the Court is to ascertain not what
the testator meant to do when he made his will, but what
his intention is, as expressed in his will. Consequently,
where his intention appears clearly from the words of the
will, it is not permissible to use evidence of surrounding
circumstances or other external facts to show that
the testator must have had some different intention. At
the same time no will can be analysed in vacuo. In
interpreting a will the Court is entitled to have regard to
the material facts and circumstances known to
the testator when he made it: it puts itself in the testator's
armchair. Moreover, the process of interpretation
invariably involves the ascertainment of the association
between the words and external objects and evidence is
admissible in order to identify these objects. This process
of applying the words of the will to external objects
through the medium of extrinsic evidence may reveal
what is termed a latent ambiguity in that the words,
though intended to apply to one object, are in fact equally
capable of applying to two or more objects (known
technically as an 'equivocation? or that the words do not
apply clearly to any specific object, as where they do not
describe the object or do not describe it accurately. In
both these instances additional extrinsic evidence is
admissible in order to determine, if possible, the true
object of the bequest but except in the case of an
equivocation, such evidence."
128. In Birkett 5, the Court held that "where, however, the language of a will,
although intended to apply to one person or thing only, is equally applicable to
two or more and it is impossible to gather from the context what was intended,
an equivocation arises, and, in addition to the extrinsic evidence of surrounding
5 Ex Parte Essery and Vial NNO: In Re Estate Birkett 1980 (2) SA 392 (D) at 3950 -395E
26
circumstances , direct declarations of the testator's intention may be given to
solve the ambiguity ."
129. Hence the extrinsic evidence of establishing what the identity, aims and
objectives of the Boerelegioen is, was a necessary exercise in clarifying who
the bequest had been made to and for what purpose it was meant to be usd.
130. From the papers, it has emerged that there are three possible entities, namely:
130.1. First, there is the Boerelegioen RSA (Pty) Ltd;
130.2. Second, there is the Boerelegioen NPC; and
130.3. Third, there is the introduction by the respondents, of a voluntary
association which was founded in 2016
131. The only expression of the testator's intention that is evident, is the intention for
the funds to be used for "training", as well as, the testator's own assertions that
he wanted the funds used to benefit an organisation which he deemed to be
one which will "exterminate every black person in South Africa" and will be used
to defend or ward off a white genocide, which is clearly imagined and not real.
27
132. While the respondents deny that extermination of black people is their aim and
objective, they nonetheless contend that they are the intended beneficiaries.
They do so without explaining how they will carry out the testator's alleged
motivation for making the bequest, namely, wanting to exterminate black
people in South Africa.
133. In light of there existing three distinct entities carrying the name of the
Boerelegioen and the fact that the person that the testator met and informed
that he wanted to make a bequest to the BL, namely Mr Steytler having
resigned from the BL, it follows that the bequest is vague concerning which
entity was the intended beneficiary under the Will and Codicil, even when
regard is had to extrinsic evidence.
134. Additionally, the Will and Codicil do not specify the portion that the BL is meant
to use for the activities of training camps conducted under the aegis of
Pathfinder Bushcraft and Survival (Pty) Ltd, who in any event do not oppose
this application .
135. If respondents' contention that the BL is not a racially exclusive organisation
and allegedly trains people of Zulu origin is correct, then clearly, that was not
the type of organisation that the testator intended to make the bequest to and
intended to fund training camps for.
28
The contravention of public policy issue
136. In Barkhuizen v Napier6 the Constitutional held as follows concerning the
relevance of Constitutional values in determining the content of public policy:
"[28] Ordinarily, constitutional challenges to contractual terms
will give rise to the question of whether the disputed provision is
contrary to public policy. Public policy represents the legal
convictions of the community; it represents those values that are
held most dear by the society. Determining the content of public
policy was once fraught with difficulties. That is no longer the
case. Since the advent of our constitutional democracy , public
policy is now deeply rooted in our Constitution and the values
which underlie it. Indeed, the founding provisions of our
Constitution make it plain: our constitutional democracy is
founded on, among other values, the values of human dignity,
the achievement of equality and the advancement of human
rights and freedoms, and the rule of law. And the Bill of Rights,
as the Constitution proclaims , "is a cornerstone " of that
democracy; "it enshrines the rights of all people in our country
and affirms the democratic [founding] values of human dignity,
equality and freedom."
