Now you cannot understand anything about fascist doctrine if you do not understand that their central claim was that liberalism is antidemocratic; in other words, the fascists claimed that liberal institutions cannot represent the will of the people. They further claimed that their typical institutions, particularly the party, were more effective means to represent the will of the people. So fascists were “authoritarian democrats.”
The South African Constitution contains provisions – including section 8 and section 39 – that allow courts radically to transform the common law and even to reinterpret legislation to bring it in line with the “spirit, purport and object” of the Bill of Rights. One of the concepts in our law that has long been held to be of fundamental importance has been that of freedom of testation. In general our law allowed a person to bequeath his or her assets in any way he or she deemed fit.
If Mrs Brody wanted to give away her fortune to the SPCA or leave her money in trust to support her surviving ten cats until their sad demise – leaving no money to her greedy and unloving children – she had every right to do so. If Mr Walpole wanted to leave his money to a young gentleman “friend” – instead of to his wife of 50 years – he had the freedom to do that too.
Legislation has since modified this position somewhat. However, in Volks v Robinson our Constitutional Court, displaying a rather untransformed belief in the sanctity of the institution of marriage and in the principle of freedom of testation, found that the provisions of this legislation did not extend to unmarried couples.
Mrs Robinson had lived with her (male) partner for many years and had supported him through illness and depression, but they never married (out of respect, so her partner claimed, for his deceased wife) and when he died and left her only a pittance the Constitutional Court found that she was not entitled to maintenance in terms of the relevant legislation (as she would have been had she been married to her partner).
In the light of the above, the decision by judge Nicholson (yes that judge Nicholson) in the Durban High Court in the case of University of Kwazulu-Natal v Makgoba and Others – which for some strange reason has been challenged in the Supreme Court of Appeal (SCA) – is of some significance. The High Court ruled that a trust created by the will of Sir Charles Smith, which made money available for study at the University of KwaZulu-Natal to “poor girls” from “European”, “British” and “Dutch” descent could be amended.
At present the trust holds that “European girls born of British South African or Dutch South African parents who have been resident in Durban for a period of at least three years immediately preceding the grant”, could benefit from the fund. The fund contains about R27 million and disburses about R4 million a year so we are talking about a sizable amount of scholarships that are being made available exclusively for poor white women.
Section 13 of the Trust Property Control Act 57 of 1988 provides for amendments of a trust in specific circumstances. One has to show that the trust contains a provision “which brings about consequences which in the opinion of the court the founder of a trust did not contemplate or foresee” and, inter alia, was now in conflict with the public interest.
To amend a trust created in a will can obviously fundamentally interfere with the freedom of testation of the (now deceased) person. Sir Charles, for example, might have been a good feminist, creating a trust for “poor girls” and naming the trust after his mother, but who knows whether he might not have been a rabid racist who would turn in his grave if he knew that black women would now also be allowed to benefit from his money.
Judge Nicholson admitted in his judgment that the public interest mentioned in the relevant legislation is tied up very comprehensively with the freedom of testation and the equality debate and stated: “I accept that there is a significant public interest in the fact that a testator’s desire are carried out”.
Nicholson J could rely on a judgment by Griessel J in the Cape High Court in Minister of Education v Syfrets Trust Ltd NO (in a case brought to court by UCT and then Minister of Education Kader Asmal) where the judge found that in cases like this considerations of equality were of more importance than the freedom of testation.
Whether a provision of a trust or a will was in conflict with the public interest now had to be determined largely with reference to the provisions in the Bill of Rights. As the value of equality is one of the founding values in the Constitution and permeates the Bill of Rights, it is difficult to imagine a situation where a trust, created by a will, which unfairly discriminates on the basis of race could ever be found by a court not to be in conflict with the public interest.
The question to be asked is why this case is being appealed to the SCA at all. In the High Court it was agreed by all parties that references to British and Dutch parentage had to be deleted from the trust. However, it was also argued that a certain sum of money (30% of the annual pay-outs) should be reserved for poor white girls. The High Court rejected this notion, applying, one assumes, the principles of substantive equality as developed by our Constitutional Court.
It would be interesting to see whether the SCA agrees with this finding which, so it seems to me, is perfectly in line with the jurisprudence of the Constitutional Court. Personally, I would be surprised if the SCA came to any other conclusion than the High Court but I guess if one litigates with the money of a trust one can afford to go all the way to Bloemfontein to try and defend the indefensible.BACK TO TOP