SLR 2022 I3a8

(2022) 33 Stell LR 501
KING NNO V DE JAGER 2021 4 SA 1 (CC):

THREE PERSPECTIVES
François du Toit
BA (Law) LLB LLM LLD
Senior Professor, Faculty of Law, University of the Western Cape
Matthew Harding
BA (Hons) LLB (Hons) BCL DPhil
Dean, Melbourne Law School, University of Melbourne
Andreas Humm
Dr iur Mag iur
Former Research Associate, Max Planck Institute for Comparative and International
Private Law, Hamburg
Abstract
In the King case, the South African Constitutional Court adjudicated
on a gender-based disinheritance under a testamentary fideicommissum.
The court, in three judgments, found that the disinheritance violated public
policy and was, moreover, unconstitutional and thus invalid. King was the
Constitutional Court’s first pronouncement on a gender-based disinheritance
in a purely private bequest. It therefore stands in contrast to earlier High Court
and Supreme Court of Appeal judgments regarding the exclusion of potential
beneficiaries under testamentary charitable bequests. This contribution
provides three perspectives by commentators from three jurisdictions on the
Constitutional Court’s judgment in King.
The first perspective argues against an objection that can be raised against
a judgment such as King, namely that it constitutes an unjustified judicial
violation of personal autonomy, freedom of disposition and private property
in the law of gifts and trusts. The first perspective posits that discriminatory
goals such as those pursued through explicit gender-exclusive disinheritances
are inherently worthless and the judicial invalidation of such disinheritances
therefore have a negligible impact on personal autonomy, freedom of
disposition and private property. The second perspective cautions against the
Constitutional Court’s express rejection of the public/private divide in the law
of gifts and trusts. It argues that the divide plays an important role in striking
a balance between personal autonomy, freedom of disposition and private
property on the one hand, and policy as well as constitutional imperatives
regarding equality and non-discrimination on the other hand. The second
perspective thus advocates that the public/private divide must be retained in
the law of gifts and trusts. The third perspective evaluates the King case from
a German viewpoint and argues that the Constitutional Court’s reasoning in
this case undervalued freedom of testation. The third perspective advances
a solution that strives to balance the arguments that underpin the first and
second perspectives.
501
https://doi.org/10.47348/SLR/2022/i3a8
© Juta and Company (Pty) Ltd

502 STELL LR 2022 3
Keywords: Freedom of testation; disinheritance; private bequest; public

policy; constitutionalism
1 Introduction
KJC de Jager and CD de Jager executed a joint will in 1902 in which
they bequeathed certain farms to their sons and daughters as fiduciary heirs.
The fideicommissary heirs were their children’s male descendants for the
subsequent two generations. The clause governing the fideicommissum
prescribed, among others, that, should any of the testators’ sons or grandsons
not leave a male descendant, such a son’s or grandson’s portion will pass to that
son’s or grandson’s brother(s) or, by way of an alternative direct substitution,
to a brother’s son(s). One of the testators’ sons left three sons: C, J and K.
C died childless and his portion thus devolved in terms of the aforementioned
prescript to his two brothers. J died in 2005 and his portion devolved to his
three sons. K died in 2015 and left five daughters. The daughters challenged
their exclusion as fideicommissary heirs before the Western Cape High Court
on the ground that it occasioned unfair gender-based discrimination and they
sought a ruling that would grant them entitlement to their father’s portion of
the fideicommissary property.1 J’s three sons were among those who opposed
the daughters’ prayer. They did so on the ground that they were, in terms of
the aforementioned prescript, entitled to K’s portion of the fideicommissary
property as alternative substitute beneficiaries. The High Court dismissed the
daughters’ application and they appealed to the Supreme Court of Appeal,
which dismissed the appeal without providing reasons. The Constitutional
Court granted the daughters leave to appeal. The Constitutional Court, in
upholding the appeal in King NNO v De Jager2 (“King NNO”), delivered three
judgments: a minority judgment (the “first judgment”) written by Mhlantla J
with Khampepe J, Madlanga J and Theron J concurring; a majority judgment
(the “second judgment”) written by Jafta J with Mogoeng CJ, Majiedt J,
Mathopo AJ and Victor AJ concurring; and a separate concurring judgment
(the “third judgment”) written by Victor AJ.
The first judgment dealt with the matter in terms of the common law by
invoking the rule against the enforceability of testamentary dispositions
that violate public policy.3 It held that, when testing the clause governing
the fideicommissum against the non-discrimination imperative with which
the Constitution of the Republic of South Africa, 1996 (the “Constitution”)
imbues public policy, the impugned clause is indeed unfairly discriminatory
on the ground of gender, in particular because the testators excluded lineal
descendants unknown to them purely because they are women.4 The first
judgment reasoned that the common law must be developed to restrict freedom
of testation further by including unfairly discriminatory disinheritances
in private bequests under the rule on the unenforceability of testamentary
1
King NNO v De Jager 2017 6 SA 527 (WCC)
2
2021 4 SA 1 (CC)
3
Para 40
4
Para 84

KING NNO v DE JAGER 2021 4 SA 1 (CC): THREE PERSPECTIVES 503
dispositions that violate public policy.5 The second judgment saw no need to
develop the common law as proposed in the first judgment.6 Instead, the second
judgment reasoned that unfairly discriminatory disinheritances in private
bequests are ipso jure in violation of public policy and thus unenforceable in
terms of the existing common-law public policy rule.7 The second judgment
reasoned, moreover, that the impugned clause occasioned a disinheritance
based on gender – one of the non-discrimination grounds listed in section 9(3)
of the Constitution – and that the discrimination so occasioned is presumed
to be unfair.8 The respondents (J’s three sons, among others) failed to rebut
this presumption9 and the clause governing the fideicommissum therefore
brought about an unfairly discriminatory disinheritance of the appellants that
violated public policy and rendered the impugned clause unenforceable.10 The
second judgment ruled furthermore that the offending clause was not only
inconsistent with the Constitution, but that it also fell afoul of the Promotion
of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (the
“Equality Act”) and that it was unenforceable on this ground as well.11 The
third judgment concurred with the second judgment’s rejection of the first
judgment’s standpoint that the common law regarding freedom of testation
must be developed to prohibit unfair discrimination in private dispositions.
The third judgment relied pertinently on the application of the Equality Act to
resolve the matter, in particular because this Act reflects contemporary South
African public policy on point; moreover, because invoking this Act in casu
effectuates transformative constitutionalism in testamentary succession.12 The
third judgment thus concluded that substantive equality and ubuntu demand
a de-contextualisation of freedom of testation in South Africa to address the
distributive consequences of private dispositions in an unequal society.13
The central issue in King NNO was whether a gender-based out-and-out
disinheritance in a private testamentary bequest offends South African public
policy on equality. The Constitutional Court correctly typified this issue as a res
nova.14 The court’s affirmative answer to this novel question holds important
implications for freedom of testation as well as its limitation in South African
law. In light of the significant and potentially far-reaching effect of the King
NNO case, this article provides three perspectives by commentators from three
jurisdictions on key aspects of the case. The contribution seeks to articulate
different views on the approach to allegedly discriminatory dispositions in
wills and, in so doing, to situate aspects of King NNO in the context of the
broader global discourse on freedom of testation and its limitation on policy
grounds.
5
Paras 50 and 85
6
Paras 90 and 137
7
Para 96
8
Para 130
9
Para 131
10
Para 158
11
Para 163
12
Para 165
13
Paras 244-245
14
Paras 1 and 33

504 STELL LR 2022 3
2 First perspective: The Constitutional Court did not violate

personal autonomy, freedom of disposition and private
property in the South African law of gifts and trusts15
2 1 Introduction
In interpreting and evaluating the decision in the King NNO case, numerous
questions demand consideration. Some of them go to the proper interpretation
of the values and text of the Constitution and the Equality Act. In what follows,
I leave to one side those questions of constitutional and statutory interpretation,
although at times I allude to them. Other pertinent questions go to the operation
of public policy in South Africa’s common law. I take up two such questions
about public policy here. First, does public policy in South Africa permit the
application of public law norms on equality (and non-discrimination) to private
dispositions of property that facially discriminate on the basis of gender such
as the fideicommissum in the King NNO case? Second, if the first question is
answered in the affirmative, is this application of public policy desirable or
undesirable given the value of freedom of disposition in South African law?
I deal first with the question of the application of the equality norm to private
dispositions, before turning to the value of freedom of disposition.
2 2 The equality norm and private dispositions

It is noted in this article’s introduction that King NNO is the first instance
under South Africa’s current constitutional dispensation in which the question
has been posed directly whether the equality norm should be applied to private
dispositions via common-law public policy. Matters have been different,
however, in respect of charitable dispositions. Since 1996, South African
courts have had to consider on several occasions whether public policy
requires the application of the equality norm to charitable dispositions that
facially discriminate on the basis of, among others, race or gender.16 This
concern about discriminatory charitable dispositions has not been unique
to South Africa; since the 1990s such dispositions have been scrutinised by
courts in Canada,17 and they have also been the subject of judicial attention in
Australia.18 When presented with discriminatory charitable dispositions, South
African courts have been willing to interfere with such dispositions on public
policy grounds, most notably in cases of racial discrimination, but also in cases
of discrimination on other grounds such as gender and religion. My co-author
attends to some of the principal judgments on point in the second perspective
below.19 Canadian courts have also shown themselves ready to invoke public
15
M Harding, Australia
16
See, eg, Minister of Education v Syfrets Trust Ltd NO 2006 4 SA 205 (C); Curators, Emma Smith
Educational Fund v University of KwaZulu-Natal 2010 6 SA 518 (SCA); In re BOE Trust Ltd NNO 2013 3
SA 236 (SCA)
17
See, eg, Canada Trust Co v Ontario (Human Rights Commission) (1990) 69 DLR (4th) 321; Re Ramsden
Estate (1996) 139 DLR (4th) 746; University of Victoria v British Columbia (AG) 2000 BCSC 445; Re The
Esther G Castanera Scholarship Fund 2015 MBQB 28
18
Kay v South Eastern Sydney Area Health Service [2003] NSWSC 292
19
See part 3 1 and 3 2

