CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 315/18
In the matter between:
JAMES KING N.O. First Applicant
TRUDENE FORWORD N.O. Second Applicant
ANNELIE JORDAAN N.O. Third Applicant
ELNA SLABBER N.O. Fourth Applicant
KALENE ROUX N.O. Fifth Applicant
SURINA SERFONTEIN N.O. Sixth Applicant
and
CORNELIUS ALBERTUS DE JAGER First Respondent
JOHANNES FREDERICK DE JAGER Second Respondent
ARNOLDUS JOHANNES DE JAGER Third Respondent
HENDRICK CHRISTIAAN DE JAGER Fourth Respondent
JACOBUS HENDRIK SERFONTEIN Fifth Respondent
DAVID-JOHN FORWORD Sixth Respondent
CHARL WYNAND ROUX Seventh Respondent
KALVYN ROUX Eighth Respondent
MASTER OF THE HIGH COURT, CAPE TOWN Ninth Respondent
Neutral citation: King N.O. and Others v De Jager and Others [2021] ZACC 4
Coram: Mogoeng CJ, Jafta J, Khampepe J, Madlanga J, Majiedt J,
Mathopo AJ, Mhlantla J, Theron J and Victor AJ
Judgments: Mhlantla J (minority): [1] to [88]
Jafta J (majority): [89] to [163]
Victor AJ (concurring): [164] to [246]
Heard on: 11 February 2020
Decided on: 19 February 2021
Summary: unfair discriminatory bequest — private wills — freedom of testation
— Promotion of Equality and Prevention of Unfair Discrimination Act 4 of
2000 — section 39(2) of the Constitution
ORDER
On appeal from the Supreme Court of Appeal (hearing an appeal from the High Court of
South Africa, Western Cape Division, Cape Town), the following order is made:
1. Leave to appeal is granted.
2. The appeal is upheld.
3. The orders granted by the High Court and Supreme Court of Appeal are set
aside.
3
4. It is declared that clause 7 of the will of the late Mr Carel Johannes Cornelius
De Jager and the late Mrs Cath erine Dorothea de Jager dated 28 November
1902 is inconsistent with the Constitution and the Promotion of Equality and
Prevention of Unfair Discrimination Act 4 of 2000, and therefore
unenforceable.
5. The costs of Mr James King shall be paid from the estate of Mr Kalvyn de
Jager.
6. There shall be no order as to costs in respect of other parties.
JUDGMENT
MHLANTLA J (Khampepe J, Madlanga J and Theron J concurring):
Introduction
[1] This matter concerns a will that was executed over a hundred years ago. It is
common cause that a clause in a will, which contains a fideicommissum substitution,1
discriminates against female descendants. At its core, this application concerns a novel
issue whether and to what extent a court may encroach on freedom of testation, through
the vehicle of public policy, in the context of private wills with unfair discriminatory
bequests against unknown descendants on the sole basis of immutable characteristics. This
matter calls on this Court to grapple with the perplexing question how to reconcile the
fundamental right to equality and the primacy of freedom of testation in the context of
1 De Waal and Schoeman-Malan Law of Succession 5 ed (Juta & Co (Pty) Ltd, Cape Town 2015) at 147-8 defines a
fideicommissum as:
“A legal institution in terms of which a person (the fideicommittens) transfers a benefit to a particular
beneficiary (the fiduciary or fiduciaries) subject to a provision that, after a certain time has elapsed
or a certain condition has been fulfilled, the benefit goes over to a further beneficiary (the
fideicommissary or fideicommissarius).”
MHLANTLA J
4
private wills. This question must be answered through the lens of public policy against the
backdrop of our constitutional democracy.
[2] The applicants seek leave to appeal the decision of the Supreme Court of Appeal,
which dismissed the ir application for declar atory orders that would grant them the
entitlement to certain fideicommissary property.
Background facts
[3] On 28 November 1902, Mr Karel Johannes Cornelius De Jager and
Mrs Catherine Dorothea De Jager (the deceased’s grandparents) executed a joint will 2
(will) in terms of which they bequeathed various properties, including farming properties,
to their six children – four sons and two daughters, subject to a fideicommissum.3 One of
their sons Cornelius, had three sons: Corrie, John and Kalvyn (deceased). The first to third
respondents are John’s sons. Mr Kalvyn de Jager died testate on 5 May 2015. He had no
sons but left five daughters (the second to sixth applicants). His daughters had four sons –
the fourth to eighth respondents (deceased’s grandsons).
[4] The fideicommissum was governed by clause 7, which provided:
“With respect to the bequest of grounds/land to their sons and daughters, as referred to
under Clauses 1, 2, 3 and 4 of this, their Testament, it is the will and desire of the appearers
that such grounds/land will devolve, following the death of their children, to said children's
sons and following the death of the said grandsons again and in turn to their sons, in such
a way that, in the case of the death of any son or son's son who does not leave a male
descendant, his share/portion will fall away on the same conditions as above and therefore
pass to his brothers or their sons in their place and in the case of the death of a grandson
without any brothers, to the other Fidei Commissaire heirs from the lineage of the sons of
2 Last Will and Testament dated 20 November 1902.
3 The children of the deceased’s grandparents were Gabriel, Carel, Cornelius, Arnoldus, Johanna and Georgina.
MHLANTLA J
5
the appearers by representation, in continuity, and in the case of the death of a daughter or
a daughter’s son without leaving a male descendant, her or his share will fall away in the
same way and on the same conditions, and go to the other daughters or their sons, by
representation, of the deceased's son's brothers or their sons “per stirpes”, respectively.”4
[5] In terms of the will, beyond the first generation, the fideicommissary property
would, as far as the second and t hird generations were concerned, not devolve upon their
female descendants. The deceased was the last grandson of the testators in respect of whose
estate a fiduciary asset from the original will fell to be dealt with. The substitution of the
estate following his death will thus be the last substitution.
[6] When Mr Cornelius de Jager died, his sons (including the deceased) each became
fiduciary heirs to a one-third share in the farms subject to clause 7. The eldest son, Corrie,
died childless. His one share in the properties devolved in equal shares to his two surviving
brothers, John and the deceased. When John died in 2005, his share of the properties
devolved upon his three sons. It is clear that until the death of the deceased the terms of
the fideicommissum were interpreted in light of clause 7 . They limited the
fideicommissary beneficiaries to the sons of the testators’ children and, thereafter, their
sons. The clause was interpreted as not applying to any female descendants of the testators.
[7] Since the deceased had no male descendants, a problem arose after his death in 2015.
The first applicant, Mr James King, was appointed as one of the six co -executors in the
deceased’s estate. The co -executors received three claims against the fideicommissary
properties. The first was by the deceased’s daughters, who claimed that the terms of the
clause were discriminatory because female descendants were excluded from inheriting .
Thus, they were entitled to inherit from their father’s estate. The second was lodged by the
first to third respondents, who relied on the terms of clause 7 and contended that since the
deceased had no sons, the fideicommissum devolved on them. The third was lodged by
4 Last Will and Testament dated 20 November 1902.
MHLANTLA J
6
the deceased’s grandsons, who contended that i f their mother’ s claim of unfair
discrimination did not succeed, clause 7 of the will should be interpreted in such a way that
the property devolves on them, as the deceased’s male descendants (his grandsons).
Litigation history
High Court
[8] As a result of the conflicting claims, the first applicant launched a n application in
the High Court5 and sought directions on how to deal with the fideicommissary properties.
He supported the contention by the deceased’s daughters that certain portions of clause 7
unfairly discriminated against them on the grounds of gender and sex. He thus sought an
order declaring the offending portions of the will invalid. He also sought amendments that
would have the effect of amending the will to include a provision that would enable the
female descendants or daughters to inherit the fideicommissary properties.6
[9] The High Court noted that it was common cause between the parties that the terms
of clause 7 were discriminatory against the female descendants of the testators.7 That Court
considered the key tension to be whether this discrimination raised an issue of public policy
that warranted intervention by a court to strike out or amend the impugned provision of the
will. In doing so, the High Court considered several cases dealing with public charitable
testamentary trusts and the right to equality in the new constitutional era.8
5 King N.O. v De Jager 2017 (6) SA 527 (WCC) (High Court judgment).
6 Id at para 21.
7 Id at para 46.
8 Id at para s 28-38. It went on to discuss Harper v Crawford 2018 (1) SA 589 (WCC) , a matter involving a
testamentary disposition with no public character, where it was held that courts should only interfere with choices
made by individuals in a private law context in rare or exceptional cases and where the Court concluded that it had no
competency to vary the provisions of that private trust deed.
MHLANTLA J
7
[10] The High Court held that the will did not have a public character or an indefinite
life and its provisions did not discriminate against one or more sectors of society but rather,
against certain descendants. Furthermore, it analysed the terms of section 8 of the
Promotion of Equality and Prevention of Unfair Discrimination Act9 (Equality Act), and
its prohibition of unfair discrimination on the grounds of gender, which is stated to include
“the system of preventing women from inheriting family property”10 and “any practice . . .
which impairs the dignity of women and undermines equality between women and men”.11
The High Court considered that this issue did not engage any testamentary “ system” or
“practice” as contemplated by the Equality Act, and that it would be strained to view it as
such, as opposed to a once-off, private testamentary disposition by the testators.12
[11] The High Court concluded that in balanc ing the right to equality and the right to
freedom of testation, allowing the former to trump the latter would produce an arbitrary
result and would constitute a broad incursion into the fundamental constitutional right to
property.13 The High Court directly applied the Constitution to clause 7 and found that the
terms of the fideicommissum infringed on the applicants’ right to equality . It went on to
consider, without finding that clause 7 was a law of general application, whether the
discriminatory provision was a justifiable infringement on the right to equality in terms of
section 36 of the Constitution. 14 Upon conducting a justification analysis, it held that the
limitation of the second to sixth applicants’ right to equality effected by clause 7 of the will
was reasonable and justifiable given the importance accorded to freedom of testation. It
9 4 of 2000.
10 Section 8(c) of the Equality Act.
11 Section 8(d) of the Equality Act.
12 High Court judgment above n 5 at para 53.
13 Id at para 69.
14 Id at paras 71-6.
MHLANTLA J
8
held that the constitutional challenge to clause 7 should fail and that the impugned clause
was also not so unreasonable and offensive so as to be contrary to public policy.15
[12] The second issue turned on the interpretation of “male descendants” in clause 7.
The High Court held that the proper interpretation of clause 7 was that the testators intended
to limit the beneficiaries to the third generation, being their great-grandsons.16 In the result,
the High Court dismissed the claims of the second to sixth applicants and the fourth to
eighth respondents with no order as to costs.
Supreme Court of Appeal
[13] The applicants appealed to t he Supreme Court of Appeal . Their appeal was heard
and dismissed on 13 November 2018. That Court gave no written reasons for its order. In
this regard, I endorse the statements of my brother Jafta J, that the failure of the Supreme
Court of Appeal to give reasons here is unfortunate.17
In this Court
Applicants’ submissions
[14] The applicants submit that clause 7 unfairly discriminate s against women.
They contend that when a provision in a private will unfairly discriminate against female
descendants in an out-and-out disinheritance clause,18 it ought to be struck down by a court
on the grounds of public policy. Furthermore, they submit that the High Court erred in its
interpretation of the words “male descendants” as being limited to great-grandsons.
15 Id at paras 71-81.
16 Id at para 103.
17 Second judgment at [105].
18 Concisely defined, out -and-out disinheritance means the absolute exclusion of an individual or individuals from
inheriting in terms of a will.
MHLANTLA J
9
[15] In terms of the discriminat ion issue, the applicants submit that the High Court
incorrectly characterised the right to freedom of testation. Particularly, the extent to which
it is pro tected under the Constitution . They contend that the right to equality should be
considered as the r ight which requires greater protection in the circumstances. The
applicants also challenge the distinction reinforced by the High Court between public
charitable testamentary trusts and out-and-out disinheritance clauses in private wills. They
submit tha t different consequences should not apply between the two instruments,
particularly given that courts do indeed strike down discriminatory provisions in private
contracts that are against public policy. The applicants posit that the right to equality
reflects current public policy in South Africa, while the right to freedom of testation does
not serve a similar purpose.
[16] On the interpretation issue, the applicants contend that the words
“male descendants” should be given their ordinary meaning and, therefore, include
successive generations, which includes the grandson s of the deceased. This would not
defeat the purpose of clause 7 . Instead, this would give due regard to the context of the
will and would not create a departure from the ordinary meaning of the words.
Respondents’ submissions
[17] The first to third respondents oppose the application on the following
grounds: (a) the history and circumstances of the will do not render this matter appropriate
for adjudication by this Court on the issue of the validity of discriminatory provisio ns in a
private will of this nature; (b) granting relief will result in benefits being awarded
arbitrarily to one group of female descendants; and (c) this matter gives rise to the typical
situation envisaged by the High Court where testators’ last wishes “are second-guessed by
a court which might have little inkling as to why”19 the testators provided as they did.
19High Court judgment above n 5 at para 61.
MHLANTLA J
10
[18] In respect of the discrimination issue, the respondents submit that there is no
prospect that this Court will conclude that unfair discrimination on gender within a private
will, in the absence of a specific justification for disinheriting poten tial beneficiaries,
cannot be justified under section 36 of the Constitution. The respondents aver that there
are critical distinctions between how courts should treat public and private testamentary
dispositions.20 In terms of the interpretation issue, t his merely involves the application of
trite and unchallenged principles of testamentary dispositions.
Issues
[19] The preliminary issue is whether leave to appeal should be granted. The substantive
issues are: (a) the proper interpretation of clause 7 ; (b) whether clause 7 is unfairly
discriminatory against women; and (c) whether it is enforceable. These issues usher in the
question whether a discriminatory out -and-out disinheritance provision in a private will
can be declared unenforceable based on public policy. The final issue is whether clause 7
itself is contrary to public policy as underpinned by our constitutional values and thus
warrants this Court’s intervention.
Leave to appeal
[20] The issue whether unfair discriminatory provision s in a private will, which
discriminate against females in an out-and-out disinheritance clause, should be considered
unenforceable on public policy grounds, engages this Court’s jurisdiction as a
constitutional matter on two fronts. 21 First, this Court has accepted tha t what constitutes
public policy is determined “by reference to the values that underlie our constitutional
democracy as given expression by the provisions of the Bill of Rights”.22 Second, in terms
20 The respondents claim that the strength of the Supreme Court of Appeal’s reasoning in Harvey N.O. v Crawford
N.O. [2018] ZASCA 147; 2019 (2) SA 153 (SCA) strongly weighs against the applicants’ prospects of success.
21 Section 167(3)(b)(i) of the Constitution.
22 Barkhuizen v Napier [2007] ZACC 5; 2007 (5) SA 323 (CC); 2007 (7) BCLR 691 (CC) at para 29.
MHLANTLA J
11
of section 39(2) of the Constitution, this Court has recognised that the development of the
common law in line with the values of the Constitution also constitutes a constitutional
issue.23
[21] The next hurdle is whether it is in the interests of justice to grant leave to appeal.
This requires balancing an array of factors including reasonable prospects of success ,
which is not determinative but is a weighty factor .24 Other relevant factors include: the
importance of the issue; 25 whether a decision by this Court is desirable; 26 and the public
interest in the determination of the issue.27 The question whether courts ought to intervene
where there are allegations of unfair discrimination in private testamentary bequests that
seek to be enforced in the constitutional dispensation, warrants this Court’s attention. This
Court has never been called upon to grapple with alleged discriminatory private out-and-
out disinheritance testamentary provisions whilst balancing freedom of testation against
equality under the umbrella of public policy. This balancing act and th e determination of
the issue at hand is of interest to the broader public. Therefore, it is in the interests of
justice that leave to appeal be granted.
23 K v Minister of Safety and Security [2005] ZACC 8; 2005 (6) SA 419 (CC); 2005 (9) BCLR 835 (CC) at para 17;
Phoebus Apollo Aviation CC v Minister of Safety and Security [2002] ZACC 26; 2003 (2) SA 34 (CC); 2003 (1) BCLR
14 (CC) at paras 3 and 9 ; and S v Boesak [2000] ZACC 25; 2001 (1) SA 912 (CC); 2001 (1) BCLR 36 (CC) at para
15(b).
24 General Council of the Bar of South Africa v Jiba [2019] ZACC 23; 2019 JDR 1194 (CC); 2019 (8) BCLR 919
(CC) at para 36.
25 De Reuck v Director of Public Prosecutions [2003] ZACC 19; 2004 (1) SA 406 (CC); 2003 (12) BCLR 1333 (CC)
at para 3.
26 Id.
27 Glenister v President of the Republic of South Africa [2011] ZACC 6; 2011 (3) SA 347 (CC); 2011 (7) BCLR 651
(CC) 2011 at para 53 and Radio Pretoria v Chairperson of Independent Authority of South Africa [2004] ZACC 24;
2005 (4) SA 319 (CC); 2003 (3) BCLR 231 (CC) at para 22.
MHLANTLA J
12
Analysis
[22] I now deal with the merits of the appeal. The essential question raised by this matter
is whether the impugned fideicommissary provision in a private will that bequeaths the
property only to male descendants is contrary to public policy and therefore unenforceable.
To answer this question, I will begin by considering the current common law position and
examples of testamentary bequests which our law has thus far deemed to be contrary to
public policy and unenforceable.
The common law position of testate succession in South Africa
[23] Generally, it is accepted that testators have the freedom to dispose of their assets in
a manner they deem fit, except in sofar as the law places restriction s on this freedom.28 It
is well established that there are various restrictions on freedom of testation. These include:
(a) effect will not be given to testamentary dispositions which are illegal, contrary to public
policy or vague;29 (b) the maintenance and education of a parent’s children constitute a
claim against such a parent’s deceased estate;30and (c) restrictions imposed by legislation.31
Pre-constitutional dispensation
[24] During the pre-constitutional dispensation, “South African testators enjoyed almost
unlimited testamentary freedom and courts were generally loath to interfere with
testamentary bequests that were capable of being carried out”.32
28 De Waal and Schoeman-Malan in Law of Succession above n 1 at 3.
29 See for instance Minister of Education v Syfrets Trust Ltd N.O. 2006 (4) SA 205 (C) (Syfrets) at para 22; and Aronson
v Estate Hart 1950 (1) SA 539 (A); [1950] 2 All SA 13 (A) at 555-6.
30 Ex Parte Insel 1952 (1) SA 71 (T) at 75; Glazer v Glazer 1963 (4) SA 694 at 707; and Hoffmann v Herdan N.O.1982
(2) SA 274 at 275.
31 This includes: The Maintenance of Surviving Spouses Act 27 of 1990; The Trust Property Control Act 57 of 1988;
and the Pension Funds Act 24 of 1956.
32 Du Toit “Constitutionalism, Public Policy and Discriminatory Testamentary Bequests – A Good Fit Between
Common Law and Civil Law in South Africa’s Mixed Jurisdictions” (2012) 27 Tulane European & Civil Law Forum
at 114.
MHLANTLA J
13
[25] The common law rule was that testamentary bequests that were considered contrary
to public policy were unenforceable. This public policy test was flexible and gave testators
considerable latitude to include discriminatory clauses in their bequests. 33 A notable case
is Aronson, in which the testator provided for a forfeiture of benefits should a beneficiary
“marry a person not born in the Jewish faith or forsake the Jewish faith”. 34 The forfeiture
clause was challenged on various grounds including whether the forfeiture provision was
against public policy. 35 The Appellate Division held that it was not contrary to public
policy. It reasoned that a marriage of that nature would incre ase tensions, could lead to
irreconcilable differences, and would have an unsettling effect on children. Furthermore,
in that case, Greenberg JA went on to state that “I know of no principle in law which would
make it contrary to public policy for the te stator to attempt (according to his rights) to
safeguard his descendants against these perils”.36
[26] However, in other cases involving private wills , certain conditions attached to
bequests were deemed contrary to public policy. For instance, in Levy,37 a testator provided
that one of his daughters would only receive benefits if her marriage was dissolved by
death or “through any other cause”.38 The Court held that a provision in a will which was
calculated to break up an existing marriage was contra bonos mores (against public morals)
and therefore invalid. In terms of that provision, that Court held “it was difficult to imagine
33 Id.
34 Aronson above n 29 at 540.
35 Id at 546. These other grounds outlined were twofold. Firstly, it was void for uncertainty, and, secondly, it amounted
to a nude prohibition.
36 Id. See further the concurrence by Van den Heever JA. This approach was criticised by various academics, see for
instance, Hahlo “Jewish Faith and Race Clauses in Wills – A Note on Aronson v Estate Hart 1950 1 SA 539 (A) ”
(1950) 67 SALJ 231 at 239-240 and Corbett et al The Law of Succession in South Africa 2 ed (Juta and Company,
Cape Town, 2002) at 130-1.
37 Levy N.O. v Schwartz, N.O. 1948 (4) SA 930 (W).
38 Id at 498.
MHLANTLA J
14
provisions in a will more repugnant to public policy”. 39 The impugned condition was
deemed unenforceable and the daughter was able to inherit unconditionally.
