King N.O. and Others v De Jager and Others

The case concerned a joint will executed in 1902 by Mr and Mrs De Jager, which created a fideicommissum over farming properties. Clause 7 of the will restricted inheritance of the fideicommissary property, beyond the first generation, exclusively to male descendants, thereby excluding female descendants entirely. Over generations, the clause was applied to benefit sons and grandsons only. When Mr Kalvyn de Jager, a great-grandson and fiduciary heir, died in 2015 without male descendants, competing claims arose: his daughters claimed that the clause unfairly discriminated against them on the grounds of sex and gender, while male relatives relied on the clause to claim inheritance. The executors sought declaratory relief on the validity and interpretation of the clause. The High Court and Supreme Court of Appeal upheld the clause, prompting an appeal to the Constitutional Court.

Leave to appeal was granted; the appeal was upheld; the orders of the High Court and Supreme Court of Appeal were set aside; clause 7 of the 1902 will was declared inconsistent with the Constitution and the Equality Act and unenforceable; limited costs were ordered against the estate of Mr Kalvyn de Jager, with no further costs orders.

This case is a landmark decision in South African succession and constitutional law. It confirms that private testamentary freedom is subject to constitutional scrutiny and that courts may refuse to enforce discriminatory provisions in private wills on public policy grounds. The judgment firmly establishes that equality, dignity, and non-discrimination outweigh freedom of testation where the latter entrenches systemic gender discrimination.