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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. Therefore, it became necessary for the courts to be approached to give clarity. 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. No privacy or property right considerations can ever trump that; that is simply the sort of discrimination that our present-day public policy cannot countenance.

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This Act prohibits unfair discrimination in general and specific terms. Section 6 stipulates that no person may unfairly discriminate 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.

The High Court reasoned that clause 7 does not constitute a system in terms of which women were prevented from inheriting family property. First, section 8 expressly states that it is subject to section 6 which provides for an overriding general prohibition against unfair discrimination based on gender. The reach of section 8 is not limited to the specific bases listed in section 8 a to i. 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 against unfair discrimination on the ground of gender is not limited but includes the listed bases. 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 or wills that are unlawful or contrary to public policy. It appears to me that public policy requires no development in this regard. 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 right 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.

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 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.

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 application. Indeed, it is clear from Harksen [] that the test it lays down applies to an attack against a legal provision or an executive decision.

In that matter, this Court said:. 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. 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. 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 of conflict, a statute takes precedence over the common law.

However, it is not necessary to determine this issue definitively in this matter. Under the Act, which outlaws unfair discrimination, the applicant is merely required to prove that the conduct challenged amounts to discrimination. The burden of proof shifts to the respondent who must 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. 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 7 was unenforceable and that an appropriate order was warranted.

But where, as here, the unfairness of the discrimination is conceded, the need to decide this issue falls away. In that event, the consequence would be that the discriminatory clauses are unenforceable. 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.

Both of them are rendered applicable to this matter by the fact that the first to third respondents seek to enforce 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.

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 change the terms of a will or trust deed. The rationale 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. 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. In the case of public trusts, courts have been willing to amend the trust deed to remove terms that are unfairly discriminatory.

This is evident in Syfrets where it was stated:. As Du Toit points out:. 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. 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.

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. 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 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. 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.

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 her 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.

Nor does the fact that she may have bequeathed the property to them in unequal shares or had decided to disinherit all her children. 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.

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 discrimination 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.

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. Moreover, the search for the appropriate remedy in such matters must be informed by the Constitution itself.

This is because section 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 affected by the order must be taken into account. In our law the effect of this invalidity is that the bequest to the deceased which this clause purported to regulate is regarded as having been without a condition.

Therefore, it formed part 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. 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.

Here that is not the position. It is clear from the will that the testators wished to keep the fideicommissary property in the hands of their male descendants until the third generation. The interim Constitution which came into effect in April 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 , clause 7 was pro-non scripto in the eyes of the common law, as amended by the interim Constitution which changed public policy.

Like all his assets, it became the subject of his will upon his death in This is because the respondents had already received the other half of the property from their own father. 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.

Therefore, it became necessary for the courts to be approached to give clarity. 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. 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.

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 basis. 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 section 8 d of the Equality Act in the context of this matter. I will be guided by the principles of transformative constitutionalism to this end. 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. A more robust understanding of substantive equality within our constitutional framework is necessary. This means that substantive equality must be evaluated within the realm of public policy. The majority in Barkhuizen held:. This does not mean that testators can no longer elect to whom they wish to 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. Direct or indirect application? Relying on Barkhuizen , the first judgment argues that direct application of the Bill of Rights is inappropriate in the circumstances. 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. I agree with these remarks. This is not a section 36 analysis. Importantly, the Court made the following remarks in this regard:. Whether private persons will be bound depends on a number of factors. If, on weighing up all the relevant factors, 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.

Importantly it remarked that:. It based 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. 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. 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 section 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 testation to address the kinds of deficiencies that have been identified in the first judgment. Constitutional subsidiarity. 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:.

The legislation is primary. The right in the Constitution plays only a subsidiary or supporting role. 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. 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. First, respecting the programmatic scheme and significance of the Constitution. 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 Bill of Rights.

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. Section 8 2 provides that:. The direct application of the Bill of Rights, however, must be consonant with the principle of constitutional subsidiarity.

Whilst the Bill of Rights reaches into the private sphere this is perfectly congruent with the competing right to freedom of testation. It also follows, 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. The first judgment opts for the development of the common law.

But it can only develop the common law if the legislation does not give effect to that right. In this case the Equality Act was promulgated 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.

In addition, the respondents also do not attack any provision in the Equality Act. 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. Transformative constitutionalism and the implementation of the principle of freedom of testation.