[27] In the context of public wills, testators were afforded considerable scope in the
realm of charitable trusts to limit certain benefits on various grounds. In Marks,40 the
testator created a trust for the payment of bursaries to students at a university but stipulated
that the recipient must be a “Jew or Jewess (not a converted)” and the bursary would lapse
“if the grantee prove religiously inclined”. 41 A challenge on the basis that the condition
was vague and contrary to public policy was unsuccessful. The Appellate Division held
that there was sufficient certainty and that, regarding the public policy issue , it was not
framed in peremptory terms and it was difficult to ascertain the intention of the testator. 42
In doing so, the court in Marks reinforced the primacy of freedom of testation in the context
of public charitable trusts and consequently, condoned limits on potential beneficiaries on
particular grounds.
[28] However, there were outliers, for instance, the High Court’s decision in the matter
of William Marsh, albeit in the context of the Trust Property Control Act, not the common
law,43 where Mr Marsh executed a will in 1899 to create a trust provi ding for a home for
destitute white children. During the 1970’s, the Methodist Church began to administer the
homes and over time, as a result of changes within the socio -economic landscape, there
39 Id at 499.
40 Marks v Estate Gluckman 1946 AD 289.
41 Id at 294.
42 Id at 310. Tindall JA states that “ In my opinion, it cannot be said that the provision in clause 7, giving the
administrator this discretion, is contrary to public policy merely because it advises him to cancel the bursary ‘if the
grantee prove religiously inclined ’. There is some difficulty in determining the precise meaning of t hese words. If
they are directed against the use of a bursary for the purpose of qualifying for a religious career, the advice to the
administrator is not contrary to public policy. . .”.
43 Ex Parte President of the Conference of the Methodist Church of S outhern Africa: in re William Marsh Will Trust
1993 (2) SA 697 (C) (Willam Marsh) per Berman J and Seligson AJ. At 702 Berman J states that “it is to my mind
fortunately unnecessary for the Court to consider the application on the basis of the common law approach”.
MHLANTLA J
15
came to be a dearth of destitute white children. 44 As a result, the Church applied in terms
of section 13 of the Trust Property Control Act to delete the word “white”. 45 The Court,
based on section 13, held that the intention of the testator was frustrated by the racial
prohibition and that the racial limitation was contrary to public policy since it would not
be in the public interest for children of other races to be excluded from accessing children’s
homes for the destitute. The Court held that it was in the public interest and in accordance
with public policy , that the discriminatory provisions be removed. 46 In light of the
discriminatory provision in the will, the court made an order in favour of the applicants to
the effect that the term “white” be removed from the phrase “white destitute children”.
However, it is important to note that these cases were all before the enactment of the
Constitution, whereupon the position changed.
Common law position under the constitutional dispensation
[29] Since the advent of the Constitution, testamentary bequests have been challenged
on the basis of public policy as infused by constitutional values. In particular, decisions
have emerged in which courts have intervened in matters dealing with public charit able
trusts.
[30] In Syfrets, a will and codicil executed in 1920 created a charitable testamentary trust
that was established in the 1960’s, under which bursaries to study abroad had been provided
for “deserving students with limited or no means”. 47 The eligibility of the bursaries was
restricted to persons of “European descent” and excluded persons of “Jewish descent” and
“females of all nationalities”. The High Court was asked to delete the discriminatory
criteria (in this case, race, religion, and gender). Applying established common law
44 Id at 700.
45 Id.
46 Id.
47 Syfrets above n 29 at para 1.
MHLANTLA J
16
principles, the court considered whether the impugned provisions were against public
policy. In doing so, it noted that in the constitutional era public policy was rooted in the
Constitution and the values it enshrine s.48 The Court, therefore, considered whether the
provisions constituted unfair discrimination and if so, whether they were contrary to public
policy. The High Court held that the provisions constituted indirect discrimination on the
basis of race as well as direct discrimination on the grounds of religion and gender. The
Court proceeded to apply the Harksen49 test, and balanced competing constitutional values
and principles of public policy. 50 It also noted the public nature of the tru st,51 and
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 -racialism, non -sexism, and equality”. 52 It held that it was
therefore empowered to vary the trust and delete the offending provisions.
[31] In Emma Smith ,53 a will executed in 1938 created a charitable trust which was
designated for the “higher education” of “European girls born of British South Africa n or
Dutch South African parents who have been resident in Durban”.54 They had to be “poor”
and, but for such assistance, “unable to pursue their studies”. 55 The matter hinged on
whether the trust could be varied to delete the racially restrictive provisio n in terms of
section 13 of the Trust Property Control Act. The Supreme Court of Appeal focused on
whether the impugned trust provisions were in conflict with the public interest. In doing
48 Id at para 24.
49 Harksen v Lane N.O. [1997] ZACC 12; 1998 (1) SA 300 (CC); 1997 (11) BCLR 1489 (CC).
50 Id at paras 33 and 39.
51 Id at para 46.
52 Id at para 47.
53 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) (Emma Smith).
54 Id at para 8. The parties agreed that “‘European’ is an obsolete reference to white South Africans”.
55 Id.
MHLANTLA J
17
so, it considered section 9 of the Constitution,56 the Equality Act and the Higher Education
Act.57 It stated that “in the public sphere there can be no question that racially
discriminatory testamentary dispositions will not pass constitutional muster”. 58 It noted
that the university, in administering the trust, would o perate “in the public sphere” and
therefore, must act consistently with public policy as well as constitutional values. The
Supreme Court of Appeal held:
“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 th e
fundamental values of our Constitution and the constitutional imperative to move away
from our racially divided past.”59
56 Section 9 of the Constitution reads:
“(1) Everyone is equal before the law and has the right to equal protection and benefit of the law.
(2) Equality includes the full and equal enjoyment of all rights and freedoms. To promo te the
achievement of equality, legislative and other measures designed to protect or advance persons, or
categories of persons, disadvantaged by unfair discrimination may be taken.
(3) The state may not unfairly discriminate directly or indirectly against anyone on one or more
grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual
orientation, age, disability, religion, conscience, belief, culture, language and birth.
(4) No person may unfairly discriminate directly or indirectly against anyone on one or more
grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair
discrimination.
(5) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is
established that the discrimination is fair.”
57 101 of 1997.
58 Emma Smith above n 53 at para 38. See further para 37 which endorses Cameron et al Honore’s South African Law
of Trusts 5 ed (Juta and Company, Cape Town 2002) 171-2:
“The Bill of Rights applies to all law including the law relating to charitable trusts. . . the objects of
a trust will have to conform with the disavowal of unfair discrimination under the 1996 Constitution
and the Equality Act, which envisage equality even in person-to-person relations”.
59 Id at para 42.
MHLANTLA J
18
[32] Similarly, BOE Trust60 concerned a trust created in a will executed in 2002 in which
the testator provided for the trust income to go towards bursaries to assist “white South
African students” to study abroad on condition that the recipient “must return to South
Africa”. The trustees approached the court for an order to delete the word “white” from
the trust deed. Although both parties accepted that the condition unfairly discriminated
against potential beneficiaries on the basis of race, the High Court held that it was not
clearly contrary to public policy. The court went on to state that “it is recognised that
discrimination designed to achieve a legitimate government purpose is not unfair”. 61 The
High Court considered that the testator may have had a legitimate objective – to counter
the brain drain,62 but, there was no firm finding in this regard.63 The Supreme Court Appeal
affirmed the principle of freedom of testation but held that it was “not absolute”.64
[33] From this analysis, it is evident that discriminatory testamentary bequests in public
trusts have been tested against the robust yardstick of public policy. However, ou r courts
to date have only applied this to: (a) testamentary forfeiture clauses (even in the private
context, often in the form of resolutive or negative potestative conditions); and (b) public
charitable trusts. A public policy challenge to out -and-out d isinheritance cases in the
private sphere is, therefore, novel. The question that arises is whether these types of
provisions are contrary to public policy under our constitutional dispensation. This, in turn,
begs the question, whether the common law should be developed to address discriminatory
60 BOE Trust Ltd N.O. (in their capacities as co -trustees of the Jean Pierre De Villiers Trust 5208/2006) [2012]
ZASCA 147; 2013 (3) SA 236 (SCA) (BOE Trust Supreme Court of Appeal judgment).
61 BOE Trust Ltd N.O. 2009 (6) SA 470 (WCC) (BOE Trust High Court judgment) at para 14.
62 Id at para 15 where it stated:
“During the post -constitutional years must has been said and written about t he increasing trend
amongst white graduates of our universities to emigrate, u pon the completion of their education,
thereby depriving the country of benefit of their skills obtained at the expense of the South African
tertiary-education system.”
63 Id at para 17.
64 BOE Trust Supreme Court of Appeal judgment above n 60 at para 28.
MHLANTLA J
19
provisions in out-and-out disinheritance testamentary provisions in private wills. I will
consider the first issue for determination namely, the interpretation of clause 7.
The golden rule of interpretation
[34] The point of departure when interpreting wills is “to ascertain the wishes of the
testator from the language used in the will”. 65 Courts are obliged to give effect to the
wishes of the testator unless they are prevented by some law from doing so. The “golden
rule” for the interpretation of wills and this inherent limitation is famously described as
follows in Robertson:
“The golden rule for the interpretation of testaments is to ascertain the wishes of the testator
from the language used. And when these wishes are ascertained, the court is bound to give
effect to them, unless we are prevented by some rule or law from doing so.”66
[35] If one considers clause 7 of the will, the clear interpretation of “male descendants”
is to provide for sons only, afte r the first generation. No armchair or extrinsic evidence
was put before this Court to consider otherwise. Therefore, in giving effect to the wishes
of the testators from the language used it is clear that as far as the second and third
generations are concerned, they intended for the fideicommissary beneficiaries to be male
descendants, and thus, for benefits not to devolve upon any of their female descendants.
[36] The next question to consider is whether this Court is barred from giving effect to
the testators’ intention by any rule or law. The analysis above canvassed some of our
65 Robertson v Robertson Executors 1914 SA 503 (AD) at 507. This dictum was quoted with approval in the context
of a fideicommisssum by Watermeyer JA in Jewish Colonial Trust Ltd v Estate Nathan 1940 AD 163 at 183.
66 Robertson id at 507.
The common law has d eveloped additional rules to guide courts when using the golden rule. These include , the
“general scheme of the will,” and the dominant clause must be ascertained. “The plain meaning rule” stipulates that
ordinary words must attain their ordinary meaning and technical words their technical meaning . See further Corbett,
Hofmeyr (eds) and Khan The Law of Succession in South Africa 2 ed (Juta and Company, Cape Town 2001) at 454-
455.
MHLANTLA J
20
jurisprudence both before and after the advent of the Constitution. It revealed that whilst
freedom of testation is a central principle of testate succession, it is a trite rule of the law
of succession that clauses which are contrary to public policy are unenforceable. But, our
courts have, up until now, only dealt with this in respect of conditions attached to private
bequests or in the cases of public charitable testamentary bequests as opposed to out-and-
out disinheritance bequests. Our courts have not been faced with a set of facts such as this
to be tested against public policy . Specifically, an out -and-out disinheritance bequest
where the testators had no personal relati onships or interactions with the lineal
descendants,67 yet excluded these descendants that they ha d never met (unknown lineal
descendants) on the sole basis of their immutable characteristics .68 This ushers in the
pivotal qu estion whether this matter warrants the development of the common law, as
infused with our constitutional values.
Direct versus indirect application of the Bill of Rights
[37] Before turning to this point, I wish to dispose of the question whether this Court
ought to consider the enforceability of clause 7 on the ground that it amounts to
discrimination on the basis of gender and sex 69 in contravention of section 9 of the
Constitution (direct application of the Bill of Rights ) or whether we should consider
67 Only blood relations in the descending line.
68 The potential beneficiaries in question are the lineal descendants of the testator and succeed the testator’s own
generation and that of their children’s generation and so on. “Excluded” in this context connotes an implicit exclusion
of one group of potential beneficia ries by proximity to a similarly placed gr oup of potential beneficiaries who have
been expressly “included” solely due to immutable characteristics. The status of the applicants before us is as follows:
unknown (meaning they had no personal relationships or interactions with the testator, as they were born after the
death of the testator) lineal descendants that are excluded as potential beneficiaries on the basis of immutable
characteristics.
Immutable characteristics are defined as those enshrined under section 9(3) of the Constitution including race, gender,
sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience,
belief, culture, language and birth.
69 It is critical to mention that our courts have used the grounds of gender and sex interchangeably but it is nonetheless
important to note that they are distinct. On one hand, “gender” can be understood as the “socially and culturally
constructed differences between men and women” while, in contrast “sex” is described as the “biological differences
between men and women”. See Woolman and Bishop Constitutional Law of South Africa 2 ed (Juta & Co Ltd, Cape
Town 2013) at 2665.
MHLANTLA J
21
enforceability through the lens of public policy, as infused with constitutional values (an
indirect application of the Bill of Rights).
[38] In Barkhuizen, Ngcobo J held that the proper approach to constitutional challenges
to contractual terms is “whether the term challenged is contrary to public policy as
evidenced by the constitutional values, in particular, those found in the Bill of Rights”. 70
This was, among other things, due to various concerns with directly applying the provisions
in the Bill of Rights to the contract . First, that the impugned clause in Barkhuizen, the
time-bar clause, did not constitute a law of general application which could limit a right
under section 36 of the Constitution.71 Second, that the time-bar clause did not amount to
a “law” or “conduct” which a court could declare invalid under section 172(1)(a) of the
Constitution.72
[39] Various parallels can be drawn between contractual and testam entary provisions.
Clause 7 is a clause in a private will, it is not a law of general application for purposes of
section 36, nor does it amount to “law” or “conduct” for the purposes of section 172(1)(a).
In Barkhuizen, it was also noted that this approach “leaves space for the doctrine of pacta
sunt servanda to operate”.73 Equally, this approach allows for the principle of freedom of
testation to flourish alongside and subject to our constitutional values. For this reason,
coupled with the fact that th is approach is primarily pleaded by the applicants , I shall,
therefore, resort to an indirect horizontal application of the Bill of Rights through the
vehicle of public policy.
[40] I have had the benefit of reading the judgments penned by my brother Jafta J (second
judgment); and my sister Victor AJ (third judgment ). While the second judgment
70 Barkhuizen above n 22 at para 30.
71 Id at para 24.
72 Id.
73 Id at para 30.
MHLANTLA J
22
determines the matter by directly applying the Constitution and Equality Act, and the third
judgment applies the Equality Act directly to clause 7 in accordance with the principle of
constitutional subsidiarity, I am resolute that this matter should be determined from a
common law viewpoint through the lens of public policy as imbued with our constitutional
values.
[41] In both written and oral argument , the applicants predominantly pleaded that the
matter should be determined in terms of the common law, and its development. 74 Since
time immemorial , courts have considered the common law rule that clauses that are
contrary to public policy are unlawful and are unenforceable. Our law reports are teeming
with examples of what is against public policy and therefore unenforceable. These matters
are not limited to unfair discriminatory issues. It would be remiss of us to take a detour
and neglect engaging with this body of jurisprudence and not attempt to bring it in line
with a constitutionally infused common law approach. In my view, th ere is no bar to
applying the common law instead of the Equality Act, because the Equality Act gives effect
to section 9 and the right to equality and does not purport to codify the common law public
policy standard or the limits of freedom of testation.
Duty to develop the common law
[42] Section 39(2) of the Constitution obliges courts to de velop the common law to
“promote the spirit, purport and objects of the Bill of Rights”. This principle is bolstered
by section 173 of the Constitution which endows this Court with “the inherent power to . . .
develop the common law, taking into account the interests of justice”.
[43] In Carmichele, this Court considered the nature of the section 39(2) obligation as
follows:
74 The applicants submit that “This Court is compelled to consider whether section 39(2) of the Constitution mandates
a change to the common law notion of freedom of testation.”
MHLANTLA J
23
“It needs to be stressed that the obligation of courts to develop the common law, in the
context of the section 39(2) objectives, is not purely discretionary. On the contrary, it is
implicit in section 39(2) read with section 173 that where the common law as it stands is
deficient in promoting the section 39(2) objectives, the courts are under a general
obligation to develop it appropriat ely. We say a ‘general obligation’ because we do not
mean to suggest that a court must, in each and every case where the common law is
involved, embark on an independent exercise as to whether the common law is in need of
development and, if so, how it is to be developed under section 39(2).
. . .
The influence of the fundamental constitutional values on the common law is mandated by
section 39(2) of the Constitution. It is within the matrix of this objective normative value
system that the common law must be developed.”75
[44] The importance of developing the common law in light of our constitutional values
was underscored in Du Plessis when Mahomed DP stated:
“the common law is not to be trapped within limitations of the past . . . it needs to be
revisited and revitalised with the spirit of constitutional values. . . defined in chapter 3 of
the Constitution and with full regard to the purport and objects of that chapter ”.76
[45] This Court has accepted that “the normative influence of the Constitution must be
felt throughout the common law”.77 It has been said that “the mission of section 39(2) is
to carry out the audit and re-invention of the common law”.78
75 Carmichele v Minister of Safety and Security (Centre for Applied Legal Studies Intervening) [2001] ZACC 22; 2001
(4) SA 938 (CC); 2001 (10) BCLR 995 (CC) at para 39 and para 54.
76 Du Plessis v De Klerk [1996] ZACC 10; 1996 (3) SA 850 (CC); 1996 (5) BCLR 658 CC) at para 86 in the context
of the interim Constitution.
77 K above n 23 at para 17. See also S v Thebus [2003] ZACC 12; 2003 (2) SA 505 (CC); 2003 (10) BCLR 1100 (CC)
at para 28.
78 Davis and Klare “Transformative Constitutionalism and the Common and Customary Law” (2010) 26 SAJHR 403
at 426.
MHLANTLA J
24
[46] Section 1 of the Constitution provides for our cherished founding values.79 Notably,
the constitutional normative value system has been sketched as follows:
“The content of this normative system does not only depend on an abstract philosophical
inquiry but rather upon an understanding that the Constitution mandates the development
of a society which breaks clearly and decisively from the past and where institutions which
operated prior to our constitutional dispensation had to be instilled with a new operational
vision based on the foundational values of our constitutional system.”80
[47] The duty of the courts to develop the common law, in true fidelity to the ethos of
the transformative constitutional project, is well articulated by Cameron J in Fourie:81
“Developing the common law involves a simultaneously creative and declaratory function
in which the court puts the final touch on a process of incremental legal development that
the Constitution has already ordained . . . This process also requires faith in the capacity
of all to adapt and to accept new entrants to the moral parity and e qual dignity of
constitutionalism. Judges are thus entitled to put faith in the sound choices the founding
negotiators made on behalf of all South Africans in writing the Constitution. And they are
entitled also to trust that South Africans are prepared to accept the evolving implications
that those choices entail . The task of applying the valu es in the Bill of Rights to the
common law thus requires us to put faith in both the values themselves and in the people
79 Section 1 of the Constitution provides:
“The Republic of South Africa is one, sovereign, democratic state founded on the following values:
(a) Human dignity, the achievement of equality and the advancement of human rights
and freedoms.
(b) Non-racialism and non-sexism.
(c) Supremacy of the constitution and the rule of law.
(d) Universal adult suffrage, a national common voters roll, regular elections and a
multi-party system of democratic government, to ensure accountability,
responsiveness and openness.”
80 Geldenhuys v Minister of Safety and Security 2002 (4) SA 719 at 728. Also, the term of art “an objective normative
value system” is imported from German law, see further Carmichele above n 75 at para 54.
81 Fourie v Minister of Home Affairs [2004] ZASCA 132; 2005 (3) SA 429 (SCA).
MHLANTLA J
25
whose duly elected representatives created a visionary and inclusive constitutional
structure that offered acceptance and justice across diversity to all.”82
[48] This prompts the question: when is section 39(2) triggered? O’Regan J proffered
laudable guidance on this in K:83
“It is necessary to consider the difficult question of what constitutes ‘development’ of the
common law for the purposes of section 39(2). In considering this, we need to bear in mind
that the common law develops incrementally through the rules of precedent. The rules of
precedent enshrine a fundamental principle of justice: that like cases should be determined
alike. From time to time, a common -law rule is changed altogether, or a new rule is
introduced, and this clearly constitutes the development of the common law. More
commonly, however, courts decide cases within the framework of an existing rule. There
are at least two possibilities in such cases: firstly, a court may merely have to apply the rule
to a set of facts which it is clear fall within the terms of the rule or existing authority. The
rule is then not developed but merely applied to facts bound by the rule. Secondly,
however, a court may have to determine whether a new set of facts falls within or beyond
the scope of an existing rule. The precise ambit of each rule is therefore clarified in relation
to each new set of facts. A court faced with a new set of facts, not on all fours with any set
of facts previously adjudicated, must decide whether a common -law rule applies to this
new factual situation or not. If it holds that the new set of facts falls within the rule, the
ambit of the rule is extended. If it holds that it does not, the ambit of the rule is restricted,
not extended.
