Portal de Periódicos da CAPES

Equality, Exclusion and Belonging: Reflections on King and Wilkinson

2023; Taylor & Francis; Volume: 13; Issue: 1 Linguagem: Inglês

10.2989/ccr.2023.0009

2521-5183

Ibtisaam Ahmed,

Foucault, Power, and Ethics

Open AccessEquality, Exclusion and Belonging: Reflections on King and Wilkinson Ibtisaam Ahmed Ibtisaam Ahmed1 0009-0002-1212-1857 Affiliations 1University of Cape Town, South Africa Published Online:1 Dec 2023https://doi.org/10.2989/CCR.2023.0009https://hdl.handle.net/10520/ejc-jlc_conrev1_v13_n1_a9SectionsPDFAbstract ToolsAdd to favouritesDownload CitationsTrack Citations ShareShare onFacebookTwitterLinked InRedditGMailOutlookCopy LinkMendeley AboutAbstractThe Constitutional Court's recent engagement with discriminatory testamentary bequests (the King and Wilkinson cases) leaves little doubt that even in the context of a private will, a bequest which unfairly discriminates will be unenforceable. This note shares some reflections on the unlawfulness of discriminatory testamentary bequests by assessing the communicative function of a will. A will is seen as the unrivalled legal instrument of self-expression, and I explore how a discriminatory bequest communicates a message of exclusion and creates a disruption in a disinherited child's sense of belonging. The inclusion and use of 'belonging' as a concept with inherent flexibility may assist in furthering substantive equality in South African law.I INTRODUCTIONIn 2020 the Constitutional Court heard two consolidated applications, each requiring engagement with the principle of equality and the principle of freedom of testation in the context of a private will and a private trust respectively. The first, King NO v De Jager,1 concerned a clause in a private will that excluded two co-testators' female descendants as fideicommissary heirs. In the second application, Wilkinson v Crawford NO,2 the same Court was asked to examine a trust deed excluding adopted descendants from inheriting. At the core of both cases is an enquiry into discrimination found in private testamentary instruments. In both its judgments, the Court found that the discrimination was unfair, thus rendering the testamentary provisions unlawful and unenforceable.Whilst the outcome of each case and the Court's commitment to equality is commendable, the principle of equality alone does not adequately justify what is being protected by the law in these cases. A richer and more expansive account is necessary. In this note I argue that a testamentary disposition necessarily brings with it a communication of familial belonging or exclusion. This aspect of belonging is important in evaluating unfair discrimination in private wills and trusts and can be read alongside the principle of equality as articulated by the Court in King and Wilkinson.I provide an overview of both cases in part II and the approach I take in the rest of the note is as follows: part III of the note analyses the nature of the inter vivos donation, the testamentary disposition, as well as the reasons for the distinction between them. In part IV, I introduce the idea of belonging as a key communicative aspect of testation and explore why the concept of belonging should be considered in the evaluation of discriminatory testamentary bequests. Thereafter I consider the concept of belonging as a value protected in private law and conclude in part V by highlighting the benefit of using belonging as a tool and enhancer of South African equality jurisprudence.II OVERVIEW OF THE CASESA King NO & Others v De Jager & OthersThe case concerned the execution of a joint will in 1902 which contained a fideicommissary substitution bequeathing properties to the six children of the testators – four sons and two daughters.3 The 1902 will contained a clause (Clause 7) which stated that upon the death of the children, the fideicommissary property was to devolve upon the sons of the children and their male descendants after them.4 In the event that a son or grandson did not have a male descendant, that share of the fideicommissary property would go to his brothers or their sons. In other words, beyond the first generation, all subsequent female descendants would be excluded.5A dispute arose in 2015 when a grandson of the testator ('the deceased') died without leaving any male descendants. The terms of the deceased's will were such that his five daughters would inherit from his estate in equal shares, and included in his estate was the fideicommissary property. The deceased's daughters claimed that their exclusion from inheriting the fideicommissary property in terms of the 1902 will was discriminatory and that they were entitled to inherit from the deceased's estate. This claim was challenged by the deceased's nephews, who claimed that they were entitled to the fideicommissary property based on Clause 7 in the 1902 will.6The application was first lodged in the High Court, where the parties conceded that Clause 7 was discriminatory against female descendants of the testator.7 Nevertheless, the High Court concluded that Clause 7 was not contrary to public policy and that the unfair discrimination contained in the clause was reasonable and justifiable in terms of Section 36 