IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO: 2024-127653



In the matter between –

JACOBS, KAY PRISCILLA N.O. First Applicant
JACOBS, KAY PRISCILLA Second Applicant

And

ADAMS, SELWYN First Respondent
THE MASTER OF THE HIGH COURT JHB Second Respondent

By transmission of this judgment by email and uploading on Court Online /
Caselines the judgment is deemed to be delivered


(1) REPORTABLE: YES.
(2) OF INTEREST TO OTHER JUDGES: NO.
(3) JUDGMENT : 24 AUGUST 2025


..........................

2



JUDGMENT


SNYCKERS AJ

INTRODUCTION

[1] This matter came before me as an unopposed application. 1 The applicant
(Jacobs), the executrix in the estate of her late son, Ivan, who was 29 years old
when he passed away, sought a declarator that Ivan’s father, the first
respondent (Adams), be declared ‘not to be a parent’ in terms of the Intestate
Succession Act, as to Ivan’s estate, and that Jacobs in her personal capacity
be declared the sole parent.

[2] The application was founded on the authority of the judgment of Kollapen J in
Wilsnach NO v TM and Others 2021 (3) SA 568 (GP).

[3] With respect to the learned judge in the Wilsnach case, I do not follow that
decision. I find myself unable to accord a normative interpretation to the term
‘parent’ as employed in the Intestate Succession Act,2 as was done in Wilsnach.
I do not find a constitutional reading of the provisions of that statute reasonably
capable of yielding the interpretation accorded to them in Wilsnach. I do,
however, employ Wilsnach as authority, which I endorse, for the application in

1 I discuss the circumstances in which it was unopposed below.
2 Act 81 of 1987.

3

these circumstances of the common law power of the court to declare an
intestate heir indignus (or unworthy) to inherit. I find the application before me
to contain sufficient allegations to encompass a case for such relief under its
‘alternative relief’ prayer.

BACKGROUND

[4] Jacobs and Adams had a brief relationship when Jacobs was eighteen. She fell
pregnant with Ivan. Adams made a few payments to her before the pregnancy
but showed limited interest. Adams was not present at the birth. Jacobs and
Adams never lived together. After the birth, i n the first month, Adams gave
Jacobs some nappies. He then essentially disappeared from their lives. When
Ivan got hurt as a one year old, Adams visited him in hospital. On the affidavit
before me, that was it, as far as Adams’ role as father was concerned, for some
29 years.

[5] In the first year, Jacobs sporadically chased Adams for maintenance, via the
Maintenance Court. He made sporadic payments. When Jacobs obtained
employment, with Ivan being a year old, she gave up on chasing Adams for
maintenance, and maintained Ivan herself. Adams exited stage left, fully and
finally.

[6] Jacobs raised Ivan with the help of her mother and brothers. Aunts and other
family members helped where they could. When Ivan was about six, enter stage
right Phillip McCarthy, who became Jacobs’ life partner and de facto father.

4


[7] Ivan never mentioned contact with his father, except a chance occasion at a
function ‘at one point’, when they did not speak.3

[8] The affidavit is firm that there was no relationship at all between Ivan and his
father. Apart from the few maintenance payments that had been dragged out of
him in the first year, Adams paid nothing at all over the 29 years of Ivan’s life ,
and ‘was for all intents and purposes totally absent as far as the upbringing of
Ivan was concerned’.

[9] Ivan was one of the victims of Covid -19, passing on 7 July 2021. He had no
spouse, no life partner, no romantic relationship at death, no children, no
siblings and no dependants. He had been employed and ended up with a net
estate of R716 070.24.

[10] Under the provisions of the Intestate Succession Act (ISA) Jacobs and
Adams, being Ivan’s surviving parents, would each inherit some R358,000 from
Ivan’s estate.

[11] Jacobs brought this application, to declare herself the sole parent and
Adams not to be a parent for purposes of the ISA and Ivan’s estate. She based
it squarely on Wilsnach, contending that the case was on all fours.




3 It is not explained how, if they did not speak and there had been no contact at all, Ivan knew it was his
father whom he saw.

5

PROCEDURAL BACKGROUND – UNOPPOSED


[12] Given concerns I expressed via a widely shared note on Caselines,
Jacobs filed an explanatory service affidavit the day before the application was
heard.

