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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 823/2022
In the matter between:
J[..] M[…] W[…] APPELLANT
And
DAVID HOWARD WILLIAM-
ASHMAN N O FIRST RESPONDENT
(in his capacity as
executor of the estate late N[…]
J[…] W[…])
MASTER OF THE HIGH COURT, GAUTENG
DIVISION OF THE HIGH COURT,
JOHANNESBURG SECOND RESPONDENT
J[…] B[...] C[…] THIRD RESPONDENT
I[…] N[…] F[…] FOURTH RESPONDENT
THE SPEAKER OF THE NATIONAL
ASSEMBLY FIFTH RESPONDENT
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CHAIRPERSON OF THE NATIONAL
COUNCIL OF PROVINCES SIXTH RESPONDENT
MINISTER OF JUSTICE AND
CORRECTIONAL SERVICE SEVENTH RESPONDENT
THE TRUSTEES FOR THE TIME
BEING OF THE BASIC RIGHTS
FOUNDATION OF SOUITH AFRICA AMICUS CURIAE
Neutral citation: W[…] v Williams-Ashman N O and Others (823/2020)
[2023] ZASCA 44 (31 March 2023)
Coram: SALDULKER, MBATHA and MOLEFE JJA and KATHREE-
SETILOANE and UNTERHALTER AJA
Heard: 23 March 2023
Delivered: 31 March 2023
Summary: Constitutional challenge to section 2B of the Wills Act 7 of 1953 –
freedom of testation – deprivation of property – arbitrariness – sufficient
reasons for the deprivation of property – procedural fairness – whether s 2B of
the Wills Act violated the appellant’s rights under s 25(1) and s 34 of the
Constitution.
ORDER
On appeal from: Western Cape Division of the High Court, Cape Town (Sher
J, sitting as the court of first instance):
1 The appeal is dismissed;
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2 The appellant is ordered to pay the costs in the appeal of the third and
fourth respondents, including the cos ts consequent upon the employment
of counsel.
JUDGMENT
Unterhalter AJA (Saldulker, Mbatha and Molefe JJA and Kathree-
Setiloane AJA concurring):
Introduction
[1] The appellant, J […] M[…] W[…], was married to N […] J[…] W[…]
(née C[…]) on 11 June 2011. Days before their marriage, N […] W[…] made a
will. She bequeathed her entire estate to the appellant. In August 2016, the
appellant and N […] W[…] agreed that their marriage had irretrievably broken
down, and they signed a ‘consent paper’ that recorded their agreement as to the
division of assets upon their divorce. A final decree of divorce was granted by
the Regional Court, Cape Town (the regional court), on 24 October 2016. On 8
December 2016, N[…] W[…] committed suicide. Her death occurred less than
3 months from the date of her divorce from the appellant.
[2] Section 2B of the Wills Act 7 of 1953 (the Wills Act) reads as follows:
‘If any person dies within three months after his marriage was dissolved by a divorce or
annulment by a competent court and that person has executed a will before the date of such
dissolution, that will shall be implemented in the same manner as it would have been
implemented if his previous spouse had died before the date of dissolution concerned, unless
it appears from the will that the testatrix intended to benefit his previous spouse
notwithstanding the dissolution of his marriage.’
I will refer to this provision as s 2B.
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[3] Section 2B provides for specific circumstances in which an ex -spouse
will not take under the will executed by their former spouse. The appellant
could not succeed to the estate of N[…] W[…], though appointed her sole heir,
by reason of the application of s 2B. N[…] W[…] executed her will before her
marriage. She died within three months of her divorce from the appellant. As a
result, her will must, in terms of s 2B, be implemented as if the appellant had
died before the date of the decree of divorce, that is 24 October 2016. This
means that a beneficiary who predeceases the testatrix acquires no rights, nor
does his estate or heirs. It is common ground between the parties that this is the
position of the appellant. He is disinherited by operation of law. N[…] W[…]
must be taken to have died intestate , since the appellant was the sole heir under
her will. In consequence, her parents inherit her estate.
