PVL2602/102/3/2024

Tutorial Letter 102/3/2024

Law of Succession
PVL2602

Semesters 1 and 2

Department of Private Law

This tutorial letter contains important amendments to the Study Guide.

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Amendments to the Study Guide

Please make the following corrections to your study guide. Words that must be deleted are
indicated by means of strikethrough text (eg. text), and new words that must be inserted are
underlined.
The relevant page number in the study guide is indicated at the beginning of a section where a
change should be made. Then a part of the text is provided to give some context to enable you
to find the relevant passage where the amendment should be made. The three ellipses (…)
indicate where text has been left out.

1. Page v
PRESCRIBED MATERIAL
Your prescribed material for this module is:
• Jamneck, Rautenbach, Paleker, Van der Linde, Wood-Bodley The Law of Succession in
South Africa 3rd ed (2017) 4th ed 2023 Oxford University Press Cape Town (This book
will be referred to as “J&R” in this tutorial letter.)
• Cronjé DSP & Roos A Erfregvonnisbundel/Casebook on the law of succession 4th ed
(2002) Unisa Pretoria (This book will be referred to as “the Casebook” in this tutorial
letter.) (Note: This book is no longer prescribed.)
• A number of tutorial letters …

2. Page vi
METHOD OF STUDY
This study guide comprises sixteen learning units, each referring to a corresponding chapter in
the textbook. Each learning unit also refers to your prescribed cases. You will
find a list of the prescribed cases in Tutorial Letter 101.These cases are very important and have
to be studied in the Casebook prescribed textbook (J&R) when you study the particular learning
unit. This will help you to gain greater insight into the relevant principles and their application. You
will not be able to answer some of the questions in the assignments or the examination without
studying the cases.

3. Page viii
• Case law: Note that although certain cases are mentioned throughout the textbook, you
only have to study those prescribed in the Study Guide in each learning unit. In tutorial letter
101 you will also find a complete list of these cases.

You do not have to know the full reference to a case (for example, Ex parte Graham 1963 (4) SA
145 (D)) – you need only know the name of the case, i.e. Ex parte Graham. Also note that the
notes on the cases which you will find in the prescribed textbook (Cronjé & Roos – see tutorial
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letter 101), are extremely important. These notes not only provide you with a summary of the
decision in each case, but also include a detailed discussion of the case and any criticism against
the case. These notes, therefore, have to be studied in detail.

Cases not prescribed but discussed in the textbook (J&R)

You should bear in mind that the cases which are not listed as prescribed but which are discussed
in your textbook are also important and should not be ignored. Decisions by our courts are very
important as sources of authority.

4. Page 2
Study the following from J&R
• Par 1.1–1.5
• Par 1.6
Please note that the terminology in par 1.6 is extremely important.
… You only need to know the shortened version of the definition of “trust” (p18 – see
chapter 11 also). You do not need to know the long definition from the Trust Property
Control Act.
…

5. Page 3
Par 1.7 GROUND RULES WITH REGARD TO SUCCESSION
CASES: Study
• Ex parte Graham 1963 (4) SA 145 (D)
• Estate Orpen v Estate Atkinson 1966 (4) SA 589 (A)
One of the most important ground rules of the law of succession is that a person must have died
before his estate may be divided. To this rule there are a few exceptions, namely estate massing
(discussed in Chapter 8) or where a person has disappeared without a trace. See pp19–21 par
1.7 for examples. Make sure that you study all the ground rules as well as the exceptions.

6. Page 3
Some guidelines before you start writing:
You have to study the ground rules as to when a person may inherit before attempting to answer
this question. You also have to read study Ex parte Graham 1963 (4) SA 145 (D) carefully in your
Casebook J&R par 1.7.1. Make a short summary of the facts and Ensure that you know what the
decision entailed regarding presumptions on the order of death. Also study the “Note” on the case
in the Casebook.

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7. Page 6
Par 2.4 VESTING OF AN INTESTATE INHERITANCE
CASE: Study
• Harris v Assumed Administrator Estate MacGregor 1987 (3) SA 563 (A)

This paragraph deals with the vesting of a right when intestate succession applies.
…
… and this problem was discussed in Harris v Assumed Administrator Estate MacGregor 1987
(3) SA 563 (A) – study this case in J&R par 2.4 and see the “Pause for Reflection” box.
Casebook

8. Page 7
Par 2.6 CONSTITUTIONAL CHALLENGES
…
Our courts have, over time, made various decisions on the position of these parties.
CASES: Study
• Bhe v Magistrate, Khayelitsha … (as discussed in J&R)
• Daniels v Campbell 2004 (5) SA 331 (CC) (as discussed in J&R)
• Hassam v Jacobs 2009 (5) SA 572 (CC) (discussed below and in J&R)
• Bwanya v The Master of the High Court, Cape Town 2022 (3) SA 250 (CC) (as discussed
in J&R)

The Intestate Succession Act 81 of 1987 has been challenged in the Constitutional Court on a
number of occasions. Study all the cases as discussed in J&R and add the following
discussion:
97

Hassam v Jacobs 2009 (5) SA 572 (CC)

This case is also discussed in the textbook at p31 in par 2.6.2 and again at p135 in par 8.2.4.2.1
but you need to take note of it already in the context of intestate succession. …

9. Page 11
Insert the following new par 2.10:

2.10 No intestate heirs found

This paragraph explains what happens if, after a diligent search, there are no intestate heirs of
the deceased to be found, or none can be located.