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. 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 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. 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. By ensuring that the right to equality can be invoked against private persons, the Constitution acknowledges that colonialism 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. I will contend that, where appropriate, common law principles such as freedom of testation should be recalibrated towards more egalitarian and ubuntu based ends. The different provisions of the Constitution must be read in harmony. Freedom of testation is in essence freedom of contract.

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. 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 framework 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.

In applying this critique to the facts 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.

While it may be true that freedom of testation is related 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.

By maintaining systems of privilege, it simultaneously traps vulnerable groups such as women in a cycle of poverty and entrenches systemic disadvantage. It follows 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. Substantive equality as a component of public policy. It correctly contends that this stems from the constitutional commitment to heal the injustices of the past and establish a non-sexist society.

The emphasis on moving beyond social inclusion towards systemic justice is relevant. The Constitution requires a decisive break from the past. Instead, the equality enquiry should highlight the way freedom of testation sustains iniquitous gender-based hierarchies which the Constitution seeks to uproot or abolish.

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. However, contextual legal reasoning will only 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.

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Researchers at KIT are helping to shape this change, keeping both opportunities and risks in mind. Significant contributions are made both in basic and specific research in almost all fields of application of AI technologies and, last but not least, in the investigation of social and legal aspects. 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.

The analysis above canvassed some of our 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 relationships or interactions with the lineal descendants, [67] yet excluded these descendants that they had never met unknown lineal descendants on the sole basis of their immutable characteristics. Direct versus indirect application of the Bill of Rights. 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.

For this reason, coupled with the fact that this 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. While the second judgment 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.

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, there 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. On the contrary, it is implicit in section 39 2 read with section 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 appropriately.

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. This process also requires faith in the capacity of all to adapt and to accept new entrants to the moral parity and equal 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 values in the Bill of Rights to the common law thus requires us to put faith in both the values themselves and in the people whose duly elected representatives created a visionary and inclusive constitutional structure that offered acceptance and justice across diversity to all.

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 rules 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 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.

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.

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. Rather, the purpose of applying some of these steps is to allow us to re-evaluate the weight attached to freedom of testation when juxtaposed with other constitutional considerations such as balancing a public policy enquiry. Principles underlying the current common law position. The common law rule in effect aims to respect the wishes of the testator through the principle of freedom of testation.

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. 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.

In its gender bias, it was similar to other European systems of its time, and its effects on both the South African legal system and South African society have been enormous.

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. 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. T he will was not facially discriminatory and therefore did not offend public policy.

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.

German law thus provides a guarantee of freedom of testation by the express provision for private ownership and private succession. 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. Constitutional protection of freedom of testation.

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.

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. 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.

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. 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. These types of enquiries involve, by virtue of the doctrine of precedent, a backwards and forwards process of adjudication. Rather, it is consistent with the role of courts to develop the common law to bring it in line with the Constitution. 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 issue of retrospectivity that the respondents are concerned with, must fall to be dismissed as devoid of merit. 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. 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? They submit that discrimination on the basis of gender and 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. This Court has said:. 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 justiciable 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. Our courts are aware of the impact of discriminatory testamentary bequests on women. 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.

It is, therefore, apposite for the right to privacy to play an active role in 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. This influences our decision to allow a court to reach a finding that unfair discriminatory clauses in fideicommissa are contrary 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. In those instances, there is a shift along the continuum, which warrants a greater level of judicial intervention. There is no relevant armchair or extrinsic evidence to show the contrary. 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 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 manner of unfair discrimination is contrary to our constitutionally infused conception of public policy.

It has gone on long enough and must be stopped. In doing so, it must be borne in mind that courts 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. On these facts, however, it is not appropriate to vary the provision, since it is the final substitution of the fideicommissum, [] and in any event, a variation would not be fair in light of the prior generations of women who have already been left out.

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 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.

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. 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. 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. While unfair discrimination is plainly not in line with the value of equality, it does not constitute freedom of testation.

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. These limitations render freedom of testation flexible. In its current form the principle does not justify testamentary provisions which are illegal or contrary to public policy. 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.

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. 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.

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. 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 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. 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.

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.

