Abstract

Keywords

Public policy; conflicting constitutional values; value of equality; law of succession; constitutional subsidiarity.

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1 Introduction

Courts have already explored discriminatory clauses in charitable trusts that have a public character. 1

* Rika van Zyl. CFP® FPSA® LLD (UFS). Senior Lecturer, School of Financial Planning Law, University of the Free State, South Africa. Email: vanzylr2@ufs.ac.za . ORCiD: https://orcid.org/0009-0006-7169-3504 .

1 Minister of Education v Syfrets Trust Ltd 2006 4 SA 205 (C) (hereafter Min of Education v Syfrets (C)); Curators, Emma Smith Educational Fund v University of KZN 2010 6 SA 518 (SCA) (hereafter Emma Smith (SCA)); In re Heydenrych Testamentary Trust 2012 4 SA 103 (WCC); Ex parte Boe Trust Ltd 2013 JOL 30123 (SCA).

Whilst the majority judgment 9

9 Led by Jafta J with Mogoeng CJ, Majiedt J, Mathopo AJ and Victor AJ concurring. Victor AJ included a separate judgment.

be on the arguments raised that focussed on the impact and role that public policy played in the case.

The note will show the elusive nature of public policy (a synonym for the boni mores, public interest, and the general sense of justice of the community) 11

11 Min of Education v Syfrets (C) para 24; Emma Smith (SCA) para 40.

2 King v De Jager background

The case concerned a clause (7) in the joint will of the late Mr Carel Johannes Cornelius De Jager and the late Mrs Catherine Dorothea de Jager, who bequeathed fixed property to their six children (four sons and two daughters) subject to a fideicommissum. 12

12 A fideicommissum is "a legal institution in terms of which a person (the fideicomittens) transfers a benefit to a particular beneficiary (the fiduciary or fiduciaries) subject to a provision that, after a certain time has elapsed or a certain condition has been fulfilled, the benefit goes over to a further beneficiary (the fideicommissary or fideicommissarius)". De Waal and Schoeman-Malan Law of Succession 147-148.

The first substitution of fiduciaries occurred and was devolved upon the three sons, one being Mr Cornelius De Jager. He left three sons, Corrie, John and Kalvyn. The substitution hereafter would have been the last as required by the terms of the will, and the heirs would inherit the property free of the fideicommissum.

Corrie died without leaving any children, John died leaving three sons who inherited John's share of the properties in question, free of any fideicommissum. Kalvyn died, leaving only five daughters and no sons. 14

14 King CC para 6.

property bound to the fideicommissum, and their share would go to their male cousins.

After Kalvyn's death, although the property bound by the fideicommissum was bequeathed in Kalvyn's will to his daughters, the cousins laid claim to the property as heirs in the last substitution that would inherit the property free of the fideicommissary burden. As the attorney, executor and main applicant, King expressed the view that the terms of the fideicommissum clause were discriminatory against the female descendants (daughters) that were excluded from inheriting, and that this was against public policy. 15

15 King v De Jager (21972/2015) [2017] ZAWCHC 79 (10 August 2017) para 13 (hereafter King HC).

The High Court accepted that the terms of the fideicommissum were discriminatory against the female descendants of the testators. However, after doing extensive evaluations on public charitable testamentary trusts and the right to equality in the new constitutional era and the prohibition of gender discrimination in section 8 of the Equality Act, it held that "the will did not have a public character or an indefinite life and its provisions did not discriminate against one or more sectors of society but rather, against certain descendants". 18

18 King CC para 10.

The High Court concluded that it would produce an "arbitrary result" 19

19 King CC para 11.

The daughters challenged the outcome as applicants in the Constitutional Court, asking for leave to appeal to be granted. The substantive issues that had to be addressed were the interpretation of clause 7. Did the clause unfairly discriminate against women and should it therefore be declared as unenforceable? 21

21 King CC para 14.

In the minority (first) judgment delivered by Mhlantla J, the majority (second) judgment delivered by Jafta J and a separate judgment by Victor AJ (concurring with the second judgment), the judges were unanimous that the fideicommissary clause was unenforceable, but they were divided in their approach. 23

23 King CC paras 85, 88, 158.

In her separate judgment Victor AJ argued that the clause was unenforceable not because of a direct violation of the Constitution but, based on the principle of constitutional subsidiarity, because it directly violated the Equality Act. Authority 28

28 MEC for Education, KwaZulu-Natal v Pillay 2008 1 SA 474 (CC) para 40.

in cases concerning the horizontality of the right to equality, that is cases of unfair discrimination committed by private parties, it is the Equality Act, and not section 9(4) which must be invoked. 29