The question we should consider is whether one characterises such cases as development
of the common law for the purposes of section 39(2). The overall purpose of section 39(2)
is to ensure that our common law is infused with the values of the Constitution. It is not
only in cases where existing rule s are clearly inconsistent with the Constitution that such
an infusion is required. The normative influence of the Constitution must be felt
throughout the common law. Courts making decisions which involve the incremental
development of the rules of the common law in cases where the values of the Constitution
82 Id at paras 23-5.
83 K above n 23.
MHLANTLA J
26
are relevant are therefore also bound by the terms of section 39(2). The obligation imposed
upon courts by section 39(2) of the Constitution is thus extensive, requiring courts to be
alert to the normative framework of the Constitution not only when some startling new
development of the common law is in issue, but in all cases where the incremental
development of the rule is in issue.”84
[49] Based on what was said by this Court in K, determining whether a novel set of facts
falls within the ambit of an existing common law rule is within the domain of section 39(2).
Therefore, should we choose to extend the existing common law rule (that clauses contrary
to public policy are unenforceable) to private out -and-out disinheritance testamentary
provisions, which unfairly discriminate between unknown included and excluded lineal
descendants on the sole basis of immutable characteristics, this would be an incremental,
yet significant, development of the common law. As I see it, the second judgment applies
the broad existing common- law rule as it stands,85 without acknowledging that, given the
novel facts, a development is warranted in light of section 39(2) coupled with what was
said by this Court in K.
[50] When considering these novel facts, this Court has a constitutional obligation to
craft and mould the common law in accordance with the spirit, purport and objects of the
Bill of Rights. It is worth noting that in Mighty Solutions, this Court cautioned that before
a court proceeds to develop the common law it must consider various steps.86 The purpose
84 Id at paras 16-7. See also Carmichele above n 75 at para 40.
85 See second judgment at [90].
86 In Mighty Solutions CC t/a Orlando Service Station v Engen Petroleum Ltd [2015] ZACC 34; 2016 (1) SA 621
(CC); 2016 (1) BCLR 28 (CC) at para 39, this Court noted that before a court proceeds to develop the common law it
must:
(a) Determine exactly what the common law position is;
(b) Consider the underlying reasons for it;
(c) Enquire whether the rule offends the spirit, purport and object of the Bill of Rights and thus
requires development;
(d) Consider precisely how the common law should be amended; and
MHLANTLA J
27
of this is not to impugn the principle of freedom of testation. Rather, the purpose of
applying some of these steps is to allow us to re -evaluate the weight attac hed to freedom
of testation when juxtaposed with other constitutional considerations such as balancing a
public policy enquiry.
Principles underlying the current common law position
[51] The common law position has been outlined in detail above. The common law rule
in effect aims to respect the wishes of the testator through the principle of freedom of
testation.87 This is inherited from, among other s, the English approach of unlimited
freedom of testation, notwithstanding the distinct economic and social developments that
have taken place in both England and South Africa.88 Hahlo remarked:
“The principle of unlimited freedom of disposition by will which South Africa took over
from England during the nineteenth century was the product of the individualisti c and
laissez faire attitude which prevailed in English law at that time, but has since given way
to a socially minded approach.”89
[52] It is evident that the primacy of freedom of testation in testate succession, as it
currently stands, is based on our law’s respect of freedom, to act as one wishes in the private
sphere. Our mixed legal system, with all its historical nuances, has clasped onto the
importance of the English law view, as it was at the time of its adoption into our law, of
autonomy, private prop erty and unfettered freedom to bequeath one’s property as one
(e) Take into account the wider consequences of the proposed change on that area of the law.
The respondents contend that the applicants in King have not met the factors outlined in Mighty Solutions. However,
they do not expand on this. Rather, the respondents list 8 reasons why it is not in the interests of justice to deal with
the discrimination issue.
87 Corbett et al above n 36 at 39.
88 Hahlo “The Case against Freedom of Testation” (1959) South African Law Journal 76 (435) at 442.
89 Id.
MHLANTLA J
28
wishes, whilst retaining some of the Roman and Roman -Dutch law exceptions to this. 90
The question that then arises is to what extent must this primacy of freedom of testation be
balanced against other key constitutional values (including equality and non-sexism) which
underpin our constitutional dispensation? Similarly, it is important to question whether
there may be certain types of bequests, beyond the current exceptions, that should be
unenforceable because they are contra bonos mores. Before dealing with these questions,
I will briefly highlight the patriarchal manifestations of the law of testation as well as the
status of freedom of testation in other jurisdictions.
The patriarchal manifestation of the law of testation
[53] Testate succession , and in particular the principle of freedom of testation, while
facially neutral, has traditionally manifested in a patriarchal manner . Roman private law
was based on the idea that each family had a male head. Families residing in one household
were centred patriarchally with their roots firmly lodged in the notion of the
paterfamilias.91 The move towards freedom of testation was seemingly brought about with
an expectation that the predominantly male testators would dispose of their property
through the reasonable man92 standard, for which the social expectation at the time was to
ensure the well-being of one’s family.
[54] In Bhe, this Court acknowledged:
“Roman-Dutch law, like the Roman law upon which it was founded, was neither
humanitarian nor egalitarian. In its gender bias, it was similar to other European systems
90 For example, the common law position in our current law that conditions attached to bequests that seek to break up
marriages are contra bonos mores appear directly related to the Roman law position that conditions which encouraged
an immoral act were agai nst public policy. See Du Toit “The impact of social and economic factors on freedom of
testation in Roman and Roman-Dutch Law” (1999) 10(2) Stellenbosch Law Review at 240.
91 Leage and Ziegler Roman Private Law: Founded on the ‘Institutes’ of Gaius and Ju stinian 2 (Macmillan, 1906) at
1.
92 I use “man” consciously because that was the “reality” of the time.
MHLANTLA J
29
of its time, and its effects on both the South African legal system and South African society
have been enormous.”93
[55] Therefore, it must be accepted that the genesi s and development of freedom of
testation have undeniable layers of patriarchy, deeply rooted in notions that women cannot
own property as well as be commercially active, and thus cannot inherit property. As I will
demonstrate below, these underlying social and economic considerations are not static and
are inimical to the values of the Constitution.
Comparative analysis
[56] It is useful to consider the role of the principle of freedom of testation in other
jurisdictions. In Canada, freedom of testation is a deeply entrenched common law
principle. The Supreme Court of Canada has recognised the importance of testamentary
autonomy,94 maintaining that this right may only be limited in certain instances.95 Most
recently, in Spence v BMO Trust Company ,96 the Ontario Court of Appeal (ONCA)
considered the exclusion by Mr Spence, a Jamaican man, of his daughter and grandson
from his will. The testator stated in his will that the reason for t he exclusion was that his
daughter “has had no communication with him for several years and has shown no interest
in him as her father”.97 However, extrinsic evidence indicated that the true reason for the
exclusion was that his daughter had had a child wi th a white man, and her son was
93 Bhe v Khayelitsha Magistrate [2004] ZACC 17; 2005 (1) SA 580 (CC); 2005 (1) BCLR 1 (CC) at fn 112 cites Zaal
“Origins of gender discrimination in SA Law” in Liebenberg (ed) The Constitution of South African from a Gender
Perspective (Community Law Centre, University of the Western Cape in association with David Phillip, Cape Town
1995) at 34.
94 Tataryn v Tataryn Estate [1994] 2 SCR 807.
95 For example, in Canada Trust Co. v Ontario Human Rights Commission 1990 CanLII 486 (ONCA) (Canada Trust),
the Ontario Court of Appeal found certain terms of an educational trust, which included racist and religious
qualifications, to be discriminatory. However, at 25 the ONCA held that it is the public nature of charitable trusts
which attracts the requirement that they conform to the public policy against discrimination .
96 2016 ONCA 196.
97 Id at para 10.
MHLANTLA J
30
accordingly of “mixed-race”. While the Ontario Superior Court of Justice set aside the will
in its entirety, based on contravention of public policy, the ONCA upheld an appeal. Of
significance is that the ONCA held that ju dicial interference with Mr Spence’s
testamentary freedom was not warranted. T he will was not facially discriminatory and
therefore did not offend public policy. However, the ONCA stated that even a facially
discriminatory will would have been valid as it reflects a testator’s intentional and private
disposition of his property, with which the Court was not entitled to interfere.98
[57] The applicants in Spence relied on the decision in McCorkill which confirmed that
courts are authorised to examine the validi ty of a bequest on grounds of public policy. 99
However, the ONCA in Spence held that this decision to strike down an absolute
(unconditional) bequest was exceptional. 100 It is worth noting that Ontario’s Succession
Law Reform Act, unlike that of other Canadian provinces, places a strong emphasis on will
formality and adherence to the testator’s intentions. Additionally, private individuals in
Canada are not subject to the Charter of Rights and Freedoms. It is therefore difficult to
challenge a will based on suspicion of discrimination in Ontario.101
[58] A curious position arises in the United States of America’s federal legal system
relating to testamentary freedom. Most states recognise that “the right to make a will is
not a natural, inalienable, inherited, fundamental, or inherent right, and it is not one
guaranteed by the Constitution. The right to make a will is conferred and regulated by
98 Id at para 73.
99 McCorkill v McCorkill Estate, 2014 NBQB 148, aff’d 2015 NBCA 50. The testator in McCorkill had bequeathed
the residue of his state to a neo-Nazi organisation, and the court struck this down on the basis of public policy. Also,
in Fox v Fox Estate, 1996 CanLII 779 (ONCA), a trustee’s actions were prohibited because they represented bad faith,
and not because they were discriminatory.
100 Based on the illegal activities of the organisation that would have been funded by the residue of the testator’s estate.
The implementation of the testator’s intentions would have facilitated the financing of hate crimes .
101 Spiro “Could the Charter be Extended to Prohibit Discrimination in a Will?” CanLII Connects (2019). Available
at https://canliiconnects.org/en/commentaries/67792.
MHLANTLA J
31
statute”.102 The courts of Wisconsin, however, have “dissented sharply from this theory”103
in several cases, deeming the right to make a will as a “ sacred right ” and one that is
guaranteed by the Constitution”.104 These courts consider it “more sacred than the right to
make a contract”, and an “inherent powe r and not a statutory power” .105 However, in
Estate of Ogg , the Wisconsin Supreme Court noted that this position goes against the
majority opinion of the United States’ legal authority, where the “right to make a will is in
no sense a property right or a so-called natural right”.106
[59] I now turn to consider civil law jurisdictions. 107 Germany provides for
constitutionally protected rights of private ownership and private succession in terms of
article 14.1 of the German Grundgesetz (Basic Law),108 which states that “property and the
right of inheritance are guaranteed. Their content and limitation shall be determined by the
102 Fullam v Brock, 155 SE 2d 737, 739 (NC 1967).
103 Estate of Ogg v First National Bank of Madison, 54 NW 2d 175 (Wis. 1952) at page 177.
104 Id at 177-78 wherein Estate of Ogg cites the following cases: Will of Rice (1912), 150 Wis. 401, 136 NW 956, 137
NW 778; Upham v. Plankinton (1913), 152 Wis. 275, 140 NW 5; Will of Ball (1913), 153 Wis. 27, 141 NW 8; Duncan
v. Metcalf (1913), 154 Wis. 39, 141 NW 1002; Will of Schaefer (1932), 207 Wis. 404, 241 NW 382.
105 Estate of Ogg above n 103 at 177.
106 Id.
107 On 8 April 2020, this Court, as it has previously done, sent a request to the World Conference on Constitutional
Justice (Venice Commission) to determine other jurisdictions’ constitutional stance on the freedom of testation. In
contrast to common law jurisdictions, civil law jurisdictions often explicitly enshrine freedom of testation under their
constitutional property right pro visions and consequently the right of succession, which is frequently framed as “the
right to inherit is guaranteed” or similarly (where the right to inheritance is not expressed in the Constitution, it is
enshrined under the jurisdiction’s civil code). S ee also Article 48 of the Constitution of the Republic of Croatia, 22
December 1990; Article 11(1) of the Czech Charter of Fundamental Rights and Freedoms, 16 December 1992; Article
64 of the Constitution of the Republic of Poland, 2 April 1997; Article 60 of the Constitution of the Republic of
Armenia, 5 July 1995; Article 29 of the Constitution of the Republic of Azerbaijan, 12 November 1995; Article 46 of
the Constitution of the Republic of Moldova ; Article 20 of the Constitution of the Slovak Republic, 1 October 1992.
108 Germany: Basic Law for the Federal Republic of Germany, 23 May 1949. According to the most recent decision
of the German Federal Constitutional Court, that Court characterizes the freedom to make a will as a key element of
the guarantee of the right to inheritance. This freedom includes “the right of the testator in [their] lifetime to order a
transfer of [their] assets after [their] death … to one or several legal successors, in particular to exclude a statutory
heir from participation in the estate and to restrict his or her inheritance to the [monetary] value of the statutory
compulsory portion (see BVerfGE 58, 377 (398)). The testator is thereby afforded the possibility to arrange the terms
of the succession [themselves] by last will largely in accordance with [their] personal wishes and idea s. In particular,
the testator is constitutionally not forced to treat his or her descendants equally . See BVerfG, Order of the First
Senate of 19 April 2005 , 1 BvR 1644/00, para. 63. And BVerfGE 67, 329 (345) - Official Digest (Entscheidungen
des Bundesverfassungsgerichts – BVerfGE) 112, 332 (348), ECLI:DE:BVerfG:2005:rs20050419.1bvr164400,
available in English on that Court’s website at http://www.bverfg.de/e/rs20050419_1bvr164400en.html .
MHLANTLA J
32
laws”.109 As a result, the Privaterbrecht (law of private succession) is expressly enshrined
and the state is thus restricted, to an extent, from interfering.110 The nexus between private
ownership and freedom of testation has been recognised by the German Constitutional
Court.111 In doing so, the Court considered freedom of testation as an element of the
transferability of ownership. German law thus provides a guarantee of freedom of testation
by the express provision for private ownership and private succession. 112 However, the
Basic Law in Germany does not have horizontal application and so the equality clause
cannot directly restrict freedom of testation. 113 Regardless, “the Legislature must ensure
the fundamental content of the constitutional guarantee contained in article 14.1 of the
Basic Law, keep in line with all other constitutional provisions, and must, in particular,
adhere to the principles of proportionality and equality”.114
[60] In addition, t he role of good morals operates in German law.115 A testamentary
provision would be, objectively, Sittenwidrig (contrary to good morals) “if it offends the
legal convictions of all reasonable and right-minded people”116 which is determined by the
109 Translation by Du Toit “Constitutionalism, Public Policy and Discriminatory Testamentary Bequests – A Good Fit
Between Common Law and Civil Law in South Africa’s Mixed Jurisdiction?” above n 32. The original stipulates
“Das Eigentum und das Erbrecht warden gewährleistet. Inhalt und Schranken warden durch die Gesetze bestimmt”.
110 De Waal “Bill of Rights Compendium: The Law of Succession and the Bill of Rights” (Butterworths, Durban 2012)
at 3G-4.
111 Id at 3G-8 citing BverfGE 67, 329 (341). See also BVerfGE 26, 215 (222); BVerfGE 50, 290 (340).
112 Id at 35-5 citing Erbrecht 24. Leipold contends:
“freedom of testation plays an important part with regard to [the] power of disposition and functions
as an essential element of private ownership. The relationship between freedom of testation and
private ownership is established by the guarantee of private ownership in a rticle 14(1) of the Basic
Law.”
113 De Waal above n 110 at 3G-8.
114 BVerfG, Order of the First Senate of 19 April 2005 – 1 BvR 1644/00 at para 62.
115 Dutch law does not recognize a constitutional guarantee of private ownership and private succession, however the
concept of goede zeden (good morals) plays a role. Although little judicial exploration has been conducted into the
impact of rights such as equality, freedom of association and religious beliefs and their impact on freedom of testation.
Du Toit above n 32.
116 Paragraph 138 (1) of the Civil Code.
MHLANTLA J
33
“opinion of the decent average person”.117 Consequently, any testamentary provision that
conflicts with good morals is void.
[61] Similarly, the Dutch Civil Code, in terms of article 4:44, determines that a
“testamentary bequest is void if the decisive motive for making the will or bequest is
contrary to the public order or good morals, provided such motive is evident from the will
itself”.118 More specifically, a condition or testamentary obligation imposed by a will that
is contrary to, amongst others, the public order or good morals, is deemed not to have been
written.119 It is noteworthy that testamentary dispositions that conflict with article 4:44 are
fairly rare in modern Dutch wills.120 This is likely attributable to article 21(2) of the Dutch
Notaries Act which obliges a notary to refuse to provide their services when, according to
reasonable conviction, the service would contravene the law or public order or would
amount to the assistance of an ac t that will have an unlawful purpose or consequence. 121
Notaries will therefore caution testators against including potentially discriminatory
provisions in wills. 122 There are, however, established Dutch authorities confirming that
prescriptive (conditional ) testamentary provisions can constitute an infringement on the
fundamental rights of a beneficiary.123
[62] Based on this analysis, while some jurisdictions, whether common law or civil, tend
to defer to freedom of testation, it is clear that testamentary freed om is never completely
117 Du Toit “Constitutionalism, Public Policy and Discriminatory Testamentary Bequests – A Good Fit Between
Common Law and Civil Law in South Africa’s Mixed Jurisdictions” above n 32 at 105.
118 Id at 105.
119 Id at 106.
120 Du Toit “Constitutionalism, Public Policy and Discriminatory Testamentary Bequests – A Good Fit Between
Common Law and Civil Law in South Africa’s Mixed Jurisdictions” above n 32 at 105.
121 Id at 108.
122 Id at 108. Civil Law notaries cannot represent any person in the Netherlands, but rather act for the public good.
Notaries will therefore caution testators against including potentially discriminatory provisions in wills.
123 HR 21 June 1929 NJ 1325 1327 -1328. For example, the Hoge Raad in the case of Elisabeth invalidated a
testamentary forfeiture clause which obliged a beneficiary to baptise her children in a particular denomination, based
on a violation of good morals.
MHLANTLA J
34
unfettered. A noticeable trend is that the public policy yardstick is exercised to different
extents and in various contexts to limit deference to testamentary freedom.
Public policy and private wills under the constitutional dispensation
[63] I turn now to consider whether the common law position which prioritises freedom
of testation in the context of private wills ought to be extended as set out in K, and in line
with the spirit, purport and objects of the Bill of Rights, so that courts may test private out-
and-out disinheritance provisions against the public policy standard and weigh the principle
of freedom of testation against other constitutional considerations.
Constitutional protection of freedom of testation
[64] While not expressly enshrined in the Constitution, freed om of testation garners
constitutional protection from a concatenation of rights in the Bill of Rights including the
right to property, dignity and privacy.
[65] This Court has accepted that freedom of testation “i s fundamental to testate
succession”.124 It has been said that freedom of testation implicitly forms part of
section 25(1) of the Constitution in that it protects a person’s right to dispose of her assets,
upon death, as she wishes.125 In Syfrets, it was accepted, albeit obiter, that while no express
mention is made of freedom of testation in the Constitution “ it forms an integral part of a
person’s right to property, and must therefore be taken to be protected in terms of
section 25”.126 This was revis ited in BOE Trust in which the Supreme Court of Appeal
stated that this view is “well held”. It went on to state that were the inverse held to be true,
it would entitle the state to effectively “infringe a person’s property rights after he or she
124 Moosa N.O. v Minister of Justice [2018] ZACC 19; 2018 (5) SA 13 (CC); 2018 (10) BCLR 1280 (CC) at para 18.
125 BOE Trust Supreme Court of Appeal judgment above n 60 at para 26.
126 Syfrets above n 29 at para 18.
MHLANTLA J
35
has passed a way, unbounded by the strictures which obtain while that person is still
alive”.127 That Court endorsed Du Toit’s account of the centrality of freedom of testation
and its connection with the right to property.128
[66] However, in Syfrets, that Court was circumsp ect on whether testamentary wishes
that are contrary to public policy curtail section 25(1). First ly, deprivation of property
engages a considerabl y high threshold as it constitutes a “substantial interference or
limitation that goes beyond the normal res trictions on property use and enjoyment” .129
Secondly, “for deprivation to be arbitrary, it must be procedurally unfair or must take place
without sufficient reason . . . there can be no question of procedural unfairness . . . given
that any order would be granted only after a full hearing by a court”.130 That Court went
on to state that “in any event, it is, of course, trite that the principle of freedom of testation
has never been absolute and unfettered: various restrictions have been placed on this
freedom”.131 In other words, limiting freedom of testation, due to contravention of public
policy, is by no means an arbitrary deprivation – it is for good cause. I endorse this view
that the unenforceability of testamentary bequests that are contrary to public policy for
being impermissibly discriminatory does not constitute an arbitrary deprivation for the
purposes of section 25(1).
127 BOE Trust Supreme Court of Appeal judgment above n 60 at para 26.
128 Id. The Supreme Court Appeal endorsed the view that “f reedom of testation is further enhanced by the fact that
private ownership and the concomitant right of an owner to dispose of the property owned (the ius disponendi )
constitute basic tenets of the South African law of property.”