policy against discriminatory charitable dispositions,20 although it is worth

noting that Australian courts seem to have adopted a more accommodating
approach.21
The fact that South African courts have applied the equality norm to
discriminatory charitable dispositions via common-law public policy is
significant when considering whether public policy should be directed against
private dispositions in a similar way. However, it is far from determinative.
This is, as my co-author points out in the second perspective below,22 because
charitable dispositions are sometimes thought, on account of their public
character, to be especially susceptible to the operation of public law norms. In
what sense might it be said that charitable dispositions have the requisite public
character? Sometimes, the public character seems to be located in the purposes
that charitable dispositions support, and sometimes it seems to be considered a
matter of the institutional nature of the trustee charged with carrying out those
purposes.23 Elements of both lines of thought are discernible in the Supreme
Court of Appeal’s reasoning in Curators, Emma Smith Educational Fund v
University of KwaZulu-Natal24 (“Emma Smith”):
“The constitutional imperative to remove racially restrictive clauses that conflict with public policy
from the conditions of an educational trust intended to benefit prospective students in need and
administered by a publicly funded educational institution such as the University, must surely take
precedence over freedom of testation, particularly given the fundamental values of our Constitution
and the constitutional imperative to move away from our racially divided past.”25
In striking contrast to charitable dispositions, courts in South Africa and

elsewhere have repeatedly said that facially discriminatory private dispositions
are not to be interfered with through the mechanism of common-law public
policy. In Aronson v Estate Hart,26 the Appellate Division (as it then was) was
not prepared to interfere with a testamentary condition that discriminated on
the basis of religion. Similarly, in Blathwayt v Baron Cawley,27 the leading
English authority on point, Lord Wilberforce was not prepared to accept that
“private selection” is a matter of public policy. Lastly, in Spence v BMO Trust
Company28 the Ontario Court of Appeal emphatically rejected the application
of common-law public policy to facially and other discriminatory testamentary
dispositions, underscoring the importance of freedom of testation in Canadian
law. Nonetheless, and significantly for reasons that I spell out below, these
courts have formed their views against constitutional and statutory backdrops
different from that which obtains in South Africa today.
20
Most notably in Canada Trust Co v Ontario (Human Rights Commission) (1990) 69 DLR (4th) 321
21
Eg, in Kay v South Eastern Sydney Area Health Service [2003] NSWSC 292 para 18 the court said that
“generally speaking testators can be as capricious as they like and … if they wish to benefit a charity in
respect of, or [sic] even of, a discriminatory group, they are at liberty to do so”
22
See part 3 1
23
For a more comprehensive discussion of this question, see M Harding Charity Law and the Liberal State
(2014) ch 7
24
2010 6 SA 518 (SCA)
25
Para 42
26
1950 1 SA 539 (A)
27
[1976] AC 397 425-426
28
2016 ONCA 196 para 75

506 STELL LR 2022 3
It must be emphasised immediately that the refusal of courts in South Africa

and elsewhere to apply public law norms generally, and the equality norm in
particular, to private dispositions has never represented any prevailing position
that common-law public policy is inapplicable to private dispositions. The long
history of judicial interference with dispositions in restraint of, or tending to
undermine, marriage in various jurisdictions supplies ample evidence to falsify
that assertion.29 Rather, I submit that these decisions stand for the narrower
proposition that the equality norm specifically should not be brought to bear
on discriminatory private dispositions through the vehicle of public policy.
However, the first judgment in King NNO would indeed have interfered with
the fideicommissum at issue in casu on grounds of common-law public policy.
In doing so, the first judgment interpreted the demands of public policy in
South Africa in a new way by collapsing the historic distinction between the
treatment of discriminatory charitable dispositions and discriminatory private
dispositions on public policy grounds. Was this an available interpretation
or does the public policy animating South Africa’s common law lack the
resources to support this interpretive move?
The second and third judgments shed much light on these questions. The
second judgment did not regard the proper resolution of the case as turning
first and foremost on the application of common-law public policy, but rather
on the direct horizontal application of section 9(4) of the Constitution as well
as the application of section 8 of the Equality Act.30 The third judgment relied
on the constitutional principle of subsidiarity, which meant that there was no
need to give the Constitution direct horizontal effect as the Equality Act was
able to achieve the same result.31 The second and third judgments therefore
viewed the jurisprudential resources of public law as fully able to resolve the
case, rendering academic any possible development of common-law public
policy along the lines preferred in the first judgment. For present purposes, the
contrasting interpretations of South African public law in the second and third
judgments need not detain us. Instead, it will suffice to focus on a theme that
emerges clearly from both judgments, namely that the equality norm assumes
a central position in South Africa’s Constitution and its statute law. Moreover,
as the second and third judgments make clear, the equality norm suffuses the
entire legal order for which the Constitution provides. This is evident in the
direct horizontal effect of section 9(4) of the Constitution and section 8 of the
Equality Act. It is also evident in section 39(2) of the Constitution, demanding
that the common law of South Africa be interpreted consistent with the
fundamental commitments of the Constitution, including the basal commitment
29
See, eg, Long v Dennis (1767) 4 Burr 2052; Westmeath v Westmeath (1831) 1 Dow & CI 519; Lloyd v Lloyd
(1852) 2 Sim (NS) 255; In re Moore (1888) 39 Ch D 116; In re Caborne [1943] 1 Ch 224; Trustees of Church
Property of the Diocese of Newcastle v Ebbeck (1960) 104 CLR 394; Re Johnson’s Will Trusts [1967] 1 All
ER 553 (Ch)
30
King NNO v De Jager 2021 4 SA 1 (CC) paras 129-137
31
Paras 182-193

to equality.32 It is finally underscored by judicial statements of high authority

which confirm that equality is “an entrenched right and founding value” as well
as “perspicuously the lodestar of our transformative constitutional project”.33
In short, then, South Africa is a constitutional order in which (a) equality
is the central organising idea; (b) constitutional and statutory equality norms
are explicitly designed to have direct horizontal effect; and (c) judges have
a constitutional mandate and duty to interpret and develop the common law
to render it consistent with fundamental constitutional commitments. In this
environment, the proposition that the equality norm might inform common-law
public policy in respect of dispositions of all types – whether public or private –
seems entirely unremarkable. Indeed, it seems highly implausible that any part
of South Africa’s legal order, including its private law, would operate free from
the demands of equality, whether through the public policy doctrine or in other
ways. It can therefore be concluded that, in finding that public policy demanded
the application of the equality norm to the discriminatory fideicommissum
in the King NNO case, the first judgment interpreted the demands of South
Africa’s common law in a permissible way. In a different constitutional order,
the demands of public policy in respect of private dispositions might not have
been so clear-cut.34 But in the South African constitutional setting, with its
unusual commitment to transformative constitutionalism even in matters of
private ordering, it cannot be said that the first judgment failed to grasp the
content and reach of public policy in South African law.
2 3 Freedom of disposition
Even if the application of the equality norm to discriminatory private
dispositions is permissible using common-law public policy in South Africa,
it must be acknowledged that equality is not the only pertinent value when
such dispositions are disputed. Freedom of disposition is also an important
value in South African law, one that is itself bound up with constitutional
commitments to private property and human dignity. So much was recognised
in In re BOE Trust Ltd NNO35 (“BOE Trust”), in which the Supreme Court of
Appeal acknowledged the constitutional grounding of freedom of testation.36
The question must therefore be confronted: in applying the equality norm via
common-law public policy to the fideicommissum at issue in the King NNO
case, did the first judgment pay proper regard and respect to the value of
32
See, eg, Barkhuizen v Napier 2007 5 SA 323 (CC) para 29 where the Constitutional Court said that
public policy is determined “by reference to the values that underlie our constitutional democracy as
given expression by the provisions of the Bill of Rights” and the observation of DM Davis & K Klare
“Transformative Constitutionalism and the Common and Customary Law” (2010) 26 SAJHR 403 426 that
“[t]he mission of s 39(2) is to carry out [the] audit and re-invention of the common law ”
33
King NNO v De Jager 2021 4 SA 1 (CC) para 77 See also paras 221-222: “Equality is a fundamental
organizing principle of the Constitution and the kind of society it seeks to bring into being” and
“[e]quality … is fundamentally different from other public considerations in terms of how far-reaching
it is ”
34
Thus, in Spence v BMO Trust Company 2016 ONCA 196 para 125, Lauwers JA emphasised the fact that in
Canada constitutional equality norms are explicitly directed against the state and do not apply to private
dispositions and transactions
35
2013 3 SA 236 (SCA)
36
Paras 26-27

508 STELL LR 2022 3
freedom of disposition? It is instructive to note that some of the judges in King

NNO questioned whether freedom of disposition, at least when expressed in
testation, truly has the value that is claimed for it. For these judges, freedom
of testation might indeed lack value to the extent that it perpetuates and
reinforces social and economic structures that generate and embed inequality
and injustice. This approach was clearly visible in the first judgment’s
emphasis of the patriarchal operation of freedom of testation notwithstanding
its ostensibly neutral orientation in mainstream liberal thought.37 Similarly, the
far-reaching third judgment considered that the value of freedom of testation
should be reconceived in light of South Africa’s commitment to transformative
constitutionalism:
“There is an overemphasis on the use of individualist, libertarian and neo-liberal definitions of
freedom of testation as opposed to a definition founded on the countervailing principles of equality
and ubuntu. There is a failure to consider the appropriate context and the distributive consequences
of freedom of testation.”38
Furthermore:
“[C]onsiderations of ubuntu imply that the narrow-minded and self-indulgent understanding of
freedom of testation should be tempered by considerations of social justice and equity. In this context
ubuntu means nothing more than the adage that none of us are free until all of us are free when dealing
with freedom of testation within the context of gender equality. The rights to privacy and property
should not be used as a smokescreen to shield structural inequality from constitutional scrutiny.”39
Read expansively, these judicial statements amount to radical calls to rethink

the liberal underpinnings of the institution and incidents of private property in
South Africa. It is nevertheless worth pausing to consider whether freedom of
disposition might be reconceived even within a liberal framework in a way that
explains and justifies the decision in the King NNO case. Doing so will put the
approaches of the first and third judgments in a wider context and assist with
assessing the extent to which the decision in King NNO might inform thinking
in jurisdictions where liberal values are not likely to be called into question.
Liberalism is, of course, understood in various ways. The sort of liberalism
that is subjected to critique in King NNO, especially in the third judgment, is
of the libertarian variety, in which freedom of individual choice and state non-
interference are paramount.40 However, even within the tradition of classical
liberalism, with its commitment to individual freedom, other conceptions have
been developed. According to one, prominently associated with the work of
Joseph Raz, states (or governments) have a positive duty to bring about social
conditions under which people may live autonomous – in the sense of self-
directed or self-authored – lives.41 It is this vision of liberalism that animates
my argument here.
From this perspective, the value of freedom of disposition has limits which
apply where the freedom is exercised in a way that undermines the conditions
37
King NNO v De Jager 2021 4 SA 1 (CC) para 53
38
Para 203 See also para 205
39
Para 245
40
One classic text in this tradition is R Nozick Anarchy, State and Utopia (1974)
41
See J Raz The Morality of Freedom (1984)

