King v De Jager: Implications for Religious Based Discrimination in Wills




Freedom of testation, public policy, gender-based discrimination


In King v De Jager 2021 5 BCLR 449 (CC), the Constitutional Court held that a clause in a private will that unfairly discriminated against beneficiaries based on gender was unlawful and unenforceable. This note considers the implications of the judgment for religion-based discrimination in wills, and in particular wills that incorporate the gender-discriminatory Islamic system of inheritance. After explaining the Constitutional Court judgment, the note argues that the Court was well within its powers to consider the enforceability of discrimination in the private sphere. More importantly, we argue that the case rings a bell of caution regarding gender-discriminatory provisions in private wills. Gender-based discrimination in Islamic inheritance law perpetuates disadvantage against a historically disadvantaged group, and the courts and legislature have been emphatic in their stance against gender discrimination in inheritance. The note thus argues that a testator's religious beliefs are not enough to tip the scales and render gender discrimination justifiable. We urge individuals who want to dispose of their assets following their religious beliefs to seek estate planning advice, cognisant of the potential impact of King v De Jager CC


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Case law

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Constitution of the Republic of South Africa, 1996

Maintenance of Surviving Spouses Act 27 of 1990

Pension Funds Act 24 of 1956

Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000

Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009

Trust Property Control Act 57 of 1988

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How to Cite

Osman, F., & Effendi, G. . (2022). King v De Jager: Implications for Religious Based Discrimination in Wills. Potchefstroom Electronic Law Journal, 25, 1–24.



Case Notes