If this was what the High Court intended to say, the question is whether the requirements of section 36 of the Constitution are satisfied. Courts are under a duty to give reasons for their decisions and here the Supreme Court of Appeal has failed to discharge that obligation.

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.

This illustrates that the 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. 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 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 , all of which are located in the district of Oudtshoorn.

This meant that the deceased and his surviving brother, Mr John de Jager, held equal half shares in the farms in question. Indeed, when Mr John de Jager died in , his half share was inherited by his three sons [] who are the first to third respondents in these proceedings. They were cited as such in the High Court.

All of them are females. This was because the deceased had no sons. 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. They too sought to base their claim on clause 7.

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.

They argued that in the past the clause was given the interpretation they were advancing. This interpretation benefited the deceased and their father on the occasion of the death of an uncle who had no children.

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.

That Court also rejected the equality claim on the ground that the unfair discrimination imposed by clause 7 was reasonable and justifiable under section 36 of the Constitution. Consequently, the application was dismissed with no order as to costs. 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.

The answer to this question depends on whether the discriminatory part of the clause is presently enforceable. Is clause 7 enforceable? 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 of 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. 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. 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 departing 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. The right to dispose of the thing is central to the concept of ownership and is a deeply entrenched principle of our common law. The same holds true under the Constitution. But now the principle is reinforced by the Constitution which declares that any law or conduct which is inconsistent with it, is invalid.

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.

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 Cornelius de Jager, the clause denied female descendants the benefit of inheriting the property. This is because the Constitution 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 , [] the applicants were assisted by the presumption in section 9 5 [] in establishing that clause 7 creates unfair discrimination.

These respondents have failed to do this. In fact, they admitted that clause 7 had caused unfair discrimination. This admission is crucial to the 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.

It provides:. National legislation must be enacted to prevent or prohibit unfair discrimination. 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 discrimination against any person, her will becomes inconsistent with section 9 4 of the Constitution.

This Act prohibits unfair discrimination in general and specific terms. Section 6 stipulates that no person may unfairly discriminate 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. The High Court reasoned that clause 7 does not constitute a system in terms of which women were prevented from inheriting family property.

First, section 8 expressly states that it is subject to section 6 which provides for an overriding general prohibition against unfair discrimination based on gender. The reach of section 8 is not limited to the specific bases listed in section 8 a to i. 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 against unfair discrimination on the ground of gender is not limited but includes the listed bases.

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 or wills that are unlawful or contrary to public policy. It appears to me that public policy requires no development in this regard.

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 right 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.

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 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.

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 application.

Indeed, it is clear from Harksen [] that the test it lays down applies to an attack against a legal provision or an executive decision. In that matter, this Court said:. 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.

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. 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 of conflict, a statute takes precedence over the common law.

However, it is not necessary to determine this issue definitively in this matter. Under the Act, which outlaws unfair discrimination, the applicant is merely required to prove that the conduct challenged amounts to discrimination. The burden of proof shifts to the respondent who must 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. 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 7 was unenforceable and that an appropriate order was warranted. But where, as here, the unfairness of the discrimination is conceded, the need to decide this issue falls away. In that event, the consequence would be that the discriminatory clauses are unenforceable.

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. Both of them are rendered applicable to this matter by the fact that the first to third respondents seek to enforce 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. 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 change the terms of a will or trust deed.

The rationale 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. 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.

In the case of public trusts, courts have been willing to amend the trust deed to remove terms that are unfairly discriminatory. This is evident in Syfrets where it was stated:. As Du Toit points out:. 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. 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.

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. 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 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.

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.

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 her 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.

Nor does the fact that she may have bequeathed the property to them in unequal shares or had decided to disinherit all her children. 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. 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 discrimination 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.

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.

Moreover, the search for the appropriate remedy in such matters must be informed by the Constitution itself. This is because section 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 affected by the order must be taken into account.

In our law the effect of this invalidity is that the bequest to the deceased which this clause purported to regulate is regarded as having been without a condition. Therefore, it formed part 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.

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.

Here that is not the position. It is clear from the will that the testators wished to keep the fideicommissary property in the hands of their male descendants until the third generation. The interim Constitution which came into effect in April 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 , clause 7 was pro-non scripto in the eyes of the common law, as amended by the interim Constitution which changed public policy. Like all his assets, it became the subject of his will upon his death in This is because the respondents had already received the other half of the property from their own father.

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.