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the future/Articles/Reconsidering the indignus principle in the South African law of succession

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Reconsidering the indignus principle in the South African law of succession *

2014 Acta Juridica 123

† ‡
Shaun Barns and Ayden Thompson
The application of vague public policy principles to the question of disqualification from benefits in the South African law of succession is becoming
the norm in our courts. Little or no regard is being given to the traditional overarching Roman­Dutch principle that 'no person may benefit from his
or her own wrongdoing or benefit from what is punishable.' In this article we argue that the oversight stems from a misinterpretation of the
seminal case of Taylor v Pim. It is not suggested that the application of public policy considerations to cases of disqualification has led to unjust or
prejudicial outcomes, but rather that these outcomes could just as easily have been reached if the courts had given true regard to the applicable
Roman­Dutch law principles, which were consistently applied by the courts in the 18th and 19th centuries. It is submitted that to subscribe once
again to the Roman­Dutch law will remove the possible vagueness introduced by public policy considerations and will avoid startling outcomes in
the future.

I Introduction
In the South African common law of succession three main circumstances exist where a person may be disqualified from taking benefits from a
deceased estate. The first is found in the trite Roman­Dutch maxim that no person may benefit from his or her own wrongdoing, which can be
seen as the overarching principle in this area of the law. 1 The second, which is in fact a subset of the overarching principle, is the bloedige
hand maxim, 2 which holds that a beneficiary who caused the death of the testator or one of the testator's coniunctissimi cannot take an
inheritance from the testator. 4 The third is the indignus principle, which holds that where a person's conduct so offends the notions of public
policy, he or she may be deemed unworthy to take an inheritance. 5 The authority quoted in support of the third principle in recent South
African case law 6 is the French jurist Jean Domat, as cited in Taylor v Pim.

2014 Acta Juridica 124

While Roman­Dutch law rested the disqualification of a beneficiary on the overarching principle that no one may benefit from his or her own
wrongdoing, the law also identified various categories of persons who were disqualified from inheriting, such as the adulterous heir, 8 the heir
who concealed a testator's will, 9 and the murderous beneficiary. 1 0 These were considered to be unworthy persons. The idea of having a
generalised indignus (unworthiness) category, it would seem, was not part of the Roman­Dutch system and the Supreme Court of Appeal has
yet to pronounce on whether it forms part of South African law. However, the High Courts in Pillay v Nagan and Danielz NO v De Wet and
Another accepted that such a possibility exists in South African law. They relied principally on Domat in reaching this conclusion. We submit that
this reliance on Domat and the conclusion that the indignus principle exists in South African law are both unwarranted and jurisprudentially
unsound.
The judgments that have relied on Domat draw inspiration from the early 20th century case of Taylor v Pim. However, as will be
demonstrated, the court in Taylor's case did not endorse the views of Domat. The facts of the case were such that the finding of the court fell
squarely within the overarching Roman­Dutch principle that no one may benefit from his or her own wrongdoing, and not within a generalised
indignus principle.
In section II we suggest a correct interpretation to be given to Taylor v Pim. In section III we provide judicial authority in support of this
interpretation. Following from this, in section IV we critically evaluate recent High Court judgments that have considered the indignus principle,
and we will show that it was unnecessary and incorrect to rely on Domat as authority. Finally, in section V, we provide hypothetical scenarios to
illustrate our point and to stimulate further thought on the topic.

II The introduction of the indignus principle into South African law

Central to the understanding of the indignus principle in the South African law of succession is the interpretation given to the case of Taylor v
Pim. The facts of the case were as follows. The deceased, Rebecca Bingham, was married to Edward Bingham. Together they established a
successful business. Edward died in 1900, leaving his estate, including the business, to his wife. Shortly after her husband's death, the
deceased took up residence with a married man, the defendant, a certain Mr Pim. After moving in with Pim, the deceased started consuming
unusually high