[4] The appellant challenged the constitutional va lidity of s 2B before the
Western Cape Division of the High Court, Cape Town (the high court ). The
challenge was formulated in the following way. First, the appellant claimed that
s 2B amounts to an arbitrary deprivation of property in violation of s 25(1) of
the Constitution. That deprivation c ame about because s 2B thwarts N[…]
W[…]’s freedom to choose the appellant as her sole heir , hence her right to
dispose of her property as she wishes was infringed. Second, the appellant was
deprived of his inheritance. This too amounts to an infringement of his rights in
terms of s 25(1) of the Constitution. Third, s 2B is contrary to public policy . It
offends against public policy because the legal fiction that s 2B imposes can
only be undone by a showing that it appears from the will of the testatrix that
she intended to benefit her previous spouse. This, the appellant claims, is too
narrow. The statutory fiction should be capable of being rev ersed by relevant
evidence that is probative of the testatrix’s intention. The evidentiary limitation
in s 2B constitutes an arbitrary deprivation within the meaning of s 25 of the
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Constitution. It also amounts to an infringement of the appellant’s right of
access to the courts, secured by s 34 of the Constitution.
[5] The application cited the following respondents (who are so cited before
this Court): the executor of N[…] W[…], David Howard Williams -Ashman N
O (the first respondent), the Master of the Gauteng Division of the High Court,
Johannesburg (the Master and the second respondent) , N[…] W[…]’s parents,
J[…] B[…] C[…] and I[…] N[…] F[…] (the third and fourth respondents), the
Speaker of the National Assem bly (the fifth respondent), the Chairperson of the
National Council of Provinces (the sixth respondent) and the Minister of Justice
(the seventh respondent). The application was opposed by the Master and the
parents of N[…] W[…]. Her parents have since died, and the litigation has been
pursued by the executors of their estates, who have been substituted as parties
by consent. I shall reference these two respondents as the parents. The
remaining respondents gave notice to abide the decision of the high court.
[6] The application was heard by Sher J in the high court. He first decided an
interlocutory application brought by the parents to strike out certain paragraphs
of, and attachments to, the f ounding affidavit. Sher J granted the order sought,
with costs. That order was appealed by the appellant. Before us, however, this
aspect of the appeal was not further pursued. And nothing more need be said of
it.
[7] The high court found that s 2B did ca use the appellant to suffer a
deprivation of his right to inherit the property that may have been bequeathed to
him, hence s 25 of the Constitution was of application. However, the high court
found that s 2B serves a legitimate and compelling social purpos e; the
deprivation it effects is not arbitrary in terms of s 25(1) of the Constitution
(either substantively or procedurally); and s 2B does not limit the right of access
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to court in breach of s 34 of the Constitution. The high court accordingly
dismissed the application, and ordered each party to pay their own costs. With
the leave of the high court, the appellant appeals that order to this Court.
The issues
[8] In the course of developing his oral argument, the appellant’s counsel,
helpfully, clarified t he basis of the appellant’s constitutional challenge and the
issues we are asked to decide in this appeal. First, has the appellant been
deprived of property, within the meaning of s 25 of the Constitution, by reason
of s 2B? Second, if he has, the appellant does not contest the proposition that s
2B has a legitimate object. Rather, the appellant submits that the deprivation
effected by s 2B lacks sufficient reason, and it is therefore arbitrary, because s
2B does not permit of the consideration of evidence outside of the will to
determine whether the testatrix intended to benefit her previous spouse ,
notwithstanding the dissolution of the marriage. Whether this constraint
amounts to arbitrary deprivation in terms of s 25 of the Constitution is the issue
upon which the appeal turns. If it does not amount to arbitrary deprivation under
s 25, then the appellant accepts that there is no independent basis to complain of
an infringement in terms of s 34 of the Constitution.
Analysis
[9] I commence with the first issue: has the appellant been deprived of
property within the meaning of s 25 of the Constitution? The appellant offered
two reasons for his contention that he was so deprived by the application of
s 2B. First, s 2B infringed N[…] W[…]’s freedom of testation, and her right to
dispose of her property in her will as she wished. Second, the appellant is
deprived of the inheritance he would have enjoyed but for the application of
s 2B.
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[10] The first reason i s not one that the appellant can advance. He has no
claim upon the enjoyment by N[…] W[…] of her freedom of testation. That was
her freedom to enjoy, and any diminution of that freedom brought about by s
2B, is not his property.
