An out-and-out disinheritance clause in a will executed more than 100 years ago that excluded female lineal descendants has been overruled by the Constitutional Court, says a Cape Times report. It held that the Equality Act was now the benchmark to evaluate the conduct of a private person which had an impact on another person’s right to equality.
In November 1902, Karel Johannes Cornelius de Jager and his wife, Catherine Dorothea de Jager, signed a will in which they gave certain farms to their children, subject to the condition that the farms would pass from their children to male descendants only until the third generation. In 1957 the properties were inherited subject to that condition. These heirs included Kalvyn de Jager and his two brothers, Cornelius and John. John later died without a male child and his share in the farms was divided equally between Kalvyn and Cornelius. When Cornelius died, his half share in the farms passed to his sons, Albertus, Frederick and Arnoldus. However, when Kalvyn died in 2015, he did not have male children – only five daughters. In terms of clause seven of the testator’s will, the half share of Kalvyn de Jager could not pass to his daughters although he had left it to them in his will.
The sisters initially approached the High Court, which dismissed their application and then the SCA, which did the same. The Cape Times report notes they took the matter to the Constitutional Court, which upheld their appeal and set aside the orders granted by the High Court and SCA. ‘The provisions of the preamble to the Equality Act make its nature and intended purpose clear. The consolidation of democracy requires the eradication of inequalities, especially those that are systemic in nature and which were generated in SA’s history by colonialism, apartheid and patriarchy,’
Acting Justice Margaret Victor said. ‘Inheritance laws sustain and legitimise the unequal distribution of wealth in societies thus enabling a handful of powerful families to remain economically privileged while the rest remain systematically deprived. In my view, this system entrenches inherited wealth along the male line. In applying this critique to the facts in this case our common law principle of freedom of testation is continuing to entrench a skewed gender bias in favour of men.’