Francois du Toit (Professor of Law, University of the Western Cape, South Africa) recently published his article entitled Constitutionalism, Public Policy, and Discriminatory Testamentary Bequests--A Good Fit Between Common Law Civil Law in South Africa's Mixed Jurisdictions?, 27 Tul. Eur. & Civ. L.F. 97 (2012). The introduction to the article is below:
In the post-constitutional era from 1994 onward South African courts were called to adjudicate upon a number of challenges to testamentary charitable trusts that contained directives based on race, gender and religion in regard to the bestowal of trust benefits. In deciding these matters, courts had to weigh testators' personal autonomy through the exercise of freedom of testation against constitutional and public policy imperatives on equality and non-discrimination. Where constitutional and public policy prescripts were found to outweigh testamentary freedom, courts cured the violation of the equality rights of those excluded from trust benefits through apposite remedies.
In this Article I assess critically South African courts' treatment of discriminatory testamentary bequests against constitutionally founded public policy prescripts, on the one hand, and the demands occasioned by adherence to testators' freedom of testation, on the other. To this end, I typify as discriminatory all bequests that, in the words of Harding, “pick out elements of the identity” of testamentary beneficiaries as well as those excluded from testamentary benefit and on which the unfavourable treatment of such beneficiaries or excluded persons are based. South African jurisprudence on the matter reveals that race, gender and religion are the foremost elements of identity utilized by testators to mete out unfavourable treatment.
The inquiry focuses on the mixed nature of South Africa's common law that is Civilian in origin but is infused with elements of the English Common Law. I investigate how South African courts' treatment of discriminatory testamentary bequests, both in the pre-constitutional and post-constitutional eras, adheres to the tenets of Roman-Dutch law (as South Africa's common law to this day) and, moreover, how such treatment is aligned to corresponding tendencies in Common Law jurisdictions. In particular, I distinguish the firm normative approach to discriminatory testamentary bequests advocated by some Common Law scholars, on the one hand, from, on the other, the emphasis that some Civilian scholars place on subjective considerations such as testamentary intent, motive or purpose to provide balance to the objectivity of a strictly normative inquiry. I test the normative stance that South African courts assumed towards discriminatory testamentary bequests in the post-constitutional years against these views propounded in Common Law and Civil Law scholarship, and I argue that the position taken by South African courts regarding the distinction between fair and unfair discrimination is significant for the purpose of adjudicating on the tenability of such bequests.