[13] The matter had been called on the unopposed roll before Mabesele J on
28 May 2025. On that day, Adams appeared in person and said he wanted to
oppose the application. There was discussion at court between the parties and
the judge. The upshot was an order ‘ by agreement between the parties ’
postponing the application sine die and directing Adams to deliver an answering
affidavit within fifteen days ‘failing which the applicants may proceed on an
unopposed basis.’

[14] The affidavit tells me that the order was explained to Adams by counsel
for the applicants and by the judge, who then handed down the order, of which
a physical copy was provided to Adams. He was advised of the email addresses
to which his affidavit should be sent.

[15] Fifteen court days came and went without any affidavit from Adams. On
25 June, attorneys BossR sent an email to Jacobs’ attorneys, referring to “our
letter dated 10 June” and indicating they held instructions to oppose the
application and saying a notice of intention to oppose was attached, but
attaching no such notice. They requested to be invited to Caselines. They were
successfully invited to Caselines on 13 August 2025, as a Caselines audit trail
confirmed. The applicants’ attorneys responded to the email, requesting that a

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specified candidate attorney be copied in future emails. No letter dated 10 June
had ever been received from BossR attorneys. No affidavit was forthcoming,
nor any communications about the absence of an affidavit.

[16] Be that as it may, given the terms of the order of 28 May 2025, there was
no need for any notice of intention to oppose. What was required was an
answering affidavit, by now long overdue, failing which the applicants could
proceed on an unopposed basis.

[17] Apart from successfully inviting BossR to Caselines on 13 August,
employing the email address they had used to communicate, a notice of set
down for 21 August was also uploaded to Caselines and emailed to the BossR
address, and to another email address also apparently employed by BossR
attorneys.

[18] The affidavit also says the applicants’ attorneys unsuccessfully tried to
contact BossR attorneys, employing the telephone number quoted at the foot
of the BossR email. It appeared this number ‘belonged to another company’.

[19] I am satisfied that, in terms of the order of 28 May 2025, and after the
above events, the application was entitled to be heard and determined before
me on an unopposed basis.

[20] Apart from seeking some re -assurance about matters of service, I had
also in my Caselines note requested short heads, expressing my misgivings
about Wilsnach and indicating that, although an unworthiness declaration was
in principle possible, the circumstances in which such declarations were given
tended to be very circumscribed.

7


[21] Counsel for Jacobs, Ms Kriek, confronted with no doubt surprising and
inconvenient additions to her unopposed brief, provided short heads before the
hearing, and, after I had referred her to the article by Wood -Bodley to which I
will refer below, and which I debated with her in court , also provided further
authority during the hearing, and further heads promptly in the evening after the
hearing, as I had requested. This was a helpful and admirable act of stepping
up to the plate on her part, for which I was grateful.

WILSNACH

[22] In Wilsnach, a five year old child with cerebral palsy passed away,
leaving an intestate estate of some R21m paid to him as damages. The parents
had not been married, the father had not been present at the birth, the parents
had never co -habited, and the father essentially disappeared from the child’s
life after some 6 months. The child had been taken care of primarily by his
grandmother. The grandmother had brought proceedings under the Children’s
Act4 to remove the parental rights of both the mother and the father and to
become the sole guardian of the child. This included restricting the rights of
contact of both the mother and the father.

[23] The outcome of the grandmother’s application, after the ordered
intervention of the family advocate and a report having been compiled, was the
termination of any and all parental rights of the father under s18(2)(a), (b) and

4 Act 38 of 2005.

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(c) of the Children’s Act,5 and the granting to the mother and the grandmother
of joint and full parental rights and responsibilities. The mother and child had
been living with the grandmother. The child needed intensive full-time care.

[24] The child in Wilsnach died two days after that order. The curatrix in the
child’s estate then approached the court essentially seeking declarations and
guidance on who was to be regarded as the parents of the child and who should
inherit intestate.

[25] Kollapen J held that the term ‘parent’ was not defined in the ISA or in the
Children’s Act, and that the term was capable of different meanings in different
contexts. The term in the ISA was to be interpreted in line with the Constitution
and in particular the best interests of the child. Much recourse was had to the
degree to which the term ‘parent’ under the Children’s Act was used in the
context of the possession of parental rights and responsibilities.