29 King CC para 187.

Constitutional subsidiarity entails that issues should be determined by indirect constitutional norms, rather than more general, direct constitutional norms. 30

30 Murcott and Van der Westhuizen 2015 CCR 46.

She also stressed that the transformative constitutional commitment asks that "common law principles such as the freedom of testation should be recalibrated towards more egalitarian and ubuntu based ends". 33

33 King CC para 202.

It was the first judgment (the minority) that focussed the discussion on public policy as the basis for why the clause should be declared unenforceable. 34

34 King CC paras 19, 40.

on our understanding of the role of public policy in a constitutional democracy, but it is important first to understand the intricacies of how public policy operates generally before it can be evaluated in terms of King.

3 The elusive public policy concept

Public policy has always been an enigma 35

35 Begleiter 2012 Quinnipiac Prob LJ 125.

There is also the concern that that public policy changes from person (judge) to person (judge) 42

42 Kruger 2011 SALJ 712; Canada Trust Co v Ontario (Human Rights Commission) 1990 CarswellOnt 486, [1990] OJ No 615 para 34.

The interest of the community is at the heart of the public policy concept. 47

47 Sasfin (Pty) Ltd v Beukes 1989 1 All SA 347 (A) 350.

In South Africa public policy considerations are used in the public and private sphere of the law. Specifically in private law, in the law of delict, public policy plays a significant role in defining injuries. 49

49 Sharp Critical Analysis of the role of the Boni Mores 9; Mayer-Maly 1987 THRHR 64.

Applying public policy to a will generally does not have a defined process and there is "no check-list to be marked off by judges or bright line to mark in advance what will be contrary to public policy" 56

56 Kruger 2011 SALJ 714.

The introduction of the Constitution post-1994 has influenced public policy a great deal in South Africa by providing a set of values that impact on the conceptual and substantive nature of public policy. 57

57 Kruger 2011 SALJ 713.

such as human dignity, equality and freedom. 58

58 Min of Education v Syfrets (C) para 24; Emma Smith (SCA) para 38; King CC para 168.

[t]he Republic of South Africa is one, sovereign, democratic state founded on the following values:

(a) Human dignity, the achievement of equality and the advancement of human rights and freedoms.

(b) Non-racialism and non-sexism.

(c) Supremacy of the constitution and the rule of law.

This has established an objective, normative value system against which public policy matters must be resolved. 59

59 Min of Education v Syfrets (C) para 24; Du Toit 2012 Tul Eur & Civil LF 117.

[p]ublic policy represents the legal convictions of the community; it represents those values that are held most dear by the society. Determining the content of public policy was once fraught with difficulties. That is no longer the case. Since the advent of our constitutional democracy, public policy is now deeply rooted in our Constitution and the values which underlie it. 61

61 Barkhuizen para 28.

To illustrate how public policy is now infused by the constitutional values, the value of dignity and freedom is embodied in the principle of self-autonomy. 62

62 Du Toit, Smith and Van der Linde Fundamentals of South African Trust Law 34.

Equality, on the other hand, is also seen as a foundational value of public policy. It is also seen as "a standard which must inform all law and against which all law must be tested for constitutional consonance". 64

64 Minister of Finance v Van Heerden 2004 6 SA 121 (CC) para 22. Also see Du Toit, Harding and Humm 2022 Stell LR 506.

implausible that any part of South Africa's legal order, including its private law, would operate free from the demands of equality, whether through the public policy doctrine or in other ways". 65

65 Du Toit, Harding and Humm 2022 Stell LR 507.

But these are not the only public policy considerations that could be relevant to a certain case. In the law of contract, established public policy considerations of fairness, justice, reasonableness and ubuntu were acknowledged in Barkhuizen. 66

66 Barkhuizen para 51.

Kruger then aptly describes the understanding of public policy as a "basket" of several potentially relevant public policy considerations a judge must evaluate in a particular case. 67

67 Kruger 2011 SALJ 716.

Where the value of equality was a consideration in earlier cases that involved charitable trusts, it seemed that unfair discrimination (seen as a violation of the equality value) was to receive more protection than other values. In Min of Education v Syfrets 69

69 Min of Education v Syfrets (C) para 44.

In Emma Smith the court trusted the balance used in Min of Education v Syfrets and affirmed that "[i]n the public sphere there can be no question that racially discriminatory testamentary dispositions will not pass constitutional muster". 72

72 Emma Smith (SCA) para 38.

public policy. Consequently, the racially discriminative provisions were also removed in this charitable trust to enable the University to award bursaries to students free of being forced to administer a racially exclusive fund. 74

74 Similar facts and decisions were also reached in In re Heydenrych Testamentary Trust 2012 4 SA 103 (WCC) and Ex parte Boe Trust Ltd 2013 JOL 30123 (SCA), although the testatrix included an alternative clause that was to be followed if her wishes were found to be contrary to public policy.