137. The testator's intention to fund the training of people in order to impart to them,
the skills in order to provide security services, embark upon paramilitary activity
to defend a perceived white genocide, without the organisation under whose
auspices that training would occur, having the necessary registration under
PSIRA, means that the activity so funded would be unlawful, both under the
PSIRA statute and under the Constitution of the RSA which permits of only one
army, namely, the SANDF and which does not permit racist, discriminatory and
exclusionary activity.
6 2007 (S) SA 323 (CC) at (28)
29
138. Section 20(1)(a) of the PSIRAAct provides that:
"20. (1) (a) No person, except a Security Service contemplated
in section 199 of the Constitution (Act No. 108 of 1996), may in
any manner render a security service for remuneration, reward,
a fee or benefit, unless such a person is registered as a security
service provider in terms of this Act."
139. Security Service is defined in PSIRA, as follows:
"security service" means one or more of the following services or
activities:
(a) protecting or safeguarding a person or property in any
manner;
(b) giving advice on the protection or safeguarding of a person
or property, on any other type of security service as defined in
this section, or on the use of security equipment ;
( c) providing a reactive or response service in connection with
the safeguarding of a person or property in any manner;
(d) providing a service aimed at ensuring order and safety on
the premises used for sporting, recreational , entertainment or
similar purposes;
(e) manufacturing , importing, distributing or advertising of
monitoring devices 50 contemplated in section 1 of the
Interception and Monitoring Prohibition Act, 1992 (Act No. 127 of
1992)
(f) performing the functions of a private investigator;
(g) providing security training or instruction to a security service
provider or
(h) installing, servicing or repairing security equipment;
(i) monitoring signals or transmissions from electronic security
equipment;
30
(j) performing the functions of a locksmith;
(k) making a person or the services of a person available,
whether directly or prospective security service provider;
indirectly, for the rendering of any service referred to in
Paragraphs (a) to (j) and (I), to another person;
(I) managing, controlling or supervising the rendering of any of
the services referred to in paragraphs (a) to (j).
(m) creating the impression, in any manner, that one or more of
the services in referred to in paragraphs (a) to(/)"
140. The intention of the bequest is to provide financial assistance to the BL to
enable them to contravene 38(3)(a) read with section 20(1) (a) of PSIRA.
141 . In Syfrets,7 the court held that in the constitutional era, public policy was rooted
in the Constitution and the values it enshrines. The Court, therefore, considered
whether the provisions constituted unfair discrimination and if so, whether they
were contrary to public policy. The court found that when applying the test
enunciated in Harksen8, namely, balancing competing constitutional values
and principles of public policy, the public nature of the trust, was also taken
into consideration. The court concluded that "the testamentary provisions in
question constitute unfair discrimination. Accordingly, it concluded that they
were contrary to public policy as reflected in the foundational values of non-
7 Minister of Education v Syfrets Trust Ltd N.O. 2006 (4) SA 205 (C).
8 Harksen v Lane No 1998 (1) SA 300 (CC).
31
racialism, non-sexism, and equality". It held that it was therefore empowered to
vary the trust and delete the offending provisions.
142. In Emma Smith Educational Fund, 9 the court found that:
"The constitutional imperative to remove racially restrictive
clauses that conflict with public policy from the conditions of an
educational trust intended to benefit prospective students in
need and administered by a publicly funded educational
institution such as a 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."
143. BOE Trust 10 also concerned the creation of a testamentary trust meant to
create a bursary fund for the benefit of white South African students. On
appeal, the Supreme Court of Appeal, while affirming the principle of freedom
of testation, found that the freedom was not absolute. In paragraph 28, the
Court held as follows:
[28) But freedom of testation, and the rights underlying it, are not
absolute. The balance to be struck between freedom of testation and its
limitations was formulated by Innes ACJ as follows:
'Now the golden rule for the interpretation of testaments is to
ascertain the wishes of the testator from the language used. And
when these wishes are ascertained, the court is bound to give
effect to them, unless we are prevented by some rule of law from
doing so.'
