This case addresses whether a discriminatory clause in a private will limiting the inheritance of property to only male descendants is unconstitutional or otherwise void as against public policy. The case directly challenges the traditional doctrine of freedom of testation where a testator seeks to impose restraints on inheritance that conflict with values embodied in the South African Constitution and the Equality Act – such as women’s right of equal treatment under the law.
The decision has a direct bearing on the principle of freedom of testation in South African law, which historically has held and protected an individual’s right to bequeath their estate (assets and property) to whoever they so choose. In future wills containing similar provisions may be set aside (or the office of the Master may choose not to accept such wills or provisions) as the Constitutional Court has declared that the principle of freedom of testation does not allow or permit discrimination on one of the listed grounds contained in Section 9 of the Constitution.
The impact of this case lies in its limitation on a person’s private right to own, inherit, and bequeath property when such property right is in contradiction with the values and rights of the Constitution. Private contracts can and will be held unenforceable if found in violation of the principles of equality and non-discrimination embedded in the South African law. The minority judgment(s) of both Victor J and Mhlantla J emphasized the need for substantive equality in our society emphasizing that the principle of freedom of testation is steeped in patriarchy and that specifically the discrimination faced by women both historically and in currently in South Africa needs to be addressed both formally and substantively.
For their contributions, special thanks to ESCR-Net members: the Program on Human Rights and the Global Economy (PHRGE) at Northeastern University.