of the Constitution.8 The High Court articulated its judgment in the following terms: [T]he question must be whether public policy has advanced to the extent that courts should be empowered to act as the final arbiter of whether a testator may discriminate, even unfairly so, in his or her private will.9The High Court was of the opinion that the discriminatory fideicommissum took place 'in the private and limited sphere of testators and their direct descendants'.10The decision of the High Court was appealed, and the Supreme Court of Appeal (SCA) dismissed the appeal without providing written reasons. By doing so, the SCA effectively endorsed the reasoning of the High Court. The majority of the Constitutional Court called this approach 'unusual' and described the SCA as failing to discharge its duty to provide reasons.11Writing for the majority of the Court, Jafta J noted 'all these missteps in the High Court's judgment'12 and highlighted the conflation between the public policy claim and the equality claim, as well as the incorrect use of the limitation clause in Section 36 of the Constitution.13The Court was unanimous in finding that Clause 7 of the will was unlawful and could not be enforced, but was divided in arriving at this conclusion. The majority judgment authored by Jafta J was supported by the concurring judgment of Victor AJ, and Mhlantla J wrote the minority judgment.The majority held that there was no need to develop the common law because unlawful wills and those that are contrary to public policy are unenforceable under the common law as it currently stands.14 The majority highlighted the minority's conflation between unfair discrimination and freedom of testation, noting that 'in its current form the principle does not justify testamentary provisions which are illegal or contrary to public policy',15 thus rendering its development in terms of Section 39(2) of the Constitution unnecessary.The majority articulated the issue whether or not an unfairly discriminatory clause can be enforced in light of Section 9 of the Constitution. Relying on Section 9(4), the majority concluded that a testator is prohibited from discriminating on one or more of the grounds listed in Section 9(3), and invoked the presumption that the discrimination was unfair because it was based on the prohibited ground of gender.16 The majority did not reject the High Court's proposition that a testamentary provision does not amount to a system 'preventing women from inheriting family property'17 as contemplated in section 8(c) of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (the Equality Act), but stated that the High Court's interpretation of section 8 was incorrect.18 According to the majority, when properly construed, section 8 is subject to section 6, which provides an overriding general prohibition against unfair discrimination based on gender.19 The Court held that Clause 7 was 'unenforceable, regardless of whether the unlawfulness stems from the inconsistency with section 9(4) of the Constitution or from a violation of section 8 of the Act'.20The majority emphasised the principle that in South African law no one has a right to inherit and that a testator's choice to bequeath to some and not all of their children does not in and of itself render such a bequest unlawful. The unlawfulness of a bequest rests on whether or not it unfairly discriminates.21 Furthermore, the majority rejected the maintenance of an 'artificial' distinction between public and private wills, particularly when such testamentary instruments are the subject of a constitutional challenge.22The Court thus ruled that Clause 7 discriminated on the basis of gender: this discrimination was conceded to be unfair, resulting in the clause being unlawful and unenforceable.23 The fideicommissary property in the 1902 will was therefore deemed to have been transferred to the deceased without the fideicommissary condition, with the effect that such property in the deceased's estate had to be distributed equally amongst the deceased's daughters in terms of the 2015 will.24In a separate concurring judgment, Victor AJ endorsed the majority's reasoning that the common law need not be developed, but emphasised that the principle of constitutional subsidiarity requires an analysis of freedom of testation in terms of the Equality Act.25 Victor AJ highlighted the importance of substantive equality and therefore saw Clause 7 as constituting discrimination via the withholding of a 'benefit, opportunity or advantage' as described in section 1 of the Equality Act.26 The judgment expressed doubt about the 'right' to freedom of testation,27 rejected its characterisation as advancing a legitimate purpose, and viewed it as an enabling 'narrow-minded and self-indulgent tool' used to discriminate against women.28 Finally, the concurring judgment engaged in a discussion on the constitutionally integrated value of Ubuntu and gender equality before concurring with the order proposed by the majority.The minority judgment per Mhlantla J acknowledged that this was the first time public policy had been used to challenge an out-and-out disinheritance in the private sphere, and this meant evaluating whether the common law should be