[26] The essence of the reasoning for not recognising the father as a parent
in Wilsnach was contained in paragraphs 65 and 66 of the judgment. It was
considered that it would offend the entire constitutional scheme and not be in
the best interests of the child for a father to be considered not to be a parent
under the Children’s Act but to be a parent under the ISA, despite having
severed all links with the child and having made a conscious decision not to be
a parent.


5 On the facts in Wilsnach, the father would not have acquired parental rights under the Children’s Act in
any event, as none of the prerequisites for doing so under section 21 was met. The order “terminating”
these rights in the grandmother’s application therefore did not disturb the status quo in respect of the
father’s “parental” status under the Children’s Act.

9

[27] Reference was made to cases in America where, in certain contexts,
parental status was conferred on persons other than biological parents, or in
which the right to inherit intestate was forfeited on the strength of a statutory
provision for forfeiture.6


[28] Reference was also made, in a footnote, to the concept of “unworthiness
to inherit” in our law, and the fact that, as confirmed in Pillay,7 “courts are not
limited to the known an d recognised principles of unworthiness and that they
could be expanded on the basis of public policy.”

[29] The grandmother and the mother were then declared “parents” under
the ISA in Wilsnach.

[30] Wilsnach received implicit endorsement in a different context in
Kedibone.8 In considering who could act as guardian for the purposes of
representing a minor in litigation, the case was cited by Fisher J as authority for
the proposition that “the determination of who is the best person to deal with
the claim for the maintenance of the child is, by its very nature, a matter of
inquiry and not assumption’.9

[31] In Bouwer,10 Van der Westhuizen J declined to employ Wilsnach as
authority to apply the concept of a ‘de facto guardian’11 in interpreting the term

6 Paras 84 to 89.
7 Pillay & Others v Nagan & Others 2000 (1) SA 410 (D).
8 Kedibone v obo MK & another v Road Accident Fund [2021] 3 All SA 544 (GJ), paras 126 and 127.
9 Para 127.
10 Bouwer obo MG v Road Accident Fund 2021 (5) SA 233 (GP).
11 Bouwer para 35.

10

‘guardian’ under the Children’s Act, finding Wilsnach to be “of no real assistance
in the present matter”.12

[32] This case is not concerned with deeming or declaring someone a
“parent” under the ISA who is not one of the “both parents” contemplated in
section 1(1)(d)(i) of the ISA. The reasoning of this judgment and its declining to
follow Wilsnach are concededly relevant for such declarations, but this is not
what is before me.

[33] This case is concerned instead with seeking a declaration that one of
those “both parents” contemplated in the ISA is not a parent under the ISA.

PARENTS UNDER THE ISA


[34] There is, in my view, a fundamental difference between the concept of
parenthood under the Children’s Act, on the one hand, and the notion of
“parent” under the ISA, on the other.

[35] At heart, when it comes to “parents”, the Children’s Act deals with and
regulates the rights and obligations normally associated with parenthood.
Critically, “illegitimate” fathers have no parental rights under the Children's Act,
unless the relatively burdensome requirements of section 21 are met. I revert
to this below. The Children’s Act is concerned with fostering the best interests
of the child and with regulating the rights and obligations of persons vis -à-vis

12 Bouwer para 16.

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the child – caring for, maintaining, having contact with, having custody of, and
acting as the guardians of, children.

[36] The ISA is concerned with what happens to an estate when someone
dies intestate. How does it flow? Downwards, sideways, upwards, diagonally,
and so on. First here, then there. If there’s x, then via x per stirpes. If no x, then
y. It is important for these rules to be clear and relatively free from doubt, in a
way that is not the case with the rights and obligations governed by the
Children’s Act. Put differently, the rights and obligations governed by the
Children’s Act by definition attract a greater degree of fluidity than the rules
applicable to intestate succession do or should. The concept of parent in the
Children’s Act is shorthand for those who should act as parents, necessarily
incorporating a default starting point with much room for normative adjustment.
The concept of parent in the ISA is aimed at identifying the existence of a blood
relative to determine the direction of the flow of estate assets.

[37] It is also important for the direction of estate flow, and its rules, to be free
from normative assessment in a way that is neither necessary nor desirable for
the rights and obligations associated with “parenthood” as contemplated in the
Children’s Act. The Children’s Act, after all, is all about what is best for the child.
The ISA is not. It does not call for an assessment of which persons associated
with the deceased are more, and which less, deserving of inheritance.
Whatever canon of construction is applied, I cannot reasonably ascribe such
an intention to the legislature, especially when the purpose of the ISA is
considered. I cannot ascribe an intention that its concepts, when it identifies the
intestate heirs, are to be interpreted normatively, with an eye on desert. This is,

12

however, often appropriate, and sometimes obligatory, under the Children’s Act.
It is neither under the ISA.