[11] The appellant’s second reason occasions greater difficulty. First National
Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue Service &
Another (First Nati onal Bank) 1 remains the leading authority on s 25 of the
Constitution. There , Ackerman J was at pains to warn of the practical
impossibility of providing a comprehensive definition of property for the
purposes of s 25.2 Since then, the Constitutional Court has found the meaning of
property in terms of s 25 to be capacious. It has held that an enrichment claim is
property for the purposes of s 253 on the basis that in other jurisdictions
personal rights have been recognised as constitutional property. And in Shoprite
Checkers (Pty) Limited v MEC for Economic Development, Environmental
Affairs and Tourism, Eastern Cape & Othe rs,4 it considered a grocer’s wine
licence to be property.
[12] There is good reason to exercise caution in expanding the meaning of
property in s 25 of the Constitution to include every kind of personal right.
There are important distinctions between real rights and personal rights. It is not
at all obvious that a per sonal right to performance should carry constitutional
protections against arbitrary deprivation , on the basis that such rights constitute
constitutionally protected property.
1 First National Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue Service & Another ; First
National Bank of SA Ltd t/a v Minister of Finance 2002 (4) SA 768 (CC); 2002 (7) BCLR 702.
2 Ibid para 51.
3 National Credit Regulator v Opperman & Others 2013 (2) SA 1 (CC); 2013 (2) BCLR 170 (CC) para 63.
4 Shoprite Checkers (Pty) Limited v MEC for Economic Development , Environmental Affairs and Tourism,
Eastern Cape & Others [2015] ZACC 23; 2015 (6) SA 125 (CC); 2015 (9) BCLR 1052 (CC).
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[13] What rights did the appellant enjoy by reason of his appointment as the
heir in N[…] W[…]’s will? This has long been settled. Upon the death of N[…]
W[…] , were s 2B not of application the appellant would have had a vested
interest in the deceased estate (dies cedit). After the liquidation and distribution
account of the estate had been confirmed , the appellant might have acquired a
right to claim his inheritance from the executors of the estate, if the estate was
solvent5 (dies venit). That is a personal right.
[14] Whether the prospective enjoyment of such a right by the appellant
amounts to property within the meaning of s 25 of the Constitution is an issue of
no small difficulty. It is certainly a right that relates to the acquisiti on of
property if it accrues. Section 2B extinguishes any prospect of the appellant
securing th at right. While the death of N[…] W[…] gave rise to no rights of
ownership by the appellant to the assets of her estate, absent s 2B, the appellant
might have acquired the right to claim those assets . The contrary position is that
a prospective personal right to claim an inheritance that might never accrue , is
too remote an interest to amount to pr operty to trigger the constitutional
protections of s 25.
[15] For reasons I shall explain, I do not need to decide this point of law.
Rather, I shall assume in the appellant’s favour, without deciding the matter,
that the rights that might have accrued t o the appellant, following upon the
death of N[…] W[…], absent s 2B, amount to property within the meaning of
that concept in s 25 of the Constitution. I will also assume in favour of the
appellant that s 2B deprived him of that property in terms of s 25.
5 Greenberg & Others v Estate Greenberg 1955 (3) SA 361 AD at 364 – 365.
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[16] I now turn to the central issue in this appeal: is s 2B an arbitrary
deprivation of the appellant’s property that s 25 of the Constitution does not
permit?
[17] Under the framework in First National Bank ,6 s 2B will be judged an
arbitrary law for the purposes of s 25 of the Constitution if it does not provide
sufficient reason for the particular deprivation in question or if it is procedurally
unfair. What constitutes sufficient reason is to be decided by having regard to
criteria set out in First National Bank, including an evaluation of the
relationship between the means employed , that is the deprivation in question,
and the ends sought to be achieved, that is the purpose of the law in question.