developed to address a discriminatory provision in a private will.29 The minority judgment relied on an indirect application of the Bill of Rights through the vehicle of public policy. This is based on the Court's previous approach to constitutional challenges against contractual terms, and Mhlantla J noted the parallels between testamentary provisions and contractual terms.30 She also described herself as being 'resolute that this matter should be determined from a common law viewpoint through the lens of public policy as imbued with our constitutional values'.31 The minority was of the view that nothing prevented the application of the common law other than the application of the Equality Act, noting that 'the right to equality does not purport to codify the common law public policy standard or the limits of freedom of testation.'32 In its analysis of the principle of freedom of testation, the minority noted that the 'facially neutral principle of freedom of testation as it currently stands reinforces patriarchal and outdated ideas concerning sex, gender, property, ownership, family structures and norms',33 but also acknowledged that the very same principle is 'at the heart of testate succession and cloaked in constitutional protection by virtue of the rights to property, dignity, and privacy'.34 The effect of this is that public policy informed by the Constitution is infused with the principle of freedom of testation. At the same time, the constitutionally embedded values of non-racialism, non-sexism, equality and constitutional supremacy protect all persons from direct or indirect unfair discrimination in both the public and private spheres.35The minority reasoned that no property right considerations could override the fact that '[i] t can never accord with public policy for a testator even in the private sphere, to discriminate against lineal descendants unknown to her or him purely on the ground of gender',36 and ruled that a private out-and-out disinheritance constituting unfair discrimination is against public policy and therefore unenforceable.B Wilkinson & Another v Crawford NO & OthersThe case concerned a notarial trust deed (the Trust Deed) executed in 1953 by Mr Louis John Druiff (Mr Druiff). At the time of execution, the prevailing legislation obliged a testator bequeathing an asset to an adopted child to convey a clear intention to do so.37 In terms of the Trust Deed, Mr Druiff's children were identified as the income beneficiaries of the Trust and, upon their death, their respective shares would devolve upon their children, per stirpes.38 The Trust Deed set out that it would remain in force for one year after Mr Druiff's death if the trust capital had not been applied for the benefit of the beneficiaries.39 This clause was later amended and provided that if any of Mr Druiff's children died before the termination of the trust, his or her share would devolve upon his or her 'descendants' per stirpes. In the event that a child had left no descendants, that share would be divided equally amongst the remaining children or their descendants per stirpes.40The final clause in issue (Clause 6) provided that the Trust Deed would be terminated on the death of the last of Mr Druiff's four children and, should any of them die before the expiration of the Trust, their share would devolve upon their 'legal descendants' per stirpes.41The applicants sought an order for the words 'children', 'descendants', 'issue' and 'legal descendants' (the impugned words) to include the adopted grandchildren of Mr Druiff.42 The majority per Mhlantla J articulated the main issues as follows: Did the impugned words in the Trust Deed exclude adopted children?If so, does the exclusion constitute unfair discrimination which would render the exclusion contrary to public policy and unenforceable?43The majority ruled that the Trust Deed could not be interpreted to include the adopted grandchildren, and therefore had to decide whether the exclusion constituted unfair discrimination. Citing King, the majority reasoned that there was no need to develop the common law if the exclusion was found to be unfairly discriminatory. Such an exclusion would be contrary to public policy and therefore unenforceable in terms of the common law as it presently stands.44 In analysing the second issue, Mhlantla J stated: [T]here is a differentiation between biological and adopted grandchildren. In my view, the differentiation is on the basis of birth, a listed ground in section 9(3) of the Constitution or adoptive status as an analogous ground.45Wilkinson marked the Court's first acknowledgment that discrimination on the basis of birth includes adopted children, as such a differentiation is 'purely on the basis that they are not born of adoptive parents'.46 In using the ground of birth or, alternatively, the analogous ground of adoptive status to conclude that the differentiation between the biological descendants and the adopted descendants was unfairly discriminatory, the majority declared that the exclusion would be treated as pro non scripto and the Trust Deed given effect to as if the exclusion did not exist.47This reasoning was rejected in the two dissenting judgments by Majiedt J and Jafta J. Majiedt