[38] When it comes to the term “parent” in the ISA, the starting point must be
the words “both parents” in section 1(1)(d)(i):

“(1) If after the commencement of this Act a person (hereinafter referred to as
the 'deceased') dies intestate, either wholly or in part, and-
(a) is survived by a spouse, but not by a descendant, such spouse shall
inherit the intestate estate;
(b) is survived by a descendant, but not by a spouse, such descendant shall
inherit the intestate estate;
(c) is survived by a spouse as well as a descendant-
(i) such spouse shall inherit a child's share of the intestate estate or so
much of the intestate estate as does not exceed in value the amount 5 fixed
from time to time by the Minister of Justice by notice in the Gazette, whichever
is the greater; and
(ii) such descendant shall inherit the residue (if any) of the intestate estate;
(d) is not survived by a spouse or descendant, but is survived-
(i) by both his parents , his parents shall inherit the intestate estate in
equal shares; or
(ii) by one of his parents, the surviving parent shall inherit one half of
the intestate estate and the descendants of the deceased parent the other half,
and if there are no such descendants who have survived the deceased, the
surviving parent shall inherit the intestate estate; or
(e) is not survived by a spouse or descendant or parent, but is survived –

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….”


[39] A critical provision for purposes of this case, and for the reasoning in
Wilsnach in paragraphs 65 and 66, is section 1(2):

“(2) Notwithstanding the provisions of any law or the common or
customary law, but subject to the provisions of this Act and sections 40
(3) and 297 (1) (f) of the Children's Act, 2005 ( Act 38 of 2005 ), having
been born out of wedlock shall not affect the capacity of one blood
relation to inherit the intestate estate of another blood relation.”

[40] Section 4(e) then provides as follows:

“(e) 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 the adoption, married to the adoptive parent of the child.”

[41] These provisions are comprehensive, and exhaustive, and intended to
be so. Not only do they expressly include an “illegitimate” father as a parent
(i.e. one of the two possible parents, not being precluded from being one due
to “illegitimacy”); they expressly make this subject to the provisions in the
Children’s Act that exclude donor fathers and make the commissioning parents

14

the parents in cases of surrogacy, and expressly provide for the substitution of
parents that occurs with adoption. And they talk specifically in the language of
"blood relations”.

[42] What these provisions decidedly do not do is say that a father of a child
born out of wedlock, who has not acquired any parental rights under section 21
of the Children’s Act, is not a parent. In fact, they say exactly the opposite.

[43] Nor do they say a parent whose parental rights have been terminated
under the Children’s Act is not a parent. They deal comprehensively with the
interplay with parental status under the Children’s Act and deliberately refrain
from providing thus.

[44] Nor, in my view, can they reasonably be said to permit a desert -based
normative assessment of the term “parent” in identifying the intestate heirs.

[45] I am greatly fortified in these views by what I regard as an excellent
article in the South African Law Journal by Michael Cameron Wood-Bodley.13

[46] The author examines the different purposes and approaches of the
Children’s Act and the ISA with respect to parenthood , and the historical
treatment of illegitimate fathers in our law of intestacy. The author concludes as
follows:14


13 Michael Cameron Wood-Bodley “Who is a ‘parent’ for the purposes of the Intestate Succession Act:
Wilsnach NO v TM” 139 (2022) South African Law Journal 768.
14 Wood-Bodley at 779.

15

“In addition to being inappropriate in terms of history and context, as the
historical origins of intestate succession discussed above indicate,
allowing the Children's Act, and decisions made thereunder, to impact
the interpretation and application of the rules of intestate succession
gives rise to various anomalies and problematic issues.”


[47] Some of these “anomalies and problematic issues ” are then
persuasively illustrated in a way that reinforces my decision not to follow
Wilsnach.15 A very serious problem is that any removal or substitution of a
“parent” from the line of ancestors that would inherit would act as judicial
diversion of the river of assets that flows through identified relatives up,
sideways and down, with no consideration at all for the “desert” of the tributaries
of the removed or substituted “parent”, and with the creation of wholly new
tributaries with potentially seriously anomalous and unintended consequences.