129 Syfrets above n 29 at para 20.
130 Id at para 21.
131 Id at para 22.
MHLANTLA J
36
[67] The principle of freedom of testation has been held to warrant constitutional refuge
through the right to privacy 132 coupled with the right to dignity. 133 In BOE Trust, the
Supreme Court of Appeal espoused:
“Not to give due recognition to freedom of testation, will, to my mind, also fly in the face
of the founding constitutional principle of human dignity. The right to dignity allows the
living, and the dying, the peace of mind of knowing that their last wishes would be
respected after they have passed away.”134
[68] Autonomy and moral agency underscore the importance that freedom of testation
affords to the right to privacy. 135 Also, this Court has recognised that t he right to privacy
and dignity are closely related as “the right to privacy , through the constitutional order,
serves to foster human dignity”.136
132 Section 14 of the Constitution reads:
“Everyone has the right to privacy, which includes the right not to have—
(a) their person or home searched;
(b) their property searched;
(c) their possessions seized; or
(d) the privacy of their communications infringed.”
133 Section 10 of the Constitution reads: “ everyone has inherent dignity and the right to have their dignity respected
and protected”.
Our courts have indicated that freedom of testation can be shielded by these rights in BOE Trust Supreme Court of
Appeal judgment above n 60 at para 27 and Syfrets above n 29 at para 41.
134 BOE Trust Supreme Court of Appeal judgment above n 60 at para 27.
135 De Vos et al South African Constitutional Law in Context (Oxford University Press, Cape Town 2015) at 463 note
that privacy and dignity are closely related and note further that “where a person’s privacy is breached, that person
will often not be treated with concern and respect”. Steyn “ Limiting Freedom of Testation: Evalua ting
‘Discriminatory’ Stipulations in Testamentary Charitable Trusts” (LLM, NWU 2018) at 19.
136 Centre for Child Law v Media 24 Limited [2019] ZACC 46; 2020 (4) SA 319 (CC) ; 2020 (3) BCLR 245 (CC) at
para 44 and in Khumalo v Holomisa [2002] ZACC 12; 2002 (5) SA 401 (CC); 2 002 (8) BCLR 771 (CC) at para 27
this Court stated—
“there is a close link between human dignity and privacy in our constitutional order. The right to
privacy, entrenched in section 14 of the Constitution, recognise s that human beings have a right to
a sphere of intimacy and autonomy that should be protected from invasion. This right serves to
foster human dignity.”
MHLANTLA J
37
[69] Therefore, the principle of freedom of testation is at the heart of testate succession
and cloaked in constitutional protection by virtue of the rights to property, dignity, and
privacy. Freedom of testation thus informs public policy and carries significant weight in
any analysis of what public policy, as infused with our constitutional values, dictates.
[70] However, one cannot ignore that there are competing values at play. Our
Constitution also envisages and promises a democratic State based on “human dignity, the
achievement of equality . . . non -racialism and non-sexism . . . and the supremacy of the
Constitution”.137 Furthermore, it protects all persons from direct or indirect unfair
discrimination, both in the public and private sphere. It is therefore evident that the
common law position – where out -and-out disinherit ance clauses in private wills have
seemingly been out of reach of the courts’ powers to declare them unenforceable on public
policy grounds – cannot be maintained. This is because, in a constitutional dispensation
based on the supremacy of the Constitution, we are enjoined to recognise both freedom of
testation as well as recognise the principle of non-discrimination even in the private sphere.
We, therefore, have no choice but to navigate the point at which they interact.
Retrospectivity
[71] Before addressi ng the question whether public policy, infused with our
constitutional values, would find the impugned clause 7 unenforceable , i t is critical to
dispose of an issue raised by the respondents concerning retrospectivity. The respondents
submit that the Constitution cannot reach backwards so as to invalidate actions taken under
then valid laws, even if those laws are contrary to fundamental rights. The practical
implication of this view is that a litigant can only seek constitutional relief for a violation
of human rights by conduct that occurred after the commencement of the Constitution.
137 Section 1(a)-(c) of the Constitution.
MHLANTLA J
38
[72] I disagree. Public policy is considered in light of the boni mores (good values) of
today, as infused with our constitutional values and “it is axiomatic that the public policy
of 1902 does not necessarily correspond in all respects with the public policy of today”.138
Since this matter focuses, via the common law, on the question of public policy, this elusive
concept139 is by its very nature ever -evolving – so too the common law is ever-evolving.
These types of enquiries involve, by virtue of the doctrine of precedent, a backwards and
forwards process of adjudication.140
[73] Before the advent of the Constitution, courts in this country had the power to
develop the common law through their jurisprudence in light of public policy and adjust it
to the ever-changing needs of society.141 It has been said that “determining the content of
public policy was once fraught with difficulties”. 142 Now, however, we have instructive
guidance since public policy is deeply rooted in our Constitution and its ingrained values.143
Therefore, applying the public policy of today does not raise the question of the
138 Syfrets above n 29 at paras 25-6 and noted at para 23 “the position in this regard is analogous to the principle in the
law of contract regarding contractual provisions which are contrary to public policy and it would appear that identical
considerations apply to both fields”.
139 Along with boni mores, legal convictions of the community, norms of conduct required by the society and the
general standard of reasonableness.
140 Davis “How Many Positive Legal Philosophers Can Be Made To Dance on the Head of a Pin? A Reply to Professor
Fagan” (2012) 129 SALJ 59 at 70 said:
“In order to determine the ambit of the rule, we move backwards to divine the meaning of the past.
In this way judges decide a case by considering a past rule, the application of which holds
implications for the future . The court may deviate from the past in order to develop the rule for
present or future application. In evaluating past decisions as a means by which to confront the
future, courts are guided by some normative idea which informs the legal system, past, present and
future.”
141 Corbett “Aspects of the Role of Policy in the Evolution of our Common Law” (1987) 104 SALJ 52 at 59 and 67
said that:
“When the court is confronted with a legal problem in the common -law for which there is no
precedent or authority and whether the judge has thus to step into the unknown; or when the court
is asked to depart from the common law precedent and strike out in a new direction .”
142 Barkhuizen above n 22 at para 28.
143 Id and above n 11. Syfrets above n 29 at para 24 states t hat “since the advent of the constitutional era, however,
public policy is now rooted in the Constitution and the fundamental values it enshrines, thus establishing a normative
value system”.
MHLANTLA J
39
retrospective application of the Constitution. Rather, it is consistent with the role of courts
to develop the common law to bring it in line with the Constitution.
[74] In any event, we are dealing with the enforcement of the testamentary provisions,
which occurred in 2015 on the death of Mr Kalvyn de Jager, and not the dr afting of the
provisions which dates back to the early 1900’s. It is perspicuous that public policy is
determined or measured as it is at the time that the will, or any provision therein, is
enforced, not the point at which it is executed. Thus, the issu e of retrospectivity that the
respondents are concerned with, must fall to be dismissed as devoid of merit.
[75] Our Constitution affords our society the opportunity and duty to jettison overt and
covert patriarchal practices that still remain prevalent. Given our past and present, coupled
with our entrenched constitutional values, the common law must be developed to give
effect to the spirit, purport and objects of the Bill of Rights . In other words, it must
establish a “constitutionally -founded boni mores criterion”144 to tackle out - and-out
disinheritance clauses of this nature where they appear in the private sph ere. I expand
below on discriminatory testamentary bequests on the grounds of gender and sex and
whether the clause before us , and those similar to it, ought to be declared unenforceable
based on public policy.
Is clause 7 contrary to public policy?
[76] It i s common cause that the impugned clause is unfairly discriminatory. 145 The
respondents acknowledge that there may be testamentary provisions in the private sphere
that are so fundamentally against public policy as to be “abhorrent” and should, therefore,
not be enforceable by courts. They submit that discrimination on the basis of gender and
144 Du Toit “The Constitutionally Bound Dead Hand – The Impact of Constitutional Rights and Principles on Freedom
of Testation” (2001) 12 Stellenbosch Law Review 222 at 227.
145 The respondents conceded this point in oral argument before this Court.
MHLANTLA J
40
sex, without more, is not abhorrent. I disagree. The respondents fail to account for the
significance of our entrenched constitutional values, and specifically, the rights to equality
and non-sexism.
[77] Equality as an entrenched right and founding value is perspicuously the lodestar of
our transformative constitutional project. This Court has said:
“The achievement of equality goes to the bedrock of our constitutional architecture. The
Constitution commands us to strive for a society built on the democratic values of human
dignity, the achievement of equality, the advancement of human rights and freedom. Thus
the achievement of equality is not only a guaranteed and ju sticiable right in our Bill of
Rights but also a core and foundational value; a standard which must inform all law and
against which all law must be tested for constitutional consonance.”146
[78] Similarly, in Fraser,147 this Court stated that “there can be no doubt that the
guarantee of equality lies at the very heart of the Constitution. It permeates and defines
the very ethos upon which the Constitution is premised” .148 Equality as a founding value
underpins our constitutional democracy and informs public policy.
[79] The historical analysis above illustrates that the facially neutral principle of freedom
of testation as it currently stands reinforces patriarchal and outdated ideas concerning sex,
gender, property, ownership, family structures and n orms. Our courts are aware of the
impact of discriminatory testamentary bequests on women. In re Heydenrych
Testamentary Trust,149 in the context of a public charitable trust, the applicants submitted
that direct discrimination on the basis of sex and gend er should be treated “more
146 Minister of Finance v Van Heerden [2004] ZACC 3; 2004 ( 6) SA 121 (CC); 2004 (11) BCLR 1125 (CC) at para
22 (Van Heerden).
147 Fraser v Children’s Court, Pretoria North [1997] ZACC 1; 1997 (2) SA 261 (CC); 1997 (2) BCLR 153 (CC).
148 Id at para 20.
149 In re Heydenrych Testamentary Trust 2012 (4) SA 103 (WCC).
MHLANTLA J
41
circumspectly” than direct discrimination on the basis of race.150 The amicus curiae151 took
issue with the discriminatory provisions on the ground of gender.152 The Court found that
the impugned conditions in that trust constituted unfair discrimination on grounds of
gender and race.153
[80] Furthermore, in Bhe, Ngcobo J correctly anchored our obligations to counter
discrimination against women as stemming from core -binding international instruments
such as the Convention on the Elimination of All Forms of Discrimination Against Women
(CEDAW)154 coupled with the African (Banjul) Charter on Human and Peoples’ Rights.155
[81] In order to answer the question whether the unfairly discriminatory clause in issue
is unenforceable, this Court has to consider whether it is inimical to public policy, as
imbued with the Constitution’s values and rights. As noted above, the principle of freedom
of testation gives effect to constitutional rights and these must be borne in mind in
determining public policy in this context. At the same time, discriminatory clauses infringe
upon the founding value of equality and the right to non -discrimination. Determining
public policy in this context requires due consideration of all the relevant rights and values.
[82] It cannot be gainsaid that private testamentary bequests (when juxtaposed to public
trusts) relate to our most intimate personal relationships and can very well be based on
irrational and erratic decisions which are located in the domain of the “most intimate core
of privacy”. It is, therefore, apposite for the right to privacy to play an active role in
150 Id at para 2.
151 Women’s Legal Centre intervened.
152 In re Heydenrych Testamentary Trust above n 149 at para 3.
153 Id at para 20.
154 Bhe above n 93 at para 51.
155 Articles 1, 2 and 5(a). South Africa signed the Convention on 29 January 1993 and ratified it on 14 January 1996.
MHLANTLA J
42
determining whether judicial interference can enter the perimeter of private testamentary
bequests. This, in turn, buttresses the point that when courts intervene in private
testamentary bequests of this nature there ought to be a lower level of judicial scrutiny.
[83] Bequests that entail fideicommissa are already regulated by the law. 156
Fideicommissa tend to run over a long period and impact successive generations and they
often concern beneficiaries unknown to the testator. This influences our decision to allow
a court to reach a finding that unfair discriminatory clauses in fideicommissa are con trary
to public policy and that it may be justified for a court to declare such provisions
unenforceable. Private testamentary bequests are in the truly personal realm. However,
some of these bequests discriminate against a testator’s unknown lineal desc endants, with
whom the testator never had personal relationships or interactions , solely based on
immutable characteristics. In those instances, there is a shift along the continuum, which
warrants a greater level of judicial intervention.
[84] With the above in mind, the immutable characteristic at issue here is womanhood;
the testators excluded future lineal female descendants unknown to them simply because
they are women. As the applicants submit, “in this instance, a testator is not excludin g a
particular individual or individuals because their idiosyncrasies are disfavoured by the
testator. Here the testator excludes future beneficiaries unknown to him simply because
they are women, and includes future unknown beneficiaries simply because they are men”.
There is no relevant armchair or extrinsic evidence to show the contrary. It is the “unknown
lineal descendants” element of this bequest, along with other elements discussed above,
that weighs in the direction of favouring the right to non -discrimination over absolute
freedom of testation in cases like these. It can never accord with public policy for a testator,
even in the private sphere, to discriminate against lineal descendants unknown to her or
him purely on the ground of gender. No privacy or property right considerations can ever
156 In terms of the Immovable Property (Removal or Modification of Restrictions) Act 94 of 1965.
MHLANTLA J
43
trump that; that is simply the sort of discrimination that our present -day public policy
cannot countenance. Any sense that this view is violative of dignity or property interests
is not worthy of being countenanced by our constitutional order. This being presumptively
unfair discrimination, 157 today’s public policy simply cannot admit of the constitutional
protection of discrimination of that nature.
[85] All this leads me to the conclusion that unfair discrimination against women in the
context of private out-and-out disinheritance clauses against unknown lineal descendants
is abhorrent and inimical to our constitutional rights and values. This manner of unfair
discrimination is contrary to our constitutionally infused conception of public policy. It
has gone on long enough and must be stopped.
Remedy
[86] What remains is the question of remedy, and in particular whether this Court should
vary or rectify clau se 7. In doing so, it must be borne in mind that c ourts should be
circumspect that amending or varying the terms of testamentary provisions is a last resort
in view of the importance of freedom of testation to our constitutional dispensation. O n
these facts, however, it is not appropriate to vary the provision , since it is the final
substitution of the fideicommissum, 158 and in any event, a variation would not be fair in
light of the prior generations of women who have already been left out.
[87] A just and equitable remedy will be one where a declaration is made that clause 7 is
unenforceable from the date of this judgment coupled with a declaration that, for the
157 In terms of section 9(5), read with section 9(3) of the Constitution, discrimination on the ground of gender is
presumed to be unfair.
158 According to the Immovable Property (Removal or Modifications of Restrictions) Act, a testator cannot prevent
the alienation of land by means of a long -term fideicommissa. Sections 6, 7 and 8 of the Act provide that long -term
provisions are restricted to two fideicommissaries.
MHLANTLA J / JAFTA J
44
purposes of the final substitution, the second to sixth applicants a re beneficiaries of equal
shares of the fideicommissary property.
Conclusion
[88] It follows that the appeal must be upheld. Clause 7 of the will of the late Mr
Carel Johannes Cornelius de Jager and the late Mrs Catherine Dorothea de Jager dated 28
November 1902 is unconstitutional, invalid and must be declared unenforceable. Had I
commanded the majority reasoning, I would have issued a declaratory order that clause 7
is contrary to public policy. To ensure that the applicants are afforded effective relief, I
would have also made a declaratory order that the second to sixth applicants are
beneficiaries of equal shares of the fideicommissary property.
JAFTA J (Mogoeng CJ, Majiedt J, Mathopo AJ and Victor AJ concurring):
Introduction
[89] I have had the benefit of reading the judgment of my colleague Mhlantla J
(first judgment). I agree that the appeal must be upheld and that the impugned clause of
the will should be declared unenforceable. I also think that relief should be granted in
favour of the applicants. But my reasons differ materially from those furnished by my
colleague.
[90] I do not think that the public policy relevant to this matter must be determined by
preferring the value of equality over those of freedom and dignity. Nor do I think that it is
necessary to develop the common law. As the common law presently stands, unlawful
wills and those that are contrary to public policy are not enforceable.159
159 Harvey above n 20 at para 65.
JAFTA J
45
[91] Moreover, as the first judgment illustrates, our courts accept that freedom of
testation constitutes a right protected by section 25(1) of the Constitution. 160 This
compounds the complex issue of determining whether freedom of testation is contrary to
public policy. This is because our public policy rests on the values underlying the
Constitution. At the very least it appears that there is a clash of some of those values here.
The value of equality, on the one hand, collides with the values of freedom and dignity, on
the other.
[92] The first judgment seeks to resolve this difficulty by making reference to the origins
of freedom of testation. It concludes that freedom of testation is a neutral principle “steeped
in patriarchal and outdated ideals concerning sex, gender, property ownership, family
structures and norms”.161 Building on an academic article that concludes that freedom of
testation perpetuates discrimination against women who were historically excluded from
ownership of property, the first judgment holds that unfair discrimination against women
in the context of inheritance is “abhorrent and inimical to our constitutional rights and
values”.162
[93] As I see it, this conclusion conflates the conduct of unfair discrimination with
freedom of testation. While unfair discrimination is plainly not in line with the value of
equality, it does not constitute freedom of testation. The first judgment acknowledges that
freedom of testation is “a neutral principle” and as such, it may not be equated to unfair
discrimination which is a consequential act of a particular clause in a will. Freedom of
testation should not be confused with the terms of a particular will , nor should it be taken
as a licence to unfairly discriminate.
160 Syfrets above n 29; BOE Trust Supreme Court of Appeal judgment above n 60 at para 26.
161 First judgment at [79].
162 Id at [85].
JAFTA J
46
[94] Freedom of testation entails a testator’s right to dispose of her estate as she pleases
in a will, provided that the disposition is lawfu l and is not contrary to public policy. 163
Subject to these restrictions she is free to do as she wishes with her property and her wishes
must be respected, after her departure from this world. These limitations render freedom
of testation flexible. In it s current form the principle does not justify testamentary
provisions which are illegal or contrary to public policy.
[95] Proceeding from the premise that freedom of testation is a neutral principle, it is
difficult to appreciate how at the same time it can b e said it has deficiencies of the nature
that warrants its development as contemplated in section 39(2) of the Constitution. This
Court has emphasised under this section that the common law development is triggered
when that law deviates from the spirit, purport and objects of the Bill of Rights.164
[96] Since freedom of testation in its present form acknowledges that a will that is
contrary to public policy is unenforceable, there is no need to develop it to achieve what is
already obtainable. I can think of no deviation of freedom of testation from the objects of
the Bill of Rights which warrants development in this matter. With regard to the claim
based on public policy, the applicants are entitled to assert that clause 7 is unenforceable
for being contrary to the value of equality and for that reason, the clause is contrary to
public policy. They do not need the development of the common law in order to succeed
in their claim. Nor can the respondents resist the claim on the ground that freedom of
testation permits the breach of the equality value.
163 Harvey above n 20 at para 56.
164 Carmichele above n 75 at paras 33-5.
JAFTA J
47
Issue
[97] As I see it, the question that arises for consideration is whether the clause that gives
rise to unfair discrimination in the present will may be enforced in light of section 9 of the
Constitution. The issue arises here because parties on both sides agree that the impugned
clause unfairly discriminates against women. Proceeding from this common cause fact,
the applicants ask that, by order of the court, the will be amended by deleting certain words
and replacing them with words which are not discriminatory against women.
[98] But before I address the question, I need to clarify one matter. This is the conflation
of the public policy claim with the equality claim in the judgment of the High Court and to
some extent in the first judgment. These are discrete claims with distinct elements. For
example, in an equality claim the complaint is that the right to equality is violated, and not
the value of equality. Whereas in a public policy claim the complaint is that certain conduct
is contrary to the value of equality. With regard to the latter, the justification analysis under
section 36 of the Constitution is inapposite because that section applies to a limitation of
rights and not to what is inconsistent with values. Departing from this erroneous premise,
the High Court mistakenly defined the issue before it as being whether “the impugned
provision of clause 7 of the will, can be justified under the limitation clause in section 36
of the Constitution”.165
[99] This was plainly in error. Section 36 expressly prescribes that rights in the Bill of
Rights may be limited only in terms of law of general application. Clause 7 of the will we
are concerned with is not a law, let alone a law of general application. This simply means
that clause 7 cannot constitute a limitation that is reasonable and justifiable in an open and
democratic society based on human dignity, equality and freedom. But this was not the
only error committed by the High Court. In the section 36 justification analysis undertaken
165 High Court judgment above n 5 at para 71.
JAFTA J
48
by that Court, it appears that the Court understood the limitation it was dealing with to have
been a limitation of the right to freedom of testation.
[100] The High Court stated:
“In applying the limitation test it is significant that two of the three values mentioned in
section 36, human dignity and freedom, are engaged when exercising one's right to freedom
of testation. The right to equality or to equal treatment, although fundamental, is a broadly
stated right and must, in appropriate instances, give way to competing rights.
As far as the importance of the limitation is concerned, no material has been placed before
the court to indicate whether similar discriminatory provisions in private wills are a
commonplace problem which justifies such a potentially farreaching limitation. The
envisaged limitation, namely, that one cannot dispose of one's property without first
complying with an equality equation, would make a significant inroad upon the right to
freedom of testation and may well produce unintended consequences, including those
referred to above.
. . .
Whilst the relationship between the limitation of the right to freedom of testation in the
present matter and its purpose is clear, it is difficult to conceive of a less restrictive means
to achieve the purpose.”166
[101] Relying on the minority judgment in De Lange,167 the High Court held that because
the discrimination occurred in “the private and limited sphere of testators and their direct
descendants”, the discrimination “effected by clause 7 of the will is reasonable and
justifiable, particularly given the importan ce accorded to the right to freedom of
testation.”168
166 Id at paras 73 and 76.
167 De Lange v Presiding Bishop of the Methodist Church of Southern Africa for the time being [2015] ZACC 35;
2016 (2) SA 1 (CC); 2016 (1) BCLR 1 (CC).
