The modus in modern South African succession law

• Jurisdiction: South Africa
• Date: 15 August 2019
• Citation: 2014 Acta Juridica 104
• Pages: 104-122
• Published date: 15 August 2019
• Author: J Jamneck

The modus in modern South African

succession law

J JAMNECK*

Amodus is def‌ined as a qualif‌ication or obligation added to a gift or testamen-

tary disposition whereby the person benef‌ited is required to devote the

property he receives, or the value thereof, in whole or in part to a specif‌ic

purpose. Writers and commentators seem to have neglected research of the

concept as the last in-depth discussion of the modus was published in 1968. As a

result of a lack of discussion on the topic, the enforceability of the modus

caused many problems and led to various opinions on its enforceability,

especially where the modus for an impersonal purpose is concerned. Tradition-

ally this type of modus was seen as being practically impossible to enforce and

the term ‘unenforceable’ came to be generally used whenever there is no-one

available to see to the enforcement of the modus. In modern South African law,

with the revival of class actions and an action akin to the actio popularis, this

position has changed. The conclusion to be made is that there is def‌initely an

enforceable modus under modern law which did not previously exist, namely

the modus for an impersonal purpose involving constitutional rights. The

Supreme Court of Appeal has also recognised enforcement of rights other than

constitutional rights by means of class actions and the Constitutional Court has

even broadened the scope of application of these actions to include any action

in the interests of justice. A modus for an impersonal purpose is therefore

capable of being enforced by any member of a group if such enforcement

would be in the interests of justice. On the other hand, it may still be

impossible to enforce a modus which may only affect the benef‌iciary or no-one

at all if not fulf‌illed.

I INTRODUCTION

The modus is a legal concept used in wills since Roman times to place

obligations on testamentary heirs. It is usually employed by testators who

are loathe to word their wills in strong enough terms to impose far-

reaching conditions on their benef‌iciaries, but in so doing, they often

create new and interesting problems. Writers and commentators seem to

have neglected research and discussion of the concept. In 1913 McGregor

stated that ‘[T]he modus has a kind of shadowy and embarrassed (or

embarrassing) place in Roman-Dutch law . . . ’

1

and the last in-depth

discussion of the modus may be found in a 1968 Acta Juridica article by

Beinart.

2

Save for the instances where the modus was touched on by the

* BLC LLB LLD (UP). Professor in the Department of Private Law, Unisa.

1

AJ McGregor ‘Achapter on modus’ (1913) 30 SALJ 277.

2

B Beinart ‘Fideicommissum and modus’1968 Acta Juridica 157 at 185 et seq.

104

2014 Acta Juridica 104

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courts

3

(and often incorrectly applied)

4

and some mention in discussions

of these cases

5

or in textbooks,

6

the modus has largely been ignored by

modern writers, and journal articles on the topic are hardly to be found.

Perhaps as a result of this lack of discussion of the modus in general, the

enforceability of the modus has caused many problems over the years, and

cases involving modi have appeared in our courts

7

a number of times.

Although writers have made mention of the problems created by the

enforceability of the modus,

8

consensus does not seem to have been

reached on all aspects. Some writers have agreed that only the modus for

the benef‌it of a third party is easily enforceable and that the modus for the

benef‌it of the benef‌iciary himself is ‘unenforceable’

9

but different opin-

ions seem to range with regard to the modus for an impersonal purpose.

10

As a result of the enforceability issue, which will be discussed below,

the modus has traditionally been divided into either two or three catego-

ries. The purpose and enforceability of the modus form the basis of these

categories but result in more or less the same division. Group one consists

of:

11

• the modus for the benef‌it of a third party;

• the modus for the benef‌it of the benef‌iciary himself; and

• the modus for an impersonal purpose.

3

In Re Dutch Reformed Church, Wynberg (1896) 13 SC 5; Jewish Colonial Trust Ltd Appellant v

Estate Nathan Respondents 1940 AD 163; Ex parte Strümpfer 1945 OPD 268; Ex parte Mouton and

Another 1955 (4) SA 460 (A); Wesselsen ’n Ander v D A Wessels en Seuns (Edms) Bpk en Andere

1987 (3) SA530 (T).

4

Holley v Commissioner for Inland Revenue 1947 (3) SA 119 (A); Kerkraad van die Nederduitse

GereformeerdeKerk, Gemeente Douglas, en ’n Ander v Loots 1990 (3) SA 451 (NC); Kommissaris van

Binnelandse Inkomste v VanBlommestein 1999 (2) SA 367 (SCA).

5

J Jamneck ‘Fideicommissum, vruggebruik en modus. Kerkraad van die Nederduitse Gere-

formeerde Kerk, Gemeente Douglas v Loots 1990 3 SA 451 (NK)’(1991) 54 THRHR 316 et

seq; J Jamneck ‘Die onderskeid tussen voorwaardes, modus, f‌ideicommissum en trust in die

Suid-Afrikaanse erfreg’(2001) 64 THRHR 83 et seq.

6

See MM Corbett, G Hofmeyr & E Kahn The Law of Succession in South Africa 2 ed (2001)

338; NJ Vander Merwe & CJ Rowland Die Suid-Afrikaanse Erfreg 6 ed (1990) 281 et seq; MJ de

Waal & MC Schoeman-Malan Law of Succession 4 ed (2008) 142–143; J Jamneck, C Rauten-

bach, M Paleker et al The Law of Succession in South Africa 2 ed (2012) 145.

7

Jewish Colonial Trust Ltd v Estate Nathan (n 3); Ex parte Mouton (n 3); Wesselsv D A Wessels

en Seuns (Edms) Bpk (n 3); Kerkraad van die Nederduitse Gereformeerde Kerk, Gemeente Douglas v

Loots (n 4).

8

Corbett, Hofmeyr & Kahn (n 6) 338; Vander Merwe & Rowland (n 6) 281 et seq.

9

The term ‘unenforceable’ in relation to the modus seems to have been used since Voet’s

writings (see below). Strictly speaking, however, the modus is not unenforceable in the true

sense of the word as there is no objection – legal, moral or otherwise – to its application but

no-one could or would legally interfere to enforce it. It is therefore rather a case of ‘being

incapable of being enforced’but as the term ‘unenforceable’ has become the general term used,

it will be used here. It also seems odd that a concept that is incapable of being enforced is

allowed but the modus is a well known concept in succession law and even in contract law and

has been allowed through the ages into modern law (see below).

10

See the discussion below.

11

Jamneck, Rautenbach, Paleker et al (n 6) 145.

105THE MODUS IN MODERN SOUTH AFRICAN SUCCESSION LAW

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