of autonomy. In those circumstances, the state is justified in taking steps to

ensure that such exercises of freedom of disposition do not occur, including by
withdrawing facilitative devices such as the fideicommissum from a disponor
who would utilise them in autonomy-undermining ways.42 In relation to the
decision in the King NNO case, then, the key question is whether a facially
discriminatory private disposition such as the fideicommissum at issue in this
case undermines the conditions of autonomy. With reference to the facts of
King NNO, one argument may be dismissed quickly. This is the argument that
the autonomy of female descendants of the testators was undermined because
they could not inherit under the fideicommissum. All else being equal,43 the fact
that A does not receive an inheritance because a testator chooses to benefit B
instead does not undermine A’s autonomy in a way that ought to be of concern
to the state or anyone else. This is reflected in the first judgment when it
acknowledged that no one, including a testator’s children, has a right to inherit
the testator’s property; moreover, a testator is free to dispose of his or her
estate in a will in whatever way he or she wishes, provided that the disposition
does not breach the law or public policy.44
Of greater concern are the wider expressive effects of the fideicommissum
before the court in the King NNO case. Recall that a fideicommissum is a
facilitative legal device that would not exist but for the subsistence of a legal
system administered and enforced by the South African state. Thus, even if it
is utilised by individual citizens, a fideicommissum, like any other facilitative
legal device, has a potential public orientation. Its terms may speak to audiences
broader than the family that it serves. Indeed, to the extent that its terms are
deployed with regularity and consistency over time to achieve particular social
and economic objectives, it may make sense to think of the fideicommissum as
a public legal form that is applied in diverse private circumstances.45 Given that
the fideicommissum at issue in the King NNO case was facially discriminatory
(insofar as it explicitly marked out male descendants as beneficiaries for
no reason other than the fact that they are male46), its role and function as
a facilitative legal device with a potential public orientation thus expressed
something of concern from a liberal point of view focused on the conditions
of autonomy. It expressed the idea that within a family, men are more suitable
than women to manage family assets over time. This idea demeans women.
And the expression of such demeaning ideas has, historically, been a key
42
See M Harding “Some Arguments Against Discriminatory Gifts and Trusts” (2011) 31 OJLS 303; Harding
Charity Law ch 7
43
All else might not be equal where A is destitute or incapable and the testator had a moral obligation to
provide for her
44
45
In saying this, I do not mean to imply that a fideicommissum demands “state action” for its recognition
and enforcement along the lines set out in the famous US case Shelley v Kraemer 334 US 1 (1948) I mean
simply that the typical or standard terms of the fideicommissum as a legal form have expressive effects
that are not limited to the particular family settings in which it might be deployed In this sense we might
recognise with the third judgment that law “shapes and constructs relationships in society” (King NNO
v De Jager 2021 4 SA 1 (CC) para 198) even if we disagree with the implications that the third judgment
draws from this insight
46

510 STELL LR 2022 3
means by which the autonomy of women has been undermined and frustrated.47
Whether or not the testators in King NNO were motivated by the demeaning
idea expressed in the fideicommissum is irrelevant. What is of relevance, from
the standpoint I am exploring here, is the potential public meaning of the terms
deployed in the fideicommissum. It is precisely that public meaning that might
show the testators’ exercise of freedom of disposition in the King NNO case to
lack the value that such exercises ordinarily entail.
Viewed, then, from a liberal perspective that is centrally concerned with the
conditions of autonomy, it is arguable that the fideicommissum in King NNO
was the product of an exercise of freedom of disposition that lacked value to
the extent that its terms were demeaning to, and potentially undermined the
autonomy of, all women in South Africa, irrespective of their impact on the
testators’ female descendants. It is thus further arguable that the Constitutional
Court in King NNO was entirely justified in interfering with the testators’
exercise of freedom of disposition even within a liberal framework that accords
to freedom of disposition, and private property more generally, significant
value. In contrast, consider a testamentary disposition that excludes particular
descendants from the testator’s bounty, but not in a facially discriminatory
way. Such a testator might, for example, leave her entire estate to A (her male
child), thereby excluding B (her female child), but the terms of her will might
simply name A (and either name or fail to name B) and make no reference to
the gender of either A or B. In this case, from a liberal perspective concerned
with the conditions of autonomy, there is nothing troubling about this exercise
of freedom of disposition. Its terms express nothing discriminatory that might
demean women. And this is true even if the testator had a discriminatory motive,
seeking to exclude B because of her (the testator’s) bigoted beliefs about
women’s suitability to own property, and notwithstanding any disappointed
expectations B might now have.48
2 4 Changing disponor behaviour

I want to introduce one final thought in relation to the King NNO case. Assume
– as I have sought to argue – that the first judgment was justified in finding
that the fideicommissum in King NNO violated South African common-law
public policy, both because the public policy equality norm applies to private
dispositions and because the value of freedom of disposition in South African
law does not extend to exercises of that freedom that undermine the conditions
of autonomy. What should have flowed from this? The Constitutional Court
in the King NNO case made declarations about the validity and enforceability
47
See further Harding Charity Law 230-233 on the demeaning effects of discrimination
48
From the liberal standpoint, we may therefore endorse the sentiments expressed in the second judgment
in King NNO v De Jager 2021 4 SA 1 (CC) para 154:
“The fact that a testator may have decided to exclude some of her children from inheriting her property
does not, without more, amount to a breach of the Constitution or public policy Nor does the fact that
she may have bequeathed the property to them in unequal shares or had decided to disinherit all her
children The Constitution does not oblige testators to treat their children equally So long as what
she had done, in disposing of her property by a will, does not constitute unfair discrimination, it is
permitted by freedom of testation if she had acted within the law ”

of the terms of the fideicommissum that effected a redistribution of the

fideicommissary assets in favour of the female descendants who were party
to the litigation.49 It seems debatable whether this was the optimal or even
a desirable outcome in the case, recalling that no-one has an entitlement to
inherit; that the testators did not intend to benefit those particular descendants;
and that such an intention, apart from any facial discrimination, ought not to
concern the law.
Rather than engage in such a debate, I want to draw attention to another
likely effect of the court’s declarations. A significant judicial ruling such as
that in King NNO typically has wide and profound effects on the behaviour
of disponors and the practices of the lawyers who advise them. In light of
the Constitutional Court’s ruling in the King NNO case, the disponor who
seeks to make a disposition that in its terms facially discriminates on the
basis of gender, and who seeks legal assistance in doing so, will surely be
advised not to attempt such a disposition. Instead, the disponor will likely be
advised and encouraged to try to achieve his or her intention without using
facially discriminatory terms or, to the extent this is not possible, to revise that
intention. In time, fewer facially discriminatory dispositions will be attempted,
and cases such as King NNO will become rarer, eventually ceasing to arise at
all. On one view, this potential ex ante, quasi-regulatory effect is an example
of exactly the ground-level constitutional transformation in South African
law and society that the judges in the King NNO case spoke of. In a society
committed to equality, such an outcome is surely to be welcomed.
3 Second perspective: the Constitutional Court erroneously

rejected the public/private divide in the South African law of
gifts and trusts50
3 1 Introduction
A feature of the Constitutional Court’s reasoning in King NNO is its
rejection of the public/private divide in the South African law of gifts and
trusts. My co-author has already alluded in the first perspective above to the
fact that the divide distinguishes between gifts and trusts that operate in, or
have consequences for, the public domain on the one hand, and those that are
effectuated in, or impact on, a disponor’s private sphere on the other hand.51
The divide dictates, in broad terms, that charitable gifts and trusts belong to
the “public” category, whereas non-charitable gifts and trusts resort under the
“private” category. The divide demands that charitable gifts and trusts conform
meticulously to public law norms such as equality and non-discrimination;
moreover, that courts enforce such conformity rigorously. The divide prescribes
contrastingly that courts must apply these norms less rigorously and with greater
circumspection to non-charitable gifts and trusts.52 The divide therefore does
49
Paras 86-87 and 159-160
50
F du Toit, South Africa I dedicate this part of the article to my friend and colleague, Prof Marius de Waal,
who passed away in 2021 I think he would have concurred with most of the points made here
51
See part 2 2
52
F du Toit, B Smith & A van der Linde Fundamentals of South African Trust Law (2019) 39

512 STELL LR 2022 3
not disavow the impact of public law norms on private gifts and trusts; instead,
it posits that courts must be decidedly nuanced in their engagement with the
interplay between a disponor’s private autonomy and freedom of disposition
on the one hand, and the dictates of public law norms for private actors on the
other hand.53 The net effect of such a nuanced approach is that courts should
intrude on a disponor’s freedom to determine the destination of a private
gift or trust only in exceptional circumstances because, as the Constitutional
Court observed in De Lange v Methodist Church,54 the closer a court gets
to “personal and intimate spheres” where “personal preferences” as well as
“emotions and convictions” determine dispositive choices, the greater the
danger of the judicial defeasance of a disponor’s personal autonomy.55 Insofar
as the state acts with coercive power through the courts,56 I take a decidedly
libertarian stance to courts’ incursions into the private sphere: I believe that the
state (acting through the courts) should involve itself minimally in the private
affairs of its citizens and hence I am, contrary to the Constitutional Court in
the King NNO case, firmly in favour of maintaining the public/private divide
in the law of gifts and trusts.
South African courts generally adhered to the divide prior to the judgment in
King NNO. For example, in Emma Smith the Supreme Court of Appeal struck
a racial limitation on eligibility from a testamentary bursary trust for female
students at a public university. The charitable nature of the trust, coupled with
the public university’s role in administering the bursary bequest, prompted
the court to remark that “[i]n the public sphere there can be no question that
racially discriminatory testamentary dispositions will not pass constitutional
muster.”57 By contrast, in Harvey NO v Crawford NO58 (“Harvey NO”) the
Supreme Court of Appeal dismissed an appeal against a ruling of the Western
Cape High Court59 not to include adopted children as capital beneficiaries
under a private trust for the settlor’s “issue” and “descendants.” Ponnan JA,
writing for the majority, said that “[t]here is much to be said for public trusts
being judged more strictly than private trusts”;60 moreover, that courts must
exercise “judicial restraint in setting aside private testamentary gifts on public
policy grounds.”61 Ponnan JA concluded that the matter before the court in
Harvey NO concerned a private trust and, consequently, that the court should
not disturb the settlor’s gift of trust capital for its ostensible want of compliance
with the equality norm.62 In Wilkinson v Crawford NO63 (“Wilkinson”) the
Constitutional Court subsequently upheld the appeal against the Supreme Court
53
Wilkinson v Crawford NO 2021 4 SA 323 (CC) paras 73 and 129
54
2016 2 SA 1 (CC) paras 79-80
55
See also Wilkinson v Crawford NO 2021 4 SA 323 (CC) paras 118-119
56
Harding (2011) OJLS 317
57
Curators, Emma Smith Educational Fund v University of KwaZulu-Natal 2010 6 SA 518 (SCA) para 38
58
2019 2 SA 153 (SCA)
59
Harper v Crawford NO 2018 1 SA 589 (WCC)
60
Harvey NO v Crawford NO 2019 2 SA 153 (SCA) para 62
61
Para 70
62
Para 70
63
2021 4 SA 323 (CC)

