BoE Trust Limited NO and Others v University of Stellenbosch and Others (Jean Pierre De Villiers Trust)

The case concerned the Jean Pierre De Villiers Trust, created by the will of the late Daphne Brice De Villiers. After specific bequests, the residue of her estate was left in trust. The trust was directed to provide a monthly income to her retired domestic assistant and thereafter to use remaining income to fund bursaries for White South African students who had completed an MSc in Organic Chemistry and wished to pursue doctoral studies in Europe or Britain. South African universities refused to participate in administering the bursaries because of the racially exclusive criterion. The trustees applied to the High Court to delete the word ‘White’ from the will so that the bursary scheme could operate. The High Court dismissed the application, holding that the bequest had become impossible to carry out and that the alternative charitable bequests provided for in the will had to be implemented. The trustees appealed to the Supreme Court of Appeal.

The appeal was dismissed. The costs of the appeal, on an attorney-and-client scale, were ordered to be paid out of the funds of the trust. The trustees were directed to forward a copy of the judgment to the named charitable organisations.

The case affirms the strong protection of freedom of testation in South African law, even in the constitutional era. It clarifies that courts will not readily amend discriminatory testamentary provisions where the testator has anticipated possible illegality or impossibility and provided an alternative scheme. The judgment distinguishes private testamentary trusts from public or institutional charitable trusts addressed in earlier equality jurisprudence such as Emma Smith.