[48] The following passage bears extensive citation:16

“Moving to a different kind of issue, would the devolution of the
deceased's estate have been different if the deceased had attained the
age of eighteen and then died? The best -interests-of-the-child principle
on which Wilsnach places some reliance (para 66) only applies to
persons under the age of eighteen (see s 28(3) of the Constitution, and
s 1(1) of the Children's Act s v 'child', see also Centre for Child Law v

15 At 780-784.
16 At 781.

16

Media 24 Ltd 2020 (4) SA 319 (CC) para 67). Had the deceased
reached the age of eighteen, he would have ceased to be a 'child' for the
purposes of the Children's Act (see s 1 of that Act s v 'child'). The
rationale for referring to the Children's Act for the purpose of determining
the identity of his 'parents' for the purposes of intestate succession would
then seem to fall away. It would also seem that the legal force of the
order conferring parental responsibilities and rights on the third
respondent in respect of the deceased would also have fallen away if the
deceased had reached the age of eighteen. If so, the justification (such
as it is) for reinterpreting the Intestate Succession Act's concept of
'parent' so as to include the third respondent as a beneficiary would fall
away at that point too. If this understanding of the Children's Act is
correct, the third respondent's entitlement to inherit on intestacy, and the
first respondent's exclusion, depended on the deceased dying before
turning eighteen. Yet, if it is repugnant to society's sense of what is right
for the first respondent to inherit from the deceased at the age of five, it
is surely also repugnant for him to inherit if the deceased died after
turning eighteen.”

[49] The above militates heavily against the approach adopted in Wilsnach.

[50] Wood-Bodley also persuasively illustrates that the American decisions
cited in Wilsnach do not provide support for the reinterpretation of the term
“parent” in the ISA.17

17 At 784-5.

17


[51] I am accordingly of the firm view that the term “parent” under the ISA is
incapable of being defined with reference to a normative assessment of the
degree to which a person deserves the name, as held in Wilsnach, and that
Adams is Ivan’s “parent” as contemplated in section 1(1)(d)(i) of the ISA.


UNWORTHINESS

[52] That, however, is not the end of the matter.

[53] In his article referred to above, Wood-Bodley considers that, in principle,
it was legally possible for the decision in Wilsnach, at least with respect to the
father in that case, to have been based on the common law doctrine of indignus.
That principle, an extension of the maxim de bloedige hand erft niet (“the bloody
hand does not inherit”), deprives an intestate heir of the right to inherit if he or
she is shown to be “unworthy” to inherit. The cases have gradually expanded
the application of this principle to cover other instances of unworthiness beyond
killing the deceased, such as seriously wounding the deceased, or acting
fraudulently in respect of the inheritance – often being complicit in an attempt
to defraud heirs by forging a will. As already noted above, 18 Wilsnach
specifically drew support for its ultimate conclusion from the endorsement in
Pillay of the principle that the concept of indignus could be extended on the
basis of public policy.


18 Para 28, footnote 6.

18

[54] Wood-Bodley is hesitant to endorse an application of this principle in
cases such as Wilsnach. This is unsurprising, given views expressed by the
same author in the same journal some twelve years earlier. The following
extensive passage, which also cites the earlier article, once again bears full
citation here, especially as it sets out some of the debate concerning extension
of the application of the doctrine to new cases:

“It must be acknowledged that none of the specific grounds of
unworthiness that has hitherto been applied by our courts is directly
applicable to the facts of Wilsnach, or readily lends itself to adaptation.
(For a discussion of the grounds see Corbett et al ibid at 82 -5 and De
Waal & Schoeman-Malan ibid § 6.3.2.) Furthermore, the judgments are
not entirely in agreement about whether the courts have the power to
extend the grounds of unworthiness by adapting existing grounds or by
identifying entirely new grounds based on public policy. On the one hand,
in Ex parte Steenkamp and Steenkamp 19 (supra) at 750E -751H the
court rejected the very possibility of judicial extension of the grounds. On
the other hand, in Taylor v Pi m20 (supra) (at 493 lines 14 -15), the
judgment of Bale CJ quoted Domat with apparent approval to the effect
that '[t]he causes which may render the heir unworthy of the succession
are indefinite'. Similarly, in Danielz NO v De Wet 2009 (6) SA 42 (C) the
court appealed directly to public policy as a justification for excluding a
beneficiary. In Pillay v Nagan (supra) the court adapted an existing
ground to cover analogous circumstances without any debate over

19 1952 (1) SA 744 (T).
20 (1903) 24 NLR 484.