of Appeal’s judgment in Harvey NO, but Majiedt J – in a dissenting judgment

in Wilkinson – voiced support for Ponnan JA’s aforementioned views.64
However, the Constitutional Court in the King NNO case had no appetite
for the public/private divide and the distinction it draws between “public”
and “private” dispositions. The second judgment described it as a “difference
that lacks substance”65 and said that “the distinction drawn by the courts …
between public and private testaments is artificial and cannot be sustained.”66
This negation of any distinction between “public and private testaments”
means that a private testamentary class bequest (such as the fideicommissum in
favour of the testators’ male descendants in the second and third generations
in King NNO67) is adjudged, when applying the equality norm in respect of
the inclusion and exclusion of members of the particular class, with the same
rigour and stringency that a court applies when invoking this norm in respect
of the inclusion and exclusion of beneficiaries under a public testamentary
charitable bequest (such as the bursary trust in the Emma Smith case).
3 2 Is the distinction between “public and private testaments” indeed

without merit?
The Constitutional Court’s standpoint notwithstanding, a private testamentary
class bequest differs, as a matter of succession law, fundamentally from a
testamentary bequest with a charitable purpose. A defining characteristic of a
charitable bequest is that it exhibits an element of public benefit. In Ex parte
Henderson NNO68 the court said that “public benefit” in this regard does not
necessarily denote benefitting the public at large, but that it also encompasses
the bestowal of benefits on sections of, or groups in, society. A charitable
bequest can therefore assume the form of a class bequest that benefits only a
section or group of beneficiaries. However, in such a case the particular section
or group must be sufficiently large and representative; moreover, the bequest
to that beneficiary class must advance the public interest.69 The public benefit
characteristic of a charitable class bequest thus engages the size of the class,
64
Para 163
65
66
King NNO v De Jager 2021 4 SA 1 (CC) para 157 Ironically, the Constitutional Court appears to have
retracted its rejection of the public/private divide when it acknowledged the divide’s existence in its
subsequent judgment in Wilkinson v Crawford NO 2021 4 SA 323 (CC) paras 73 and 131
67
Although the Constitutional Court did not expressly typify the impugned bequest to the testators’
second and third generations as a class bequest in favour of the testators’ male descendants, the court
evidently regarded the testators’ male descendants in these generations as a defined beneficiary class
from which the testators’ female descendants were excluded: King NNO v De Jager 2021 4 SA 1 (CC)
paras 22, 35, 129, 159 and 198 The necessary implication is that the court viewed the fideicommissum
at issue as a restricted gift to a defined class of fideicommissaries In fact, the first judgment is open
to an even broader interpretation insofar as it ostensibly reasoned that the fideicommissaries, which
it called “potential beneficiaries”, were the testators’ lineal descendants (as the relevant class) and the
impugned exclusion related to an “implicit exclusion of one group of potential beneficiaries by proximity
to a similarly placed group of potential beneficiaries who have been expressly ‘included’ solely due to
immutable characteristics” (para 36 n 68) The first judgment therefore seemingly acknowledged the
testators’ lineal descendants in the second and third generations as the class of potential beneficiaries
from which the applicants (appellants) were excluded
68
1971 4 SA 549 (D)
69
554A

514 STELL LR 2022 3
the extent to which that class represents society at large, and the advancement
of the public interest. In the case of, for example, a testamentary charitable
bursary trust bequest to students, or a designated group of students, at a public
university (as the relevant class), the public benefit requirement generally
demands that the beneficiary class must constitute a sufficiently large and
representative cross-section of society; moreover, that the bequest to this class
must serve some public interest (for example, the educational advancement
of financially disadvantaged students).70 The foregoing is illustrated by the
judgment in Minister of Education v Syfrets Trust Ltd NO71 (“Syfrets Trust”), a
case in which the ineligibility of non-White, female and Jewish students under
a testamentary bursary trust for “deserving students with limited or no means”
at a public university was successfully challenged before the Western Cape
High Court. Griesel J remarked that the ineligibility criteria disqualified more
than half of the students at the particular university: the ineligibility criteria
thus reduced the size of the beneficiary class unduly. Griesel J also noted
that the ineligibility criteria excluded groups of people who were historically
marginalised in South Africa. The necessary implication is that the beneficiary
class yielded by the ineligibility criteria was not a proper representation of a
cross-section of South African society; moreover, the restricted gift did not
serve the public interest of advancing the education of marginalised students in
financial need.72 The judicial striking-out of the ineligibility criteria therefore
broadened the beneficiary class to include all deserving students in financial
need at the particular university, irrespective of their race, gender or religion.
In the result, the bursary gift conformed fully to the public benefit requirement
in respect of charitable bequests.73
By contrast, a private testamentary class bequest is not typified by any
public benefit characteristic or requirement. Such a bequest usually bears only
on the testator’s family: it affects a limited number of people and is often of
limited duration.74 The testator determines the composition of the beneficiary
class, unbounded by the prescripts that appertain to a charitable class bequest
regarding class size, representivity and the advancement of some public interest.
However, this crucial difference between private and charitable class bequests
did not deter the Constitutional Court from applying reasoning akin to that in
Syfrets Trust to the fideicommissary bequest in favour of the male descendants
of the testators’ children at issue in King NNO. The second judgment, in
dealing with the gender exclusivity of the beneficiary class, reasoned:
70
Harvey NO v Crawford NO 2019 2 SA 153 (SCA) para 60 One exception is where a bequest metes
out unequal benefitting because it legitimately advances the interests of an exclusive class D Morris
“Charities and the Modern Equality Framework – Heading for a Collision?” (2012) 65 CLP 295 303 states:
“That is not to say that discrimination law requires the same treatment for all In a diverse society,
equal treatment does not simply mean treating everybody in exactly the same way In some cases it
means providing special or different treatment On occasion, an element of discrimination may bring
with it public benefit, when it is necessary to overcome some disadvantage or social exclusion ”
See further F du Toit “Gender-Exclusive Charitable Trusts: Re The Esther G. Castanera Scholarship Fund
and Recent South African Judgments on Discriminatory Bursary Trusts” (2017) 40 MLJ 141
71
2006 4 SA 205 (C)
72
Para 34
73
Du Toit et al Trust Law 48 See also Wilkinson v Crawford NO 2021 4 SA 323 (CC) para 127
74
Harvey NO v Crawford NO 2019 2 SA 153 (SCA) para 62

“[D]ifferentiation or even discrimination that arises from the terms of a will does not violate the
Constitution as long as it does not constitute unfair discrimination. This is so because section 9(4)
of the Constitution forbids unfair discrimination by one person against the other. In addition, this
provision outlaws unfair discrimination that is based on one of the grounds listed in section 9(3).
Consequently, a party that impugns the validity of a will on the basis of discrimination must establish
that the discrimination complained of is unfair or that it is based on a listed ground, if reliance is
placed on section 9(4) or a relevant provision of the [Equality] Act. Here both these issues have
been established. Clause 7 [of the will] discriminates against the second to sixth applicants on the
basis of gender. And the first to third respondents have admitted that the discrimination is unfair.
Consequently, the clause is in breach of section 8 of the Act and as a result it is unlawful. As an
unlawful clause it is unenforceable. There is nothing controversial in this proposition, even if it is
looked at through the lens of the common law.”75
It is submitted that the public/private divide exposes this reasoning as ill-

suited to a private class bequest. The main concern is that the reasoning is
entirely linear insofar as it follows a direct line from its point of departure to
its conclusion, undeterred by weighty considerations that occasion breakages
in this line. In its simplest form, the Constitutional Court’s line of reasoning
in the King NNO case says: the testators’ selection of the beneficiary class
and, by necessary implication, the non-selection of those excluded from
that class is a differentiation between those selected (the testators’ male
descendants in the second and third generations) and those who could
potentially have been selected but were not (the testators’ female descendants
in the same generations); this differentiation is based solely on gender – one
of the non-discrimination grounds listed in section 9(3) of the Constitution;
this differentiation therefore presumes unfair discrimination and, because
this presumption was not rebutted, the impugned bequest is unconstitutional,
unlawful and in violation of public policy; and the bequest is thus open to
judicial incursion to aid those excluded from the beneficiary class. This line
of reasoning appears, at least at first glance, straightforward and unassailable.
What, then, are the considerations that cause breakages in the court’s line of
reasoning? At least three such considerations can be noted.
First, a private class bequest is by its very nature a restricted gift: it is the
testator’s choice to restrict the gift in favour of some and to the exclusion of
others. Lord Wilberforce famously said in Blathwayt v Baron Cawley76 that
such a choice, if it is made in a testator’s limited and private sphere, is not
tantamount to discrimination because it does not operate over a larger and
more impersonal (read: public) field.77 It is in this light difficult to conceive
– taking the libertarian approach that I commend – how someone who has no
legal entitlement to the specific testamentary gift(s) bestowed under a private
class bequest, or indeed any right at all to inherit from the particular testator,
can claim that the testator’s private choice to prefer others as members of a
beneficiary class occasions unfair discrimination, even if that choice involves
one or more of the non-discrimination grounds listed in section 9(3) of the
75
76
[1975] 3 All ER 625 (HL)
77
636