2014 Acta Juridica 125

quantities of liquor, much to the consternation of her medical advisers. In 1901, the deceased executed a will in which she appointed Pim as the
executor and sole heir of her estate. While on a vacation in 1902, she suffered a cerebral haemorrhage and died. It appeared that at the time of
her death, she was heavily intoxicated and that Pim allowed a doctor and a nurse to be called in only when the hotel manager insisted. 1 3 On
her death, the deceased's sister, Taylor, brought an action in which she sought, inter alia, an order declaring Pim to be disqualified from
benefiting under the will.
The majority judgment, written by Bale CJ, extensively laid down the salient law in this regard before concluding that Pim was unworthy to
inherit and thus legally disqualified as a result of his conduct towards the deceased. What is important for present purposes is to establish
which legal principles in fact formed the basis of the judge's finding on this matter. From the judgment one can identify three possible reasons
considered by the court for disqualifying Pim:
1. The Roman­Dutch overarching principle that 'no one can benefit himself [or herself] by his [or her] own wrong, or profit by what is
punishable (Van Leeuwen, 3.3.9; Code, 6.33; Voet, 34.9.6).' 1 4 This principle requires that the beneficiary actually caused him­ or herself
to be enriched through his or her wrongful conduct. For the disqualification to take effect there must be a causal connection between the
harm and the enrichment. 1 5
2. The specific classes of persons mentioned by the Roman­Dutch writers which are still relevant to this day. The two pertinent classes for
the purpose of this particular case were 'an adulterer could not appoint an adulterous heir or legatee', and heirs who through their own
negligence and fault had so neglected the beneficiary that he or she died in consequence of such neglect. 1 6
3. The indignus principle as formulated by Domat. To this extent, the court cited the following passage of Domat (hereinafter also referred to
as 'Domat's Gloss'):
The causes which may render the heir unworthy of the succession are indefinite, and the discerning of what may or may not be sufficient
to produce this effect depends on the quality of the facts and the circumstances. Thus we are not to limit these causes to such as shall
be explained in the following articles, where we have only

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mention of those which are expressly named in the laws. But if there should happen any other case where good manners and equity should
require that an heir should be declared unworthy, it would be just to deprive him of the inheritance. Thus, for example, if one who has had
all unlawful commerce with a woman of a bad life and conversation should institute her his heir or executrix, such an institution ought to
be annulled (cf. Voet, 5.28.6; 34.9.3). 1 7
It must be noted that after citing the aforementioned authorities the court did not explicitly identify which of the grounds were specifically
relied upon in coming to its conclusion. 1 8 However, it is submitted that the Roman­Dutch categories numbered '1' and '2' above should be
favoured
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When one reads the majority judgment together with the separate but concurring judgments of Finnemore J and Beaumont J, the primary
 require that an heir should be declared unworthy, it would be just to deprive him of the inheritance. Thus, for example, if one who has had
all unlawful commerce with a woman of a bad life and conversation should institute her his heir or executrix, such an institution ought to
be annulled (cf. Voet, 5.28.6; 34.9.3). 1 7
It must be noted that after citing the aforementioned authorities the court did not explicitly identify which of the grounds were specifically
relied upon in coming to its conclusion. 1 8 However, it is submitted that the Roman­Dutch categories numbered '1' and '2' above should be
favoured over Domat's Gloss for the reasons set out below.
When one reads the majority judgment together with the separate but concurring judgments of Finnemore J and Beaumont J, the primary
reliance on the specific Roman­Dutch authorities becomes clearer. Finnemore J plainly stated that the defendant should be held unworthy both
for ultimately causing the testatrix's death and for his adultery with the testatrix 1 9 – the first and second of the aforementioned Roman­Dutch
categories respectively. Likewise, Beaumont J explained that the defendant was unworthy on the ground of his having ultimately caused the
death of the testatrix for his own benefit 2 0 – the first of the aforementioned Roman­Dutch categories. One can therefore conclude that the
correct ratio decidendi which should be taken from the judgment is that no person should benefit from his or her own wrongdoing – the first of
the aforementioned Roman­Dutch principles that govern disqualification from inheritance. Support for this reading of the judgment can be found
in cases subsequent to Taylor v Pim.

II Cases subsequent to Taylor v Pim

In Ex Parte Steenkamp and Steenkamp, 2 1 Steyn J (as he then was) showed a clear reluctance to place any real emphasis on Domat's Gloss. 2 2
The court held in an obiter dictum that the passage by Domat was merely quoted in passing in Taylor v Pim. 2 3 It reasoned that the defendant
in Taylor v Pim was