J argued that adoption could not reasonably be included under 'birth' as a listed ground of unfair discrimination. This reasoning was described as 'far-reaching and without merit', and the majority's indirect reliance on Bhe & Others v Khayelitsha Magistrate & Others48 was also criticised as an improper development of the law which was not tenable.49Furthermore, Majiedt J noted that this development 'undermines freedom of testation, which with its underlying fundamental rights to dignity, privacy and to property, does not rank lower than the right to equality'.50 It is worth noting that throughout this dissenting judgment's engagement with the principle of freedom of testation, the only reference made to King's discussion of this principle is to highlight that King is the only case in which a private will containing a discriminatory clause has been overridden by a court in South Africa since the enactment of the Constitution.51In Jafta J's dissenting judgment, it was argued that the majority's reliance on the Children's Act 31 of 1937 was misplaced, and Jafta J reasoned that the relevant section was applicable only in instances where the adoptive parent had other children.52 Instead, an interpretation of the Trust Deed itself was required in order to decide whether or not the adopted children were to inherit.53 The clause concerning the termination of the Trust (Clause 6) was analysed by Jafta J, who concluded that the description of 'legal descendants' was interpreted to show that 'the donor wanted to ensure that the class of descendants entitled to benefit upon termination of the Trust would be wider'.54 On this reasoning, the adopted children would be included as beneficiaries and inherit their mother's share.III FREEDOM OF DISPOSITIONA A distinction between life and deathA disposition can be understood as a legally effective intentional transfer of ownership and as such is enabled by the law of property, contract, wills, trusts and estates. In this part, I argue that while freedom of testamentary disposition exists within the broader framework of freedom of disposition, the two are distinct. This distinction is best understood via an analysis of inter vivos donative dispositions and testamentary dispositions.In both King and Wilkinson, the Constitutional Court found that a testamentary provision giving rise to unfair discrimination was unenforceable. The majority per Jafta J in King affirmed the importance of freedom of testation, but highlighted that it must be exercised lawfully, stating: [A] testator cannot, after departing from this world, do what she could not achieve in her lifetime. The right of ownership of which freedom of testation forms part, entitles the owner to do as she pleases with her property, as long as what she chooses is permissible under the law.55That freedom of testation is a part of the right of ownership is consistent with previous decisions in South African law. Initially obiter by the SCA in Cooper & Others v Syfrets Trust Ltd,56 the same court in BOE Trust Ltd NO & Another57 confirmed that freedom of testation implicitly forms part of Section 25(1) of the Constitution. In clarifying the content of ownership and affirming this principle, the majority in King also cited Harvey NO v Crawford NO,58 in which the SCA stated: The right of ownership permits an owner to do with her thing as she pleases, provided that it is permitted by the law. The right to dispose of the thing is central to the concept of ownership and is a deeply entrenched principle of our common law. Disposing of one's property by means of executing a will or trust deed are manifestations of the right of ownership. The same holds true under the Constitution.59As noted above, a disposition is a legally effective intentional transfer of ownership that can be achieved through both inter vivos and testamentary means. In both King and Wilkinson, disposing of one's property is unlawful if such a disposition amounts to unfair discrimination. However, a similarly discriminatory disposition would not be unlawful if it was effected inter vivos. An example hereof is the inter vivos donative disposition: although there are other ways of disposing of one's property, both the donative disposition and the testamentary bequest are examples of 'gift law'. Though the legal conceptions of the gift vary in different legal systems, at its core, gift law governs the enforceability and legal consequences of certain gratuitous transactions … [G]ift law focuses chiefly on those gratuitous transactions subject to private law that … include larger gifts made between family members or given to charitable institutions.60The Appellate Division has described a donation in the following way: In a donation the donor disposes of the property gratuitously out of liberality or generosity, the donee being thereby enriched and the donor correspondingly impoverished, so much so that, if the donee gives any consideration at all therefor, it is not a donation … It can therefore be regarded as a unilateral contract in the sense that the donor is the only party upon whom any obligation lies..61It is clear that a donation is a unilateral contract in South African law, but in a number of ways, the legal concept