9 Curators Ad Litem to Certain Potential Beneficiaries of Emma Smith Educational Fund v The University of
KwaZulu-Natal (2010] ZASCA 136; 2010 {6) SA 518 {SCA)
10 BOE Trust Ltd N.O. (in their capacities as co-trustees of the Jean Pierre De Villiers Trust 2013 (3) SA 236 {SCA)
(BOE Trust Supreme Court of Appeal judgment).
32
144. In the BOE Case, the court avoided the issue of the constitutionality of the
expressly discriminatory provision in the Will, namely, bequeathing the funds to
white students only and the consequential contravention of public policy that
ought to follow. However the court a quo decided the matter before the Emma
Smith case.
145. In King v De Jager11 the Constitutional Court was seized with the
determination of "whether public policy has advanced to the extent that courts
should be empowered to act as the final arbiter of whether a testator may
discriminate, even unfairly so, in his or her private will". Ultimately the Court
found that the discriminatory provisional was unconstitutional, contrary to public
policy and therefore unenforceable.
146. The common law regards unlawful wills and those that are contrary to public
policy as not enforceable.
147. In Harvey12 the Supreme Court of Appeal said that there are cases where the
interests of society require a court's interference on the grounds of public
policy. The Court was seized with having to "rewrite the deed, by instituting
persons as beneficiaries, who have been excluded by the donor."
11 King N.O and Others v De Jager 2021 (4) SA 1 {CC) at para [103]
12 Harvey N.O. v Crawford N.O. 2019 (2) SA 153 (SCA) at para at (70)
33
148. The Court in Harvey confirmed that a private bequest could be challenged on
the basis of discrimination.
Application of the law to the facts
149. While in form, the bequest to the Boerelegioen does not appear to be prima
facie unfairly discriminatory and to offend public policy, in substance , when
regard is had to the Manifest of the Boerelegioen , which respondents say is
their Constitution, their webpage, the allegations in the answering affidavit and
their video material which are not challenged, then clearly the BL and the
testator's stated objective and purpose for which he wished to have the funds
used, do fall foul of the law in the following respects.
150. This country is only legally entitled to have one army, that is, the South African
National Defence Force. Therefore , paramilitary activities of the BL are
unlawful.13
151 . The Prohibition of Mercenary Activities and Regulation of Certain Activities in
Country of Armed Conflict Act, 27 of 2006 defines in section 1, anned conflict
as including armed forces, which appears to apply to anned forces that would
be joined outside of South Africa. However, the Prohibition of Mercenary
Activities and Regulation of Certain Activities in Country of Armed Conflict Act
and the PSIRA collectively operate to make illegal, the training of persons in
13 sections 198 and 199 of the Constitution of the RSA
34
the use of arms for the purpose of participating with armed groups unless the
trainers are registered under PSIRA and comply with certain regulations and
protocols or have obtained the necessary authorization from the National
Conventional Arms Control Committee
152. Turning to respondents ' allegation that the BL deals with criminals, it should be
noted that private persons who are not members of the police force may only
arrest suspects in terms of section 42 of the Criminal Procedures Act 51 of
1977 and no provision is made for those effecting arrests to "deal with"
suspects as though they were already "criminals" i.e. people that have already
been convicted of committing a crime. Certainly, no legal provision exists to
enable the BL" to deal with criminals" as respondents have alleged.
153. The Manifest of the BL is discriminatory against persons other than those with
alleged "Boer blood" and amounts to a violation of the Bill of Rights in the
Constitution that prohibits exclusionary practices based on ethnicity and race.
154. The Manifest, webpage and videos of the BL also violates section 16(2) of the
Constitution that expressly prohibits expression that propagates war, incites
imminent violence or advocates hatred based on race, ethnicity, gender or
religion and which amounts to incitement to harm, for example expressing the
desire to exterminate black people.
35
155. In light of the common cause fact that the BL was conceptua lised and
established as an organisation for white persons by white persons to defend a
perceived white genocide and is stated as being only open to members who
have "Boer-blood ," the purported disputes of fact raised by the respondents are
not bona fide and are far-fetched and untenable. Therefore , respondents'
version is not afforded the protection of the Plascon-Evans principle.
156. Expression of the nature described above cannot find protection under freedom
of speech nor under cultural protection. They remain contrary to public policy
and therefore, also contrary to the common law.