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24
the cause of the testator's death and accordingly could have been found unworthy on the already­recognised Roman­Dutch grounds. The
court clearly thought that Domat's gloss was not decisive of the outcome in Taylor.
In Yassen and Others v Yassen and Others Harcourt J also showed his reluctance to rely on Domat's Gloss. 2 6 The case revolved around two
issues: first, whether the deceased, Mahomed Yassen, had left a valid will and, secondly, whether a document purporting to be his will was in
fact fraudulently drafted by his son, Ahmed Yassen, the defendant. 2 7 The court found that there was insufficient proof to show that the
deceased had left a valid will. On the second issue, the court held that 'equity' and 'good manners' – endorsed by Domat – as a litmus test for
unworthiness was in fact too vague to be a test of general application. 2 8 The court commented that there are many actions that 'may be
described as contrary to good manners, which could never be erected into a sufficient cause for stigmatising an heir as unworthy.' 2 9 It is
submitted that this risk of opening the legal floodgates to spurious claims is yet another reason to suggest that reliance on Domat's Gloss should
be approached with caution.
A reliance on public policy and general notions of 'equity' and 'good manners' to determine legal rights does not sit well with the Supreme
Court of Appeal, as can be seen in the recent case of Potgieter and Another v Potgieter NO and Others where the court stated:
[T]he reason why our law cannot endorse the notion that judges may decide cases on the basis of what they regard as reasonable and fair, is
essentially that it will give rise to intolerable legal uncertainty. That much has been illustrated by past experience. Reasonable people, including
judges, may often differ on what is equitable and fair. The outcome in any particular case will thus depend on the personal idiosyncrasies of the
individual judge. Or, as Van den Heever JA put it in Preller and Others v Jordaan 1956 (1) SA 483 (A) at 500, if judges are allowed to decide cases on
the basis of what they regard as reasonable and fair, the criterion will no longer be the law but the judge. 3 1

2014 Acta Juridica 128

Significantly in Du Plessis NO v Strauss, Corbett JA (as he then was), in a separate but concurring judgment, made certain pronouncements on
the hierarchy of sources of South African law:
To the extent that the law and practice of other countries having cognate legal systems, such as, for example, Friesland, France and the
principalities of Germany, may have differed from that in Holland, preference must be given to the latter since Holland is from where our common
law derives. This rules out reliance upon the views of such authorities as Huber, Sandé, Gail and Domat, to mention but a few. 3 3
It is axiomatic from the above dictum that Roman­Dutch authorities should be favoured over other continental ones, 3 4 especially where the
Roman­Dutch law is sufficient to deal with modern exigencies. We submit that the overarching principle in the present context is sophisticated
enough and there is no need to refer to Domat. The courts have never explained why reliance on Domat should be necessary. Furthermore, a
sound theoretical basis inspired by prevailing law is needed for introducing categories of persons who are disqualified from inheriting. 'Equity' and
'good manners' are elusive, wide, and open­ended concepts and an unbridled utilisation of these concepts can result in unintended
consequences. Time and time again our courts have noted that, unlike in other legal systems (most notably, the English system), our courts are
not courts of equity. 3 5 Domat's Gloss gives far too wide a discretion to the courts to recognise new grounds of unworthiness based on what
the courts subjectively think is just and fair.

IV A critical evaluation of recent case law

Since Yassen v Yassen there have been numerous cases involving this same issue and surprisingly the courts have, it is submitted, incorrectly
favoured Domat's Gloss over the traditional Roman­Dutch principles. It is submitted that this reliance is misplaced, because the courts only
applied the Gloss thinking that it had been generally accepted as an authority by earlier courts. However, as noted above, the early courts had
never explicitly applied the Gloss, and even if there had been some approval, it was at best obiter as the facts did not require the courts to
move beyond traditional Roman­Dutch grounds of disqualification.

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In Pillay v Nagan a brother attempted to defraud his siblings of their intestate share by forging his mother's last will and testament. The court
cited both Domat's Gloss and the Roman­Dutch class that any person who hides a testator's last will is unworthy to inherit. 3 8 On the strength
of Domat's Gloss alone, the court proceeded to extend the above class of unworthiness to persons who forge a will in order to exclude other
rightful heirs. 3 9 McCall J reasoned, relying on Domat's Gloss, that public policy required such an extension of the rule and the eventual
disqualification of such 'unworthy' persons. 4 0 Interestingly, McCall J alluded to the fact that falsifying a document purporting to be a will is a
criminal offence 4 1 under s 102(1) of the Administration of Estates Act. 4 2 With this in mind, if one were to recall the Roman­Dutch principle
that 'no person may benefit from his or her own wrongdoing,' it becomes clear that it was not in fact necessary to make reference to Domat's
Gloss at all. The overarching Roman­Dutch principle could have been applied to the defendant, thereby holding him legally unworthy to inherit.
This approach would have led to the same conclusion and it would have been in accordance with the Roman­Dutch common law and the
principles of precedent.
Likewise, although obiter, in Danielz v De Wet Domat's Gloss was used as authority to create an overarching principle grounded in public
policy. 4 4 In this case, the testator's wife, who was the sole heir to his estate, had organised for a group of men to assault him to the point
that he was left 'confined to a wheelchair.' 4 5 She consciously let the men into her house one evening and ultimately the men ended up killing
the testator during the assault. 4 6 In the criminal proceedings that followed the wife was found to be guilty of assault with the intention to do
grievous bodily harm but she was acquitted of murder due to the court finding that she had lacked intent. It is important to note, however, that
in the civil proceedings regarding the will it was not disputed that the assault was the cause of the testator's eventual death. 4 7 The court
relied on Domat in holding that new grounds for disqualification should be developed where public policy requires this in order to disqualify such a
clearly unworthy