It could be deduced from these cases that equality has been seen as a principal value as part of South African public policy for cases in the public sphere that had prohibited discriminatory terms. In King this view was taken even further, beyond the public divide. This will be unpacked below after evaluating what insights foreign jurisdictions could give on the application of public policy in private wills with disinheritance clauses.

4 Comparative public policy

The Constitution 75

75 Constitution of the Republic of South Africa, 1996 (the Constitution), s 39(1)(b).

The civil law jurisdiction of Germany provides for a strict freedom of testation, but the role of good morals is also applied there – a testamentary provision could be against public policy if it offends the legal convictions of all "reasonable and right-minded people". 77

77 German Civil Code para 138(1).

The freedom of testation is also a deeply entrenched common law principle in Canada, which makes Canadian cases are useful points of comparison for South Africa in evaluating how public policy is applied in wills.

In Canada Trust Co v Ontario (Human Rights Commission), 79

79 Canada Trust Co v Ontario (Human Rights Commission) 1990 CarswellOnt 486, [1990] OJ No 615.

In response Grattan and Conway 81

81 Grattan and Conway 2005 McGill LJ 534.

the "public domain" in order for public policy to be applied successfully. They argue that "[t]he doctrine acts as a vessel for channelling constitutional protections into private law". 82

82 Grattan and Conway 2005 McGill LJ 534. Also note the Canadian case of Re the Ester G Castanera Scholarship Fund 2015 MBQB 28 [2015] 7 WWR 191, where a similar view was taken, although the clause was in the end found not to be discriminatory. Du Toit 2017 Man LJ 160 opined that the South African court would most likely have concurred with the reasoning and ruling in the Castanera case.

The case of Spence v BMO Trust Co 83

83 Spence v BMO Trust Co 2016 ONCA 196 (Ont CA) (hereafter Spence v BMO 2016).

The Ontario Superior Court of Justice was persuaded that the disinheritance was based upon a racist principle that violated public policy, and set aside the entire will. 86

86 Spence v BMO 2016 para 20

In Canada a person can refuse to benefit a person for express, discriminatory reasons as long as the beneficiary is not required to violate public policy as a condition of receiving the benefit or to use the benefit in a

manner contrary to public policy, and the executor likewise is not required to violate public policy in carrying out the terms of the will. 92

92 Esposto 2018 Estates, Trusts and Pensions Journal 157; Johnson 2019 Windsor Yrbk Acc Jus 159.

Johnson strongly criticises the Canadian court for disbarring the application of public policy to private wills as this might lead to the perpetuation of discrimination in Canadian provinces. 93

93 Johnson 2019 Windsor Yrbk Acc Jus 162.

[b]y stating that such clauses can never be subject to a public policy application, no matter how discriminatory in nature they may be, intentionally or not, the Court of Appeal for Ontario has sanctioned the use of the private law as a tool of discrimination. 94

94 Johnson 2019 Windsor Yrbk Acc Jus 158.

The Canadian cases closely resemble the facts heard in the South African courts, even with the reasoning of the charitable trust cases. De Waal, however, warns against comparing foreign law in the context of freedom of testation as the limits of freedom of testation are closely linked to the jurisdiction's interpretation of public policy, and believes that it may be counterproductive to assess what public policy is in South Africa by comparing it with what it is in other jurisdictions. 95

95 De Waal "Law of Succession and the Bill of Rights" 3G3.

However, if we were to get a perspective from Canada, the facts in the King case may be similar to the facts in Spence, but the reasoning is where the King case deviates at its core from the reasoning in the Canadian case. In King, Jafta J reasoned that freedom of testation should not be taken as a licence to discriminate unfairly. 96

96 King CC para 93.

South Africa has therefore introduced the application of a public policy analysis of private wills, despite their having no clear public implications, in contradiction to Canadian cases based on the same grounds of discrimination in private wills. The view of the South African Constitutional Court is that public policy may motivate the use of a pre-emptive restrictive measure against the testator, inducing the testator not to discriminate unfairly (on one of the constitutional grounds) in his/her will (taking into account any additional conflicting values). 97

97 King CC para 94.

5 The question of the role of public policy in King

Two issues will be raised where the judgment fumbled in the handling of the concept of public policy in this case. The one is the conflation that is evident between public policy and the constitutional values and the second issue is how certain values were seen as more important than others.