516 STELL LR 2022 3
Constitution.78 Compare, by way of an admittedly imperfect but nevertheless

instructive analogy, the manner in which the Intestate Succession Act 81 of
1987 – a statute that operates exclusively in a deceased’s private sphere –
employs exactly the same preference principle. Take the example of a deceased,
A, who is survived by only her child, B, and her grandchild, C (the child of B).
B and C both resort under the first parentelic class of A’s descendants, but the
Intestate Succession Act prefers B as A’s only intestate heir to the exclusion of
C. B’s status as sole intestate heir rests entirely on his birth because B was born
one generation “closer” to A than C and B thus qualifies as A’s only stirps in
terms of the Intestate Succession Act.79 Birth is one of the non-discrimination
grounds listed in section 9(3) of the Constitution.80 The Constitutional Court’s
linear reasoning in the King NNO case does not explain why a testator’s choice
in preferring some lineal descendants over others on one non-discrimination
ground – gender – is “abhorrent” and “has gone on long enough and must be
stopped”81 in the case of a private testamentary class bequest, but why the
same apparently does not hold true when the Intestate Succession Act prefers
some lineal descendants to the exclusion of others on another listed non-
discrimination ground – birth – in the case of the division of an intestate estate.
Second, the legal position of the members of the beneficiary class under
a charitable class bequest differs markedly from that of the members of the
beneficiary class under a private class bequest. Compare a typical bursary
bequest such as the one in Syfrets Trust on the one hand, with the fideicommissum
in King NNO on the other hand. Bozalek J observed correctly in the Western
Cape High Court that the members of the beneficiary class under the former
do not enjoy any ex lege entitlement to the bursary benefit when the bursary
bequest takes effect: as a rule, they have to apply for the bursaries and only if a
particular applicant is successful will he or she, upon the award of the bursary,
be vested with a right to claim the bursary payment.82 A judicial striking-out
of eligibility limitations does not change this position: it simply broadens the
beneficiary class without defeating already-vested rights to the bursary benefit.
78
See Harvey NO v Crawford NO 2019 2 SA 153 (SCA) para 64; Wilkinson v Crawford NO 2021 4 SA 323
(CC) para 131
79
S 1(1)(b) read with s 1(4)(a) of the Intestate Succession Act 81 of 1987
80
It is evident from the Constitutional Court’s decision in Wilkinson v Crawford NO 2021 4 SA 323 (CC)
that the exact meaning of birth as a non-discrimination ground is not altogether clear Bhe v Magistrate,
Khayelitsha, (Commission for Gender Equality as Amicus Curiae); Shibi v Sithole; South African Human
Rights Commission v President of the Republic of South Africa 2005 1 SA 580 (CC) para 59 points
strongly to the interpretation that birth appertains, among others, to the time when a child was conceived
or born as well as pertinent aspects of the child’s parentage at that time Majiedt J echoed this sentiment
in Wilkinson v Crawford NO 2021 4 SA 323 (CC) para 146 when he said that “birth” by its ordinary
meaning relates to the circumstances surrounding a person’s birth at the time of that birth In Pla and
Puncernau v Andorra (no 69498/01) ECHR 2004-VIII para 16, the European Court of Human Rights
opined, per Bratza J in a minority judgment, that discrimination can result from distinctions based on
biological links in the enjoyment of inheritance rights, and in Marckx v Belgium (no 6833/74) [1979]
ECHR 2 paras 51-52 the same court emphasised that the right of succession between children and parents
and between grandchildren and grandparents has definitive human rights implications It is therefore at
least arguable that the generational differentiation between a child and grandchild is pertinent to an unfair
discrimination discourse regarding the role of birth as a determinant of intestate inheritance among a
deceased’s descendants
81
82
King NNO v De Jager 2017 6 SA 527 (WCC) para 64

By contrast, the judicial striking-out of a disinheritance from a private class

bequest can, and often will, defeat already-vested rights. In the King NNO
case, the rights of J’s three sons to K’s portion of the fideicommissary property
vested ex lege when K died leaving only daughters. This happened because,
on a strict reading and application of the clause governing the fideicommissum,
J’s male descendants were the (alternative) direct substitutes in respect of
K’s portion of the fideicommissary property in the event that K was survived
neither by a male descendant nor by a brother.83 The Constitutional Court’s
finding in favour of K’s daughters therefore not only granted them benefits
that the testators unequivocally did not intend for them to receive, but it
also deprived J’s sons – whom the testators indeed intended as (substitute)
beneficiaries – of their vested rights to K’s portion of the fideicommissary
property. The inherent consistency and order of succession law cannot and
should not tolerate such an incursion on vested rights under a private class
bequest. Even less tolerable is the second judgment’s attempt to rationalise
this outcome by reasoning that J’s sons already shared in their father’s portion
of the fideicommissary property and that it would consequently be “unjust for
them to be entitled to the half that was held by the applicants’ father [K],
over and above what they had already obtained.”84 A court cannot invoke
(un)justness or (un)fairness – whether real or perceived – in this manner to
defend its decision to override testators’ express wishes regarding the acquisition
of rights under a testamentary gift: doing so not only results in legal uncertainty
but also offends the legality principle that is integral to the rule of law.85
Third, adherence to freedom of testation serves the public interest and
such adherence must therefore necessarily transcend the personal interests
of those included and excluded as beneficiaries under a private testamentary
bequest.86 The law does not demand fairness, justness and reasonableness
from a testator when he or she institutes or disinherits beneficiaries under
such a bequest.87 The law does, however, prohibit a testator from visiting
substantially incontestable harm (to borrow from Robins JA in Canada Trust
Co v Ontario (Human Rights Commission)88) on a beneficiary when making a
private testamentary bequest. For this very reason, as my co-author has pointed
out,89 some testamentary conditions, for example those that seek to destroy
existing marriages, have consistently been adjudged as contra bonos mores
– public policy rightly regards the destruction of a marriage as substantially
and incontestably harmful to the spouses.90 The Constitutional Court’s linear
reasoning in King NNO attaches substantially incontestable harm to the
83
The use of the words “in their place” and “by representation” in the clause governing the fideicommissum
points to the operation of direct substitution rather than the ius accrescendi See MM Corbett, G Hofmeyr
& E Kahn The Law of Succession in South Africa 2 ed (2001) 179-180 for an exposition on the vesting of
rights in the case of direct substitution under a class bequest
84
85
Potgieter v Potgieter NO 2012 1 SA 637 (SCA) paras 32, 34 and 36
86
Bydawell v Chapman NO 1953 3 SA 514 (A) 521E-F
87
Campbell v Daly 1988 4 SA 714 (T) 720H
88
(1990) 69 DLR (4th) 321 para 36
89
See part 2 2
90
See Ex parte Swanevelder 1949 1 SA 733 (O); Ex parte Isaacs 1964 4 SA 606 (GW); Oosthuizen v Bank
Windhoek Ltd NO 1991 1 SA 849 (NM)

518 STELL LR 2022 3
appellants’ exclusion from the fideicommissary bequest “simply because they

are women.”91 However, the court advances neither any cogent reason(s) why
the appellants’ disinheritance was substantially and incontestably harmful
to them specifically, nor any explanation of exactly what manner of actual
harm befell each of the appellants by reason of their disinheritance. The first
judgment engaged the “patriarchal manifestation of the law of testation”92 and
the third judgment attended to, among others, the “distributional and ideological
consequences” of testamentary freedom whilst proffering that freedom of
testation should be “recalibrated towards more egalitarian and ubuntu based
ends.”93 These broadly-stated and general considerations may be relevant to
the de-contextualisation of freedom of testation proposed in the third judgment
(insofar as such a de-contextualisation is indeed necessary), but they do not
show why or how the appellants sustained substantially incontestable harm as
a result of their disinheritance under the fideicommissum.94 Moreover, these
considerations seemingly caused the Constitutional Court to avert its eyes
from a potent reason why testators frequently restrict fideicommissa in favour
of male descendants, namely to ensure that the fideicommissary property
remains in a particular family. J’s sons advanced this very argument in the
King NNO case,95 but the Constitutional Court ostensibly paid it no heed. The
court consequently attached no weight to the fact that a legal institution such
as the fideicommissum is typically used to conserve private interests and that
it must therefore be adjudged primarily in regard to its private consequences
which, if not substantially and incontestably harmful to those excluded as
fideicommissary heirs, should, as a matter of succession law, never be disturbed
by a court.
The foregoing exposition shows that the public/private divide, although not
an uncontroversial construct,96 and the distinction it draws between gifts and
trusts that operate in the public domain as opposed to those that are effectuated
in the private sphere indeed have merit. It contributes, in my opinion, vital
nuances to the interplay between public law norms and private autonomy in
the law of gifts and trusts. It is therefore regrettable that the Constitutional
Court rejected the divide so summarily in King NNO. The court’s decision to
do so is at odds with an authoritative and ubiquitous school of legal thought.97
91
92
Paras 53-55
93
Para 202
94
In Wilkinson v Crawford NO 2021 4 SA 323 (CC) paras 148-149, Majiedt J emphasised that the
unfairness of discrimination is directly and intimately linked to the unfair impact of the discrimination
on the individual: absent actual harm by reason of a disinheritance, it is difficult to conceive how that
disinheritance has an unfairly discriminatory impact on the disinherited individual
95
King NNO v De Jager 2021 4 SA 1 (CC) paras 118 and 139
96
See Du Toit et al Trust Law 42-44 for standpoints against the divide
97
For case law in support of the divide, see Harvey NO v Crawford NO 2019 2 SA 153 (SCA) paras 61-63;
Canada Trust Co v Ontario (Human Rights Commission) (1990) 69 DLR (4th) 321 para 107; Spence
v BMO Trust Company 2016 ONCA 196 para 71 For South African academic support for the divide,
see P Thomas “The Intention of the Testator: From the Causa Curiana to Modern South African Law”
in J Hallebeek, M Schermaier, R Fiori, E Metzger & JP Coriat (eds) Inter Cives Necnon Peregrinos:
Essays in Honour of Boudewijn Sirks (2014) 727 738-739; F du Toit “Constitutionalism, Public Policy
and Discriminatory Testamentary Bequests – A Good Fit Between Common Law and Civil Law in South
Africa’s Mixed Jurisdiction?” (2012) 27 Tul Eur & Civ L F 97 126 For Anglo-American scholarship