[18] Sensibly, the appellant does not contest the legitimacy of the purpose of
s 2B. This legislative intervention came about as a result of the
recommendations of the South African Law Commissio n in 1991 . The
amendment of the Wills Act , effected by s 2B, took place in 1992. The
Commission, in summary, found that divorce is a parting of ways . It brings
about a division of assets. A person who divorces may not recognise that their
will, executed in happier times, which benefits their ex -spouse, continues to do
so, unless revoked. The Commission considered that a n appropriate period of
time should be afforded to such a person to revise their will , during which their
former spouse cannot inherit. Without a legislative intervention of this kind, a
divorced pers on may continue to benefit their former spouse under their will,
when nothing of the kind was intended. The proprietary finality that the divorce
was meant to bring about could be undermined by a will that continues to
benefit a former spouse, when the testatrix would in fact wish other wise. And
so, based on these recommendation s, the legislature amended the Will s Act by
introducing s 2B.
6 Fn 1 above para 100.
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[19] Section 2B is structured as follows. Should the testatrix die within 3
months of the dissolution of her marriage, the previous spouse is taken to have
died before the dissolution of the marriage. Since succession is conditional on
survivorship, the previous spouse cannot then succeed to inherit under the will.
The purpose of this intervention is to afford the testatrix an opportunity to
amend or revoke her will . The predicate of this statutory intervention is that a
testatrix would not want her ex -spouse to inherit after a divorce or annulment.
Section 2B thus disinherits the previous spouse, by operation of law, should the
testatrix die within the 3 months period. However, if the testatrix does not die in
the 3 month s period, her will, as written , is taken to express her intention, and
will be given effect. In other words, if the testatrix does not change her will in
the 3 month s period, and it reflects the appointment of her previous spouse as
her heir or legatee, the testatrix will be taken to have intended this testamentary
disposition.
[20] Section 2B provides for a carve -out from the disinheritance of the
previous spouse should the testatrix die within the 3 months period. If it appears
from her will that the testatrix intended to benefit her previous spouse,
notwithstanding the dissolution of their marriage, then that intention will be
given effect. The disinheritance of the previous spouse by operation of law is
then not of application. The paramountcy of the testatrix’s intentions, expressed
in her will, trumps the presumptive intention that a testatrix who dies within 3
months of the dissolution of her marriage would not have wished to benefit her
previous spouse. I shall refer to this provision in s 2B as ‘the paramountcy
carve-out’.
[21] It is the paramountc y carve -out that forms the basis of the appellant’s
constitutional challenge to the validity of s 2B. The appellant does not question
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the purpose of s 2B, only the means used by the legislation to achieve that
purpose. In particular, the appellant contended that the paramountcy carve-out is
too restrictive because it only permits the testatrix’s intentions to be ascertained
from the will, rather than by recourse to relevant evidence, extraneous to the
will, that is probative of the testatrix’s intention to benefit her previous spouse,
notwithstanding the dissolution of their marriage.
[22] It is important to be clear as to the scope of this challenge. As the
protective purpose of s 2B is not questioned by the appellant, the appellant does
not contend that the legislature cannot intervene to disinherit a previous spouse
in the immediate aftermath of a divorce, on the assumption that the testatrix
would not want to benefit their former spouse. The protection thus afforded by s
2B is not claimed to be constitutionally suspect. Hence, the appellant accepts
that the deprivation of property entailed by the disinheritance of the former
spouse is permiss ible to protect the testatrix for a period of 3 months after the
dissolution of the marriage, during which time , it is presumed , the testatrix,
should she die, would not have wanted to benefit her previous spouse.
[23] The appellant’s challenge is limited to the contention that the
paramountcy carve-out is too narrow. This is reflected in the remedy sought by
the appellant, which seeks a reading in of the words ‘or to the satisfaction of the
court from evidence extraneous to the will’ as an alternative to what appears
from the will itself. It does not challenge the presumptive disinheritance of the
previous spouse in the 3 months period should the testatrix die, and it accepts
that t here is sufficient reason for the legislature to impose this outcome to
secure the protective object of s 2B. It follows that the legislative imposition of
presumptive disinheritance of the previous spouse does not amount to arbitrary
deprivation. Rather, it is the restriction placed upon what evidence may be
considered to make o ut the paramountcy carve -out, that founds the appellant’s
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constitutional challenge. Put simply, if s 2B permitted of the consideration of
relevant evidence beyond the will to determine the intention of the testatrix, it
would be beyond constitutional reproach.
