Board of Executors v Benjamin Godlieb Heydenrych Testamentary Trust and Others (9688/08) [2011] ZAWCHC 466; 2012 (4) SA 103 (WCC) (6 December 2011)

Board of Executors v Benjamin Godlieb Heydenrych Testamentary Trust and Others (9688/08) [2011] ZAWCHC 466; 2012 (4) SA 103 (WCC) (6 December 2011)

The court found that the impugned provisions in the trust instruments discriminated unfairly on the grounds of race, colour, gender, and descent, contrary to section 9 of the Constitution and public policy. The discriminatory clauses brought about consequences not contemplated by the testators, as all wills were...

Source-derived case information.

Citation
[2011] ZAWCHC 466
Parties
Applicant: Board of Executors; Respondent: Benjamin Godlieb Heydenrych Testamentary Trust; Respondent: George King Testamentary Trust; Respondent: Cyril Houghton Bursary Trust; Amicus Curiae: Women's Legal Centre
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
6 December 2011
Case Number
9688/08
Procedural Posture
Ex Parte Application / Judgment
Outcome
Application granted. Discriminatory provisions in the trust instruments are deleted or varied as ordered.
Judges
P L Goliath
Legal Topics
Freedom of Testation, Unfair Discrimination, Variation of Trust Instruments, Public Policy, Gender Equality, Racial Discrimination
Constitutional Law Civil Procedure Family and Children Freedom of Testation Unfair Discrimination Variation of Trust Instruments Public Policy Gender Equality +1 more

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Summary, issues, holding and outcome

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Parties

Board of Executors

Applicant

Benjamin Godlieb Heydenrych Testamentary Trust

Respondent

George King Testamentary Trust

Respondent

Cyril Houghton Bursary Trust

Respondent

Women's Legal Centre

Amicus Curiae

Procedural Posture

Ex Parte Application / Judgment

Legal Issues

  1. 1 Whether the discriminatory provisions in the trust instruments based on race, colour, gender, and descent should be deleted as contrary to public policy and the Constitution.
  2. 2 Whether the court is empowered to vary the trust instruments under section 13 of the Trust Property Control Act 57 of 1988.
  3. 3 Whether the impugned provisions bring about unforeseen consequences that hamper the achievement of the founders' objectives or prejudice beneficiaries.

Ratio Decidendi

The court found that the impugned provisions in the trust instruments discriminated unfairly on the grounds of race, colour, gender, and descent, contrary to section 9 of the Constitution and public policy. The discriminatory clauses brought about consequences not contemplated by the testators, as all wills were executed before the advent of constitutional democracy and the introduction of anti-discrimination legislation. The court held that the discriminatory provisions hampered the charitable purpose of the trusts and prejudiced beneficiaries. The court was empowered under section 13 of the Trust Property Control Act to delete or vary such provisions. The court ordered the deletion of...

Court Disposition

Application granted. Discriminatory provisions in the trust instruments are deleted or varied as ordered.

Orders

  • The words 'of European boys' and 'I do specially stipulate that at least one half of the boys so assisted shall be of British descent' in the last paragraph on page 3 of the last will and testament of Benjamin Godlieb Heydenrych are struck out.
  • The words 'members of the White Group' in clause V(b)(i) of the last will and testament of George King are struck out.