In King NO and Others v De Jager and Others [2017] ZAWCHC 79 the Western Cape High Court (Bozalek J) was confronted with a will drafted in 1902 which created a fidei commissum for three generations.
The first generation of heirs included the testators’ children, both sons and daughters. From the second generation, however, the fiduciaries and eventual fidei commissaries were limited to the male descendants in each generation. Some female great-grandchildren of the testators, after their father’s death in 2015, claimed that the terms of the fidei commissum were discriminating on the basis of gender and therefore falling foul of section 9 of the Constitution.
The court held that freedom of testation is an expression of the right to property in section 25 of the Constitution and as such has to be weighed against the right to equality. As inheritance is not a right, infringing on the right to property on the basis that disinherited descendants is unfairly discriminated against is not justifiable as to do so would make freedom of testation meaningless. An attempt by the applicants to have their sons substitute them also failed, as the court held that to achieve that would require a strained interpretation of the words “child” and “children.”
The court distinguished the line of cases which started with Minister of Education v Syfrets, and held that those are all cases where a trust with a public function and character was involved where equality would carry more weight. The application was dismissed and the will was not amended by court.