King N.O. and Others v. De Jager and Others
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.
On November 28, 1902 Mr. Karel Johannes Cornelius De Jager and Mrs. Catherine Dorothea De Jager executed a will leaving certain farms to their children during their lives and thereafter to male descendants only, until the fourth generation. In 2015, Mr. Kalvyn De Jager, who had inherited half of the farm shares, died with no male children. In his will, he left his share of the farms to his five daughters. The question then arose as to whether clause 7 of the original will – which would have barred Kalvyn’s daughters from inheriting – was enforceable given the protections of the 1996 Constitution and the Promotion of Equality Prevention of Unfair Discrimination Act 4 of 2000 (the Equality Act).
Applicants filed suit in the High Court asking that the discriminatory clause be found invalid and the will amended to include female heirs to the property. The High Court denied relief. It determined that because the clause was contained in a private will, it did not have a public character subject to public policy considerations. Additionally, the High Court reasoned that, because the clause had a limited duration and was only discriminatory to certain descendants, not all women generally, it did not constitute a violation of section 8 of the Equality Act. On the applicants’ appeal, the Supreme Court of Appeal affirmed the judgment of the High Court without giving reasons.
The Constitutional Court of South Africa granted leave to appeal and set aside the orders of the High Court and Supreme Court of Appeal. The Constitutional Court determined that the impugned clause was inconsistent with the Constitution and the Equality Act and therefore unenforceable. All judges agreed with the result although they reached it by different paths of reasoning. Three judgments issued.
First judgment: Mhlantla J (4 votes). Mhlanta J concluded that the disinheritance clause was unenforceable because it is in contradiction to public policy as imbued by constitutional values. In South Africa, public policy is determined by reference to the Bill of Rights and, pursuant to Section 39(2) of the Constitution, courts are under a general obligation to appropriately “develop” the common law to promote the spirit, purport, and objects of the Bill of Rights, normatively understood in each era and consequently re-evaluate weight attached to freedom of testation as juxtaposed against competing values.
Second judgment: Jafta J (majority opinion, 5 votes): The second judgment agreed in the result but saw no need for development of the common law. Jafta J reasoned that the disinheritance clause was already unenforceable because the common law always barred enforcement of testamentary provisions contrary to public policy. Contrary to the first judgment, Jafta J found nothing suspect with freedom of testation as such and therefore no need to develop the common law.
The majority opinion directly applied the Section 9(4) equality provision of the Bill of Rights to strike down the disinheritance clause of the will, also finding that the will breached Section 8 of the Equality Act, which prohibits discrimination by one person against another, including gender-based discrimination. The judgement rejected the lower court’s argument that these protections apply only to public agreements and actions. The majority opinion stated that a private testamentary disposition in direct contradiction with the Constitution will not be sustained.
Third judgment: Victor AJ concurred with the majority opinion but wrote individually to emphasize that the Constitutional and statutory conception of equality in South Africa is substantive, not formal, and that adjudication should be “guided by the principles of transformative constitutionalism.” However, Victor AJ would resolve the case on statutory grounds in deference to the principle of constitutional subsidiarity i.e., the principle that a litigant cannot directly invoke the Constitution to exact a right she seeks to enforce without first relying on or challenging the constitutionality of the legislation enacted to give effect to that right. Under this reasoning, in the case at hand, a direct application of the Bill of Rights must rely on the Equality Act because its definition of discrimination subsumes the constitutional right in question.
In the result, the Constitutional Court unanimously concluded that disinheritance clause of the De Jager will is unenforceable in that it reflects an impermissible discrimination that negates any deference owed to the private right of testation.
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.