This school of thought favours the public/private divide precisely because it

fosters a nuanced approach to the protection of personal autonomy and the
ius diponendi in the face of public law norms. I therefore submit that the
Constitutional Court in the King NNO case erroneously rejected the public/
private divide in the South African law of gifts and trusts. Viewed from a
libertarian perspective, this rejection embodies the danger of the state (acting
through the courts) involving itself undesirably in its citizens’ private legal
affairs. Viewed from my perspective as a succession law scholar, the rejection
of the divide holds the danger of public law norms becoming blunt normative
instruments that a few idiosyncratic judicial minds (to borrow from Crocket J
in In re Millar98) can wield destructively in the private sphere to subvert the
inherent consistency and order of succession law.
4 Third perspective: The Constitutional Court accorded

inadequate weight to freedom of testation99
4 1 Introduction and a brief German perspective
From a German point of view, King NNO is instructive insofar as the
German debate about the judicial treatment of discriminatory testamentary
bequests is rather underdeveloped. Freedom of testation (Testierfreiheit) is
considered a foundational principle of the German law of succession.100 It
receives constitutional protection in Article 14(1) of the German Basic Law
(Grundgesetz) which guarantees private ownership and private succession.101
The limits imposed on freedom of testation by a fundamental value such as
equality are usually pertinent in the context of section 138(1) of the German
Civil Code in regard to Sittenwidrigkeit (transactions that are contra bonos
mores).102 It is common cause that the fundamental rights of the German Basic
Law – such as equality in terms of Article 3 – are of paramount importance
when determining whether a particular transaction is void for violating the
gute Sitten (boni mores).103 Article 3(1) of the German Basic Law provides
that all persons shall be equal before the law and Article 3(3) proscribes unfair
discrimination, stating that no person shall be favoured or disfavoured because
of sex, parentage, race, language, homeland and origin, faith or religious or
in favour of the divide, see J Phillips “Anti-Discrimination, Freedom of Property Disposition, and the
Public Policy of Charitable Educational Trusts: A Comment on Re Canada Trust Company and Ontario
Human Rights Commission” (1990) 9 The Philanthropist 3; JW Colliton “Race and Sex Discrimination in
Charitable Trusts” (2003) 12 Cornell J L & Pub Pol’y 275 293 For scholarship from continental Europe
favouring the divide, see WD Kolkman “Deontologische Dilemma’s in het Erfrecht” in GJC Lekkerkerker,
CG Breedveld-de Voogd, WD Kolkman & VAEM Meijers (eds) De Goede Notaris: Over Notariële
Deontologie (2010) 127 143-144; JM Smits Constitutionalisering van het Vermogensrecht (2003) 92-96
98
[1938] SCR 1 7, quoting Lord Atkin in Fender v St John Mildmay [1938] AC 1 (HL) 402 See also Harvey
NO v Crawford NO 2019 2 SA 153 (SCA) para 70
99
A Humm, Germany
100
See K Muscheler Erbrecht I (2010) 191-192; D Leipold Erbrecht 22 ed (2020) 23 and 83
101
See, eg, the German Federal Constitutional Court (Bundesverfassungsgericht) in BVerfG (2004) NJW
2008 2010
102
See, eg, G Otte in “Vorbem zu §§ 2064 ff” in J von Staudinger (ed) J von Staudingers Kommentar zum
Bürgerlichen Gesetzbuch V Erbrecht: §§ 2064-2196 (2019) paras 145-184
103
See the leading case of Lüth by the Federal Constitutional Court in BVerfG (1958) NJW 257

520 STELL LR 2022 3
political opinions, or disability.104 Unlike section 9(4) of the South African

Constitution, Article 3 of the German Basic Law does not explicitly provide
for its horizontal application. It is generally accepted that Article 3 has no direct
horizontal application (unmittelbare Drittwirkung) between private parties.105
Instead, the effect of the values enshrined in the fundamental rights of the
German Basic Law are mediated through the institutions of private law, most
notably the general clauses of the German Civil Code such as section 138(1);
in other words, through mittelbare Drittwirkung (indirect horizontality).106
Apart from the German Basic Law, unfair discrimination is also proscribed by
the General Act on Equal Treatment (Allgemeines Gleichbehandlungsgesetz).
This Act is specifically geared towards private-party relationships, but its
scope and reach are much more limited than in the case of its South African
counterpart, the Equality Act. For present purposes, the most notable restriction
is that family and succession law issues are exempt from the prohibition on
unfair discrimination.107 This synopsis already shows that the constitutional
and statutory backdrop pertinent to the assessment of discriminatory
testamentary bequests differs markedly between Germany and South Africa.108
Hailbronner refers to the style of German constitutional jurisprudence as “value
formalism” as opposed to the concept of “transformative constitutionalism”
that is very familiar in the South African context. The former combines a
somewhat weaker version of transformative or activist constitutionalism with
a hierarchical culture of legal authority which finds expression, inter alia, in
a strong resort to legal doctrine, a depersonalised style of adjudication, and
a firm adherence to proportionality analyses.109 The different legal, historical
and societal contexts are thus pertinent to any comparison of the scholarly and
jurisprudential positions in respect of discriminatory testamentary bequests in
Germany and South Africa.
Regarding discrimination-based challenges to testamentary dispositions in
the private sphere, like the one raised in King NNO, the predominant view
in German scholarship favours freedom of testation over considerations
of equality. This view assumes that, apart from very exceptional cases,
differentiating on prohibited grounds in a testamentary disposition does
104
See the English translation of the German Basic Law at Federal Ministry of Justice “Basic Law for the
Federal Republic of Germany” (29-09-2020) Gesetze im Internet <https://www gesetze-im-internet de/
englisch_gg/> (accessed 16-08-2022)
105
See W Heun “Art 3” in H Dreier (ed) Grundgesetz Kommentar I Artikel 1-19 3 ed (2013) paras 70 and 139;
U Kischel “Art 3” in V Epping & C Hillgruber (eds) Beck’scher Online-Kommentar Grundgesetz 47 ed
(2021) paras 92 and 210
106
For an overview, see H Dreier “Vorb ” in H Dreier (ed) Grundgesetz Kommentar I Artikel 1-19 3 ed (2013)
paras 96-100
107
S 19(4) of the General Act on Equal Treatment See the English translation of the Act at Federal Ministry
of Justice “General Act on Equal Treatment” (03-04-2013) Gesetze im Internet <https://www gesetze-im-
internet de/englisch_agg/> (accessed 16-08-2022)
108
See in more detail A Humm Testierfreiheit und Werteordnung (doctoral thesis, forthcoming in 2022) ch 3
109
M Hailbronner Traditions and Transformations – The Rise of German Constitutionalism (2015) 97-123;
M Hailbronner “Rethinking the Rise of the German Constitutional Court: From Anti-Nazism to Value
Formalism” (2014) 12 ICON 626 639-649

not violate the gute Sitten.110 There are only a few German court decisions
on this issue, most notably two judgments by the Federal Supreme Court
(Bundesgerichtshof) – the highest court in private law matters. In 1978, the
court had to consider a family foundation (Stiftung) established by means
of a testamentary disposition. Its terms restricted the benefits to the first
male descendant of each subsequent generation. The court held that only in
exceptional circumstances can a disposition differentiating along prohibited
characteristics be regarded as sittenwidrig. Giving preference to the first-
born male descendant did not, according to the court, constitute such an
exception.111 The second, and much more prominent, case concerned the
highest circle of German nobility, namely the family of the last German
emperor, Wilhelm II. In 1938, the testator (a son of Wilhelm II) tried to dispose
of the vast Hohenzollern family estate in accordance with old traditions. The
legal vehicle to achieve this purpose was comparable to a fideicommissary
substitution under South African law (German: Nacherbfolge). The designated
heir was to be the eldest male descendant of each generation, provided that
both his parents were of noble origin and that he himself was married to a
woman belonging to Protestant German nobility. Called upon in 1998 to
decide on the validity of these criteria, the Federal Supreme Court repeated
its earlier dictum that testamentary bequests differentiating on the basis of
characteristics listed in Article 3(3) of the German Basic Law are deemed to
violate the gute Sitten in exceptional circumstances only. Such an exception
can be assumed if, judging from the intention of the testator and all the relevant
circumstances of the particular case, the testamentary disposition was likely
to substantially infringe the dignity of the person affected by the impugned
clause. According to the court, this was not the case here as the testator did
not intend to demean anyone but, by exercising his freedom of disposition,
merely wanted to find suitable successors for the estate imbued with family
tradition.112 The case was referred to the Federal Constitutional Court
(Bundesverfassungsgericht), which criticised the Federal Supreme Court for
not having sufficiently considered the impact of the impugned clause on the
beneficiary’s freedom of marriage. However, the Constitutional Court did not
decide on the question of discrimination.113 As in other non-succession-related
matters, the Constitutional Court almost seemed to shy away from deciding on
the implications of the equality clause in private law disputes.114
In Germany there are almost no judgments with regard to charitable
testamentary bequests or, as my two co-authors have already pointed out,
110
See, eg, Otte “Vorbem zu §§ 2064 ff” in Staudingers Kommentar paras 151-152; Muscheler Erbrecht 143,
978-979; T Bezzenberger “Ethnische Diskriminierung, Gleichheit und Sittenordnung im bürgerlichen
Recht” (1996) 196 AcP 395 416-418 For differing views, see P Mikat “Gleichheitsgrundsatz und
Testierfreiheit” in R Dietz & H Hübner (eds) Festschrift für Hans Carl Nipperdey I (1965) 581 596-597
(violation of the gute Sitten occurs if reference is made to race or religion); M Grünberger Personale
Gleichheit (2013) 510 (every differentiation on the basis of grounds listed in Art 3 of the Basic Law needs
to be justified by way of a proportionality analysis)
111
BGH (1978) NJW 943 945
112
BGH (1999) NJW 566 569-570
113
See BVerfG (2004) NJW 2008 2011
114
See also BVerfG (2019) NJW 3769