This will ultimately show the concerns where public policy becomes infused by constitutional values but results in obscuring the public policy considerations to the effect that it is used only to advance subjective views of what should be enforced and what not.

5.1 The conflation issue

Based on the difficulty involved in pinning down public policy, as was seen in the discussion above, it is not a novel for the constitution or legislation to be used as a yardstick for what constitutes public policy. 98

98 Girard Trust Co v Schmitz et al 20 A2d (Court of Chancery of New Jersey, 1941) 29.

If one reads all three different judgments together, it becomes apparent that some terms regarding public policy are used almost interchangeably with constitutional norms, as if these concepts were one and the same. Jafta J states:

It is this unlawfulness [based on the violation of section 8 of the Equality Act] which render clause 7 unenforceable, regardless of whether the unlawfulness stems from the inconsistency with section 9(4) of the Constitution or from a violation of section 8 of the Act. From time immemorial, our courts have declined to enforce clauses of wills or wills that are unlawful or contrary to public policy. It appears to me that public policy requires no development in this regard. 99

99 King CC para 137.

Unlawfulness is therefore the outcome regardless of whether section 8 of the Equality Act, section 9(4) of the Constitution or public policy is used to evaluate the clause. Adding to this conflation, he suggests that unfair discrimination (a violation of the Constitution or the Equality Act) should be "added to the list" of terms contrary to public policy. 100

100 King CC para 147.

considered unfair discrimination would be contra the Constitution, 101

101 King CC para 133.

Another aspect that adds to the conflation is the fact that, although equality and freedom can be seen as among public policy values, they are also protected as rights in the Constitution. The freedom of testation constitutes a right that is protected by the Constitution in section 25(1) 103

103 King CC para 203.

Regarding this conflation, Woolman had a similar observation on the Barkhuizen case, where he observed that the court "relies upon a rather baffling conflation of rights analysis, value analysis and public-policy analysis". 107

107 Woolman 2007 SALJ 772.

This mix of constitutional rights 108

108 King CC para 98.

Even in the debate on whether the Constitution should be applied directly against the discriminatory clause, Jafta J adds to the uncertainty. In one paragraph he argues that the unfair discrimination in the will is in violation of the Constitution. 111

111 King CC para 155.

Furthermore, it seems from his judgment 114

114 King CC paras 137-161.

The debate on the direct or indirect application of the Constitution is also raised in the other two judgments of King. In the minority judgment the question was whether the clause amounted to unfair discrimination in terms of section 9 of the Constitution or through the lens of public policy. 115

115 King CC para 37.

It is only Victor AJ that gave attention to the principle of constitutional subsidiarity in her analysis on the question of the direct or indirect application. 117

117 King CC paras 182-194.

Regardless of how one views the subsidiarity theory, Victor made it clear that constitutional subsidiarity should apply where the legislature has adequately provided for the constitutional obligation in section 9(4). Parliament therefore has "fulfilled this obligation through the enactment of the Equality Act and no suggestion has been made to the contrary". 119

119 King CC para 185.

It should be a concern that the Constitutional Court could not be clear on whether the Constitution could be applied directly to a private will, that the matter still had to be debated to this extent, and that the different judgments could not reach a conclusion on the matter. Woolman states:

As a matter of logic, one must know when direct application is or is not required in order to know when indirect application is or is not required. Direct

application means that the prescriptive content of the substantive rights found in ss9–35 of the Constitution engages the law or the conduct at issue. 121

121 Woolman 2007 SALJ 776.

The outcomes of taking the various routes to reaching a decision, however, all seem to be the same. They would all lead to declaring the clause as unenforceable.

Clearly this "collapsing of the distinction between value analysis, rights analysis and public policy analysis" 122

122 Woolman 2007 SALJ 779.

5.2 The most important value

Although it may sometime seem that courts assume that public policy is codified by the Constitution or legislation, it is not. 124

124 King CC para 41.

[a] court must endeavour to give effect to all the provisions of the Constitution. It would be extraordinary to conclude that a provision of the Constitution cannot be enforced because of an irreconcilable tension with another provision. When there is tension, the courts must do their best to harmonise the relevant provisions and give effect to all of them.

She states that the Constitution is to be read in "harmony" and if competing values exist they must be evaluated against public policy. 127

127 King CC para 203. See below the argument that this is not how the judges have applied this balancing act. They did not evaluate the conflicting values against public policy, but rather on the aim of the Constitution.