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Par 2.10 2.11 CUSTOMARY LAW OF SUCCESSION

This paragraph explains that the customary law of succession was, to a large extent, abolished
by the Bhe case…

10. Page 13
SUMMARY
In this chapter we discussed some general concepts which are relevant to the law of
intestate succession. We also discussed the rules of intestate succession which apply
when a person dies without leaving a valid will.

To refresh your memory and to contribute to your understanding, do the following:

• Write a few notes on:

- …
- Hassam v Jacobs 2009 (5) SA 572 (CC)
-

11. Page 33

Par 8.2 LIMITATIONS ON FREEDOM OF TESTATION

242
CASES: Study
• Minister of Education v Syfrets Trust Ltd 2006 (4) SA 205 (C)
• Levy v Schwartz 1948 (4) SA 930 (W)
• Ex parte Swanevelder 1949 (1) SA 733 (O)
• Barclays Bank DC & O v Anderson 1959 (2) SA 478 (T)
• Aronson v Estate Hart 1950 (1) SA 539 (A)
• Daniels v Campbell 2004 (5) SA 331 (CC)
• Hassam v Jacobs 2009 (5) SA 572 (CC) (discussed in this guide in Chapter 2)
• Volks v Robinson 2005 5 SA 446 (CC)
• King v De Jager 2021 (4) SA 1 (CC)
• Wilkinson v Crawford 2021 (4) SA 323 (CC)
• Bwanya v Master of the High Court, Cape Town 2021 (1) SA 138 (WCC)

12. Page 34

“Constitutional limitations” refer to the fact that certain conditions in a will may be declared invalid
(in effect limiting the testator’s freedom of testation) because it contravenes a provision of the
Constitution … In this regard you should study Minister of Education v Syfrets Trust Ltd 2006 (4)
SA 205 (C). This case is discussed in learning unit 11 (par 11.5).

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You should also study King v De Jager 2021 (4) SA 1 (CC) and Wilkinson v Crawford 2021 (4)
SA 323 (CC) as discussed in par 8.2.2. King v De Jager is also discussed in more detail in chapter
10 (par 10.4 dealing with a fideicommissum) and Wilkinson v Crawford is discussed in more detail
in chapter 11 (par 11.5.6 dealing with a trust).

In King v De Jager the Constitutional Court held that the provision in a will which excluded further
generations of beneficiaries that were unknown to the testator, simply because they were women,
amounted to unfair discrimination. The provision was regarded as pro non scripto and
disregarded.

In Wilkinson v Crawford the Constitutional Court held that words in a private trust deed which
excluded adopted children, unfairly discriminated against the adopted children on the basis of
their birth, or alternatively on the analogous ground of adoption status, and were therefore against
public policy and unenforceable.

…..

An important development has taken place in case law over the last few years with regard
to the interpretation of the word “spouse” and “survivor” when used in connection with the
Maintenance of Surviving Spouses Act, as well as in regard to the Intestate Succession
Act which is discussed in learning unit 2. Study the prescribed cases carefully. In terms of case
law, the words “spouse” and “survivor” are now interpreted to include a surviving partner
in a monogamous or polygynous Muslim marriage, a party in a monogamous Hindu
marriage, and a partner in a life partnership in which the partners undertook reciprocal
duties of support. and a surviving partner in a same-sex life partnership where the partners
have undertaken a duty of maintenance towards each other.. However, at this point in time,
a surviving partner in a heterosexual life partnership is not included. You should reflect on the
fairness of this situation and form your own opinion after reading the relevant case law.

13. Page 47

Par 10.3 DIRECT SUBSTITUTION

CASE: Study

• Moosa v Minister of Justice 2018 (5) SCA 13 (CC)

Two types of direct substitution

The previous paragraphs explained …

14. Page 47– 48:

Reason for adoption of section 2C(1)

It might be easier for you to remember …

…

Before the advent of section 2C, if a child renounced his or her benefit, it was not necessarily the
case … It can be said that statutory accrual takes place – the benefit that the child would have
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received accrues to the wife. (Accrual will be discussed in more detail later on in this learning
unit.)

In Moosa v Minister of Justice 2018 (5) SCA 13 (CC) the Constitutional Court held that section
2C(1) applies to multiple surviving spouses in polygynous marriages.
Note that it is only if …

15. Page 49

Par 10.4 FIDEICOMMISSARY SUBSTITUTION (FIDEICOMMISSUM)

CASE: Study

• King v De Jager 2021 (4) SA 1 (CC)

• Du Plessis v Strauss 1988 (2) SA 105 (A)
• Rockman v Padayachee (3518/2017) [2018] ZAECPEHC 60 (25 October 2018)

16. Page 53
Par 10.10 CUSTOMARY LAW
Take particular note of the question re Constitutionality in the “Pause for Reflection” box under
par 10.10.

There are no further changes that you need to make to the rest of your study guide.