522 STELL LR 2022 3
testamentary dispositions that are effected in the public domain.115 However, an

Administrative Court (Verwaltungsgericht) was called upon in 2018 to decide
on a foundation providing bursaries for young male students of theology. It
had been established by way of a private testamentary disposition, but was
administered by a city council. For the court, the administration by the city
did not suffice as a basis for subjecting the private foundation to the equality
clause of the German Basic Law.116 While the positioning of the foundation by
the court in the purely private sphere might be called into question in this case,
the judgment clearly shows that the public/private divide is well-established
in German law. It is evident from other cases outside succession law that the
more a private disposition is situated in the public sphere, the more strictly the
parties thereto are bound to public norms, most notably to the provisions of the
German Basic Law, by way of Drittwirkung.117
Like my co-author in the second perspective above, I am favourably
disposed towards the public/private divide because of my view that the divide
functions as a safeguard for freedom of testation in purely private testamentary
bequests. In these instances, I regard it as vitally important that courts are
very circumspect when assessing the last wishes of a testator. Therefore, I
will argue that in the King NNO case the Constitutional Court did not attach
sufficient value and importance to freedom of testation when it decided on the
validity of the fideicommissum at issue in this case. My argument turns, first,
on the manner in which the Constitutional Court treated freedom of testation
in King NNO as opposed to other pronunciations on this principle in South
African case law and scholarship. Second, I argue that freedom of testation and
the principle of equality can be reconciled by way of a nuanced case-by-case
balancing exercise, taking the public/private divide as its starting point.
4 2 Freedom of testation in the South African law of succession and

its treatment by the Constitutional Court in the King NNO case
Alongside the rejection of the public/private divide, the most remarkable
aspect of King NNO is surely the respective judgments’ perspectives on the
principle of freedom of testation. The first judgment reasoned that freedom of
testation is a traditionally patriarchal construct inherited from Roman law and
the Roman idea of the male paterfamilias disposing of the family estate.118 The
first judgment attributed this patriarchal conception of freedom of testation to
the notions that women cannot own property as well as be commercially active,
and it concluded that “the facially neutral principle of freedom of testation
as it currently stands reinforces patriarchal and outdated ideas concerning
115
It is beyond the scope of this contribution to explain the reasons for this phenomenon in detail With
regard to charitable foundations (gemeinnützige Stiftungen), one reason for the lack of case law
concerning discriminatory stipulations might be that foundations (whether charitable or not) are subject
to the approval of a public body charged with their control Tax reasons play an additional role, making
the establishment of a foundation through a testamentary disposition less attractive than an inter vivos
one See A Humm Testierfreiheit und Werteordnung ch 3
116
VG Ansbach (2018) BeckRS 14205 para 58
117
See, eg, BVerfG (2015) NJW 2485; BVerfG (2018) NJW 1667
118

sex, gender, property, ownership, family structures and norms.”119 The third
judgment posited that unrestricted freedom of testation frequently excludes
women from testamentary bequests and that this holds negative distributive
consequences for them. The third judgment highlighted that South Africa is a
society with stark inequalities based on gender and that “an unfettered approach
to freedom of testation sustains class hierarchies inherited from the colonial
and apartheid legacy and frustrates the establishment of a society based on
equality and in particular gender equality.”120 This judgment also reasoned that
interpreting freedom of testation to confer a broad right to disinherit based
on gender “undermines the constitutional objective to heal the injustices of
the past and establish an egalitarian society.”121 The third judgment therefore
called for a recalibration of freedom of testation towards more egalitarian and
ubuntu-based ends in order to accommodate the commitment to transformative
constitutionalism and substantive equality.122
As my co-author pointed out in the first perspective above,123 these statements
can be read as radical calls to rethink the liberal understanding of private
property and succession in South Africa. It has to be said, however, that the
Constitutional Court’s aforementioned negative perspectives on testamentary
freedom are somewhat surprising when compared with what seems to be the
predominant view on this principle in South African precedent and scholarship
as well as, perhaps even more interestingly, with the court’s own position in
its subsequent judgment in Wilkinson. South African courts and scholars have
traditionally emphasised the importance of testamentary freedom as a basic
principle of the law of succession.124 Corbett and others note instructively that
“South African law appears to take the principle of freedom of testation further
than any other Western legal system.”125 De Waal and Schoeman-Malan see a
“high premium” being placed on the principle of freedom of testation in South
African law.126 Du Toit states that freedom of testation “is considered one of
the founding principles of the South African law of testate succession.”127
Lehmann notes that the “simple proposition, that individuals enjoy freedom of
testation, is the lynchpin of the whole of the law of succession.”128 Of course,
the colonial roots of the principle commended by these commentators cannot
be denied. Being part and parcel of the Roman-Dutch law of succession, the
principle of freedom of testation came to the Cape in the seventeenth century.
119
Paras 55 and 79
120
Para 207
121
Para 207
122
Paras 202 and 243-245
123
See part 2 3
124
For the courts’ view on freedom of testation, see Aronson v Estate Hart 1950 1 SA 539 (A) 546 and 561;
Minister of Education v Syfrets Trust Ltd NO 2006 4 SA 205 (C) paras 17-18; In re BOE Trust Ltd 2013 3
SA 236 (SCA) paras 26-27; King NNO v De Jager 2017 6 SA 527 (WCC) paras 28 and 54-56; Harvey NO
v Crawford NO 2019 2 SA 153 (SCA) paras 22 and 56
125
Corbett et al Law of Succession 40
126
MJ de Waal & MC Schoeman-Malan Law of Succession 5 ed (2015) 3
127
F du Toit “The Constitutionally Bound Dead Hand? The Impact of Constitutional Rights and Principles
on Freedom of Testation in South African Law” (2001) 12 Stell LR 222 224, cited, inter alia, in In re BOE
Trust Ltd 2013 3 SA 236 (SCA) para 26
128
K Lehmann “Testamentary Freedom Versus Testamentary Duty: In Search of a Better Balance” (2014)
AJ 9

524 STELL LR 2022 3
It was further enhanced by British influence in the nineteenth century, at a time

when testamentary freedom was nearly unrestricted in England.129 Certainly,
freedom of testation enabled the propertied South African population to
dispose of their estates in ways that sustained existing hierarchies from the
colonial and apartheid eras. This being said, freedom of testation is not per
se an instrument aimed at bolstering divisions along these historic fault lines.
Manifesting private autonomy, private ownership, and the power of disposition
in the law of succession, freedom of testation not only has inherent value and
merit but also enjoys constitutional protection.130 This has been approved by
different South African courts, including the Supreme Court of Appeal in the
BOE Trust case where Erasmus AJA reasoned that freedom of testation is not
only protected by section 25 of the Constitution (the constitutional property
clause) but is also closely linked to the constitutionally-protected right to
human dignity.131
Interestingly, in the Wilkinson case that the Constitutional Court decided
shortly after King NNO, some of the same judges who heard the latter matter
emphasised the importance of testamentary freedom and its constitutional
protection. For example, Mhlantla J stated that “[f]reedom of testation
itself is constitutionally protected as it implicates the rights to property,
dignity and privacy.”132 Majiedt J added in his judgment that freedom of
testation is a manifestation of the right to dispose of property; moreover, it
is an acknowledgement that the relationships that mattered during a person’s
lifetime, and which informed that person’s testamentary choices, are worthy
of respect; finally, that the decisions on whom to include in and exclude
from testamentary bequests reflect the testator’s personal love and affection,
loyalties and kinship. Crucially, Majiedt J noted that these decisions are taken
“in a most intimate, personal sphere”133 and that the legislature and courts alike
should thus be “slow to limit these rights by too readily interfering with an
individual’s testamentary freedom”.134 Majiedt J thus opined that disponors
“have a right to choose to whom to leave their property when they die” and,
consequently, that freedom of testation “is the cornerstone of our law of
succession.”135
These statements in the Wilkinson case stand in stark contrast to the
decidedly critical perspectives on freedom of testation held by some of the
129
On the history of freedom of testation in South Africa, see HR Hahlo “The Case Against Freedom of
Testation” (1959) 76 SALJ 435; B Beinart “The Forgotten Widow: Provision by a Deceased Estate for
Dependants” (1965-1966) AJ 285 304–307; MJ de Waal “Law, Society and the Individual: The Limits of
Testation” in DP Visser (ed) Essays on the History of Law (1989) 300; F du Toit “Succession Law in South
Africa – A Historical Perspective” in KGC Reid, MJ de Waal & R Zimmermann (eds) Exploring the Law
of Succession: Studies National, Historical and Comparative (2007) 67; MJ de Waal “Family Provision
in South Africa” in KGC Reid, MJ de Waal & R Zimmermann (eds) Comparative Succession Law III:
Mandatory Family Protection (2020) 477
130
See MJ de Waal “The Law of Succession and the Bill of Rights” in Y Mokgoro & P Tlakula (eds) Bill of
Rights Compendium (SI 36 2016) 3G7; Lehmann (2014) AJ 9-11; Du Toit (2001) Stell LR 224
131
2013 3 SA 236 (SCA) paras 26-27
132
Wilkinson v Crawford NO 2021 4 SA 323 (CC) para 70
133
Para 118
134
Para 119
135
Para 120

judges in King NNO. Mhlantla J and Majiedt J appear to have reverted to a

more positive stance on testamentary freedom in Wilkinson – a stance that
is more in line with the prevailing position in South African scholarship and
case law on this point. This might call into question the Constitutional Court’s
actual readiness to radically recalibrate freedom of testation “towards more
egalitarian and ubuntu based ends” as proposed in the King NNO case136 – an
approach that would, in my opinion, affect the very essence of freedom of
testation in South African law.137 I therefore welcome these dicta in Wilkinson,
in particular insofar as they seemingly temper the somewhat one-sided views
on the possible negative effects of freedom of testation enunciated in King
NNO. I submit that these views underrate freedom of testation’s inherent value
as well as its constitutional protection in South African law.
4 3 Reconciling freedom of testation and equality

The foregoing exposition raises the question of how the competing
principles of freedom of testation and equality can be aligned in order to
ensure that both receive adequate weight and consideration. In my opinion,
the public/private divide is a useful starting point. I concur that dispositions
that are effectuated in the public domain are to be tested more stringently
against the equality yardstick than dispositions that operate purely in the
private sphere, yielding the net effect that courts will interfere with a testator’s
private choices in exceptional circumstances only. My co-author has already
dealt extensively with the public/private divide in the second perspective
above.138 I shall therefore limit my arguments in favour of a lower level of
judicial scrutiny in cases of purely private bequests to a few remarks only.
As a point of departure, it bears repetition that no one has a fundamental right
to inherit.139 This truism was acknowledged even in the King NNO case.140
In South African law, mandatory protection for family members exists only in
terms of the right to claim maintenance from the deceased’s estate in case of
financial need.141 Apart from that, a person’s expectation of benefitting from
the estate is a mere hope, not endowed with any legal protection.142 Therefore,
disinheriting, excluding, or simply omitting someone in or from a will does
136
137
See De Waal “The Law of Succession and the Bill of Rights” in Bill of Rights Compendium 3G9
138
See part 3 2
139
De Waal “The Law of Succession and the Bill of Rights” in Bill of Rights Compendium 3G9; Ex parte BOE
Trust Ltd 2009 6 SA 470 (WCC) para 16; Wilkinson v Crawford NO 2021 4 SA 323 (CC) para 131 See,
from a German perspective, N Preuß “§ 1922 BGB” in B Gsell, W Krüger, S Lorenz & C Reymann (eds)
beck-online Grosskommentar (2021) para 30; M Ruffert Vorrang der Verfassung und Eigenständigkeit
des Privatrechts (2001) 396
140
141
De Waal “Family Provision in South Africa” in Comparative Succession Law III 477; Corbett et al Law of
Succession 41-47 In Germany, by contrast, disinherited descendants, spouses and parents of the testator
can claim their Pflichtteil (compulsory portion), which is a personal monetary claim amounting to half of
what the respective family members would have recieved if the testator had died intestate: s 2303 of the
German Civil Code See R Zimmermann “Compulsory Portion in Germany” in KGC Reid, MJ de Waal
& R Zimmermann (eds) Comparative Succession Law III: Mandatory Family Protection (2020) 268
142
De Waal “The Law of Succession and the Bill of Rights” in Bill of Rights Compendium 3G9; Corbett et al
Law of Succession 48