168 High Court judgment above n 5 at paras 75 and 80.
JAFTA J
49
[102] It may well be that the High Court was inaccurate in the articulation of its reasons.
What in effect it wanted to say was that the limitation on the applicants’ equality right was
brought about by the principle of freedom of testation and that clause 7 was authorised by
that principle. If this was what the High Court intended to say, the question is whether the
requirements of section 36 of the Constitution are satisfied.
[103] But the High Court defined the core issue that confronted it in these terms:
“[T]he question must be whether public policy has advanced to the extent that courts should
be empowered to act as the final arbiter of whether a testator may discriminate, even
unfairly so, in his or her private will.”169
[104] This definition of the real issue as seen by the High Court was influenced by the
minority reasoning in De Lange which the High Court understood to be saying courts
should not interfere in “people’s private lives and personal preferences”. 170 It was in this
context that the High Court concluded that , even if it were to be assumed in favour of the
applicants that they had a right to be treated equally with the testator’s male descendants,
the unfair discrimination that they were subjected to by clause 7 of the will was reasonable
and justifiable.171
[105] It is unfortunate that, despite all these missteps in the High Court’s judgment, the
Supreme Court of Appeal merely issued an order dismissing the appeal to it without
reasons.172 This unusual approach in disposing of an appeal meant that the Supreme Court
of Appeal endorsed the reasons of the High Court. Courts are under a duty to give reasons
169 Id at para 78.
170 Id at para 75; De Lange above n 167 at para 79.
171 Id at para 80.
172 The order was issued by Cachalia JA (with Tshiqi JA, Saldulker JA, Mokgohloa AJA, and Mothle AJA concurring).
JAFTA J
50
for their decisions and here the Supreme Court of Appeal has failed to discharge that
obligation.
[106] In Mphahlele this Court affirmed this principle and stated:
“There is no express constitutional provision which requires Judges to furnish reasons for
their decisions. Nonetheless, in terms of section 1 of the Constitution, the rule of law is
one of the founding values of our democratic state, and the Judiciary is bound by it. The
rule of law undoubtedly requires Judges not to act arbitrarily and to be accountable. The
manner in which they ordinarily account for their decisions is by furnishing reasons. This
serves a number of purposes. It explains to the parties, and to the public at large which has
an interest in courts being open and transparent, why a case is decided as it is. It is a
discipline which curbs arbitrary judicial decisions. Then, too, it is essential for the appeal
process, enabling the losing party to take an informed decision as to whether or not to
appeal or, where necessary, seek leave to appeal. It assists the appeal Court to decide
whether or not the order of the lower court is correct. And finally, it provides guidance to
the public in respect of similar matters. It may well be, too, that where a decision is subject
to appeal it would be a violation of the constitutional right of access to courts if reasons for
such a decision were to be withheld by a judicial officer.”173
[107] Courts of appeal may not furnish reasons only where they decide an application for
leave to appeal. Here leave to appeal to the Supreme Court of Appeal was granted by the
High Court. This illustrates that th e High Court was persuaded that another court might
come to a different conclusion. In these circumstances, the Supreme Court of Appeal was
not excused from giving reasons for its order.
[108] It is now convenient to consider the claims presented to the High C ourt by the
applicants.
173 Mphahlele v First National Bank of SA Ltd [1999] ZACC 1; 1999 (2) SA 667 (CC); 1999 (3) BCLR 253 (CC) at
para 12.
JAFTA J
51
[109] The first claim was brought by the first applicant, Mr James King, in his capacity as
the executor in the deceased’s estate. Mr King is an attorney by profession. The will under
which he was appointed executor was that of the late Mr Kalvyn de Jager who died in 2015.
In his lifetime, the deceased had inherited and became co -owner of half of the undivided
shares in the farms Nieuwdrift Nr 88, Doornkuil and Buffelsdrift Nr 260, all of which are
located in the district of Oudtshoorn. But the deceased’s co-ownership was subject to the
fideicommissum in clause 7 of the will of the deceased’s grandparents.
[110] These farms had been inherited by the deceased’s father as a fiduciary heir. And
upon the death of the deceased’s father in 1957, these properties were inherited by the
deceased and his two brothers in equal shares, as fiduciary heirs. When one of the
deceased’s brothers died with no children, his share in the properties devolved in equal
shares between the deceased and his other surviving brother. This meant that the deceased
and his surviving brother, Mr John de Jager, held equal half shares in the farms in question.
The title deed reflected this and stipulated that each share was subject to clause 7 of the
grandparents’ will.
[111] Clause 7 of that will reads:
“With respect to the bequest of grounds/land to their sons and daughters, as referred to
under Clauses 1, 2, 3, and 4 of this, their Testament, it is the will and desire of the appearers
that such grounds/land will devolve, following the death of their children, to said children's
sons and following the death of the said grandsons again and in turn t o their sons, in such
a way that, in the case of the death of any son or son's son who does not leave a male
descendant, his share/portion will fall away on the same conditions as above and therefore
pass to his brothers or their sons in their place and in the case of the death of a grandson
without any brothers, to the other Fidei Commissaire heirs from the lineage of the sons of
the appearers by representation, in continuity, and in the case of the death of a daughter or
a daughter's son without leaving a male descendant, her or his share will fall away in the
same way and on the same conditions, and go to the other daughters or their sons, by
representation, or the deceased's son's brothers or their sons per stirpes, respectively. And
JAFTA J
52
they stipulate furt hermore that none of their heirs down to the third generation will
renounce, by leasing, donating, selling, or in any other way whatsoever, his (or in the first
generation, her) life right or any interest therein/on and should any heir who is subject to
the Fidei Commissum, attempt such renunciation, or should such life right or any interest
therein be arrested or be seized under the order/sentence of a court or as a result of
insolvency of the person to whom the above belongs, then his right will, with imm ediate
effect take an end and will be accepted by the hereinafter appointed administrators, who
will, as they deem fit and at their discretion, from time to time, pay out the fruits thereof to
such person, or invest said capital until his death when the sa id amount will devolve,
together with the grounds/land, to the nearest and next heir in line.”
[112] In terms of this clause, the fideicommissary property was supposed to pass from the
deceased and his brother to their respective sons only. Indeed, when Mr John de Jager died
in 2005, his half share was inherited by his three sons 174 who are the first to third
respondents in these proceedings. They were cited as such in the High Court.
[113] The deceased had 5 children at the time of his death in 2015. They are Ms Trudene
Forward; Ms Annelie Jordaan; Ms Elna Slabber; Ms Kalene Roux; and Ms Surina
Serfontein. All of them are females. And in terms of clause 7 of the grandparents’ will,
the fideicommissary property that was held by their father could not devolve upon t hem
for the sole reason that they were not sons. Yet in terms of the deceased’s will, his five
daughters inherited equally from his estate, including the fideicommissary property.
[114] The executor was then confronted by competing claims from the deceased’s
daughters, on the one hand, and the sons of the deceased’s brother, on the other. The claim
by the deceased’s daughters was based on his will. While the claim by the sons of his
brother was based on clause 7 of the grandparents’ will which stipulated that on the
deceased’s death his share shall fall away and devolve upon the sons of the deceased’s
174 These sons were Mr Cornelius Albertus de Jager, Mr Johannes Frederick de Jager, and Mr Arnoldus Johannes de
Jager.
JAFTA J
53
brother, just like the share of the deceased’s brother who died childless devolved on the
deceased and his surviving brother. This was because the deceased had no sons.
[115] As the executor of the deceased’s estate, the first applicant was advised to seek
guidance from the High Court on who are the rightful heirs of the fideicommissary
property. He instituted an application for a declaratory order. But he expressed a view that
clause 7 unfairly discriminated against female descendants of the grandparents and
therefore could not be enforced on the ground that it was contrary to public policy.
[116] The deceased’s daughters joined the proceedings as second to sixth applica nts.
They did so both in their capacities as claimants and co -executors under the deceased’s
will. They cited the sons of the deceased’s brother as the first to third respondents , the
latter parties had laid claim to the fideicommissary property in terms of clause 7. The
fourth to eighth respondents are sons of the deceased’s daughters, the second to sixth
applicants. The latter group had claimed that , as grandsons of the deceased, they were
entitled to inherit his share, if their mothers’ claims were not successful. They too sought
to base their claim on clause 7.
[117] Each group of these claimants sought a decision in their favour from the High Court.
The case pleaded by the deceased’s daughters was two -fold. First, they supported the
contention by the first applicant, the executor, that clause 7 was against public policy.
Second, they contended that the clause violated their right to equality which is guaranteed
by section 9 of the Constitution. Consequently, they asked the Court to invalidate the
discriminatory terms of clause 7 and replace them with terms that cover both male and
female descendants of the testators.
[118] For their part, the sons of the deceased’s brother asserted that on a proper
interpretation of clause 7, the fideicommissary property must devolve on them. They
argued that in the past the clause was given the interpretation they were advancing. This
JAFTA J
54
interpretation benefited the deceas ed and their father on the occasion of the death of an
uncle who had no children. They argued that the testators’ intention was manifestly that
the fideicommissary property would remain in the De Jager family for three generations,
devolving upon grandson s and great -grandsons. And where a fiduciary heir has left no
son, their share would devolve upon his surviving brothers or their sons if a brother has
died before that fiduciary heir. This, they argued, was the wish of the testators and it must
be respected.
[119] Having considered a number of decisions on the relevant topics, the High Court
concluded that clause 7 was not contrary to public policy. That Court also rejected the
equality claim on the ground that the unfair discrimination imposed by clause 7 w as
reasonable and justifiable under section 36 of the Constitution. It will be recalled that the
High Court took the view that the unfair discrimination complained of occurred “in the
private and limited sphere of testators and their direct descendants”, and thus it affected a
limited number of persons for a limited duration.
[120] The High Court proceeded to consider the alternative claim by the sons of the
deceased’s daughters and concluded that they have failed to make out a proper case for the
relief sought. Consequently, the application was dismissed with no order as to costs.
[121] For reasons which are not apparent from the judgment, the High Court failed to
determine and declare who of the three groups was entitled to receive the fideicommissary
property, as requested by the executor of the deceased’s estate. That issue remains
unresolved and the Supreme Court of Appeal did not consider it necessary to determine the
issue, even though guidance was required by the executor.
[122] At the heart of the process of det ermining who is entitled to the
fideicommissary property is clause 7 of the will. The answer to this question depends on
whether the discriminatory part of the clause is presently enforceable.
JAFTA J
55
Is clause 7 enforceable?
[123] The testator’s testamentary freedom finds expression in her ability to dispose of her
property in whatever manner she considers necessary. It is the freedom of testation right
that entitles a testator to put in place whatever conditions she likes upon the disposal of her
property by means o f a will. And her wishes must be respected and enforced subject to
one fundamental condition. That is whatever method she may choose, in the exercise of
freedom of testation, must not be unlawful or contrary to public policy.
[124] Therefore, it cannot be gainsaid that freedom of testation, as a right, is protected in
our law. It is protected not only because it forms part of our common law, but also because
it advances the values of freedom and dignity which are the foundation of the Constitution,
our supreme law.175 The importance of freedom of testation to our law of succession was
affirmed by this Court in Moosa N.O.176
[125] But freedom of testation, important as it is, is not a licence for testators to act
unlawfully. This means that a testator may not dispose of her property in a will or trust
deed by unlawful methods. Nor can she impose unlawful conditions. If she does any of
these things, she renders the will unenforceable to the extent of the unlawfulness. This is
because a testator cannot, after departin g from this world, do what she could not achieve
in her lifetime. The right of ownership, of which freedom of testation forms part, entitles
the owner to do as she pleases with her property, as long as what she chooses to do is
permissible under the law.
[126] In Harvey, the Supreme Court of Appeal captured this principle in these words:
175 Syfrets above n 29 and BOE Trust Supreme Court of Appeal judgment above n 60.
176 Moosa above n 124 at para 18.
JAFTA J
56
“The right of ownership permits an owner to do with her thing as she pleases, provided
that it is permitted by the law. The right to dispose of the thing is central to the concept of
ownership and is a deeply entrenched principle of our common law. Disposing of one’s
property by means of executing a will or trust deed are manifestations of the right of
ownership. The same holds true under the Constitution.”177
[127] Even before the Constitution came into force, unlawful terms of a will or trust deed
were unenforceable on the ground that it was contrary to public policy for a court to enforce
unlawful acts.178 This was a principle of the common law which remains good law even
today. But now the principle is reinforced by the Constitution which declares that any law
or conduct which is inconsistent with it, is invalid. 179 The supremacy clause of the
Constitution together with section 172(1) impose a duty on courts to uphold the
Constitution.180
[128] This obligation entails that a court may not enforce a will or trust deed which is
inconsistent with the Constitution. Instead, such will or trust deed must be declared invalid
to the extent of its inconsistency with the Constitution. This means that if clause 7 of the
will we are dealing with here is inconsistent with the Constitution, it cannot be enforced
and it must be declared invalid.
177 Harvey above n 20 at para 56.
178 Cool Ideas v 1186 CC Hubbard [2014] ZACC 16; 2014 (4) SA 474 (CC); 2014 (8) BCLR 869 (CC).
179 Section 2 of the Constitution provides:
“This Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid,
and the obligations imposed by it must be fulfilled.”
180 Section 172(1) of the Constitution provides:
“When deciding a constitutional matter within its power, a court
(a) must declare that any law or conduct that is inconsistent with the Constitution is invalid
to the extent of its inconsistency; and
(b) may make any order that is just and equitable, including—
(i) an order limiti ng the retrospective effect of the declaration of invalidity; and
(ii) an order suspending the declaration of invalidity for any period and on any
conditions, to allow the competent authority to correct the defect.”
JAFTA J
57
Inconsistency
[129] It is not in dispute that clause 7 limited inheritance of the fideicommissary property
to male descendants, to the exclusion of female descendants of the testators. What this
illustrates is that, beyond the first generation of the descendants of the original testators,
the late Mrs Catherine Dorothea de Jager and the late Mr Carel Johannes Cornel ius de
Jager, the clause denied female descendants the benefit of inheriting the property. This
denial on its own does not lead to an inconsistency with the Constitution , because it may
constitute legitimate differentiation when account is taken of the te stator’s freedom of
testation and the fact that no descendants had a right to inherit any of the fideicommissary
property.
[130] Even if the denial amounted to discrimination, it would still not be inconsistent with
the Constitution. This is because the Consti tution does not prohibit fair discrimination.
The inconsistency would arise if the discrimination is unfair to the second to sixth
applicants. And this enquiry may be determined with reference to the specific facts of this
case. Since the discrimination was based on gender, one of the grounds listed in section
9(3),181 the applicants were assisted by the presumption in section 9(5) 182 in establishing
that clause 7 creates unfair discrimination.
[131] This presumption shifted the burden to the first to third respondents to show that the
discrimination in question was fair. These respondents have failed to do this. In fact, they
admitted that clause 7 had caused unfair discrimination. This admission is crucial to the
181 Section 9(3) of the Constitution provides:
“The state may not unfairly discriminate directly or indirectly against anyone on one or more
grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual
orientation, age, disability, religion, conscience, belief, culture, language and birth.”
182 Section 9(5) provides:
“Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is
established that the discrimination is fair.”
JAFTA J
58
adjudication of this case. It means that the question whether the clause in question is
inconsistent with the Constitution must be assessed on the basis that the clause unfairly
discriminated against the second to sixth applicants.
[132] Section 9(4) of the Constitution is vital to the enquiry. It provides:
“No person may unfairly discriminate directly or indirectly against anyone on one or more
grounds in terms of subsection (3). National legislation must be enacted to prevent or
prohibit unfair discrimination.”
[133] Plainly, this provision prohibits every person, including a testator, from unfairly
discriminating against another person on one or more of the grounds listed in section 9(3).
Evidently this restricts the scope of the right of freedom of testation. In exercising the right
to dispose of her property, a testator may not unfairly discriminate against another person.
If the manner in which the testator chooses to dispose of her property or the conditions she
imposes on that disposal constitutes unfair discri mination against any person, her will
becomes inconsistent with section 9(4) of the Constitution.
[134] In addition, the terms of a will must not violate the prohibition against unfair
discrimination in the legislation contemplated in section 9(4) of the Consti tution. It is not
in dispute that the Promotion of Equality and Prevention of Unfair Discrimination Act is
such legislation. This Act prohibits unfair discrimination in general and specific terms.
Section 6 stipulates that no person may unfairly discrim inate against another person,
whereas section 8 provides that no person may unfairly discriminate against another person
on the ground of gender, including on the specific grounds listed in that section.
[135] The High Court rejected the assertion that clause 7 was unlawful as it violated
section 8 of the Act, on the basis that section 8(c) refers to “the system of preventing women
from inheriting family property”. The High Court reasoned that clause 7 does not
JAFTA J
59
constitute a system in terms of which women were p revented from inheriting family
property.183 While it may be true that the clause does not amount to a system, it cannot be
gainsaid that the clause prevented female descendants of the testators from inheriting the
fideicommissary property of the De Jager family.
[136] The overly narrow interpretation of section 8 by the High Court is not supported by
the scheme and the language of section 8. First, section 8 expressly states that it is subject
to section 6 which provides for an overriding general prohibition ag ainst unfair
discrimination based on gender. The reach of section 8 is not limited to the specific bases
listed in section 8(a) to (i). This is so because the opening words of the section state that
“no person may unfairly discriminate against any person on the ground of gender,
including…”. Then specific bases are listed. Properly construed, section 8 prohibits any
unfair discrimination on the ground of gender, regardless of whether the discrimination is
on the listed bases or not. The prohibition aga inst unfair discrimination on the ground of
gender is not limited but includes the listed bases. That this is so is made plain by
New Nation Movement where, quoting from New Clicks ,184 this Court held that
“[o]rdinarily, ‘the terms “including” or “includes” are not terms of exhaustive definition
but terms of extension’”.185
[137] Consequently, the High Court erred in concluding that clause 7 does not violate
section 8 of the Act. It does, and as a result, the clause is unlawful. It is this unlawfulness
which renders clause 7 unenforceable, regardless of whether the unlawfulness stems from
the inconsistency with section 9(4) of the Constitution or from a violation of section 8 of
the Act. From time immemorial, our courts have declined to enforce clauses of wills o r
183 High Court judgment above n 5 at para 53.
184 Minister of Health v New Clicks South Africa (Pty) Ltd (Treatment Action Campaign as Amicus Curiae )
(New Clicks) [2005] ZACC 14; 2006 (2) SA 311 (CC); 2006 (1) BCLR 1 (CC) at para 455.
185 New Nation Movement NPC v President of the Republic of South Africa [2020] ZACC 11; 2020 (6) SA 257 (CC);
2020 (8) BCLR 950 (CC) at para 23.
JAFTA J
60
wills that are unlawful or contrary to public policy. It appears to me that public policy
requires no development in this regard.
[138] However, the first to third respondents have argued that when the unfair
discrimination in issue here is subjected to a justification analysis in terms of section 36 of
the Constitution, it is reasonable and justifiable. With regard to the claim based on public
policy, there is no merit in this submission. As mentioned, a section 36 analysis applies to
a limitation of a rig ht in the Bill of Rights. It is not applicable to a case of unlawfulness
which renders conduct unenforceable on the ground that enforcing it would be contrary to
public policy.
[139] For a number of reasons, the proposition that the unfair discrimination arising from
clause 7 is reasonable and justifiable, as contemplated in section 36, is misconceived. First,
the invalidity attack mounted by the applicants here is not directed at a piece of legislation
but at a clause in a will. The first to third respondents, in an attempt to ward off that claim,
did not assert that the unfair discrimination complained of was imposed by a particular law
and that it was a reasonable and justifiable limitation in terms of section 36. Instead, they
contended that the impugned clause expresses the intention of the testators to keep the
fideicommissary property in the De Jager family and as a result, it must be enforced, as it
had been previously.186
[140] Had the respondents relied on a law to justify the unfair discrimination, I have no
doubt that the focus of the challenge would have been directed at that law. Then, and only
then, would the section 36 standard be applicable. It will be recalled that section 36 permits
limitation of rights in the Bill of Rights only if the limitation is imposed by a law of general
186 High Court judgment above n 5 at paras 22-4.
JAFTA J
61
application. Indeed, it is clear from Harksen187 that the test it lays down applies to an attack
against a legal provision or an executive decision. In that matter, this Court said:
“Where section 8 is invoked to attack a l egislative provision or executive conduct on the
ground that it differentiates between people or categories of people in a manner that
amounts to unequal treatment or unfair discrimination, the first enquiry must be directed
to the question as to whether the impugned provision does differentiate between people or
categories of people. If it does so differentiate, then in order not to fall foul of section 8(1)
of the interim Constitution there must be a rational connection between the differentiation
in question and the legitimate governmental purpose it is designed to further or achieve. If
it is justified in that way, then it does not amount to a breach of section 8(1).”188
[141] But even if the Harksen test were to apply and that there was a limitation impos ed
by a law of general application, the respondent’s argument would still face considerable
difficulties. It is doubtful that unfair discrimination which is expressly prohibited by
section 9(4) of the Constitution may constitute a reasonable and justifiable limitation under
section 36 of the Constitution. If these two provisions of the Constitution were to be read
this way, a conflict between them would arise. What is unlawful under one provision
would be lawful under the other. It is a well -established principle of our law that the
Constitution must be read harmoniously .189 In addition, on the respondents’ argument, a
further conflict will be created between the law that imposes unfair discrimination as a
limitation and the legislation envisaged in section 9(4). And for the unfair discrimination
to withstand scrutiny, the former must prevail over the latter. Here this would mean that
the common law trumps the statute. This does not accord with the principle that in the case
187 Harksen above n 49 at para 54.
188 Id at para 43.
189 Doctors for Life International v Speaker of the National Assembly [2006] ZACC 11; 2006 (6) SA 416 (CC); 2006
(12) BCLR 1399 (CC) at para 48 and United Democratic Movement v President of the Republic of South Africa
(African Christian Democratic Party intervening; Institute for Democracy in South Africa as amicus curiae) (No 2)
[2002] ZACC 21; 2003 (1) SA 495 (CC); 2002 (11) BCLR 1179 (CC) at para 83.
