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

Authors

DOI:

https://doi.org/10.17159/1727-3781/2022/v25ia11989

Keywords:

Freedom of testation, public policy, gender-based discrimination

Abstract

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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References

Bibliography

Literature

Abduroaf M The Impact of South African Law on the Islamic Law of Succession (LLD-thesis University of the Western Cape 2018)

Abduroaf M "A Constitutional Analysis of an Islamic Will within the South African Context" 2019 De Jure 257-266

Abduroaf M "An Analysis of the Rationale Behind the Distribution of Shares in terms of the Islamic Law of Intestate Succession" 2020 De Jure 115-122

Amien W "The Viability for Women's Rights of Incorporating Islamic Inheritance Laws into the South African Legal System" 2014 Acta Juridica 192-218

Conkle DO "Toward a General Theory of the Establishment Clause" 1987-1988 NWU L Rev 1113-1194

Corbett MMG, Hofmeyr G and Kahn E The Law of Succession in South Africa 2nd ed (Juta Cape Town 2001)

De Waal MJ "The Law of Succession (Including the Administration of Estates) and Trusts" 2010 Annual Survey of South African Law 1170-1202

De Waal MJ "The Law of Succession and the Bill of Rights" in Mokgoro Y and Tlakula P (eds) Bill of Rights Compendium (Durban LexisNexis Butterworths 1998-) ch 3G

De Waal MJ and Schoeman-Malan MC Law of Succession 5th ed (Juta Cape Town 2016)

Du Toit F "The Constitutionally Bound Dead Hand? The Impact of Constitutional Rights and Principles on Freedom of Testation in South African Law" 2001 Stell LR 222-257

Du Toit F "An Evaluation of the Limitation Imposed upon Freedom of Testation by Section 13 of the Trust Property Control Act 57 of 1988" 2005 JJS 39-51

Du Toit F "Constitutionalism, Public Policy and Discriminatory Testamentary Bequests: A Good Fit Between Common Law and Civil Law in South Africa's Mixed Jurisdiction?" 2012 Tul Eur & Civ L F 97-131

Gabru N "Dilemma of Muslim Women Regarding Divorce in South Africa" 2004 PELJ 1-15

Hahlo H "Jewish Faith and Race Clauses in Wills" 1950 SALJ 231-244

Jamneck J et al The Law of Succession in South Africa 3rd ed (Oxford University Press Cape Town 2017)

Joubert CP "Jewish Faith and Race Clauses in Roman-Dutch Law Truth" 1968 SALJ 402-420

Marshall WP "Truth and the Religion Clauses" 1993-1994 DePaul L Rev 243-268

Osman F Freedom of Religion and the Headscarf: A Perspective from International and Comparative Constitutional Law (LLM-thesis University of Cape Town 2012)

Rautenbach C "A Few Comments on the (Possible) Revival of the Customary Law Rule of Male Primogeniture: Can the Common-Law Principle of Freedom of Testation Come to its Rescue?" 2014 Acta Juridica 132-159

Rautenbach C, Du Plessis W and Pienaar G "Is Primogeniture Extinct Like the Dodo, or is There Any Prospect of It Rising from the Ashes? Comments on the Evolution of Customary Succession Laws in South Africa" 2006 SAJHR 99-118

Wood-Bodley MC "Freedom of Testation and the Bill of Rights: Minister of Education v Syfrets Trust Ltd NO: Note" 2007 SALJ 687-702

Case law

Aronson v Estate Hart 1950 1 SA 539 (A)

Bhe v Magistrate, Khayelitsha; Shibi v Sithole 2005 1 SA 580 (CC)

Bruce v Fleecytex Johannesburg 1998 2 SA 1143 (CC)

Christian Education South Africa v Minister of Education 2000 4 SA 757 (CC)

Emma Smith Educational Fund v The University of KwaZuluNatal 2010 6 SA 518 (SCA)

Ex parte BOE Trust Ltd 2009 6 SA 470 (WCC)

King v De Jager 2017 6 SA 527 (WCC)

King v De Jager 2021 5 BCLR 449 (CC)

MEC for Education: Kwazulu-Natal v Pillay 2008 1 SA 474 (CC)

Minister of Education v Syfrets Trust Ltd 2006 3 All SA 373 (C)

Peden v Peden, Smith 2006 BCSC 1713

Prince v President, Cape Law Society 2002 2 SA 794 (CC)

Prakash v Singh 2006 BCSC 1545

S v Lawrence; S v Negal; S v Solberg 1997 4 SA 1176 (CC)

Spence v BMO Trust Company 2016 ONCA 196

Legislation

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

Wills Variation Act, RSBC, 1996, C490

Published

2022-04-14

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. https://doi.org/10.17159/1727-3781/2022/v25ia11989

Issue

Section

Case Notes