526 STELL LR 2022 3
not per se constitute an infringement of that person’s rights.143 Against this

backdrop there is, in my opinion, generally no sound basis for someone who
was disinherited, excluded or omitted in or from a will to demand the variation
of a testamentary disposition so that he or she can receive a benefit to which
he or she has no legal entitlement. As differentiation and choice constitute the
very essence of freedom of testation, subjecting testators to the same standards
of neutrality and equality as those to which the state or other public institutions
are bound would indeed, in the words of De Waal, “reduce the concept of
freedom of testation to a fiction.”144 This standpoint invariably calls for a lower
level of judicial scrutiny when testing private testamentary dispositions against
the Constitution’s equality yardstick. It is in this light interesting that some
of the judges in the Wilkinson case not only refrained from reiterating their
negative statements on freedom of testation made in King NNO, but they also
seem to accept the public/private divide that they so forcefully rejected in the
King NNO case.145
It must be noted, however, that adhering to the public/private divide does
not necessarily mean that freedom of testation in the private sphere remains
completely unaffected by constitutional or other statutory prohibitions on
unfair discrimination. In order to accommodate such prohibitions in the private
sphere, a very nuanced and careful balancing exercise is called for.146 When
balancing freedom of testation on the one hand against equality on the other
hand, a variety of considerations may be relevant. These include a consideration
of the intention of the testator; the reason or purpose behind any differentiation
contained in a testamentary disposition; and the personal relationships between
the parties involved in the matter. Of course, when someone from whom a
testamentary benefit has been withheld challenges the particular disposition,
the effect that the disposition has on the disinherited, excluded or omitted
person must be taken into account, most notably insofar as the disinheritance,
exclusion or omission can occasion a possible infringement on that person’s
dignity. I submit that such a balancing exercise seems possible and necessary,
even though section 9(5) of the Constitution and section 13 of the Equality Act
presume the discrimination at hand to be unfair. Section 36 of the Constitution
and section 14 of the Equality Act not only allow for a limitation of the right to
equality, but also provide criteria for the balancing of competing rights (such
as the purpose, nature, and extent of the limitation (discrimination), or the
143
De Waal & Schoeman-Malan Law of Succession 6; Corbett et al Law of Succession 48; Du Toit (2001)
Stell LR 242-245
144
De Waal “The Law of Succession and the Bill of Rights” in Bill of Rights Compendium 3G9 See also
De Waal & Schoeman-Malan Law of Succession 6 A corresponding view can be found in German
scholarship: see Muscheler Erbrecht 143 and generally C Langenfeld “Art 3 Abs 3” in T Maunz &
G Dürig (eds) Grundgesetz Kommentar (SI 94 2021) para 85
145
Wilkinson v Crawford NO 2021 4 SA 323 (CC) paras 73 and 129-131
146
In principle, such a balancing exercise was also envisaged in Wilkinson v Crawford NO 2021 4 SA 323
(CC) para 69

question whether it impairs human dignity).147 In my view, none of the three

judgments in King NNO engaged adequately in the balancing of competing
rights or values. This resulted in freedom of testation being accorded too little
weight in the King case.
Nevertheless, the first judgment offers a valuable line of reasoning that
could, at least in certain cases, come into play to yield a more nuanced
balancing exercise. The first judgment ascribed great importance to the fact
that the impugned clause governing the fideicommissum targeted (female)
descendants with whom the testators never had personal relationships: the
“unknown lineal descendants” element of the bequest therefore tipped the scale
in favour of the right to non-discrimination over freedom of testation.148 This
reasoning is appealing: if the testator knew the class of potential beneficiaries,
his or her dispositive choices will usually be based on what Majiedt J called
“manifestations of personal love and affection, loyalties and kinship” in the
Wilkinson case.149 Here, courts should act very cautiously, irrespective of
whether the testator identifies the chosen beneficiaries with reference to their
names or by means of an immutable characteristic such as gender. Judicial
interference with the testator’s disposition in such a case amounts, in the words
of Majiedt J in Wilkinson, to criticising “not only … proprietary choices, but
also … personal preferences”. It therefore amounts to a criticism of a testator’s
“subjective world view, personal loyalties, affections and sense of duty” as so
unreasonable that the testator’s choices warrant judicial intrusion.150 However,
if the testator did not know the members of the beneficiary class (because,
for example, they would come from future generations) and nevertheless
differentiated between the potential members of that class based on immutable
characteristics such as those listed in section 9(3) of the Constitution, it is quite
evident that his or her choice is solely based on one or more of the prohibited
grounds.151 Such a disposition is capable of impairing the dignity of the persons
affected in the manner advocated by my co-author in the first perspective
above and may consequently warrant judicial interference. I therefore submit
that differentiating on one or more of the enumerated non-discrimination
grounds between potential beneficiaries who are unknown to the testator
makes out a strong(er) case for giving preference to equality over freedom of
testation. Nonetheless, the testator’s motive in respect of the differentiation,
a possibly legitimate purpose to be achieved by the differentiation, and other
circumstances pertinent to the case must be taken into consideration even
here.152 It must also be borne in mind that choosing unknown beneficiaries
147
See Du Toit (2001) Stell LR 234-236; De Waal “The Law of Succession and the Bill of Rights” in Bill of
Rights Compendium 3G9, referring to A Cockrell “Private Law and the Bill of Rights: A Threshold Issue
of ‘Horizontalityʼ” in Y Mokgoro & P Tlakula (eds) Bill of Rights Compendium (SI 36 2016) 3A9 See
also King NNO v De Jager 2017 6 SA 527 (WCC) paras 71-80; Harvey NO v Crawford NO 2019 2 SA 153
(SCA) paras 54-55 See, however, King NNO v De Jager 2021 4 SA 1 (CC) paras 98-99 for a critical view
on the application of s 36 in the circumstances under discussion
148
149
Wilkinson v Crawford NO 2021 4 SA 323 (CC) para 118
150
Para 119
151
See King NNO v De Jager 2021 4 SA 1 (CC) paras 83-84
152
See with regard to intent, motive and purpose, Du Toit (2012) Tul Eur & Civ L F 124-126

528 STELL LR 2022 3
under a private testamentary bequest is the exception rather than the rule and
will typically occur only in respect of certain testamentary institutions such as
fideicommissa or testamentary trusts.
In summation and considering the facts of the King case, I tend to be less
critically disposed towards the case’s outcome than towards the various lines
of reasoning that underpinned the three judgments. Moreover, the appropriate
remedy in such cases deserves further consideration because the disagreement
between the first and second judgments as to the correct doctrinal approach
is disconcerting.153 I have tried to show that in the King NNO case the
Constitutional Court, by virtue of its one-sided view on testamentary freedom
as well as by rejecting the public/private divide and not engaging in a proper
balancing of competing constitutional rights, failed to give due regard to the
value and importance of freedom of testation in South African law. It is thus
to be welcomed that in the subsequent judgment in Wilkinson, the same court
seems (at least in principle) to have reverted to a more favourable stance vis-à-
vis freedom of testation as well as the public/private divide.
5 Conclusion
This article highlights the complexities associated with invoking policy-
based imperatives regarding equality in the context of a gender-based
out-and-out disinheritance in a private testamentary bequest. It shows that
legal-philosophical, jurisdictional, doctrinal and even practical considerations
shape and influence perspectives on this complicated issue. The role and place
of these considerations in the broader policy discourse underscores Mitchell
AJ’s astute observation in BOE Trust that public policy (even constitutionally-
infused public policy) remains an “unruly horse” and its application is “a matter
on which individual opinion might differ”.154 The King NNO case, although
not satisfactory in all respects, is an important decision in the context of the
constitutional reshaping of aspects of South Africa’s succession law. The case
provides fertile ground for academic as well as practice-oriented analysis and
it is anticipated that its implications for personal autonomy, private ownership
and private succession, as well as family relationships and inter-generational
family dynamics will be the subject of further thorough investigation, both
domestically and internationally.
153
See King NNO v De Jager 2021 4 SA 1 (CC) paras 86-87 and 158-161 See also Wilkinson v Crawford
NO 2021 4 SA 323 (CC) para 100 See De Waal “The Law of Succession and the Bill of Rights” in Bill
of Rights Compendium 3G9 for a further perspective on the difficulties associated with arriving at an
appropriate remedy
154
2009 6 SA 470 (WCC) para 13

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(2022) 33 Stell LR 501

KING NNO V DE JAGER 2021 4 SA 1 (CC):

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Keywords: Freedom of testation; disinheritance; private bequest; public

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2 First perspective: The Constitutional Court did not violate

2 2 The equality norm and private dispositions

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policy against discriminatory charitable dispositions,20 although it is worth

In striking contrast to charitable dispositions, courts in South Africa and

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It must be emphasised immediately that the refusal of courts in South Africa

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to equality.32 It is finally underscored by judicial statements of high authority

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freedom of disposition? It is instructive to note that some of the judges in King

Read expansively, these judicial statements amount to radical calls to rethink

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of autonomy. In those circumstances, the state is justified in taking steps to

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2 4 Changing disponor behaviour

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of the terms of the fideicommissum that effected a redistribution of the

3 Second perspective: the Constitutional Court erroneously

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of Appeal’s judgment in Harvey NO, but Majiedt J – in a dissenting judgment

3 2 Is the distinction between “public and private testaments” indeed

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It is submitted that the public/private divide exposes this reasoning as ill-

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Constitution.78 Compare, by way of an admittedly imperfect but nevertheless

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By contrast, the judicial striking-out of a disinheritance from a private class

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appellants’ exclusion from the fideicommissary bequest “simply because they

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This school of thought favours the public/private divide precisely because it

4 Third perspective: The Constitutional Court accorded

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political opinions, or disability.104 Unlike section 9(4) of the South African

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testamentary dispositions that are effected in the public domain.115 However, an

4 2 Freedom of testation in the South African law of succession and

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It was further enhanced by British influence in the nineteenth century, at a time

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judges in King NNO. Mhlantla J and Majiedt J appear to have reverted to a

4 3 Reconciling freedom of testation and equality

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not per se constitute an infringement of that person’s rights.143 Against this

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question whether it impairs human dignity).147 In my view, none of the three

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© Juta and Company (Pty) Ltd

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2 First perspective: The Constitutional Court did not violate

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4 Third perspective: The Constitutional Court accorded

4 2 Freedom of testation in the South African law of succession and