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spouse. 4 8 Again we contend that such an approach was unnecessary and introduces uncertainty into the law. Instead it is submitted that the
issue in question clearly required another simple application of the first overarching Roman­Dutch principle outlined above. As the wife's actions
were clearly the cause of her husband's death, she would be disqualified from benefitting under his will based on her clear wrongdoing towards
the testator. Again, the outcome of the case would not be different, but the principles of precedent would be better served.
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V Conclusion
 spouse. 4 8 Again we contend that such an approach was unnecessary and introduces uncertainty into the law. Instead it is submitted that the
issue in question clearly required another simple application of the first overarching Roman­Dutch principle outlined above. As the wife's actions
were clearly the cause of her husband's death, she would be disqualified from benefitting under his will based on her clear wrongdoing towards
the testator. Again, the outcome of the case would not be different, but the principles of precedent would be better served.

V Conclusion
As has been shown, the court in Taylor v Pim correctly held that the Roman­Dutch maxim that no person may benefit from his or her own
wrongdoing is the overarching principle governing common­law disqualification from benefits in the South African law of succession. Although the
court referred to Domat in its reasoning, it did not rely on Domat in any way in deciding the case. Unfortunately subsequent cases
misunderstood the thrust of the court's reasoning in Taylor v Pim, resulting in an overemphasis on Domat's Gloss. In addition to Domat's Gloss
never having been successfully accepted into our common law, the test suggested by Domat is dangerously vague and could possibly lead to
unjust results, as illustrated in the examples below. Admittedly the test provides the benefit of flexibility in the law, but an argument for its
application would have to be a well­reasoned one in order to outweigh its inherent risks and the rules of precedent. The cases subsequent to
Taylor v Pim that have relied on Domat have failed to provide such an argument.
Finally, we would like to suggest hypothetical examples to demonstrate how an uncritical reliance on Domat's Gloss can lead to absurd
results. First, consider a son who from the age of 16 physically abuses his father. On the son's 18th birthday the father passes away for reasons
unrelated to the physical abuse. The father executed a valid will the day before his death naming his son as his sole heir. It is clear that despite
the abuse the father still wished for his estate to devolve upon his son. The deceased's other children decide to make an application to court to
disqualify their sibling on the grounds of his 'unworthiness'. If Domat's views are anything to go by, the applicants would stand a good chance of
succeeding in their court challenge. This would be a strange outcome given that the father clearly exercised his right to dispose of his property
as he deemed fit and explicitly chose his son as his sole heir through a valid testamentary instrument. However, if one were to follow the
Roman­Dutch approach as we have suggested in this article, the applicants would not succeed, as they would not be able to show that the
son's behaviour

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was the cause of his enrichment and they would thus fail to meet the standard required by the first traditional Roman­Dutch principle outlined
above. The question of the nature of causation required – legal or factual – is beyond the scope of this article, but the requirement of a causal
link between the wrongdoing and the enrichment is without doubt an integral part of the Roman­Dutch formulation. 4 9 Let us take a second
example. Consider a family consisting of a wealthy but aged husband, Douglas, his young second wife, Thembi, and two children from Douglas's
previous marriage. Thembi is a loving and faithful wife to Douglas, and a caring stepmother to his two children. After Douglas dies his will
dictates that his estate is to be divided between his previous wife, the two children and Thembi. However shortly after Douglas's death the
emotional Thembi discovers evidence of his love affair with another woman and approaches a tabloid newspaper. She makes certain statements
about her husband, which had he been alive would have been of a defamatory nature. The other beneficiaries seek to have her disqualified
based on the ground of her unworthiness. They argue that the statements ruin the family's reputation and destroy the memory of Douglas. If
one were to consider Domat's Gloss, it is quite possible that Thembi could be disqualified. However, if one were to consider the first Roman­
Dutch principle outlined above, one would conclude that Thembi should not be disqualified. Even though Thembi's actions were not becoming of
a loving wife, they in no way caused her enrichment. She was justifiably enriched as a consequence of her dutiful commitment to Douglas and
his children during the marriage. Again this example highlights the tension that Domat's Gloss raises between, on the one hand, broader society's
views of what equity and good manners require, and on the other hand, the testator's true intentions and freedom to bequeath his private
property to whomever he deems fit, regardless of the beneficiaries' unworthiness in the eyes of the wider public.