157. In the circumstances , given that the common law provides for a declaration of
unenforceability where a provision in a will is contrary to public policy, there is
no need for this Court to develop the common law as contemplated in section
39(2) of the Constitution of the RSA
158. In the result, I am satisfied that the second and third respondents who had filed
an answering affidavit, annexures thereto, including several confirmatory
affidavits, had ample opportunity to present their case to this court, even
without the assistance of legal representation , in the event that they were
unable to obtain legal representation after their attorney withdrew, but they
failed to present argument before this Court.
36
159. Nonetheless, this Court has taken into consideration, all of the allegations and
arguments that the respondents presented on the papers and weighed it up
against the submissions made on behalf of applicants and the applicable law.
160. This Court is therefore, persuaded that the applicants have made out a case for
the relief they seek with regard to declaring the bequest to the Boerelegioen to
be vague and contrary to public policy and therefore invalid and unenforceable.
161. The respondents have been substantially unsuccessful in this application and
have caused the applicants to incur the cost of responding to every allegation
that they made in their lengthy affidavit. Therefore the respondents who
opposed this application must bear the costs.
162. The employment of two counsel and Scale C was justified given the novel
nature of the case as well as its complexity.
163. In the result, I make an order in terms of the draft order annexed hereto.
JUDGE R. ALLIE
APPEARANCES
For the Applicant:
Instructed by:
For the Respondent(s):
Instructed by:
Judgment delivered on: Adv Craig Webster SC
Muhammad Ebrahim
Werksmans Attorneys
No appearance
18 February 2025 37
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Before the Ho.nourable Ms Justice Allie
~ \Ut.~P1 \Y-Cape Town, 'FftuFs~ , 18 February 2025
In the matter between:
MADELEINE LOUISE GERNTHOL TZ
LINDSAY CAROLINE TEGROEN
ROGER DAVID BRAY
GREGORY JON BRAY
and
JACOBUS NICOLAAS JOHANNES PIETERSE N.O.
in his capacity as the executor the estate of
GRANTLAND MICHAEL BRAY
BOERELEGIOEN RSA (PTY) LTD
BOERELEGIOEN NPC
PATHFINDER BUSHCRAFT & SURVIVAL (PTY)
LTD
MADELEINE GERNTHOLZ N.O. in her capacity as
a trustee for the time being of the BRAY FAMILY
TRUST CASE NO: 3958/2023
First Applicant
Second Applicant
Third Applicant
Fourth Applicant
First Respondent
Second Respondent
Third Respondent
Fourth Respondent
Fifth Responden t
LINDSAY CAROLINE TE GROEN N.O. in her
capacity as a trustee for the time being of the
BRAY FAMILY TRUST
ROGER DAVID BRAY N.O. in his capacity as a
trustee for the time being of the BRAY FAMILY
TRUST
GREGORY JON BRAY N.O. in his capacity as a
trustee for the time being of the BRAY FAMILY
TRUST
DARRON WEST N.O. in his capacity as a trustee
for the time being of the BRAY FAMILY TRUST
MASTER OF THE HIGH COURT
THE MINISTER OF JUSTICE
THE MINSTER OF POLICE
THE MINISTER OF STATE SECURITY
~BRAA'ORDER Sixth Respondent
Seventh Respondent
Eighth Respondent
Ninth Respondent
Tenth Respondent
Eleventh Respondent
Twelfth Respondent
Thirteenth Respondent
HAVING HEARD COUNSEL FOR THE APPLICANTS AND HAVING READ THE
PAPERS FILED OF RECORD IT IS ORDERED THAT:
1. The bequest to second, alternatively, third respondent, alternatively fourth
respondent ("the bequest"), in paragraph 3 of the last will and testament of
Grant Michael Bray, dated 15 December 2020 ("the will"), as read with the
codicil thereto, dated 3 June 2021 ("the codicil"), is invalid on the basis that:
1.1. The bequest is void for vagueness; and
1.2. that the bequest is contrary to public policy.
2. Declaring that the assets bequeathed in terms of the said paragraph 3 fall to
devolve by intestate succession.
3. Costs on Scale C, to be paid by the second and third respondents, jointly and
severally, the one paying the other to be absolved, such costs to include the
costs of two counsel.
BY ORDER OF THE COURT
COURT REGISTRAR
Werksmans Attorneys
HC Box 31
Ref: M Wiehahn