JAFTA J
62
of conflict, a statute takes precedence over the common law. However, it is not necessary
to determine this issue definitively in this matter.
[142] The second reason that renders the respondents’ argument untenable is that the
applicants were obliged by the principle of constitutional subsidiarity to base their
challenge on the Act. Under the Act, which outlaws unfair discrimination, the applicant is
merely required to prove that the conduct challenged amounts to discrimination. 190 He or
she is not required to show that indeed the discrimination is unfair. The burden of proof
shifts to the respondent who m ust refute that the discrimination has occurred or that it is
unfair. Discrimination which is based on one of the prohibited grounds under the Act is
presumed unfair unless the respondent shows that it is fair. Gender is one of the prohibited
grounds.
[143] In terms of the Act, once a court is satisfied that unfair discrimination has occurred,
the claim must succeed. There is no room for a justification analysis. Here the first to third
respondents have conceded that clause 7 unfairly discriminated against the second to sixth
applicants. This admission should have driven the High Court to the conclusion that clause
190 Section 13 of the Act provides:
“(1) If the complainant makes out a prima facie case of discrimination—
(a) the respondent must prove, on the facts before the court, that the
discrimination did not take place as alleged; or
(b) the respondent must prove that the conduct is not based on one or more of the
prohibited grounds.
(2) If the discrimination did take place—
(a) on a ground in paragraph (a) of the definition of ‘prohibited grounds’, then it
is unfair, unless the respondent proves that the discrimination is fair;
(b) on a ground in paragraph (b) of the definition of ‘prohibited grounds’, then it
is unfair—
(i) if one or more of the conditions set out in paragraph (b) of the
definition of ‘prohibited grounds’ is established; and
(ii) unless the respondent proves that the discrimination is fair.”
JAFTA J
63
7 was unenforceable and that an appropriate order was warranted.191 In each case where it
is claimed that the testator in her will has discriminated against someone, a careful analysis
will be essential to determine whether the discrimination was indeed unfair. But where, as
here, the unfairness of the discrimination is conceded, the need to decide this issue falls
away. In that event, the consequ ence would be that the discriminatory clauses are
unenforceable.
[144] It bears emphasis that in our law, no one has a right to inherit the testator’s property.
This includes her children. And the testator is free to dispose of her estate in a will in
whatever way she wishes, provided that she does not breach the law or public policy. When
these principles are kept in mind, a bequeath to some, and not all, of the testator’s children
does not without more constitute unfair discrimination and cannot be rendered ineffective
unless it is established that the will creates unfair discrimination.
[145] The fact that the will we are dealing with was executed in 1902, long before the
Constitution and the Act came into operation, is immaterial. Both of them are rendered
applicable to this matter by the fact that the first to third respondents seek to enfor ce
clause 7 of the will now. The testators had intended the clause to continue to apply until
the third generation of heirs has inherited the fideicommissary property. With regard to
this matter, that could only take place upon the deceased’s death in 2015.
Remedy
[146] The applicants had asked the High Court not only to declare that the discriminatory
terms of clause 7 were not enforceable, but also that those terms be excised from the clause
and replaced with non-discriminatory ones. Because the High Court did not consider the
clause to be contrary to public policy and the Constitution, it did not reach the severance
and reading-in remedies sought by the applicants. Generally, our courts are reluctant to
191 Section 21 of the Act empowers a court to make an appropriate order if unfair discrimination is established.
JAFTA J
64
change the terms of a will or trust deed. The ration ale being that courts are not there to
make wills for testators. And that freedom of testation, the foundation of our law of
succession, is so important that once the intention of the testator is established effect must
be given to it.192
[147] While this propos ition may be true, it is not the alpha and omega of our law of
succession. The respect enjoyed by the testator’s intention depends on whether that
intention was exercised within the confines of the law. Even at common law, wills which
are contrary to public policy, whether they contain unlawful, improper or indecent terms,
are not enforceable despite the intention of the testator.193 And unfair discriminatory terms
may be added to this list.194
[148] However, our courts have drawn a distinction between public and private trusts. In
the case of public trusts, courts have been willing to amend the trust deed to remove terms
that are unfairly discriminatory.195 It appears from the reasoning in both Syfrets and Emma
Smith that the distinction lies on the premise from which the courts departed. This is
evident in Syfrets where it was stated:
“What also serves to ‘outweigh’ the principle of freedom of testation, is the fact that one is
dealing, in this instance, with an ‘element of State action’, in the sense that ‘the institution
appointed to distribute the rewards of the test ator’s beneficence’ is a public agency or
quasi-public body, i.e. the university. As Du Toit points out:
‘State action renders the distribution practice of such an institution with
regard to the proceeds o f a charitable bequest open to a constitutional
192 Ex parte Kruger 1976 (1) SA 609 (O); Ex parte Jewish Colonial Trust Ltd: In re Estate Nathan 1967 (4) SA 397
(N); Jewish Colonial Trust above n 65; Ex parte Trustees Estate Loewenthal 1939 TPD 250.
193 Syfrets above n 29. See also William Marsh above n 43 at 703C-704.
194 Emma Smith above n 53 and Syfrets above n 29 at para 47.
195 Syfrets id.
JAFTA J
65
challenge simply on the ground that the Constitution prohibits the State
from conducting discriminatory practices.’
Moreover, a trust, though usually created by a private individual or group, is an institution
of public concern. This is a fortiori the position with regard to a charitable trust such as
the present trust.
Based on the foregoing analysis, I conclude that the testamentary provisions in question
constitute unfair discrimination and, as such, are contrary to public policy as reflected in
the foundational constitutional values of nonracialism, nonsexism and equality. It
follows, in my judgment, that this Court is empowered, in terms of the existing principles
of the common law, to order variation of the trust deed in question by deleting the offending
provisions from the will.”196
[149] Building on this reasoning, the Supreme Court of Appeal in Emma Smith said:
“The curators contended that the amendment of the will would interfere with freedom of
testation which, they argued, is not only a fundamental principle of the law of succession
but also part of the fundamental right not to be deprived of property in an unjustifiable
fashion. The constitutional imperative to remove racially restrictive clauses that conflict
with public policy from the conditions of an educational trust intended to benefit
prospective students in need and administered by a publicly funded educational institution
such as the University, must surely take precedence over freedom of testation, particularly
given the fundamental values of our Constitution and the constitutional imperative to move
away from our racially divided past. Given the rationale set out above, it does not amount
to unlawful deprivation of property.”197
[150] It is evident from both these cases that the relevant courts, although they referred to
the Constitution and its values, put on their common law lens in search for a remedy for a
breach of the Constitution. This has resulted in drawing this difference that lacks
substance. A public trust deed or will that violates the values of the Constitution or one of
196 Syfrets above n 29 at paras 45-7.
197 Emma Smith above n 53 at para 42.
JAFTA J
66
its provisions has the same impact as a private trust deed or will in breach of the same
provisions. Both of them are inconsistent with the Constitution and the supremacy of the
Constitution renders them both equally invalid.
[151] To hold otherwise would subvert the supremacy of the Constitution and would
suggest that the Constitution does not reach individual conduct in the private sphere,
despite the horizontal application of the Bill of Rights.
[152] In Harvey, the Supreme Court of Appeal substantiated the distinction between
public and private testaments in these terms:
“There is much to be said for public trusts being judged more strictly than private trusts.
Unlike the dispositions in Canada Trust and Curators, Emma Smith Educational Fund, we
are concerned here with what occurs in the private and limited sphere of the donor and his
direct family. It affects a limited number of people, is of limited duration and is not
manifestly discriminatory. Nor, can it be said that at the time when the deed was executed
it was intended to infringe the dignity of the second and third appellants.”198
[153] I cannot endorse this reasoning. It is difficult for me to appreciate how the sphere
where the violation of the Constitution occurs can justify the breach and render valid what
is invalid in the eyes of the Constitution. I do not think that freedom of testation empowers
a testator to violate the rights of members of his or her family by unfairly discriminating
against them. Lest I be misunderstood, the Constitution does not require the testator to
treat his or her family equally when gifting them with his or her property. Nor does it
oblige him or her to leave any of his or h er assets to them. They too have no entitlement
to his or her property. But what the Constitution prohibits is unfair discrimination on the
part of the testator when disposing of his or her property.
198 Harvey above n 20 at para 62.
JAFTA J
67
[154] The fact that a testator may have decided to exclude some of her children from
inheriting her property does not, without more, amount to a breach of the Constitution or
public policy. Nor does the fact that she may have bequeathed the property to them in
unequal shares or had decided to disinherit all her c hildren. The Constitution does not
oblige testators to treat their children equally. So long as what she had done, in disposing
of her property by a will, does not constitute unfair discrimination, it is permitted by
freedom of testation if she had acted within the law.
[155] Therefore, differentiation or even discrimination that arises from the terms of a will
does not violate the Constitution as long as it does not constitute unfair discrimination.
This is so because section 9(4) of the Constitution forbids unfair discrimination by one
person against the other. In addition, this provision outlaws unfair discrimination that is
based on one of the grounds listed in section 9(3). Consequently, a party that impugns the
validity of a will on the basis of discri mination must establish that the discrimination
complained of is unfair or that it is based on a listed ground, if reliance is placed on section
9(4) or a relevant provision of the Act.
[156] Here both these issues have been established. Clause 7 discriminates against the
second to sixth applicants on the basis of gender. And the first to third respondents have
admitted that the discrimination is unfair. Consequently, the clause is in breach of section
8 of the Act and as a result it is unlawful. As an unlawful clause it is unenforceable. There
is nothing controversial in this proposition, even if it is looked at through the lens of the
common law. Since time immemorial, unlawfulness has been recognised as one of the
limitations to the exercise of freedom of testation. During the Group Areas Act of the
apartheid era, if a testator were to leave her immovable property, situated in an area
reserved for whites, to a black person, that testament would be unenforceable on the basis
of unlawfulness. The fact that this would have occurred in a private and limited sphere of
one testator and that it affected only one beneficiary would not have saved it from
invalidity.
JAFTA J
68
[157] Accordingly, the distinction drawn by the courts below between public and private
testaments is artificial and cannot be sustained, especially where the challenge is based on
the Constitution. Moreover, the search for the appropriate remedy in such matters must be
informed by the Constitution itself. This is because section 172(1) of the Constitution , as
mentioned, obliges courts to declare that conduct which is inconsistent with the
Constitution is invalid. In addition, these courts are empowered to make orders that are
just and equitable. Justice and equity require that the interests of parties af fected by the
order must be taken into account.
[158] But in the present matter the position is that clause 7 which contains the
fideicommissary condition is invalid for being contrary to public policy. In our law the
effect of this invalidity is that the bequ est to the deceased which this clause purported to
regulate is regarded as having been without a condition. 199 What this means is that the
property concerned was transferred to the deceased, as a fiduciary unburdened with
conditions. Therefore, it formed p art of his estate that was subject to the will he had
executed and in terms of which he had bequeathed that property to the applicants.
[159] This common law principle was lucidly articulated in Levy. With reference to
common law authorities, on the point Price J distilled the principle that a fideicommissum
condition that is contrary to law or public policy is treated pro non scripto (as if it was
never written) and the heir under the will concerned succeeds unconditionally. 200 This
position is altered only whe re the deletion of the condition renders the remaining bequest
meaningless. Here that is not the position. It is clear from the will that the testators wished
199 De Wayer v SPCA Johannesburg 1963 (1) SA 71 (T) and Levy above n 37. See also De Waal, Erasmus, Gauntlett
and Wiechers “Wills and Succession, Administration of Deceased Estates and Trusts” in Joubert LAWSA, 2 ed (Lexis
Nexis, Durban 2011) 31 at 356.
200 Levy id at 937-8.
JAFTA J
69
to keep the fideicommissary property in the hands of their male descendants until the third
generation.
[160] The applicants’ father received it as such heir and on condition that upon his death,
it will pass to his male children. The applicants’ father and his brother were the last
generation on whom the offensive condition applied. The interim Constitution which came
into effect in April 1994 brought about a change to the principles of law relating to public
policy. This impacted on the validity of clause 7 which became contrary to public policy.
As from April 1994, clause 7 was pro-non scripto in t he eyes of the common law, as
amended by the interim Constitution which changed public policy. Consequently the
relevant property, which was still in the hands of the applicants’ father, was free of the
offending condition and formed part of his estate. Like all his assets, it became the subject
of his will upon his death in 2015.
[161] In the special circumstances of the present matter, the application of the
common law rule leads to a just and equitable outcome. This is because the responden ts
had already received the other half of the property from their own father. It would be unjust
for them to be entitled to the half that was held by the applicants’ father, over and above
what they had already obtained
Costs
[162] While the applicants are suc cessful in this Court, I do not think that the principle
that costs follow the result is appropriate for the present matter. None of the parties is
responsible for the offensive clause in the will and the legal position regarding its
enforcement under the Constitution was not clear. Therefo re, it became necessary for the
courts to be approached to give clarity. It seems to me here that since the testator’s estate
was wound up a long time ago, it will not be fair to direct that costs be borne by the estat e
of the applicants’ father. The applicants’ father was not responsible for the offensive
JAFTA J / VICTOR AJ
70
clause. However, his estate must pay costs of the first applicant who acted in his official
capacity as an executor with no personal interest in the matter. In the present
circumstances, it would be fair to make no order as to costs in respect of other parties.
Order
[163] In the present result the following order is made:
1. Leave to appeal is granted.
2. The appeal is upheld.
3. The orders granted by the High Court and Supreme Court of Appeal are set
aside.
4. It is declared that clause 7 of the will of the late Mr Carel Johannes Cornelius
De Jager and the late Mrs Catherine Dorothea de Jager dated 28 November
1902 is inconsistent with the Constitution and the Promotion of Equality and
Prevention of Unfair Discrimination Act 4 of 2000, and therefore
unenforceable.
5. The costs of Mr James King shall be paid from the estate of Mr Kalvyn de
Jager.
6. There shall be no order as to costs in respect of other parties.
VICTOR AJ
Introduction
[164] I have had the pleasure of reading the judgment of my sister Mhlantla J (first
judgment). Her judgment highlights that the law of testation reinforces patriarchal and
“outdated ideas concerning sex, gender, property , ownership, family structure s and
VICTOR AJ
71
norms.”201 I have also had the privilege of considering the judgment of my brother Jafta J
(second judgment) who sees no need for the development of the common law because wills
contrary to public poli cy have never been enforceable and thus there is no need to revisit
this aspect.
[165] I have benefited from reading both judgments. Why a separate concurrence then
with the second judgment? While I agree with the outcome proposed in the second
judgment and broadly its reasons, I arrive at the same conclusion from a somewhat multi
layered perspective. I endorse the second judgment’s conclusion that the common law
does not have to be developed, but would rather emphasise the principle of constitutional
subsidiarity because of the Equality Act. The Equality Act was promulgated in compliance
with section 9(4) of the Constitution and thus constitutes a direct reflection of our public
policy on furthering the needs of our constitutional democracy in terms of our fundamental
vision of equality. It is within this framework that freedom of testation must be analysed.
I would also add further reasons regarding the implementation and interpretation of the
Equality Act based on a more constitutionally transformative ba sis. The applicants also
rely to some extent on the Equality Act. They bemoan the fact that the High Court failed
to fully interrogate the application of the provisions of s ection 8(d) of the Equality Act in
the context of this matter.202
[166] In what follows , I will discuss the need to revisit the principle of freedom of
testation in light of the obligation to ensure substantive equality. I will be guided by the
principles of transformative constitutionalism to this end.
201 First judgment at [79].
202 Section 8(d) of the Equality provide as follows:
“Prohibition of unfair discrimination on ground of gender. —Subject to section 6, no person may
unfairly discriminate against any person on the ground of gender, including—
(d) any practice, including tradit ional, customary or religious practice, which impairs the
dignity of women and undermines equality between women and men, including the
undermining of the dignity and well-being of the girl child.”
VICTOR AJ
72
[167] In applying the principles of the Eq uality Act it is incumbent on every court to
promote the spirit, purport and objects of the Bill of Rights.203 My concurrence is therefore
directed at focusing on the Equality Act and how it should be interpreted in a more robust
manner on the issue of test ation based on transformative equality. My analysis considers
the constitutional framework and section 9 of the Constitution as being the source of the
right sought to be enforced without circumventing the Equality Act. The Equality Act
seeks to regulate unfair discrimination and the adoption of positive measures in the public
and private spheres.
[168] Unless there is a transformative constitutional approach taken by courts when
equality rights are affected, the historical and insidious unequal distribution of wealth in
South Africa will continue along various fault lines such as in this case, gender. A more
robust understanding of substantive equality within our constitutional framework is
necessary.204 Public policy is now deeply rooted in the Constitution and its underlying
values. This means that substantive equality must be evaluated within the realm of public
policy. The majority in Barkhuizen held:
“[T]he proper approach to the constitutional challenges to contractual terms is to determine
whether the term challenged is contrary to public policy as evidenced by the constitutional
values, in particular, those found in the Bill of Rights”.205
[169] The concept of taking substantive equality seriously means that it should be a
component of the public policy tes t and if necessary , a basis for restricting freedom of
testation. This does not mean that testators can no longer elect to whom they wish to
203 Section 39(2) of the Constitution.
204 See generally Albertyn “Contested Substantive Equality in the South African Constitution: Beyond Social Inclusion
Towards Systemic Justice” (2018) 34 SAJHR 441.
205 Barkhuizen above n 22 at para 30.
VICTOR AJ
73
bequeath their property; the limitation would only arise if the bequest amounts to unfair
discrimination based on a recognised ground such as gender. The purpose of the limitation
would be to prevent or prohibit unfair discrimination . It has been accepted that in a
democratic society differentiation is permissible and even necessary. 206 However,
differentiation becomes impermissible (and consequently results in unfair discrimination)
when the right to equality and dignity of the person is violated.207
Direct or indirect application?
[170] The first judgment contends that the correct approach would be indirect application
of the Bill of Rights because the question of whether the clauses of a will should be
enforced is similar to the enforceability of contractual provisions. Relying on Barkhuizen,
the first judgment argues that direct application of the Bill of Rights is inappropriate in the
circumstances.
[171] On the other hand , the second judgment argues that there is no need for the
development of the common law because wills contrary to public policy have never been
enforceable. The second judgment contends that there is no need to revisit this test. What
must rather be established is whether the provisions of this specific will should be enforced
in light of section 9(4). The judgment goes through some lengths to explain why the High
Court’s approach of using a section 36 limitation analysis was wrong. I agree with these
remarks. This is not a section 36 analysis.
[172] However, neither judgment answer s the question whether direct or indirect
application is warranted in these circumstances.
206 Prinsloo v van der Linde [1997] ZACC 5; 1997 (3) SA 1012 (CC); 1997 (6) BCLR 759 (CC) at para 24.
207 Id at para 31.
VICTOR AJ
74
[173] The starting point for the appli cability of direct application is the case of
Khumalo.208 In that case th is Court had to determine the question of horizontality and
concluded that this question is determined primarily by section 8(2) and 8(3) of the
Constitution.209 Citing these provisions, the Court found that the right to freedom of
expression was “of direct horizontal application” because of : (a) the intensity of the right;
and (b) the potential invasion of the right by persons other than organs of state.210
[174] In Daniels,211 this Court confirmed that the scheme of the Bill of Rights enables
rights to be invoked against private parties in certain circumstances. Importantly, the Court
made the following remarks in this regard:
“I see no basis for reading the reference in section 8(2) to ‘the nature of the duty imposed
by the right’ to mean, if a right in the Bill of Rights would have the effect of imposing a
positive obligation, under no circumstances will it bind a natural or juristic person (private
persons). Whether private persons will be bound depends on a number of factors. What
is paramount includes: what is the nature of the right; what is the history behind the right;
what does the right seek to achieve; how best can t hat be achieved; what is the ‘potential
of invasion of that right by persons other than the State or organs of state ’; and, would
letting private persons off the net not negate the essential content of the right? If, on
weighing up all the relevant factor s, we are led to the conclusion that private persons are
not only bound but must in fact bear a positive obligation, we should not shy away from
imposing it; section 8(2) does envisage that.”212
208 Khumalo above n 136.
209 Id at paras 31-2.
210 Id at para 33.
211 Daniels v Scribante [2017] ZACC 13; 2017 (4) SA 341 (CC); 2017 (8) BCLR 949 (CC).
212 Id at para 39.
VICTOR AJ
75
[175] In the recent decision of Pridwin,213 this Court endorsed this approach and
confirmed that direct horizontal application is possible in certain circumstances.
