King and Others NNO v De Jager and Others

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Mogoeng CJ, Jafta J, Khampepe J, Madlanga J, Majiedt J, Mathopo AJ, Mhlantla J, Theron J and Victor AJ
• Judgment Date: 19 February 2021
• Court: Constitutional Court
• Hearing Date: 19 February 2021
• Citation: 2021 (4) SA 1 (CC)
• Counsel: JA van der Merwe SC (with M Adhikari) for the applicants. HJ de Waal SC (with HL du Toit) for the respondents.
• Docket Number: CCT 315/18 [2021] ZACC 4

Mhlantla J (Khampepe J, Madlanga J and Theron J concurring):

Introduction

[1] This matter concerns a will that was executed over 100 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

Mhlantla J (Khampepe J, Madlanga J and Theron J concurring)

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 of how to reconcile the fundamental right to equality and the primacy of freedom of testation in the context of 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 their application for declaratory 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 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

Mhlantla J (Khampepe J, Madlanga J and Theron J concurring)

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 third 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 the deceased's grandsons, who contended that if 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 an application in the High Court [5] 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

Mhlantla J (Khampepe J, Madlanga J and Theron J concurring)

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]

[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 s 8 of the Promotion of Equality and Prevention of Unfair Discrimination Act [9] (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 balancing 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 s 36 of the

Mhlantla J (Khampepe J, Madlanga J and Theron J concurring)

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 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 the 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 discriminates 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] In terms of the discrimination issue, the applicants submit that the High Court incorrectly characterised the right to...