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

• Author: du Toit, F.
• DOI: https://doi.org/10.47348/SLR/2022/i3a8
• Published date: 27 October 2022
• Date: 27 October 2022
• Pages: 501-528

501

https://doi.org /10.47348/ SLR/2 022/i3 a8

KING NNO V DE JAGER 2021 4 SA 1 (CC):

THREE PERSPECTIVES

François du Toit

BA (Law) LLB LLM LLD

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

Abstract

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

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https://doi.org /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)

2 2021 4 SA 1 (CC)

3 Para 40

4 Para 84

502 STELL LR 2022 3

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