Importantly it remarked that:
“In subjecting private power to constitutional control, section 8(2) recognises that private
interactions have the potential to violate human rights and to perpetuate inequality and
disadvantage.”214
[176] Although the minority did not apply the same approach it similarly remarked on the
importance of horizontal application by stating that “ independent schools cannot be
enclaves of power immune from constitutional obligations”.215
[177] The majority went on to apply the Bill of Rights directly to the facts at hand and
found that the right to a basic education and the best interests of the child principle
necessitated that there be a fair process when an independent school decides to terminate a
parent contract.216 Notably, the majority opted not to follow the two -stage enquiry used
for the enforcement of contracts as per Barkhuizen.217 Instead, it used direct application.
It ba sed this conclusion in part on the basis that the rights in question formed an
independent basis for a hearing that was separate from the contract itself and because a
case for direct application had been pleaded by the parties.218 Notably like in Pridwin, the
applicants in this case have made out a case for direct application in their papers albeit via
the Equality Act.
213 Pridwin Preparatory School [2020] ZACC 12; 2020 (5) SA 327 (CC); 2020 (9) BCLR 1029 (CC).
214 Id at para 131.
215 Id at para 82.
216 Id at paras 153 and 209.
217 Barkhuizen above n 22 at paras 56-8.
218 Pridwin above n 213 at para 130.
VICTOR AJ
76
[178] Based on Pridwin and Daniels, it seems direct horizontal application is applicable
here because of : (a) the intensity , history and nature of the right to equality and what it
seeks to achieve – it is self-evidently applicable to private parties; (b) there is a danger that
not reaching into the private sphere could “perpetuate inequality and disadvantage” and;
(c) “letting private persons off the net” in these circumstances would “negate the essential
content of the right” by undermining the constitutional goal of achieving substantive
equality.
[179] The first judgment’s reliance on Barkhuizen may need to be reconsidered. First,
following from Pridwin, indirect application is not always the correct route , even in
contract cases. Second, Barkhuizen concerned the right of access to courts which if relied
on directly would pose certain conceptual difficulties. In this case, however, the impugned
right is the right to equality. Section 9 is one of a few sections of the Constitution which
mandates that national legislation be enacted to give effect to it. The Equality Act is such
legislation.
[180] The present case presents a bit of a quandary. On the one hand, following precedent
in Daniels and Pridwin, it seems that the requirements for direct application have been met
and it would be defensible to invoke section 9(4) directly. This is countenanced
furthermore by the fact that s ection 9(4) envisages special legislation to give effect to it.
That makes this case distinct from cases in which this Court has gone the route of indirect
application. On the other hand, this Court bears a duty under section 39(2) to develop the
common law of freedom of tes tation to address the kinds of deficiencies that have been
identified in the first judgment.219
219 It should be noted furthermore that this Court has emphasised that when the common law is found to be deficient
there is a duty on courts to develop it in line with section 39(2). See Carmichele above n 75 at para 39 where this
Court said:
“It needs to be stressed that the obligation of Courts to develop the common law, in the context of
the section 39(2) objectives, is not purely discretionary. On the contrary, it is implicit in s ection
39(2) read with s ection 173 that where the common law as it stands i s deficient in promoting the
VICTOR AJ
77
[181] There is a seeming tension that must be resolved based on the principle of
constitutional subsidiarity, which I address next.
Constitutional subsidiarity
[182] In My Vote Counts, Cameron J in a minority judgment defined the principle of
subsidiarity as being “the norm that a litigant cannot directly invoke the Constitution to
extract a right he or she seeks to enforce without first relying on, or attacking the
constitutionality of, legislation enacted to give effect to that right”. 220 It also “denotes a
hierarchical ordering of institutions, of norms, of principles, or of remedies, and
significance of the Constitution”.221
[183] Constitutional subsidiarity becomes a central consideration in this case. In My Vote
Counts, it was outlined what subsidiarity means in cases such as this one where legislation
(in this case the Equality Act) has been invoked to give effect to a specific constitutional
right:
“Once legislation to fu lfil a constitutional right exists, the Constitution’s embodiment of
that right is no longer the prime mechanism for its enforcement. The legislation is primary.
The right in the Constitution plays only a subsidiary or supporting role.”222
section 39(2) objectives, the Courts are under a general obligation to develop it appropriately. We
say a 'general obligation' because we do not mean to suggest that a court must, in each and every
case where the common law is involved, embark on an independent exercise as to whether the
common law is in need of development and, if so, how it is to be developed under section 39(2). At
the same time there might be circumstances where a court is obliged to raise the matter on its own
and require full argument from the parties.”
220 My Vote Counts N PC v Speaker of The National Assembly [2015] ZACC 31; 2016 (1) SA 132 (CC); 2015 (12)
BCLR 1407 (CC) at para 53.
221 Id at para 46.
222 Id.
VICTOR AJ
78
[184] It is notable that although they reached a different conclusion, the majority per
Khampepe J concurred with Cameron J’s exposition of the history behind constitutional
subsidiarity.223
[185] The majority did caution as follows:
“We should not be understood to su ggest that the principle of constitutional subsidiarity
applies as a hard and fast rule. There are decisions in which this Court has said that the
principle may not apply. This Court is yet to develop the principle to a point where the
inner and outer contours of its reach are clearly delineated. It is not necessary to do that in
this case.224
In finding that constitutional subsidiarity is not a hard and fast rule this Court has made it
clear that the constitutional enquiry does not cease because there is legislation promulgated
to give effect to a specific constitutional right. In other words, subsidiarity does not
ringfence the meaning and import of the constitutional right to equality by legislative
enactment.225 In cases such as these, the primary conc ern of the Court should be whether
the legislature has adequately fulfilled its section 9(4) obligation. The litigants in this case
do not rely on the “restricted ambit” of the Equality Act.226 Within the context of this case
Parliament has adequately fulfi lled this obligation through the enactment of the Equality
Act and no suggestion has been made to the contrary.
223 Id at para 121, the majority stated, “We further agree with the minority judgment's exposition of the history behind
the principle of constitutional subsidiarity”.
224 Id at para 182
225 Some academic commentators have criticized the Court’s jurisprudence on subsidiarity and warned that courts
should not delegate the responsibility of giving content to fundamental constitutional rights to the Legislature lest they
water down the scope and promise of those rights. See generally Klare “Legal Subsidiarity and Constitutional Rights:
A reply to AJ van der Walt” (2008) 1 Constitutional Court Review 129.
226 My Vote Counts above n 220 at para 72.
VICTOR AJ
79
[186] In My Vote Counts , three inter -related principles for applying the principle of
subsidiarity were illustrated. First, respecting the programma tic scheme and significance
of the Constitution. 227 Second, according due respect to Parliament’s legislative role in
light of the separation of powers.228 Third, the development of an integrated and consistent
rights jurisprudence.229
[187] Langa CJ in Pillay230citing a few decisions of this Court,231 confirmed that in cases
concerning the horizontality of the right to equality, that is cases of unfair discrimination
committed by private parties, it is the Equality Act, and not section 9(4) which must be
invoked:
“The first is that claims brought under the Equality Act must be considered within the four
corners of that Act. This court has held in the context of both administrative and labour
law that a litigant cannot circumvent legislation enacted to give effect to a constitutional
right by attempting to rely directly on the constitutional right. To do so would be to 'fail
to recognise the important task conferred upon the legislature by the Constitution to
respect, protect, promote and fulfil the rights in the B ill of Rights .’ The same principle
applies to the Equality Act. Absent a direct challenge to the Act, courts must assume that
the Equality Act is consistent with the Constitution and claims must be decided within its
margins.”232
[188] Section 8(1) of the Bill of Rights provides for direct constitutional scrutiny in to
private relationships such as between testator and heir or fideicommissary as in this case.
Section 8(2) provides that:
227 My Vote Counts above n 220 at para 61.
228 Id at para 62.
229 Id at para 63.
230 MEC for Education, KwaZulu-Natal, and Others v Pillay [2007] ZACC 21; 2008 (1) SA 474 (CC) (2008 (2) BCLR
99 (CC) (Pillay).
231 New Clicks above n 184 ; South African National Defence Union v Minister of Defence and Others [2007]
ZACC 10; 2007 (5) SA 400 (CC); 2007 (8) BCLR 863 (CC).
232 Pillay above n 230 at para 40.
VICTOR AJ
80
“A provision in the Bill of Rights binds a natural or a juristic person if, and to the extent
that, it is applicable, taking into account the nature of the right and the nature of any duty
imposed by the right.”
[189] As explained by Woolman, section 8(2) of the Bill of rights eliminates any doubt
about (a) the application of the subs tantive provisions of the Bill of Rights to disputes
between private parties, in general; and (b) about the ability to use the Bill of Rights to
develop new rules of law and new remedies that will give adequate effect to the specific
provisions of the Bill of Rights, in particular developing the common law.233
[190] Evidently, this case requires direct application as opposed to indirect application.
The direct application of the Bill of Rights, however, must be consonant with the principle
of constitutional subsidiarity. Therefore, in applying the Bill of Rights directly in this case,
reliance must be placed on the Equality Act because its definition of unfair di scrimination
“covers the field”.234
[191] It is unassailable in this case and indeed in cases relating to the freedom of testation
that the reach of section 8 of the Bill of Rights applies to these private parties. Whilst the
Bill of Rights reaches into the private sphere this is perfectly congruent with the competing
right to freedom of testation. It also foll ows, therefore, that the Equality Act which was
promulgated pursuant to section 9(4) of the Constitution is the benchmark against which
the freedom of testation must be measured within the private sphere.
[192] No case has been made out that the Equality Act does not give effect to the right to
equality in testation. The first judgment opts for the development of the common law. But
233 Woolman and Bishop above n 69 at 73.
234 Cameron J uses this expression in My Vote Counts above n 220 at para 66 to refer to an argument that the scope of
the constitutional right in question has been subsumed by a piece of legislation.
VICTOR AJ
81
it can only develop the common law if the legislation does not give effect to that right. In
this case the Equality Act was prom ulgated pursuant to section 9 (4) of the Constitution
and in the absence of an attack on the validity of the Equality Act it must yield to the
principle of constitutional subsidiarity. 235 Here there is neither an attack on the
constitutional validity of the Equality Act nor is there any suggestion in the applicants’
case that the protections do not go far enough. In addition, the respondents also do not
attack any provision in the Equality Act.
[193] For all these reasons, in my view the tension between direct and indirect application
in the first and second judgments must be resolved on the basis of the principle of
constitutional subsidiarity. The Equality Act is now the benchmark for evaluating any
conduct of a private person which has an impact on another pe rson’s right to equality and
to be free from unfair discrimination to this end.
[194] It is necessary to consider a more robust approach to an analysis of what freedom
of testation means after the advent of the Constitution. When dealing with freedom of
testation it is cumbersome to lurch from case to case when the application of the Equality
Act provides the framework in which to determine most matters relating to the freedom of
testation going forward.
235 This point was recently reiterated by this Court in Economic Freedom Fighters v Minister of Justice and
Correctional Services [2020] ZACC 25 in which the applicant argued for a convoluted interpretation of the Trespass
Act instead of launching a frontal attack on its constitutionality. Mogoeng CJ in dismissing the interpretive argument
made the following remarks at paras 74-5:
“Since PIE owes its breath to section 26(3) of the Constitution, it is not unreasonable or
inappropriate to read a reference to PIE as a pointer to the inescapability of the role of section 26(3)
as the cardinal reference point in addressing this issue. T he way the issue was raised renders it
unavoidable that the constitutionality of section 1(1) of the Trespass Act be effectively pronounced
upon, even if it might not be expressly referred to as such. Truth be told, this is another way of
seeking to have us declare this section unconstitutional. This we will not do. This approach, foisted
upon us by the applicants, is very difficult if not impossible to manage to its intended end. They
ought to have launched a frontal challenge to the constitutionality of section 1(1). Nothing stopped
them from doing so. But, they chose not to. Instead, they opted for this intractable interpretive route.
They would therefore have to fall by their free choice.”
VICTOR AJ
82
Transformative consti tutionalism and the implementation of the principle of freedom of
testation
[195] Section 39(2) makes it clear that “ [w]hen interpreting any legislation, . . . every
court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights”.
The Constitution now requires courts to continuously ensure South Africa’s transformation
into a human rights state. The guiding principles of the Constitution demonstrate that the
reach of equality must be substantive. It must advance more than merely formal or de jure
equality.236 Whilst the first judgment seeks to develop the common law, this is unnecessary
in this case because the Equality Act cannot be circumvented.
[196] In this case the central question remains whether human dignity is enhanced or
diminished, and whether the achievement of equality is promoted or undermined by the
measure in whatever legal reasoning is to be applied.
[197] If courts fail to adopt a more innovative approach towards transformative
substantive e quality in its mission, this will entrench formal equality at the expense of
substantive equality, and, especially in the private sphere, the deeper dimensions of the
constitutional values of justice will be lost.
[198] It is generally accepted that the law bot h shapes and constructs relationships in
society.237 In addition to the role law plays in constructing societal relationships , it also
draws from the “underlying moral or value choice ” of society.238 In this sense, the law
236 See Minister of Justice and Constitutional Development v SA Restructuring and Insolvency Practitioners
Association [2018] ZACC 20; 2018 (5) SA 349 (CC); 2018 (9) BCLR 1099 (CC) at para 61 where Madlanga J
expressed himself as follows:
“Throughout the many many years of the struggle for freedom, the greatest dream of South Africa’s
oppressed majority was the attainment of equality. By that I mean remedial, restitutionary or
substantive equality, not just formal equality.”
237 Davis and Klare above n 78 at 443-4.
238 See Froneman J’s dissent in Beadica 231 CC v Trustees, Oregon Trust [2020] ZACC 13; 2020 (5) SA 247 (CC);
2020 (9) BCLR 1098 (CC) at para 106.
VICTOR AJ
83
should not be regarded as a neutral set of principles that has no bearing on power dynamics
in society. So, the essential point here is that the law is not a neutral or amoral enterprise
but is based on the interplay between its constitutive role of shaping society and the
underlying moral or value choices which also shape our equality jurisprudence . In this
case it is amply demonstrated that the law has “distributive” consequences because absent
the proper application of the equality jurisprudence the powers, privileges and liabilities of
both individuals and groups in society will go unchecked. In this case only male
descendants will benefit. In the absence of a male descendant then other males will benefit.
Female descendants are excluded simply because of being female.
Legislative framework of the Equality Act
[199] The provisions of the preamble to the Equality Act make its nature and intended
purpose clear. The consolidation of democracy requires the eradication of inequalities
especially those that are systemic in nature and which were generated in South Africa’s
history by colonialism, apartheid and patriarchy. The Equality Act also recognises that
although significant progress has been made in restructuring and transforming our society
and its institutions, systemic inequalities and unfair discrimination remain deeply
embedded in social structures, practices and attitudes. This undermines the aspirations of
our constitutional democracy and the Equality Act still requires practical application and
of course, the development of an appropriate body of jurisprudence.
[200] Section 9 (4) of the Constitution provides for the enactment of national legislation
to prevent or prohibit unfair discrimination and to promote the achievement of equality;
the Equality Act is such a piece of legislation. The Equality Act endeavours to “facilitate
the transition to a democratic society, united in its diversity, marked by human relations
that are caring and compassionate, and guided by the principles of equality, fairness, equity,
social progress, justice, human dignity and freedom”.239
239 Preamble to the Equality Act.
VICTOR AJ
84
[201] It is clear from the scheme and tenor of the Equality Act that it aims to ensure
substantive as opposed to merely formal equality. By ensuring that the right to equality
can be invoked against private persons, the Constitution acknowledges that colonialis m
and apartheid were not only facilitated by a repressive state apparatus but also through the
complicity of individuals who benefitted directly from an unjust status quo. The Equality
Act is an acknowledgement that to those on the receiving end of discrimination, the source
of the discrimination (be it public or private) matters not.
Transformative constitutionalism and freedom of testation
[202] A commitment to transformative constitutionalism and enabling substantive
equality requires this Court to consider the “distributional and ideological consequences ”
of common law principles such as freedom of testation .240 The first judgment provides a
useful summary of the history of the principle in our jurisprudence. I will contend that,
where appropriate , common la w principles such as freedom of testation should be
recalibrated towards more egalitarian and ubuntu based ends.
[203] The first judgment correctly suggests that by extending the common law there will
be a clash between freedom of testation , which constitutes a right protected by section
25 (1) of the Constitution and the right to equality. The different provisions of the
Constitution must be read in harmony.241 By implementing the provisions of the Equality
Act there is a recognition that freedom of testation brings with it the values of freedom and
dignity and for this reason it must be evaluated against public policy. Freedom of testation
is in essence freedom of contract . Freedom of testation cannot now be cloaked with
240 Davis and Klare above n 78 at 449.
241 United Democratic Movement above n 189 at para 83 this Court stated:
“A court must endeavour to give effect to all the provisions of the Constitution. It would be
extraordinary to conclude that a provision of the Constitution cannot be enforced because of an
irreconcilable tension with another provision. When there is tension, th e courts must do their best
to harmonise the relevant provisions and give effect to all of them.”
VICTOR AJ
85
constitutional protection under the guise of “human dignity and autonomy ”. There is an
overemphasis on the use of individualist, libertarian and neo-liberal definitions of freedom
of testation as opposed to a definition founded on the countervailing principles of equality
and ubuntu. There is a failure to consider the appropriate context and the distributive
consequences of freedom of testation.
[204] In my view, whilst the first judgment is trailblazing in many ways as it addresses
patriarchy and sexism, it does not directly address the enquiry in terms of the common law.
There is no need to develop the common law when there is a statute enacted pursuant to
section 9(4) of the Bill of Rights to give effect to equality. Our nascent constitutional
values are fully embodied in the Equality Act . However, the first judgment seems to
conflate the principle of freedom of testation with the rights to dignity, privacy and property
as opposed to establishing how the very principle itself must be recalibrated and understood
within a constitutional framew ork based on equality and ubuntu. In doing so, it elevates
the status of what is merely a common law rule and clothes it with constitutional protection.
While the arguments that freedom of testation is supported by the rights to dignity, property
and privacy have merit , they de-contextualise and overlook the way freedom of testation
actually operates in a society with stark inequalities such as ours.
[205] The approach o f the first judgment adopts a libertarian and neo -liberal basis for
freedom of testation th at imports and constitutionally sanctions market logics , in the
problematic way described by Davis and Klare.242 In addition, despite the first judgment’s
excellent analysis of the history of succession , it does not provide a contextual analysis
which interrogates how freedom of testation sustains unequal wealth distribution in South
242 See Davis and Klare above n 78 at 479-481 where they evaluate the approach taken by courts in cases involving
the scope of the common law principle of pacta sunt servanda in light of our nascent constitutional values. Amongst
other things, they argue that this line of decisions endorses libertarian and individualist ideas of rights and governance
which unwittingly legitimise neo-liberal economic policies that are removed from the extent of deprivation that is the
reality for the majority of South Africans.
VICTOR AJ
86
Africa based on gender, class and so on.243 The concept of patrimonial capitalism through
inheritance continues unchecked.
[206] Piketty critiques what he refers to as “patrimonial capitalism.”244 Essentially this is
the tendency for wealth to beget wealth and conversely for poverty to beget poverty.245 He
highlights how inheritance laws sustain and legitimize the unequal distribution of wealth
in societies thus enabling a handful of powerful families to remain economically privileged
while the rest remain systematically deprived. 246 In my view, this system entrenches
inherited wealth along the male line. In applying this critique to the f acts in this case, our
common law principle of freedom of testation is continuing to entrench a skewed gender
bias in favour of men. The Human Rights Commission has noted how patrimonial
capitalism functions in the South African context .247 There is no bas is to avoid applying
the principles of the Equality Act to eradicate the problems of inequality entrenched by the
common law.
[207] Unfettered freedom of testation exclud es women, and this results in negative
distributive consequences for them. While it may be true that freedom of testation is related
243 Recent studies on wealth inequality in South Africa illustrate the concerning distribution of wealth in South Africa.
A study by the Southern Centre for Inequality Studies estimates that the richest top 10% of South Africans own 85%
of all wealth whilst the richest 0.1% own about 25% of all wealth. The same study notes that the majority of the top
earners are white. It stands to reason that given the gen dered nature of poverty the majority of top earners are male
as well. Notably the same study finds that “the bottom 50 per cent of the South African population have negative net
worth: the levels of the debts that they owe exceeds the market value of the assets they own.” The study concludes
that there is no evidence that wealth concentration has decreased since apartheid. In fact, if anything, it is on the rise.
See Chatterjee, Czajka, and Gethin Estimating the Distribution of Household Wealth in South Africa (Working Paper
no 2020/06, April 2020), available at https://wid.world/document/estimating-the-distribution-of-household-wealth-in-
south-africa-wid-world-working-paper-2020-06/.