* We would like to thank Professor Mohamed Paleker for his encouragement and guidance.
† BCom LLB (UCT).
‡ BA LLB (UCT).
1 L. Taylor v A.E. Pim (1903) 24 NLR 484 at 491.
2 'De bloedige hand neemt geen erf'.
3 'Coniunctissimi' refers to the deceased's spouse, parents and children.
4 Casey NO v The Master and Others 1992 (4) SA 505 (N) 507.
5 Taylor v Pim (n 1) 493.
6 Pillay and Others v Nagan and Others 2001 (1) SA 410 (D) 424.
7 Taylor v Pim (n 1) 493.
8 Ex Parte Steenkamp and Steenkamp 1952 (1) SA 744 (T).
9 Pillay v Nagan (n 6) 424.
10 Ex Parte Steenkamp and Steenkamp (n 8).
11 Note 6.
12 2009 (6) SA 42 (C).
13 These are the facts of the case as set out in M Paleker 'Capacity to inherit' in J Jamneck & C Rautenbach (eds) The Law of Succession in South Africa 2 ed
(2012) 110.
14 Taylor v Pim (n 1) 491.
15 Ex Parte Steenkamp and Steenkamp (n 8) 753A–G; Nell v Nell en 'n Ander 1976 (3) SA 700 (T) 704H–705A.
16 Taylor v Pim (n 1) 491–2. See respectively Voet 5.28.6 and Digest 34.9.3. See also Ex Parte Steenkamp and Steenkamp (n 8) 749F–H.
17 Taylor v Pim (n 1) 493; hereinafter referred to as 'Domat's Gloss'.
18 Taylor v Pim (n 1) 495.
19 Taylor v Pim (n 1) 496.
20 Taylor v Pim (n 1) 497.
21 Note 8.
22 Ex Parte Steenkamp and Steenkamp (n 8) 751H.
23 Ex Parte Steenkamp and Steenkamp (n 8) 750H. In this case, the defendant had killed his child's grandparents which had resulted in his child benefitting from
their estates. The child later died and the defendant and his wife then applied to court in an attempt to be declared as the deceased child's intestate heirs.
Essentially they would then be inheriting from the deceased grandparents through the child. The Master objected to this on the basis that the defendant had
indirectly rendered himself unworthy by his actions towards the grandparents. The court held that the cause of the defendant's enrichment was not in fact his
unlawful action against the grandparents; rather it was the unforeseeable death of his child. The bloedige hand maxim was therefore not actually applicable and
the comments were merely obiter.
24 Ex Parte Steenkamp and Steenkamp (n 8) 750H–751A.
25 1965 (1) SA 438 (N).
26 Yassen v Yassen (n 25) 441.
27 Yassen v Yassen (n 25) 439.
28 Yassen v Yassen (n 25) 441.
29 Ibid.
30 2012 (1) SA 637 (SCA).
31 Potgieter v Potgieter (n 30) para 34.
32 1988 (2) SA 105 (A).
33 Du Plessis v Strauss (n 32) 149E.
34 See also Bank of Lisbon and South Africa Ltd v De Ornelas and Another 1988 (3) SA 580 (A).
35 Estate Thomas v Kerr and Another (1903) 20 SC 354 at 366; Bothwell Appellant v Union Government (Minister of Lands) Respondent 1917 AD 262 at 269;
Bank of Lisbon and South Africa Ltd v De Ornelas (n 34) 610.
36 Note 25.
37 Note 6.
38 Pillay v Nagan (n 6) 424.
39 Pillay v Nagan (n 6) 425.
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41 Pillay v Nagan (n 6) 424–425.
42 Act 66 of 1965.
 36 Note 25.
37 Note 6.
38 Pillay v Nagan (n 6) 424.
39 Pillay v Nagan (n 6) 425.
40 Ibid.
41 Pillay v Nagan (n 6) 424–425.
42 Act 66 of 1965.
43 Note 12.
44 See also MC Wood­Bodley 'Forfeiture by a beneficiary who conspires to assault with intent to do grievous bodily harm: Danielz NO v De Wet 2009 (6) SA 42
(C)' (2010) 127 SALJ 30 for a more detailed critical evaluation of the case.
45 Danielz v De Wet (n 12) 47.
46 Ibid.
47 Danielz v De Wet (n 12) 49.
48 Danielz v De Wet (n 12) 50.
49 Ex Parte Steenkamp and Steenkamp (n 8) 753A–G; Nell v Nell (n 15) 704H–705A.

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