BoE Trust Ltd NO and Another (in their capacities as co-trustees of the Jean Pierre De Villiers Trust 5208/2006) (846/11) [2012] ZASCA 147; 2013 (3) SA 236 (SCA) (28 September 2012)

BoE Trust Ltd NO and Another (in their capacities as co-trustees of the Jean Pierre De Villiers Trust 5208/2006) (846/11) [2012] ZASCA 147; 2013 (3) SA 236 (SCA) (28 September 2012)

The Supreme Court of Appeal held that the testatrix's intention was clear: if it became impossible to implement the bursary bequest for 'White' South African students, the trust income should be distributed to named charitable organisations. The impossibility arose because all relevant universities refused to participate due to the racially exclusive condition, rendering the bursary bequest impossible to implement. The court distinguished the present case from Emma Smith, where no alternative was provided in the will. Here, the testatrix foresaw impossibility and provided an alternative. The principle of freedom of testation, while not absolute, requires courts to give effect to the...

Citation
[2012] ZASCA 147
Parties
Appellant: BoE Trust Limited NO; Appellant: Ilmary Keddy NO; Appellant: Frederick Gordon Brownell NO
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
28 September 2012
Case Number
846/11
Procedural Posture
Civil Appeal / Appeal From Western Cape High Court, Cape Town
Outcome
Appeal dismissed.
Judges
Cloete, Malan, Shongwe, Pillay, Erasmus
Legal Topics
Freedom of Testation, Public Policy, Racial Discrimination, Testamentary Trust, Impossibility, Constitutional Rights
Civil Procedure Family and Children Freedom of Testation Public Policy Racial Discrimination Testamentary Trust Impossibility Constitutional Rights

Case Brief

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Parties

BoE Trust Limited NO

Appellant

Ilmary Keddy NO

Appellant

Frederick Gordon Brownell NO

Appellant

Procedural Posture

Civil Appeal / Appeal From Western Cape High Court, Cape Town

Legal Issues

  1. 1 Whether the racially exclusive provision in the trust, limiting bursaries to 'White' South African students, should be deleted from the will.
  2. 2 Whether the impossibility of implementing the bursary bequest due to university policies triggers the alternative charitable donations clause.
  3. 3 Whether the principles in Emma Smith Educational Fund v University of Kwazulu-Natal and Others apply to this case.

Ratio Decidendi

The Supreme Court of Appeal held that the testatrix's intention was clear: if it became impossible to implement the bursary bequest for 'White' South African students, the trust income should be distributed to named charitable organisations. The impossibility arose because all relevant universities refused to participate due to the racially exclusive condition, rendering the bursary bequest impossible to implement. The court distinguished the present case from Emma Smith, where no alternative was provided in the will. Here, the testatrix foresaw impossibility and provided an alternative. The principle of freedom of testation, while not absolute, requires courts to give effect to the...

Court Disposition

Appeal dismissed.

Orders

  • The appeal is dismissed.
  • The costs of the appeal, taxed as between attorney and client, are to be paid out of the funds of the trust.