244 Piketty Capital in the Twenty -First Century (Harvard University Press , Cambridge 2014) at 267 -302. When
referring to patrimonial capitalism he means that the economic elite mostly attain their fortunes through inheritance
rather than entrepreneurship or innovation. These inherited fortunes produce a class of rentiers who dominate politics
with all sorts of (mostly implied, but very plausible) negative consequences.
245 Id.
246 Id.
247 South African Human Rights Commission Equality Report: 2017/18 (July 2018), a vailable
at:https://www.sahrc.org.za/home/21/files/SAHRC%20Equality%20Report%202017_18.pdf .
VICTOR AJ
87
to the rights to dignity, privacy and property it also has significant distributive
consequences. In a society with stark inequalities based on gender, an unfettered approach
to freedom of testation sustains class hierarchies inherited from the colonial and apartheid
legacy and frustrates the establishment of a society based on equality and in particular
gender equality. In this regard, interpreting the principle of freedom of testation to confer
a broad right to disinherit based on gender undermines the constitutional objective to heal
the injustices of the past and establish an egalitarian society.
[208] It is incumbent upon this Court to acknowledge that the importance the law has
accorded to freedom of testation in the past is precisely what sustains the unearned
privileges in society such as male privilege. By maintaining systems of privilege, it
simultaneously traps vulnerable groups such as women in a cycle of poverty and entrenches
systemic disadvantage.
[209] An an alysis of freedom of testation that fails to take seriously its distributive
consequences and iniquitous legacy may also result in a form of “colonial unknowing”.248
Decolonial scholars use the latter term to describe situations in which the “afterlife” of
colonialism and apartheid and their effects on contemporary society are erased or
overlooked when the law provides its unequivocal stamp of approval o f the status quo.249
This is the danger if the route of the common law is the determinative factor. It fol lows
248 See Modiri “Conquest and Constitutionalism: First Thoughts on an Alternative Jurisprudence” (2018) 34 SAJHR
300 at 308 where he expands on this concept as follows:
“It is through colonial unknowing that the afterlife of colonial -apartheid can at once remain
pervasive in the form of inequality, poverty, violence and suffering but not be ‘comprehended as an
extensive and constitutive living formation’. Colonial unknowing operates centrally through the
disavowal, dissociation and normalisation of the history and horror of colonialism, land
dispossession, white domination and racism. By making settler-colonialism illegible as a historical,
political and moral problem, c olonial unknowing normalizes white hegemony in South Africa,
enforces the expiry of colonised people’s right to historical justice, and structures the field of sense,
knowledge, perception and imagination in such a way as to make substantive decolonisation appear
‘unreasonable and unrealistic’.”
249 Id.
VICTOR AJ
88
therefore that the implementation and application of the Equality Act ensures that the
exercise of freedom of testation is consistent with the demands of our Constitution.
[210] It is also necessary to balance freedom of testation against substantive equality as a
component of public policy.
Substantive equality as a component of public policy
[211] The first judgment correctly notes that equality is a founding value of essential
importance to our new constitutional order and therefore an essential component of the
public policy yardstick. It correctly contends that this stems from the constitutional
commitment to heal the injustices of the past and establish a non -sexist society.
Furthermore, this commitment is bolstered by South Africa’s international obligat ions to
advance gender equality.250
[212] Our equality jurisprudence has developed an approach where the right to equality
has been interpreted to mean that individuals have equal dignity and respect.251 Albertyn
suggests that our equality jurisprudence needs to move beyond “equal concern and
respect”, towards deeper structural changes .252 As such, she suggests that our equality
jurisprudence to date has been powerfully inclusive, but not transformative nor has it
required a fundamental re-ordering of the status quo.253
[213] Despite the notable achievements of our current e quality jurisprudence in terms of
including groups into the social and economic status quo, Albertyn argues that its legacy
250 South Africa is a signatory to the Convention on the Elimination of All Forms of Discrimination Against Women,
18 December 1979, amongst other treaties and covenants which require it to ensure gender equality.
251 Albertyn above n 204 at 458.
252 Id.
253 Id.
VICTOR AJ
89
“is contested by those who seek to centre idea s of disadvantage, structural inequalities,
unequal power relations and more radical ideas of difference and systemic justice”.254 This
requires social structures and their taken-for-granted norms to be uprooted and abolished
if necessary.255 It requires political, social and economic conditions, structures, processes
and institutions to be radically transformed in society. 256 So substantive equality should
pay close attention to the structures, norms and so on which reproduce hierarchies and
marginalisation and should seek to dismantle them if necessary.
[214] It is this more robust framework for substantive equality which provides several
important insights for this matter. The emphasis on moving beyond social inclusion
towards systemic justice is relevant. This would mean that the Court should not only
highlight how patriarchal traditions which endorsed women’s disinheritance were an injury
to their dignity, but also how they sustained inequality between men and women in terms
of wealth and resources.
[215] As stated previously, allowing for unfettered freedom of testation as embedded in
the common law enables these serious distributive consequences to go unchecked ,
shielding them from constitutional scrutiny. The Constitution requires a decisive break
from the past. As it stands, freedom of testation in its private context remains unchecked
and the goal of “substantive freedom” has been undermined as described by Albertyn.257
[216] This approach demonstrates why the equality enquiry in this matter should therefore
extend beyond the failure to treat women with equal concern and respect. Instead, the
equality enquiry should highlight the way freedom of testation sustains iniquitous gender-
based hierarchies which the Constitution seeks to uproot or abolish.
254 Id at 459.
255 Id at 461.
256 Id at 462.
257 Id.
VICTOR AJ
90
[217] So, a proper con textual analysis in this case should take seriously the wide chasm
in both power and resources between men and women in society and how freedom of
testation facilitates this unequal distribution. By doing so, freedom of testation threatens
the achievement of substantive equality for those groups who are systematically
disadvantaged based on their sex, gender or other characteristics.
[218] Context sensitive legal reasoning can advance transformative constitutionalism.
However, contextual legal reasoning will o nly be truly transformative if a court explains
what they hope the reformulated norm will accomplish in relation to the social relationships
attached to the problem and the impact this will have on the lived experiences of the
constituencies which are affected by it.258
[219] It is in the private sphere where freedom of testation within the context of
transformative constitutionalism needs to be tested. Professor Penelope Andrews in
interpreting feminist legal theory within the context of the South African Consti tution,
points to the false dichotomy between the public and the private sphere insofar as
recognizing and protecting women’s rights are concerned.259 To ensure gender equality, a
constitution with a Bill of Rights helps but it is not enough. It needs to be bolstered by an
overarching vision that seeks to transform institutions, laws, and practices that subjugate
women.260 The Equality Act is that transformative statute that does “bolster” equality for
women even in the private sphere where the “overarching vision” ought to ensure that
testation is not a form of subjugation of women. It is this consideration which requires this
Court’s attention when determining the validity of the impugned clause in the will.
258 Davis and Klare above n 78 at 496.
259 Andrews From Cape Town to Kabul: Rethinking Strategies for Pursuing Women’s Human Rights
(Ashgate Publishing Company, Burlington 2012) at 108
260 Id at 174
VICTOR AJ
91
[220] This matter needs to illustrate with greater clarity what the constitutional value of
equality as a component of the public policy yardstick means for the scope of freedom of
testation in future. In reformulating the public policy standard, it should indicate how far-
reaching the commitment to equality is in the new dispensation. To this end, the attempt
to subject private wills to a significantly lower standard of scrutiny than public charitable
trusts is concerning. A horizontal application of rights between private individuals is part
of our jurisprudence. Rights in the Bill of Rights are capable of horizontal application; in
fact, in appropriate circumstances they may even impose positive obligations on private
parties.261
[221] Equality is a fundam ental organizing principle of the Constitution and the kind of
society it seeks to bring into being. Our courts have not adopted different levels of scrutiny
regarding claims of unfair discrimination based on a public/private distinction.262 My view
here is not that the public/private distinction is completely irrelevant. One could easily
imagine a range of considerations that might bear on public charitable trusts as opposed to
private wills such as various aspects of public policy.
[222] Equality, however, is fundamentally different from other public considerations in
terms of how far -reaching it is. It is not clear therefore , how equality - as a foundational
constitutional value – might impose certain obligations on public charitable trusts that it
would not similarly impose on private wills. The attempt to establish a bright line between
the public/private divide in respect of freedom of testation and the right to equality might
risk the establishment of a private domain in which to discriminate. 263 The argument that
261 Daniels above n 211 at para 39.
262 The United States is notable for its difference in this regard. Its Supreme Court has adopted several different forms
of judicial review for racial discrimination, discrimination on the basis of sex, and discrimination based on sexual
orientation. By design, the South African Constitution embraces a relatively uniform approach to discrimination and
rejects this compartmentalized and arbitrary approach.
263 See Davis and Klare above n 78 at 416-7 where they argue that attempts to shield the co mmon law from
constitutional scrutiny would enable a sphere of private apartheid where gross violations of human rights continue
unabated.
VICTOR AJ
92
drafting a will by its nature includes some element of arbitrariness is not convincing. The
above discussion on the distributive consequences of freedom of testation demonstrates
why an attempt to shield the so -called private domain from scrutin y frustrates the
achievement of a more egalitarian society.
[223] Thus, the second judgment correctly concluded that the distinction which both the
High Court and the first judgment draw between the powers of the courts to vary provisions
of a public charitable trust as opposed to private wills is misconceived.
[224] I reach this same conclusion based on the importance of achieving substantive
equality through the lens of transformative constitutionalism. The second judgment also
correctly concludes that the impact of the discrimination is no different depending on where
it comes from. Whether the source of the discrimination is public or private, it will
undermine the constitutional value of substantive equality.
[225] At paragraph 151, the second judgment makes a particularly powerful remark which
I support:
“To hold otherwise, would subvert the supremacy of the Constitution and would suggest
that the Constitution does not reach individual conduct in the private sphere, despite the
horizontal application of the Bill of Rights.”
[226] This conclusion is important otherwise systems of oppression which manifest in the
private sphere, such as sexism, will remain free from the scrutiny of the Bill of Rights.
The application of the Equality Act to the impugned provisions of the will
[227] The starting point in this regard is section 1 of the Equality Act which defines
“discrimination” as follows:
VICTOR AJ
93
“[A]ny act or omission, including a policy, law, rule, practice, condition or situation which
directly or indirectly—
(a) imposes burdens, obligations or disadvantage on; or
(b) withholds benefits, opportunities or advantages from, any person on one or more
of the prohibited grounds.”
[228] Notably section 8 of the Equality Act also prohibits gender discrimination. The
relevant provisions read as follows:
“Subject to section 6, no person may unfairly discriminate against any person on the ground
of gender, including—
(c) the system of preventing women from inheriting family property;
(d) any practice, including traditional, customary or religious practice, which impairs
the dignity of women and undermines equality between women and men, including
the undermining of the dignity and wellbeing of the girl child.”
[229] In this matter, the impugned clauses of the will constitute “discrimination” in terms
of the Equality Act because they withhold a “benefit, opportunity or advantage”, namely
the right to benefit from the deceased estate. Whilst it is true that no person has the “right
to inherit”, the reference in the Equality Act to a “benefit” refers to the broad array of
privileges, rights and interests a person may not obtain merely on account of their sex,
gender or other status. In this reg ard, the Equality Act recognises that systems of
oppression are maintained by accruing certain privileges and opportunities to some groups
whilst concomitantly imposing certain burdens or disadvantages on others. Substantive
equality requires positive mea sures to be taken to actively redistribute resources and
provide benefits to those who have not had the same opportunities in the past.264
264 Van Heerden above n 146 at para 31 where Moseneke J remarked as follows:
“Equality before the law protection in section 9(1) and measures to promote equality in section 9(2)
are both necessary and mutually reinforcing but may sometimes serve distinguishable purposes,
which I need not discuss now. However, what is clear is that our Constitution and in particular
section 9 thereof, read as a whole, embraces for good reason a substantive conception of equality
inclusive of measures to redress existing inequality. Absent a positive commitment progressively to
VICTOR AJ
94
[230] The High Court erred when it found that because a will is a once -off testamentary
instrument it does not qualify as a “system” in terms of section 8 of the Act. I agree with
the second judgment that the words “including” at the beginning of section 8 means that it
is not a closed list and other forms of gender discrimination are also prohibited. In addition,
the applicant is correct that the impugned clauses would also fall foul of section 8(d) which
prohibits any practice which impairs the dignity of women or undermines the equality of
men and women.
[231] The Equality Act must be interpreted broadly and purposively to give effect to its
fundamental objectives which include amongst others “the promotion of equality”; “the
value of non -sexism”; and “the prevention of unfair discrimination and the protection of
human dignity”. The High Court erred when it construed the provisi ons of the Equality
Act so narrowly that the common law principle of freedom of testation was considered out
of reach. The clear and obvious purpose of section 8(c) is to abolish and proscribe the
continuance of all forms of gender discrimination includin g in the sphere of inheritance.
Its purpose is to address the distributive consequences of unfettered freedom of testation
and its impact on achieving gender equality in terms of both the Equality Act and the
Constitution.
[232] Having determined that a prima facie case of discrimination has been made, it
remains to be considered if the discrimination is “fair” in terms of section 14 of the Equality
Act. Section 14(3) outlines the relevant factors to consider:
“(3) The factors referred to in subsection (2)(b) include the following:
(a) Whether the discrimination impairs or is likely to impair human dignity;
(b) the impact or likely impact of the discrimination on the complainant;
eradicate socially con structed barriers to equality and to root out systematic or institutionalised
under-privilege, the constitutional promise of equality before the law and its equal protection and
benefit must, in the context of our country, ring hollow.”
VICTOR AJ
95
(c) the position of the complainant in society and whether he or she suffers
from patterns of disadvantage or belongs to a group that suffers from such
patterns of disadvantage;
(d) the nature and extent of the discrimination;
(e) whether the discrimination is systemic in nature;
(f) whether the discrimination has a legitimate purpose;
(g) whether and to what extent the discrimination achieves its purpose;
(h) whether there are less restrictive and less disadvantageous means to
achieve the purpose;
(i) whether and to what extent the respondent has taken such steps as being
reasonable in the circumstances to—
(i) address the disadvantage which arises from or is related to one or
more of the prohibited grounds; or
(ii) accommodate diversity.”
[233] This Court has noted that the fairness enquiry in section 14 is a hybrid test which
incorporates elements of the fairness enquiry from Harksen whilst also incorporating
elements of proportionality that resemble a limitation analysis.265
[234] There is no doubt that women are a vulnerable group in society who merit
protection. Furthermore, as the first judgment correctly points out women have historically
been discriminated against in the context of inheritance. The earlier discussion on the
distributive consequences of unfettered freedom of testation furthermore highlights how
the plight of women in this regard is systemic and that the continued uneven distribution of
wealth sustains patterns of disadvantage based on gender, sex and related grounds. The
impact of the exclusion of women from inheritance merely on account of their gender is
indeed egregious.
265 Pillay above n 230 at para 70.
VICTOR AJ
96
[235] The only “legitimate purpose” which might be advanced in the present case is
freedom of testation. To the extent that one conceives of freedom of testation in broad
terms, it follows that excluding any category of individuals from inheriting one’s assets is
a component of that right.
[236] I do not agree with the second judgment that the definition of freedom of testation
excludes the right to disinherit individuals in a way that contributes to unfair
discrimination. It is important for this Court to acknowledge that there is indeed a clash of
competing principles in this case: freedom of testation on the one hand versus substantive
equality on the other. In my view, for the reasons enumerated above, there can simply be
no contest between the raison d’etre (reason for being) of the Constitution, namely the
abolition of patriarchy and sexism, and the “right” to freedom of testation.
Ubuntu and gender equality
[237] I will conclude with the importance of how the now constitutionally integrated value
and norm of ubuntu applies. As outlined above, the facts in this case demonstrate a
disregard for the dignity and value of women heirs. This Court has affirmed ubuntu as a
principle in our law which should inform all forms of adjudication. 266 At the heart of
ubuntu is the idea that a society based on human dignity must take care of its most
vulnerable members and leave no one behind. It emphasises the adage that none of us are
free until all of us are free.
266 For example, in Port Elizabeth Municipality v Various Occupiers [2004] ZACC 7; 2005 (1) SA 217 (CC); 2004
(12) BCLR 1268 (CC), at para 37, Sachs J said:
“The spirit of ubuntu, part of the deep cultural heritage of the majority of the popula tion, suffuses
the whole constitutional order. It combines individual rights with a communitarian philosophy. It
is a unifying motif of the Bill of Rights , which is nothing if not a structured, institutionalised and
operational declaration in our evolving new society of the need for human interdependence, respect
and concern.”
VICTOR AJ
97
[238] In Makwanyane, Langa J (as he was then) described ubuntu as a concept that
recognises a person’s status as a human being entitled to “unconditional respect, dignity,
value and acceptance” from the community.267 The essence of ubuntu and human dignity
manifests through the recognition of every person in the communi ty, from the infants to
the dying because “the life of another person is at least as valuable as one’s own”.268
[239] In Makwanyane Mokgoro J stated:
“In interpreting the Bill of Fundamental Rights and Freedoms, as already mentioned, an
all-inclusive value system, or common values in South Africa, can form a basis upon which
to develop a South African human rights jurisprudence . . . While it envelops the key values
of group solidarity, compassion, respect, human dignity, conformity to basic norms and
collective unity, in its fundamental sense it denotes humanity and morality.”269
[240] Mohamed J (as he was then) in Makwanyane also described the inclusion of ubuntu
in our constitutional jurisprudence:
“The need for ubuntu expresses the ethos of an instinctive capacity for and enjoyment of
love towards our fellow men and women; the joy and the fulfilment involved in recognizing
their innate humanity; the reciprocity this generates in interaction within the collective
community; the richness of the creative emotions which it engenders and the moral
energies which it releases both in the givers and the society which they serve and are served
by.270
[241] Clearly therefore ubuntu is tightly integrated into our constitutional jurisprud ence
bringing to bear its transformative nature on all aspects of our law . This case illustrates
this in an important way. Academic writers point out that in relation to ubuntu:
267 S v Makwanyane [1995] ZACC 3; 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC) at para 224.
268 Id at para 225.
269 Id at paras 307-8.
270 Id at para 263.
VICTOR AJ
98
“Efforts to pin it down and to contain it within overly strict boundaries o r definitions are
misguided. Proper understanding of this concept calls for wisdom and open -mindedness.
This does not, however, mean that ubuntu has a mercurial nature that changes according to
its context. Rather, it is more like humanity in its divers ity, and serves to remind us that
our diversity should not cover up our humanity, lest we forget.”271
[242] Although Davis and Klare similarly argue strongly in favour of ubuntu as a principle
to inform the development of the common law , this too is relevant to t he interpretation of
the jurisprudence emerging from the Equality Act . They argue as such that ubuntu has
already transformed the common law principle of property. They note that property rights
have never been absolute but always buttressed by social co nsiderations.272 The authors
argue that such “social considerations” now include ubuntu as well. 273 As such, the
traditional notion of “private property” is slowly morphing into a constitutionally
recalibrated concept of “socially engaged property”.274
[243] In the context of freedom of testation, ubuntu means that the Constitution places a
high premium on establishing a compassionate society which does not discard the
humanity of any of its members. As such, the right to dispose of one’s property upon one’s
death must be balanced against the discriminatory effect it may have by precluding
members of society from an adequate share in the wealth and resources of the nation.
Conclusion
[244] Transformative constitutionalism and the obligation to ensure substantive eq uality
means that the first judgment should take this into account in its assessment of freedom of
271 Himonga et al “Reflections on Judicial Views of Ubuntu” (2013) 16 Potchefstroom Electronic Law Journal 370
at 374.
272 Davis and Klare above n 78 at 485-6.
273 Id.
274 Id.
VICTOR AJ
99
testation. While the argument that freedom of testation is closely related to several
rights - such as dignity, privacy and property - may have some merit, this approach
de- contextualises what freedom of testation really means in a grossly unequal society such
as South Africa. The countervailing values of equality and ubuntu require this Court to
consider the significant distributive consequences that placing a high premium on freedom
of testation has meant. Amongst these consequences is the glaring wealth inequality based
on the fault lines of race, gender and class that has endured after apartheid. Balancing
freedom of testation against equality both as a right and value should mean more than
treating women with equal concern and respect. It should mean more than social inclusion
and instead move towards systemic justice that seeks to abolish or root out common law
rules which simultaneously sustain women’s subordination and prop up male privilege.
[245] Lastly, considerations of ubuntu imply that the narrow -minded and self -indulgent
understanding of freedom of testation should be tempered by considerations of social
justice and equity. In this context ubuntu means nothing more than the adage that none of
us are free until all of us are free when dealing with freedom of testation within the context
of gender equality. The rights to privacy and property should not be used as a smokescreen
to shield structural inequality from constitutional scrutiny.
[246] It is for these additional reasons that I concur in the order proposed in the second
judgment.
For the Applicants
For the First to Third Respondents
JA van der Merwe SC and M Adhikari
instructed by James King and Badenhorst
Incorporated
HJ D e Waal SC and HL D u Toit
instructed by Coetzee and Van Der Bergh