[24] The appellant’s challenge then comes to this. Section 2B provides for the
paramountcy carve-out. The legislature did so because fidelity to the testatrix’s
actual intention should prevail over a presumption th at the testatrix would not
have wished to benefit her previous spouse in the immediate aftermath of a
divorce. If the testatrix’s intentions are paramount, then they should be
ascertained on the basis of all relevant evidence. To do otherwise, is to depriv e
the appellant of his right to inherit, even though that is indeed what the testatrix
intended. In this sense, the limitation in s 2B gives rise to an arbitrary
deprivation of property . It is arbitrary because the limitation fails to provide
sufficient re ason for the disinheritance of the appellant, when a fuller
consideration of the relevant evidence might show that N[…] W[…] did intend
to benefit the appellant, notwithstanding their divorce. And the limitation is also
procedurally unfair.
[25] I tu rn to consider this challenge. The paramountcy carve -out does give
paramountcy to the actual testame ntary intentions of the testatrix , and allows
that these intentions will trump the presumed intent ion that the testatrix would
not have wished to benefit her recently divorced former spouse. It is important
however to be precise as to what intention is being accorded primacy. It is the
intention of the testatrix as to who should succeed to her estate upon her death,
notwithstanding the dissolution of her marriage. A testatrix gives expression to
her intention in her will, properly executed in conformity with the Wills Act. It
is this intention that is relevant to the paramountcy carve -out. In addition, what
must be determined is not some general wish to benefit the previous spouse, but
an intention to do so, in her will, notwithstanding the dissolution of the
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marriage. That is to say, on the facts of this case, did N[…] W[…] intend, as a
testatrix, to benefit the appellant in her will, even though she and the appellant
had divorced and parted on terms agreed upon , and made subject to a court
order as to the division of their assets. It is what the testatrix intended to provide
in her will in contemplation of her recent divorce that signifies. Hence, the
warranted limitation to ascertain that intention from the testatrix’s will.
[26] It has long been a foundational principle of our common law and the
legislation that has governed the law of testamentary succession that a will,
properly executed, is the document that authoritatively reflects the genuine and
voluntary dispositions of a testatrix.
[27] The limitation in the pa ramountcy carve -out is justified by the need to
treat a duly executed will as dispositive of the testatrix’s intention. There is
nothing arbitrary in so doing. The limitation is supported by sufficient reasons
in that i t limits disputes as to what the testatrix intended by stipulating that the
will is the authoritative and binding expression of the testat rix’s intentions. This
fosters certainty and curtails fraud, when the testatrix can no longer speak for
herself. That the appellant would seek to engage a more wide -ranging
exploration of evidence to ascertain the testa trix’s intention would undermine
these durable principles, so long part of our law.
[28] Nor does the limitation offend against procedural fairness. The limitation
simply frames how we ascert ain a testat rix’s intention to limit the scope for
disputes after the testat rix’s death. That the will is authoritative as to N[…]
W[…]’s intentions is, for the reasons given, a justified stipulation. The appellant
may press his claim by seeking to sh ow that N[…] W[…] intended to benefit
him, notwithstanding their divorce. That he must do so within the confines of
the paramountcy carve-out visits no procedural unfairness upon him . A
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constraint as to the proof of intention may be a procedural limitation, but it is a
justified one. Once that is so, it cannot be unfair to require the appellant to
comply with a procedure that is fully justified. This is a case where the reasons
that render s 2B non-arbitrary, also make the provision one that does not want
for procedural fairness. If, under the limitation in the paramountcy carve -out,
the appellant lacks a supportable case, that entails no unfairness.
[29] The appellant contended that the arbitrariness of the limitation in the
paramountcy carve-out is reinforced when regard is had to s 2(3) of the Wills
Act. That provision permits a court to recognise a document as a will, although
it does not comply with all the formalities required by s 2(1) of the Wills Act.
That flexibility, contended the appellant, is precisely what s 2B lacks.
[30] Section 2(3) of the Wills Act does not assist the appellant. Section 2(3)
confers a power on the courts to identify and recognise a document as a will ,
even though it does not comply with the formalities otherwise required by the
Wills Act, provided the court can find that the person in question intended the
document to be her will. But that is not the difficulty facing the appellant. There
is no issue as to the identification of N[…] W[…]’s will, nor as to what it says.