However, two thoughts are raised while considering the three different judgments in King. The first is the danger that judges can use the term public policy to advance their subjective views and to tip the scale in a certain direction when competing values are at play. Secondly, public policy is relied on only briefly and it is obscured by the drive of the Constitution that effectively gives the authoritative blow of the hammer. The emphasis is therefore not on what the community values more, but on what the values of the Constitution have set out to be important. It may be that the values as stated in section 1 of the Constitution were originally based on what South Africa's public policy values were, but this was not argued in King. Instead there is a reliance on the Constitution because of its supremacy. As public policy values can change from time to time, it would be important to contemplate what values are important to the community.

For instance, Victor AJ's judgment stresses the plight of women as against male privilege 128

128 See King CC paras 207, 208, 211, 214, 216-219, 234, 236.

It is important for this Court to acknowledge that there is indeed a clash of competing principles in this case: freedom of testation on the one hand versus substantive equality on the other. In my view … there can simply be no contest between the raison d'etre (reason for being) of the Constitution, namely the abolition of patriarchy and sexism, and the "right" to freedom of testation.

Notice that she also advances the Constitution as the decisive authority to rule against sexism.

Despite Mhlantla J's arguments also against the discrimination against women (to a lesser extent than Victor AJ) that has "gone on long enough and must be stopped", 129

129 King CC para 85.

Our Constitution also envisages and promises a democratic State based on '… the supremacy of the Constitution.' Furthermore, it protects all persons from direct or indirect unfair discrimination, both in the public and private sphere. 130

130 King CC para 70.

It almost seems as if she views the freedom of testation on the lighter side of the scale of importance and the constitutional values of equality and non-sexism on the heavier side, as this side "underpins our constitutional dispensation". 131

131 King CC para 52.

sees equality as "the lodestar of our transformative constitutional project", or "at the very heart of the Constitution" and that it "permeates and defines the very ethos upon which the Constitution is premised". 132

132 King CC para 78, she quotes here from Fraser v Children's Court, Pretoria North 1997 2 SA 261 (CC) para 20.

Although Jafta J's judgment states that the clause is invalid for being contrary to public policy, 134

134 King CC para 158.

It is clear from King that although the public policy values of dignity and freedom (of testation) and equality were all relevant to the case, the judges viewed the value of equality as the more essential or core value of the Constitution and consequently allowed it to tip the scale toward the equality value rather than the freedom of testation value. 136

136 King CC paras 77, 78, 84, 211.

To illustrate that equality is not generally seen as the "core" value of the Constitution, judges in the law of contract have regarded fairness, 137

137 Bredenkamp v Standard Bank of South Africa Ltd 2010 4 SA 468 (SCA) para 27.

It is clear that unfair discrimination was not tolerated in previous case law involving charitable trusts. The reasons for this are uncertain. In King the equality value was advanced to declare the clause to be unenforceable.

If the public policy analysis is used as the basis for declaring the clause unenforceable, the public policy considerations must be evaluated to see what the community would regard as the most important value, especially

where there are conflicting constitutional values. 140

140 Victor AJ's arguments in King CC paras 207-210 moves in this direction before depending on the constitutional order again. Mhlantla J also argues in this direction (para 84).

This ultimately sheds doubt on the role of public policy in jurisprudence if it is overshadowed by the subjective views of judges and the Constitution rather than public policy is ultimately used to declare a clause invalid.

6 Conclusion

King opened the floodgates for disappointed potential heirs to apply public policy as authority to contest being left out of a private will based on the equality value.

Public policy has, however, always been an elusive concept, however, and has suffered from the lack of a clear framework, and King seems to see a claim of a violation of public policy alone as being insufficient and as needing to be nuanced with the prohibition on unfair discrimination, and the underlying value of equality in the Constitution. Through reference to the subsidiary principle the Equality Act was used to ultimately declare the discriminatory clause unlawful. This has, however, resulted in a conflation of a rights analysis, a value analysis and a public policy analysis.

The different judgments in King are a good illustration of the problem with public policy, which is that its nature can change from judge to judge and that it should therefore not be relied on too strongly as this may lead to legal uncertainty. The judgments in King allude to personal subjective views that are advanced under the banner of public policy and should be avoided. However, as has been seen, the constitutional values that are relied on suffer from the same concerns as the public policy analysis.

It remains difficult, therefore, to use values, whether under a public policy analysis or a constitutional value analysis, as the basis for declaring a discriminatory clause in a private will unenforceable. One should tread lightly when applying one's own opinions to what one thinks is the more important norm when this interferes with the private disposition of a person who has already passed on and who cannot be called on to amend the provision in such a way as still to give effect to his wishes.

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List of Abbreviations