19

whether judicial extension of the grounds is permissible. However, in
both the Taylor case and the Danielz case the direct reliance on public
policy was obiter. (In Taylor the ratio on which the bench concurred was
not the view of Domat mentioned in Bale CJ's judgment but that the
beneficiary had brought about the death of the deceased by procuring
alcohol for her against the advice of her medical advisors and had
neglected to obtain medical assistance when she needed it (Bale CJ at
495 second para, Finnemo re J at 496 sixth para to 497 first para, and
Beaumont J at 497 second para). In Danielz the beneficiary actually
repudiated her benefits under the will (Michael Cameron Wood -Bodley
'Forfeiture by a beneficiary who conspires to assault with intent to do
grievous bodily harm: Danielz NO v De Wet 2009 (6) SA 42 (C)' (2010)
127 SALJ 30 at 34 last para).) Nevertheless, despite the single
dissenting view in the Steenkamp case, the modern trend seems to be
to permit judicial extension of the grounds in appropriate circumstances.
Arguably, if the grounds are to be extended it is best for this to be
achieved by developing existing grounds, because of the well -known
danger that a direct appeal to public policy means that the outcome
depends on the views of the particular judge hearing the case (Wood-
Bodley op cit at 34 last para). Nevertheless, if the Wilsnach case is
correct to rely on the first respondent's 'constitutional obligations and
responsibilities towards his child' ( Wilsnach para 65), and on the best -
interests-of-the-child principle, for the exclusion of the first respondent
they could equally provide authority for an extension of the grounds of
unworthiness by direct reference to public policy. An identification of the

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precise grounds of unworthiness on which the first respondent might be
excluded is, however, beyond the scope of this note. In my view, his
extreme neglect of his helplessly disabled child was so shocking that he
ought to be identified as unworthy to inher it in the legal sense,
particularly in view of the source of the child's estate. Nevertheless, if he
cannot be excluded on grounds of unworthiness then he must inherit.”

[55] The author’s endorsement of a conservative approach to extending the
indignus principle in the earlier article was considered in Smit,21 as were his
endorsement of the judgment of Steyn J in Steenkamp22 and his rejection of
the approaches in Taylor and Danielz cited in the passage above. In Smit, a
case to which Ms Kriek referred me in her further heads of argument, Matame J
declined to follow the author’s reticence and instead endorsed the approach in
Taylor and in Danielz, applying the following passage from Domat23 (mentioned
in the passage quoted extensively above):24

“The causes which may render the heir unworthy of the succession are
indefinite, and the discerning of what may or may not be sufficient to
produce this effect depends on the quality of the facts and
circumstances. Thus we are not to limit these causes to such as shall be
explained in the following articles, where we have only mention of those
which are expressly named in the laws. But if there should happen any
other case where good manners and equity should require that an heir

21 Smit v The Master, Western Cape [2022] 4 All SA (WCC) (Mantame J).
22 See footnote 18 above.
23 Jean Domat, a 17th Century French jurist, probably qualifying for our common law as a lesser “Old
Authority” .
24 As cited by Matame J in Smit para 180 from para 38 in Danielz.

21

should be declared unworthy, it would be just to deprive him of the
inheritance.”

[56] The extension in Smit was nowhere near the kind of extension
apparently endorsed in Wilsnach and potentially at issue here. Indeed, I am not
sure it required deep delving into the appropriateness of extensions in Smit at
all, given the factual basis employed for the declaration of unworthiness in that
case.25 Yet even the author Wood -Bodley, who admonished against free
extension of the indignus principle beyond incremental extensions of known
cases, appeared willing to accept extreme neglect by a father of his child as a
sufficient legal basis to be covered by the indignus principle.

[57] Two of the American decisions considered in Wilsnach applied statutory
provisions that provided for forfeiture of intestate rights by fathers who
abandoned their children. 26 For our purposes his can be seen in one of two
ways: either as a warning to leave such an extension to the legislature, or as
the comfort of comparative endorsement of these circumstances as
accommodated by public policy by certain legislatures.

