King NNO v De Jager 2021 4 SA 1 (CC): Three perspectives

Authordu Toit, F.
Published date27 October 2022
Date27 October 2022
501 /10.47348/ SLR/2 022/i3 a8
François du Toit
Senior Professor, Faculty of Law, University of the Western Cape
Matthew Harding
BA (Hons) LLB (Hons) BCL DPhil
Dean, Melbourne Law School, University of Melbourne
Andreas Humm
Dr iur Mag iur
Former Research Associate, Max Planck Institute for Comparative and International
Private Law, Hamburg
In the King case, the South African Constitutional Court adjudicated
on a gender-based disinheritance under a testamentary deicommissum.
The court, in three judgments, found that the disinheritance violated public
policy and was, moreover, unconstitutional and thus invalid. King was the
Constitutional Court’s rst pronouncement on a gender-based disinheritance
in a purely private bequest. It therefore stands in contrast to earlier High Court
and Supreme Court of Appeal judgments regarding the exclusion of potential
beneciaries under testamentary charitable bequests. This contribution
provides three perspectives by commentators from three jurisdictions on the
Constitutional Court’s judgment in King.
The rst perspective argues against an objection that can be raised against
a judgment such as King, namely that it constitutes an unjustied judicial
violation of personal autonomy, freedom of disposition and private property
in the law of gifts and trusts. The rst perspective posits that discriminatory
goals such as those pursued through explicit gender-exclusive disinheritances
are inherently worthless and the judicial invalidation of such disinheritances
therefore have a negligible impact on personal autonomy, freedom of
disposition and private property. The second perspective cautions against the
Constitutional Court’s express rejection of the public/private divide in the law
of gifts and trusts. It argues that the divide plays an important role in striking
a balance between personal autonomy, freedom of disposition and private
property on the one hand, and policy as well as constitutional imperatives
regarding equality and non-discrimination on the other hand. The second
perspective thus advocates that the public/private divide must be retained in
the law of gifts and trusts. The third perspective evaluates the King case from
a German viewpoint and argues that the Constitutional Court’s reasoning in
this case undervalued freedom of testation. The third perspective advances
a solution that strives to balance the arguments that underpin the rst and
second perspectives.
(2022) 33 Stell LR 501
© Juta and Company (Pty) Ltd /10.47348/ SLR/2 022/i3 a8
Keywords: Freedom of testation; disinheritance; private bequest; public
policy; constitutionalism
1 Introduction
KJC de Jager and CD de Jager executed a joint will in 1902 in which
they bequeathed certain farms to their sons and daughters as duciary heirs.
The deicommissary heirs were their children’s male descendants for the
subsequent two generations. The clause governing the deicommissum
prescribed, among others, that, should any of the testators’ sons or grandsons
not leave a male descendant, such a son’s or grandson’s portion will pass to that
son’s or grandson’s brother(s) or, by way of an alternative direct substitution,
to a brother’s son(s). One of the testators’ sons left three sons: C, J and K.
C died childless and his portion thus devolved in terms of the aforementioned
prescript to his two brothers. J died in 2005 and his portion devolved to his
three sons. K died in 2015 and left ve daughters. The daughters challenged
their exclusion as deicommissary heirs before the Western Cape High Court
on the ground that it occasioned unfair gender-based discrimination and they
sought a ruling that would grant them entitlement to their father’s portion of
the deicommissary property.1 J’s three sons were among those who opposed
the daughters’ prayer. They did so on the ground that they were, in terms of
the aforementioned prescript, entitled to K’s portion of the deicommissary
property as alternative substitute beneciaries. The High Court dismissed the
daughters’ application and they appealed to the Supreme Court of Appeal,
which dismissed the appeal without providing reasons. The Constitutional
Court granted the daughters leave to appeal. The Constitutional Court, in
upholding the appeal in King NNO v De Jager2 (“King NNO”), delivered three
judgments: a minority judgment (the “rst judgment”) written by Mhlantla J
with Khampepe J, Madlanga J and Theron J concurring; a majority judgment
(the “second judgment”) written by Jafta J with Mogoeng CJ, Majiedt J,
Mathopo AJ and Victor AJ concurring; and a separate concurring judgment
(the “third judgment”) written by Victor AJ.
The rst judgment dealt with the matter in terms of the common law by
invoking the rule against the enforceability of testamentary dispositions
that violate public policy.3 It held that, when testing the clause governing
the deicommissum against the non-discrimination imperative with which
the Constitution of the Republic of South Africa, 1996 (the “Constitution”)
imbues public policy, the impugned clause is indeed unfairly discriminatory
on the ground of gender, in particular because the testators excluded lineal
descendants unknown to them purely because they are women.4 The rst
judgment reasoned that the common law must be developed to restrict freedom
of testation further by including unfairly discriminatory disinheritances
in private bequests under the rule on the unenforceability of testamentary
1 King NNO v De Jager 2017 6 SA 527 (WCC)
3 Para 40
4 Para 84
502 STELL LR 2022 3
© Juta and Company (Pty) Ltd

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