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

A will executed in 1902 by Mr Carel Johannes Cornelius De Jager and Mrs Catherine Dorothea De Jager contained a fideicommissum (clause 7) that bequeathed farming properties to their descendants. The clause stipulated that the property would pass to sons only, excluding female descendants from inheriting beyond the first generation. When Mr Kalvyn de Jager died in 2015 with five daughters but no sons, competing claims arose: his daughters claimed entitlement to inherit based on his will and argued clause 7 was discriminatory; the sons of his deceased brother claimed the property under clause 7; and the deceased's grandsons (sons of his daughters) also claimed if their mothers' claim failed. The executor sought court guidance on how to deal with the conflicting claims to the fideicommissary property.

• Whether clause 7 of the 1902 will unfairly discriminates against female descendants on the ground of gender
• Whether the discriminatory clause is enforceable under the Constitution and the Promotion of Equality and Prevention of Unfair Discrimination Act
• Whether freedom of testation can justify unfair discrimination in private wills
• Whether the common law requires development to address discriminatory testamentary provisions
• Whether the distinction between public charitable trusts and private wills regarding judicial intervention is justified
• The proper interpretation of 'male descendants' in clause 7
• The appropriate remedy where a testamentary clause is found to be unenforceable due to unfair discrimination

1. Leave to appeal is granted. 2. The appeal is upheld. 3. The orders granted by the High Court and Supreme Court of Appeal are set aside. 4. It is declared that clause 7 of the will of the late Mr Carel Johannes Cornelius De Jager and the late Mrs Catherine Dorothea de Jager dated 28 November 1902 is inconsistent with the Constitution and the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000, and therefore unenforceable. 5. The costs of Mr James King shall be paid from the estate of Mr Kalvyn de Jager. 6. There shall be no order as to costs in respect of other parties.

1. Testamentary provisions that unfairly discriminate against persons on the ground of gender violate section 9(4) of the Constitution and section 8 of the Equality Act and are therefore unenforceable. 2. Freedom of testation, while protected as part of property rights under section 25(1) of the Constitution and related to dignity and privacy rights, does not permit testators to unfairly discriminate on prohibited grounds. 3. The Equality Act, as legislation enacted pursuant to section 9(4) of the Constitution, is the primary mechanism for adjudicating claims of unfair discrimination in private wills, in accordance with the principle of constitutional subsidiarity. 4. There is no sustainable distinction between public charitable trusts and private wills regarding the enforceability of discriminatory provisions - both are equally subject to constitutional scrutiny. 5. Where a fideicommissary condition in a will is found to be contrary to public policy and unenforceable, it is treated as pro non scripto and the property passes to the fiduciary heir unconditionally. 6. Discrimination on the ground of gender is presumed unfair under section 9(5) of the Constitution unless proven otherwise. Where unfairness is conceded, the discriminatory provision cannot be enforced. 7. A section 36 limitations analysis does not apply to private wills as they are not laws of general application capable of limiting rights in the Bill of Rights.

Mhlantla J (minority): The common law should be developed to establish that discriminatory out-and-out disinheritance clauses in private wills against unknown lineal descendants based solely on immutable characteristics are contrary to public policy as infused by constitutional values. Freedom of testation, while rooted in values of freedom and dignity, has historically manifested in patriarchal ways and must be recalibrated in light of constitutional values. Unfair discrimination against women in private wills is abhorrent and inimical to constitutional rights and values. Courts should apply a lower level of judicial scrutiny when intervening in private testamentary bequests, but where unknown lineal descendants are excluded based on immutable characteristics, greater judicial intervention is warranted. Victor AJ (concurring): A more robust understanding of substantive equality within the constitutional framework is necessary, moving beyond social inclusion towards systemic justice. Freedom of testation should not be understood as having an unfettered right to discriminate, as this has serious distributive consequences that perpetuate inequality. The value of ubuntu requires that freedom of testation be balanced against considerations of social justice and equity. The principle that testators have no obligation to treat their children equally does not mean they may unfairly discriminate on prohibited grounds. The failure of the Supreme Court of Appeal to give reasons for its dismissal of the appeal was unfortunate and contrary to judicial obligations under the rule of law.

This landmark case establishes that freedom of testation, while an important principle protected by constitutional rights to property, dignity and privacy, is not absolute and cannot be used to justify unfair discrimination on prohibited grounds such as gender. The judgment affirms that discriminatory testamentary provisions in private wills are subject to constitutional scrutiny through the Equality Act, rejecting any artificial distinction between public charitable trusts and private wills in this regard. The case demonstrates the horizontal application of the Bill of Rights and the primacy of the Equality Act (as legislation enacted pursuant to section 9(4) of the Constitution) in adjudicating discrimination claims between private parties. It confirms that testamentary provisions that unfairly discriminate on the basis of gender or other listed grounds are contrary to public policy and unenforceable. The decision is significant for its application of transformative constitutionalism to the law of succession, requiring that common law principles be interpreted and applied in a manner consistent with constitutional values of equality, dignity and ubuntu. The case also provides important guidance on constitutional subsidiarity and the relationship between constitutional rights and legislation enacted to give effect to those rights. Different approaches were taken by the judges (development of common law vs direct application of Equality Act) but all agreed on the outcome that gender-based discrimination in wills is impermissible.