[58] I must confess to a great degree of hesitancy on my part to apply the
concept of indignus here. Had it not been for Wilsnach, the extension, upon a
sobering consideration of the cases to date that have applied the doctrine, and

25 “[T]he applicant forged the three (3) documents for her own benefit, planned and ultimately was
instrumental in the killing of the deceased for her to be able to take control of the entire estate… ” (para
182).
26 See in particular Mandy-Jo’s law in Kentucky, at issue in Simms v Estate Blake, No 2017-CA-000306-MR
(Ky App 2018), Commonwealth of Kentucky Court of Appeals, Wilsnach footnote 25.

22

the debate between cases such as Steenkamp and Danielz, would have struck
me as a bridge too far.

[59] Nevertheless, there is the authority of Wilsnach. Wilsnach specifically
had recourse to Pillay and the unworthiness doctrine to support its ultimate
conclusion concerning the definition of “parent” in the ISA. It drew support from
those American cases that applied statutory codification of disqualification from
intestate succession on the part of the father who had abandoned his child. My
application of the indignus doctrine here to these facts would not be novel – it
would be following that portion of the ratio of Wilsnach that does not entail the
difficulties considered above that attend upon interpreting the term “parent” in
the ISA. In this regard, I am still bound by Wilsnach save to the extent I regard
it as clearly wrong, and , with respect, I do not regard its assessment that the
unworthiness doctrine would find apposite application to facts like these to be
clearly wrong. The common law allows application of the indignus concept
based on contemporary public policy. Contemporary public policy in this very
sphere is addressed in detail in Wilsnach.

[60] I agree with Ms Kriek that the facts in this case must be seen as
sufficiently on all fours with the relevant facts in Wilsnach for its reasoning to
apply here, at least as far as unworthiness goes. In Wilsnach, the father broke
off contact when the child turned 6 months old.27 Here, apart from a single visit
to the hospital when Ivan was one year old, and a few sporadic maintenance
payments dragged out of him through the Maintenance Court process in that
first year, Adams had no involvement at all in Ivan’s life right from the very start,

27 Wilsnach para 12.

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for the 29 years of Ivan’s life. I do not think the law shrinks from application of
the indignus concept here.

[61] I was concerned about where the lines were to be drawn between
complete abandonment throughout the life of the child, on the one end of the
spectrum, to lesser forms of abandonment. I was concerned about floodgates
and the length of pieces of string. “After he bought that Ferrari, he stopped
calling on Sundays”. “Yes, he paid for their schooling, but he did not even attend
the wedding, and has been living in the Bahamas for the last thirty years.” These
are not the kind of scenarios that this judgment contemplates. This judgment
talks only to the situati on of complete and utter abandonment of a child by a
father essentially from the beginning of the child’s life, and then for the next 29
years. Further refinement and drawing of lines will await another day and
another case.

[62] It may be noted in any event that Wilsnach opened the door for a
normative assessment of the term “parent” in the ISA, begging questions such
as the above already. In my respectful view, it rests on a more so lid
jurisprudential basis to ask these questions in the public policy extension of the
concept of indignus than in an assessment of the term “parent” in the ISA with
an eye on desert.

[63] I had some concern whether the application before me sufficiently made
out a case for a declaration of unworthiness, instead of a declaration of not
being a parent, and debated this with Ms Kriek.

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[64] The factual allegations required for the declaration of unworthiness in
this case would not have differed in any way from the allegations set out in the
founding papers for declaring Adams not to be a parent under the ISA. Nor
would any defence Adams set up against application to him of Wilsnach have
differed in any way had the relief sought been a declaration of unworthiness as
opposed to striking him from the status of “parent”. Both essentially entail a
declarator by the court that he should not inherit from Ivan’s estate, for exactly
the same reasons. Accommodating the alternative relief I grant in the ord er
below under the prayer for “alternative relief” in the Notice of Motion in this case
would not prejudice Adams in any way in his ability to answer the case, had he
felt so inclined.

ORDER

[65] In the circumstances I make the following order:

1. The first respondent, Selwyn Adams, is declared unworthy to inherit from
the estate of the late Ivan Jacobs, Master Reference 027191/2021.

2. Save as set out in 1 above, the application is dismissed.

3. Costs are in the estate late Ivan Jacobs.

______________________
Frank Snyckers
Acting Judge

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Heard 21 August 2025
Judgment 24 August 2025
For the applicant: R Kriek
Instructed by: Booyens Attorneys; Pretoria
No appearance for respondents