Curators Ad Litem to Certain Potential Beneficiaries of the Emma Smith Educational Fund v The University of KwaZulu-Natal and Others

Sir Charles George Smith executed a will in 1938 establishing the Emma Smith Educational Fund, a charitable trust administered by the Natal University College (now the University of KwaZulu-Natal). The trust provided bursaries exclusively to 'European girls born of British South African or Dutch South African parents' who had resided in Durban for at least three years. Over time, the racially restrictive criteria led to underutilisation of the fund and caused embarrassment to the University, a publicly funded institution committed to non-racialism. The University applied to the KwaZulu-Natal High Court under section 13 of the Trust Property Control Act 57 of 1988 to delete the racially discriminatory provisions and to update the geographical reference from 'Durban' to 'the Ethekwini Municipality'. The High Court granted both amendments. Curators ad litem for potential beneficiaries appealed to the Supreme Court of Appeal.

The appeal was dismissed except in respect of the geographical amendment. The order substituting 'the Ethekwini Municipality' for 'Durban' was set aside, but the deletion of the racially restrictive provisions of the trust was confirmed.

The case confirms that racially discriminatory provisions in charitable trusts, particularly those administered in the public sphere, are contrary to public policy under South Africa’s constitutional order. It affirms that freedom of testation is subject to constitutional values, especially equality, and that section 13 of the Trust Property Control Act provides a mechanism to align pre-constitutional trusts with contemporary public policy.