Minister of Education and Another v Syfrets Trust Ltd NO and Another

• Jurisdiction: South Africa
• Citation: 2006 (4) SA 205 (C)

Minister of Education and Another v Syfrets Trust Ltd NO and Another
2006 (4) SA 205 (C)

2006 (4) SA p205

Citation	2006 (4) SA 205 (C)
Case No	2544/2004
Court	Cape Provincial Division
Judge	Griesel J
Heard	February 6, 2006
Judgment	March 24, 2006
Counsel	G J Marcus SC (with him S Budlender) for the applicants.; No appearance for the respondents, who abided the decision of the Court.; J C Heunis SC (with him M F Osborne) as curator ad litem for the potential beneficiaries.

Flynote : Sleutelwoorde E

Will — Execution of — Freedom of testation — Quaere: Whether protected by s 25 F of Constitution, although neither s 25 nor any other provision of Constitution specifically referring thereto.

Trust and trustee — Trust instrument — Variation of — Testamentary trust created for purpose of 'providing bursaries for deserving students with limited or no means of either sex (but of European descent only)' — Trust later amended by codicil to make G 'persons of Jewish decent (sic), and females of all nationalities' ineligible to compete for bursaries — Application for order varying trust conditions by deleting discriminatory provisions in will and codicil — Relief sought not a 'deprivation' of property within meaning of s 25(1) of the Constitution — Even if it was a deprivation, it was not 'arbitrary' within meaning of s 25(1) — Conditions constituting unfair discrimination H and contrary to public policy as reflected in foundational constitutional values of non-racialism, non-sexism and equality — Court empowered to vary trust deed by deleting offending provisions — Application granted.

Headnote : Kopnota

Quaere: Whether, although neither s 25 nor any other provision in the Constitution of the Republic of South Africa, I 1996 specifically refers to freedom of testation or the right of persons to dispose of their assets upon death, freedom of testation forms an integral part of a person's right to property, and must therefore be taken to be protected in terms of s 25. (Paragraph [18] at 216C - E.) J

2006 (4) SA p206

The late S, who had died in 1921, had in 1920 executed a will in which it was provided that the residue of his estate should be held in trust A and that after the death of his wife, and in the event of both his sons dying without being survived by lawful issue, it should be applied for the purpose of forming a fund (the trust) 'the income whereof shall be used and appropriated by the administrators of my estate for providing bursaries for deserving students with limited or no means of either sex (but of European descent only) of the University of Cape Town who have B passed the matriculation examination and who desire to proceed with and complete their studies'. The will went on to provide that the amounts of the bursaries, the students to whom they were to be awarded and the periods for which they were entitled to hold and receive the bursaries was to be in the sole discretion of the council or other governing body of the University of Cape Town (the present second applicant). Later in C 1920 S had added a codicil in respect of the provision for the bursaries. It was provided in the codicil that 'persons of Jewish decent (sic), and females of all nationalities' would not 'be eligible to compete for any scholarships founded by the University of Cape Town in connection with my bequest'. By 1965 both of the sons of S had died without leaving lawful issue and the trust came to be established in terms of the will and codicil. In 1969 the second D applicant decided that, by reason of the discriminatory conditions contained in the will, it could not accept the duty of administering the bursaries in question and informed the trustee of this decision. The role reserved in the will for the second applicant council, that of administering the bursaries and selecting the recipients, had since then been performed by the first respondent in its capacity as trustee of the trust. When it came to the attention of the first E applicant that the bursaries could be awarded only on the basis of the discriminatory provisions contained in the will and codicil of S, he addressed a letter to the first respondent requesting it to consider excluding the criteria relating to race, gender and religion for potential applicants in the light of the constitutional protection of equality. Without attempting to justify or defend these provisions, F the first respondent responded by claiming that the principle of freedom of testation precluded it from deviating from the wishes of the testator, S, as contained in his will and codicil, unless compelled to do so by order of a court. The applicants thereupon launched the present application for an order deleting the discriminatory provisions of the will and codicil, contending that the Court was empowered to do so on any of the following grounds: (a) s 13 of the Trust G Property Control Act 57 of 1988, which permitted the Court, in certain circumstances, to delete or vary provisions in a trust instrument; (b) the common law, which prohibited bequests that were illegal or immoral or contrary to public policy; and (c) the direct application of the Constitution, more particularly the equality and anti-discriminatory provisions of s 9. Both the first H respondent and the Master (the second respondent) abided the decision of the Court, but the curator ad litem to potential beneficiaries of the class referred to in the will and codicil, invoking the right to private succession, including freedom of testation that had now been given constitutional content in the property clause of the Constitution, namely s 25(1), contended that the contested provisions were valid. I

