King N.O. and Others v De Jager and Others (CCT 315/18) [2021] ZACC 4; 2021 (5) BCLR 449 (CC); 2021 (4) SA 1 (CC) (19 February 2021)

King N.O. and Others v De Jager and Others (CCT 315/18) [2021] ZACC 4; 2021 (5) BCLR 449 (CC); 2021 (4) SA 1 (CC) (19 February 2021)

The Constitutional Court held that clause 7 of the will, which excluded female descendants from inheriting fideicommissary property, constitutes unfair discrimination on the basis of gender and is contrary to public policy as infused by constitutional values. The Court found that freedom of testation, while protected, is not absolute and must yield to the foundational constitutional values of equality and non-sexism. The Promotion of Equality and Prevention of Unfair Discrimination Act specifically prohibits practices that prevent women from inheriting family property. The Court rejected the argument that private testamentary dispositions are immune from constitutional scrutiny and held...

Citation
[2021] ZACC 4
Parties
Applicant: James King N.O.; Applicant: Trudene Forword N.O.; Applicant: Annelie Jordaan N.O.; Applicant: Elna Slabber N.O.; Applicant: Kalene Roux N.O.; Applicant: Surina Serfontein N.O.; Respondent: Cornelius Albertus De Jager; Respondent: Johannes Frederick De Jager; Respondent: Arnoldus Johannes De Jager; Respondent: Hendrick Christiaan De Jager; Respondent: Jacobus Hendrik Serfontein; Respondent: David-John Forword; Respondent: Charl Wynand Roux; Respondent: Kalvyn Roux; Respondent: Master of the High Court, Cape Town
Court
Constitutional Court
Jurisdiction
South Africa
Judgment Date
19 February 2021
Case Number
CCT 315/18
Procedural Posture
Civil Appeal / Appeal From Supreme Court of Appeal, Following High Court Judgment
Outcome
Appeal upheld. Clause 7 of the will declared unconstitutional, invalid, and unenforceable. Applicants recognized as beneficiaries of equal shares in the fideicommissary property.
Judges
Mogoeng CJ, Jafta J, Khampepe J, Madlanga J, Majiedt J, Mathopo AJ, Mhlantla J, Theron J, Victor AJ
Legal Topics
Promotion of Equality and Prevention of Unfair Discrimination Act, Freedom of Testation, Gender Discrimination, Public Policy in Testate Succession, Fideicommissum, Constitutional Supremacy
Constitutional Law Family and Children Land and Property Promotion of Equality and Prevention of Unfair Discrimination Act Freedom of Testation Gender Discrimination Public Policy in Testate Succession Fideicommissum +1 more

Case Brief

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Parties

James King N.O.

Applicant

Trudene Forword N.O.

Applicant

Annelie Jordaan N.O.

Applicant

Elna Slabber N.O.

Applicant

Kalene Roux N.O.

Applicant

Surina Serfontein N.O.

Applicant

Cornelius Albertus De Jager

Respondent

Johannes Frederick De Jager

Respondent

Arnoldus Johannes De Jager

Respondent

Hendrick Christiaan De Jager

Respondent

Jacobus Hendrik Serfontein

Respondent

David-John Forword

Respondent

Charl Wynand Roux

Respondent

Kalvyn Roux

Respondent

Master of the High Court, Cape Town

Respondent

Procedural Posture

Civil Appeal / Appeal From Supreme Court of Appeal, Following High Court Judgment

Legal Issues

  1. 1 Whether clause 7 of the will, which excludes female descendants from inheritance, is contrary to public policy and the Constitution.
  2. 2 Whether discriminatory provisions in private wills are unenforceable under the Promotion of Equality and Prevention of Unfair Discrimination Act and section 9 of the Constitution.
  3. 3 Whether the common law should be developed to address unfair discrimination in private testamentary dispositions.

Ratio Decidendi

The Constitutional Court held that clause 7 of the will, which excluded female descendants from inheriting fideicommissary property, constitutes unfair discrimination on the basis of gender and is contrary to public policy as infused by constitutional values. The Court found that freedom of testation, while protected, is not absolute and must yield to the foundational constitutional values of equality and non-sexism. The Promotion of Equality and Prevention of Unfair Discrimination Act specifically prohibits practices that prevent women from inheriting family property. The Court rejected the argument that private testamentary dispositions are immune from constitutional scrutiny and held...

Court Disposition

Appeal upheld. Clause 7 of the will declared unconstitutional, invalid, and unenforceable. Applicants recognized as beneficiaries of equal shares in the fideicommissary property.

Orders

  • Leave to appeal is granted.
  • The appeal is upheld.