The appellant wants to go outside the will to establish that N[…] W[…]
intended the appellant to be her heir, notwithstanding their divorce. That is to
adduce evidence of what N[…] W[…] intended, after her divorce, even though
her will has nothing to say on this score. Section 2(3) of the Wills Act allows
for no such exploration. It permits a court som e flexibility in identifying a will.
It does not dilute the authority of its contents. Section 2(3) is entirely consistent
with the embedded principle of our law that the will, once identified, is entirely
dispositive of the testatrix’s intentions as to who will succeed to her estate.
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[31] The appellant also argued that the limitation in the paramountcy carve-out
was inconsistent with this Court’s interpretative guidance as to the interpretation
of statutes and contracts. The triad of text, context and pur pose, canonised by
Natal Joint Municipal Pension Fund v Endumeni Municipality (Endumeni)7 is at
odds, it was argued, with the restrictive approach taken in s 2B. This too is
unavailing. There is no issue as to what N[…] W[…]’s will means. It simply
records that she bequeathed her entire estate to her husband, the appellant. She
had nothing at all to say in her will about whether the appellant was to remain
her heir, notwithstanding their divorce. That lacuna is not cured by principles of
interpretation as to what the will means. The appellant would only be assisted if
evidence was permitted as to the mani festation of N[…] W[…]’s intention
outside of the will. That is something entirely outside the domain of Endumeni.
[32] For these reasons, the appellant has not shown that s 2B permits an
arbitrary deprivation of property that infringes s 25 of the Consti tution. The
formulation of s 2B does not lack sufficient reasons for the deprivation of
property that I have assumed the appellant to have suffered. Nor does s 2B
entail any procedural unfairness. It follows also, as the appellant conceded, that
if he makes out no case for procedural unfairness in terms of s 25 of the
Constitution, he has no separate basis for complaint in terms of s 34 of the
Constitution. Section 2B infringes neither s 25 nor s 34 of the Constitution.
[33] The appellant also made submissions that s 2B is arbitrary because it
impacts differently upon persons married under different marital regimes, for
example persons married according to Islami c law. These submissions were
apparently prompted by an invitation made by the high court to the parties to
file supplementary heads of argument on this issue. Whatever the provenance of
7 Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; 2012 (4) SA 593 (SCA) ;
[2012] All SA 262 (SCA) para 18.
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these submissions, they cannot be entertained. The founding affidavit made out
no case for arbitrariness on this basis. The appeal must accordingly fail.
[34] As to costs, the court below ordered each party to be liable for their own
costs on the basis that the matter involved novel issues of law (the costs in
respect of t he striking out were a different matter ). Before this Court, the
appellant submitted that the appeal was brought not only in his private interests,
but also in the public interest. He asserted as much in his founding affidavit,
though he provided no basis for saying so.
[35] There is no basis to interfere with the exercise by the high court of its
power to make orders as to costs. I incline to the position that in respect of the
costs occasioned by the prosecution of the appeal before this Court, there is a
distinction to be drawn between the costs of the Master and those of the parents.
The Master represents the public and it may be said that there are sufficient
elements of public interest in deciding the point of law on appeal that the
appellant should not suffer a costs order in respect of the Master. However, the
dispute between the appellant and the parents is one between heirs who would
enjoy an inheritance. Here the costs should follow the result. The costs of the
parents, on appeal, should be borne by the appellant.
[36] In the result, I make the following order:
1 The appeal is dismissed;
2 The appellant is ordered to pay the costs in the appeal of the third and
fourth respondents, including the costs consequent upon the employment
of counsel.
__________________________
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D N UNTERHALTER
ACTING JUDGE OF APPEAL
Appearances
For the appellant: H Loots SC, G Solik and M de Beer
Instructed by: Clyde & CO Inc, Cape Town
Lovius Block Attorneys, Bloemfontein
For the second respondent: T Golden SC
Instructed by: The State Attorney, Cape Town
The State Attorney, Bloemfontein
For the third & fourth respondents: M T A Costa
Instructed by: Cox Yeat Attorneys, Johannesburg
Pieter Skein Attorneys, Bloemfontein
Attorney for amicus curiae: Dr F Moosa
Instructed by: Fareed Moosa & Associated Inc,
Cape Town
Webbers Attorneys, Bloemfontein.