Held, that no authority had been referred to justifying the conclusion that the relief sought in the present application amounted to a 'deprivation' of property within the meaning of s 25(1) of the Constitution. Having had full and unfettered use, enjoyment and exploitation of his property during his lifetime, the testator upon his death had chosen to dispose of his property by leaving it in trust to the appointed trustee. The present application did J

2006 (4) SA p207

not seek to alter that state of affairs. All that it sought to achieve was to vary the A existing terms of the trust so as to remove therefrom certain provisions that were claimed to be repugnant to public policy. This kind of exercise had been performed by the Courts in innumerable cases over the years, where trust instruments had been varied on the grounds of public policy, necessity or impossibility, or in the application of the cy près doctrine, without it ever having been suggested that the testators or the trusts in question had in the B process been 'deprived' of their property. It would be unduly straining the language of s 25(1) to hold in these circumstances that the order sought, if granted, would amount to a deprivation of property. (Paragraph [20] at 217B - F.)

Held, further, that, even if it were to be held that the order sought did indeed constitute a 'deprivation', any such deprivation could not be regarded as 'arbitrary' within the meaning C of s 25(1) of the Constitution. For a deprivation to be arbitrary, it had to be procedurally unfair or must take place without sufficient reason. There could be no question of procedural unfairness in this instance, given that any order would be granted only after a full hearing by this Court and a weighing up of all relevant considerations in order to ascertain whether there is sufficient reason for granting such relief. (Paragraph [21] at 217F - H.) D

Held, further, as to the question whether the contested provisions were contrary to public policy, that the principle that the courts would refuse to give effect to a testator's directions which were contrary to public policy was a well-recognised common-law ground limiting the principle of freedom of testation, and had been applied since Roman times. (Paragraph [23] at 218C.) E

Held, further, however, that, since the advent of the constitutional era public policy was now rooted in the Constitution and the fundamental values it enshrined, thus establishing an objective normative value system. In considering questions of public policy for purposes of the present application, therefore, the Court had to find guidance in 'the founding constitutional values of human dignity, the F achievement of equality and the advancement of human rights and freedoms, non-racialism and non-sexism'. (Paragraph [24] at 218E - 219B.)

Held, further, that it was the public policy of today - not of 1920 (when the will and codicil were executed) - which was decisive in the present application. Thus the argument advanced by the curator, to the effect that the kind of provisions presently under consideration was quite common and could G be found in many wills over the years and had to be regarded as having been unobjectionable, at least at the time when the will was executed, had to be rejected. (Paragraph [26] at 220B - C.)

Held, further, that the condition limiting eligibility for the bursaries to candidates of 'European descent' constituted an instance of indirect discrimination based on race or colour. The H exclusion of Jews and women in terms of the codicil, in turn, constituted direct discrimination on the grounds of gender and religion. Such discrimination, being based on some of the prohibited grounds specified in s 9(3) of the Constitution, was therefore presumed to be unfair 'unless it is established that the discrimination is fair'. (Paragraph [33] at 222A - C.) I

Held, further, applying the criteria set out in Harksen v Lane NO and Others1998 (1) SA 300 (CC) (1997 (11) BCLR 1489) at para [51] as a guide in the enquiry into the fairness of the discrimination, that the presumption of unfairness was fortified...