It was only a question of time for the Constitutional Court to pronounce on a testamentary instrument in which the testator discriminated amongst family members. That time came with the judgment in King N.O. and Others v De Jager and Others on 19 February 2021.
In 1902, Mr and Ms De Jager signed a will in terms of which they appointed their six children (four sons and two daughters) as the heirs of certain farms. The inheritance was subject to the conditions (“Clause 7“) that:
the farms would pass from their children (beyond the first generation) to male descendants (manlike nakomelinge) only, until the third generation; and
if such a male descendant did not himself leave a male descendant, his share will fall away, and pass to his brothers or their sons.
One of their sons, Cornelius (second generation), in turn had three sons (third generation): Corrie, John, and Kalvyn. Corrie, died childless, and his share in the farms devolved in equal shares to John and Kalvyn. John died in 2005, and his share of the farms devolved (now free of Clause 7) upon his three sons. Kalvyn died in 2015, leaving no sons, but five daughters. However, in his will he had purported to leave his share in the farms to his daughters.
The executors of Kalvyn’s deceased estate received competing claims to inherit his share in the farms:
one from John’s three sons, who averred that pursuant to Clause 7 Kalvyn’s share in the farms devolved on them;
and another from Kalvyn’s daughters, who averred that Clause 7 was discriminatory because female descendants were excluded from inheriting.
John’s three sons won in the High Court, Cape Town and in the Supreme Court of Appeal, essentially on the principle of freedom of testation: the approach being that a testator had the right of to discriminate, even unfairly so, in his or her private will.
But there was a very different outcome in the Constitutional Court; Kalvyn’s daughters, are to inherit the late Kalvyn’s share in the farms:
The majority (five judges) held that, as Clause 7 discriminates on one of the grounds listed in the Equality Clause, the discrimination was presumed unfair. As John’s three sons had admitted that Clause 7 discriminates based on gender, and had not shown that the discrimination was fair, the majority declared Clause 7 to be inconsistent with the Equality Clause and the Gender Section, and therefore unenforceable.
The minority (four judges) were in full agreement with the majority on the outcome. However, they preferred (in a rather convoluted argument) the value of equality over those of property and dignity (freedom of testation), so as to develop the common law; rather than to rely on the Equality Clause and the Gender Section.
One Judge, part of the majority, also delivered a separate judgment, in which she (correctly) makes the point that under the principle of subsidiarity the matter ought to have been considered exclusively in the context of the Equality Act. The principle of subsidiarity is that a litigant cannot directly invoke the Constitution to extract a right he or she seeks to enforce without first relying on, or attacking the constitutionality of, legislation enacted to give effect to that right.
In usual fashion, the three Constitutional Court judgments are long on history, but short on consequences. We turn to the consequences in the following articles.