In re Boe Trust Ltd and Others NNO

• Jurisdiction: South Africa
• Judge: Cloete JA, Malan JA, Shogwe JA, Pillay JA and Erasmus AJA
• Judgment Date: 28 September 2012
• Citation: 2013 (3) SA 236 (SCA)
• Docket Number: 846/2011 [2012] ZASCA 147
• Hearing Date: 10 September 2012
• Counsel: RJ Howie for the appellants.
• Court: Supreme Court of Appeal

Erasmus AJA (Cloete JA, Malan JA, Shongwe JA and Pillay JA concurring):

[1] This is an appeal against the judgment and order of Mitchell AJ in H the Western Cape High Court, Cape Town, in which he dismissed an application to have the word 'white', used to identify a group of persons to benefit in terms of a trust, deleted.

[2] The appellants are the trustees of the Jean Pierre de Villiers Trust (the trust), a trust created by the will of the late Daphne Brice de Villiers. I Mrs De Villiers bequeathed some of her assets to her siblings, her nephews, her nieces and her godchild. The residue of her estate was left to the trust.

[3] Mrs De Villiers' last will and testament, dated 14 July 2002, included the following provisions: J

Erasmus AJA (Cloete JA, Malan JA, Shongwe JA and Pillay JA concurring)

'3.6

A The residue of my estate to my hereinafter appointed trustees, in trust, to be administered by them, in terms of the powers granted herein and for the following purposes:

The trust shall be known as the Jean Pierre de Villiers Trust.

My trustees are empowered to use so much of the net income and, B if found necessary, of the capital as they shall decide, to provide my retired domestic assistant Paulus Mpai (identity No 15431), with a monthly income of R300 (three hundred rand) during his lifetime.

The remaining income shall be applied by my trustees for the C provision of small bursaries to assist white South African students who have completed an MSc degree in Organic Chemistry at a South African University and are planning to complete their studies with a doctorate degree at a University in Europe or in Britain.

D The selection of these students, and the size and duration of the bursaries shall, after discussions between them, be the joint responsibility of the four Organic Chemistry Professors of the Universities of Cape Town, Stellenbosch, Bloemfontein and Pretoria in consultation with Syfrets Trust Ltd. The only provisos in the selection of suitable candidates are that, in addition to a E competence in Organic Chemistry, such students must exhibit both the desire and the ability to benefit culturally from a period spent at such a university and that they must return to South Africa for a period to be stipulated by the Professors listed.

All surplus income shall be capitalised.

F In the event that it should become impossible for my trustee(s) to carry out the terms of the trust, I direct that the income generated by the trust be used annually to provide donations equal in size to each of the following charitable organisations: the Heart Foundation of South Africa; Optima College; the Society for the Prevention of Cruelty to Animals; Boy's Town; The Salvation Army; G Meals-On-Wheels; SOS Children's Villages; Avril Elizabeth Home; National Sea Rescue Institute; the South African Blind Workers Organisation.

Should any of these institutions no longer exist at such time, I direct that my trustee shall choose institutions with similar aims and objectives. I direct that all such donations be sent directly to H the organisation concerned and not to organisations collecting on their behalf.' [My emphasis.]

[4] From a letter written by her sister, annexed to the founding papers, it is clear that Mrs De Villiers had been repeatedly advised that one of the I primary objects of the trust, to bequeath bursaries to 'white' students, would possibly not be given effect to since it was discriminatory. Notwithstanding this warning, her will retained the word. The testatrix was of course free to change her will at any time up to her death. She did not. She did, however, provide that, should it become impossible for the trustees to carry out the terms of the trust, the income generated by the J trust had to be used annually to provide donations to a number of

Erasmus AJA (Cloete JA, Malan JA, Shongwe JA and Pillay JA concurring)

charitable organisations. Mrs De Villiers passed away on 10 February 2006. A

[5] The first stipulation, under para 3.6 of the will, that provided for the payment of a monthly income to the testatrix's retired domestic assistant Mr Paulus Mpai, has been given effect to and is still continuing. Having B regard to the wording of the will itself, it is clear that the testatrix firstly wanted to provide for Mr Mpai. She made provision, in the event that the income might be insufficient, that capital could be used to satisfy this bequest. The provision for the bursary fund must therefore be separated from the bequest to Mr Mpai. This interpretation is reinforced by the fact that the section that deals with the bursary bequest, which comes C after the provision made for Mr Mpai, starts with 'The remaining income . . .'.

[6] It can furthermore be accepted that the motivation of the testatrix to provide for bursaries in her will was the fact that her late husband was a D leading applied chemist, with doctorates in chemistry from both Oxford University and the University of Pretoria. Her wish was clearly to set up this trust in memory of her late husband after whom the trust was named.

[7] In order to give effect to the bequest of bursaries for 'white South E African students' the trustees, through their legal representatives, contacted the universities concerned. The enquiry was aimed at establishing whether the universities would accept the bursary bequests, on the conditions stipulated in the will. The letter from the legal representative of the appellants to the universities indicated that the bursary fund would be in an amount that exceeds R250 000 per annum. F

[8] All the universities responded negatively as a result of the racial selection criterion attached to the bursary. The University of Stellenbosch, through its legal services department, alluded to the fact that the university has adopted a new bursaries and scholarships policy which covers the awarding and...