King and Others NNO v De Jager and Others

• Jurisdiction: South Africa
• Judge: Bozalek J
• Judgment Date: 10 August 2017
• Citation: 2017 (6) SA 527 (WCC)
• Docket Number: 21972/2015
• Hearing Date: 10 August 2017
• Counsel: J van der Merwe SC for the applicants. H du Toit for the first to third respondents.
• Court: Western Cape Division, Cape Town

Bozalek J:

[1] This application raises as a primary issue whether a court can amend the wording of a will which established a fideicommissum containing a condition discriminating against female descendants. The issue brings to H the fore two potentially competing rights, the right to freedom of testation on the one hand and the right to equality (more specifically the right not to be unfairly discriminated against) on the other.

The parties

[2] The first applicant is an attorney and one of the six co-executors in I the deceased estate of the late Kalvyn de Jager who died on 5 May 2015 (the deceased). The deceased, who died testate, had no sons but left five daughters who are the second to sixth applicants and are co-executors with the first applicant in the deceased's estate.

[3] The first to third respondents are the sons of the deceased's late J brother, John de Jager, who died on 6 October 2005.

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[4] The fourth to eighth respondents are the sons of the second to sixth A applicants, ie the deceased's grandsons.

[5] The Master of the High Court is the ninth respondent.

[6] Only the first to third respondents oppose the application.

The factual background

[7] The dispute arises out of a joint will (the will) executed on 28 November 1902 in Oudtshoorn by the deceased's grandparents, Carel de Jager and Catherina de Jager (the testators), who were married in community of property. The testators had six children comprising four sons and two daughters. In the will they bequeathed various fixed C properties, including many farming properties, to their four sons and two daughters subject, however, to fideicommissa governed by clause 7 thereof. According to its provisions all of the fixed properties, both those specifically named as well as unnamed properties (save for a certain piece of property bequeathed to one daughter under clause 5) were made subject to the fideicommissa. Until the deceased's death the terms of the D fideicommissa were interpreted and applied as appointing only the sons of the testators' children, and thereafter their sons, as fideicommissary beneficiaries. In other words both the first and the second substitutions limited the fideicommissary beneficiaries to descendants of the male gender. E

[8] The present application is said by the applicants to concern only certain farming properties which were initially bequeathed to the deceased's father, Cornelius de Jager, one of the testators' four sons.

[9] It is not known when the co-testatrix died but according to an F abridged family tree, the co-testator died in 1904 and presumably some time thereafter the farms which were bequeathed to Cornelius de Jager were inherited by him as fiduciary heir. According to the family tree, Cornelius de Jager died in 1957. He had three sons, Corrie de Jager (who died on 19 March 1984 or 1998 — the papers are contradictory), John de Jager (who died on 6 October 2005) and the deceased, Kalvyn de Jager G (who died on 5 May 2015). Cornelius de Jager also had six daughters but details of when they died and what progeny, if any, they had are not given in the papers nor reflected in the family tree. This is presumably so because, on the long-accepted interpretation of clause 7 of the will, they never became fideicommissary beneficiaries to any property. As a result Cornelius de Jager's abovementioned three sons each became fiduciary H heirs to a one-third share in the farms, subject to the fideicommissum in clause 7 of the will. Put differently, the first substitution of fiduciaries in respect of those properties ie to the testators' grandsons, occurred after Cornelius' death in 1957.

[10] Of those three grandsons, Corrie de Jager left no children upon his I death and his one-third share in the properties devolved, in terms of clause 7 of the will, in equal parts upon his two surviving brothers, namely John de Jager and the deceased. Upon the death of John de Jager in 2005 his half-share of the properties in question (ie his original one- third share plus his one-sixth share which he inherited from his brother, J

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Corrie) A devolved upon his three sons, the first to third respondents, but now free of any fideicommissum. This was the second in the series of substitutions of fiduciaries, namely, to the testators' great-grandchildren in their capacity as fideicommissaries.

[11] After the first to third respondents received their inheritance they, B and one of their trusts, concluded an agreement with the deceased, dividing up their respective interests in the fideicommisary property. According to the first applicant's founding affidavit the result is that in terms of certain title deeds the deceased became the co-owner in undivided shares of three specific properties, namely, the farms Nieuwdrift C No 88, Doornkuil and Buffelsdrift No 260, all in the district of Oudtshoorn. The title deeds in terms of which the deceased held his respective half-shares in each of the three properties stipulate that his title in each case was subject to clause 7 of the will.

[12] The deceased was the last grandson of the testators in whose estate D a fiduciary asset in terms of the will fell to be dealt with. The substitution following his death will therefore be the last substitution as required by the terms of the will and thus the heirs in terms of this substitution inherit the property free of the fideicommissary burden. For ease of reference I shall henceforth refer to the deceased's half-share in each of these properties as 'the fideicommissary property'. After advertisement E of the estate, 13 persons making up the three groups of claimants described below laid claim to the fideicommissary property.

The various claimants and the basis of their claims

[13] The first applicant deposed to the founding affidavit and expressed F the view that the terms of the fideicommissum which discriminate against the female descendants of the testators are against public policy and cannot stand.

[14] He explains that there are three groups of claimants to the fideicommissary property. The first group comprises the deceased's G daughters (second to sixth applicants) who contend that those provisions of clause 7 of the will which refer to 'sons' and 'male descendants' discriminate against them unfairly as members of the female gender. They seek the deletion and amendment of these provisions in clause 7 of the will, thereby making them the heiresses to the fideicommissary H property.

[15] The second group of claimants (the first to third respondents) comprises the three sons of the deceased's late brother, John de Jager (the testators' great-grandsons). They base their claim to the fideicommissary property on the fact that the deceased left no sons and they contend that I according to the fideicommissum's terms they are the lawful heirs to it.

[16] The third group of claimants (the fourth to eighth respondents) comprises the grandsons of the deceased (ie the great-great-grandsons of the testators) namely, the five sons of the first group of claimants. Their claim is based on the assumption that the claim of their mothers based on unfair discrimination against female descendants does not succeed. J They contended that in such event clause 7 of the will must be

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interpreted in such a way that the fideicommissary property devolves on A them as the deceased's male descendants ('manlike nakomelinge', to use the phrase which appears in the Afrikaans translation of clause 7) rather than upon the second group of claimants.

The cases made out in the papers

[17] The first applicant stated that he is not certain to whom he and his fellow executors must transfer the fideicommissary property pursuant to his duty as a co-executor. For this reason he was advised to approach the court for a declaratory order. He expressed the view that the will clearly provided for an indefinite fideicommissum restricted to male descendants but explained that in terms of s 7(1)(b) of the Immovable Property C (Removal or Modification of Restrictions) Act 94 of 1965, since there had been one substitution prior to 1 October 1965 in terms of the existing fideicommissum, it was restricted to only one further substitution. In the present instance this first substitution had occurred when the fideicommissary property devolved upon the deceased in 1957 following the death of his father, Cornelius de Jager. D

[18] On my reading of the will, however, the fideicommissa were not indefinite but were intended to terminate after the second substitution, ie when the property devolved upon the third line of heirs. It is common cause that the next substitution of fiduciaries will be the last. E

[19] The will was executed in Dutch but the parties accept as correct an English translation of the key provision, clause 7, reading as follows:

'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 F 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 G 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...