of a donation appears to be closer to that of a will as 'the fulcrum of both institutions is the disposition rather than the agreement'.62Table 1 provides a helpful illustration of the similarities between an inter vivos donation and a testamentary bequest. This table shows how the will and the gift could be grouped together because they both involve gratuitous dispositions of property and can enable the goals of family provision, gift-giving and philanthropy. This categorisation, however, is not only theoretical. The French Civil Code, for example, regulates gifts and wills in a separate category called dispositions à titre gratuit.63 Another similarity is found in the reference made to the intention of the donor or the testator, and whenever a court interprets the provision of a will it is required to ascertain the testator's intention.64 Furthermore, in Commissioner for South African Revenue Service v Marx NO65 the High Court noted that a donor's intention must arise from generosity (liberalitas) or liberality (munificentia) with no consideration or expectation of some future advantage.66 This point is made absolute in testation due to the obvious fact that a testator cannot gain anything by making a testamentary disposition and highlights another clear comparison.Additionally, there are two other key points of convergence. The first lies in the suggestion that a donation and a bequest share the same goal of protecting heirs against the alienation of family resources, particularly in those jurisdictions where the law provides for the institution of forced heirship.67 While South African law does not pursue this specific goal, there is resonance found within the second convergence, namely the link between freedom of contract and freedom of testation.Legal scholarship from as early as the seventeenth century points to the assertion that in a variety of legal doctrinal contexts 'a valid argument runs from contracts to last wills and vice-versa'.68 A bolder statement is found in the separate concurring judgment in King where Victor AJ states that '[f]reedom of testation is in essence freedom of contract'.69 It is beyond the scope of this paper to address the boundary or point at which substantive asymmetries between freedom of contract and freedom of testation emerge, and it has been observed elsewhere that 'the strongest justifications for freedom of contract do not apply with the same force to testamentary freedom.'70 However, it is worth noting that the Court's use of human dignity71 as justification for both freedoms may assist in a consolidated theory of freedom (or restriction) of private law rights.The above similarities notwithstanding, Miller notes that an inter vivos disposition is relatively uncontroversial and that 'the freedom as such is widely accepted as morally sound. The contrast with testamentary freedom of disposition is stark.'72 This is clearly manifest in the way in which the scrutiny applied to inter vivos donations differs immensely to the scrutiny applied to testamentary bequests. The result is that a donor could in fact unfairly discriminate in the apportionment of donations given during the course of their lifetime, but King and Wilkinson firmly state that they cannot do so after their death. Thus, when a person transitions from being a donor to a testator, there is an important shift that takes place signalling a profound curtailment of one's freedom to dispose. One justification for this lies in the origin of the legal donation. A unilateral contract of donation is the law's attempt at regulating gift-giving, something which falls out of the law's prototypical transaction of quid pro quo. In this sense, the purpose of gift norms is unclear, and these norms differ from the norms governing wills. Thus, the two institutions do not form part of the same conceptual unit.73While this justification is instructive, it alone is not enough to explain the sharp distinction between dispositions made during one's lifetime and those made after death. I argue that a more robust justification can be found in the communicative aspect of will-making.B Testamentary disposition as self-expressionThe tongues of dying menEnforce attention, like deep harmony — Richard II, II.1.5–6Exploring the idea of the final self-validating articulation of consciousness contained in 'the last word', Guthke writes: At first glance, it might be thought that what assures last words of attention always and everywhere is the banal fact that mortality is a sine qua non of the human condition.74A will undoubtedly form a part of an individual's last words. Testation is broadly understood as a transfer of wealth through the exercise of a property right.75 Yet unlike other exercises of property rights, testation is also deeply expressive.This expressive component of testation can first be seen in Roman wills, which have been described as part manifesto and part confession.76 In his study of duty and emotion in Roman wills, Champlin notes the following about ancient wills: Hope, fear, anger, doubt, delight, satisfaction, and disappointment … can visibly tumble over each other in the succeeding paragraphs of a single will … In one's will one said, at last, exactly what one felt.77Modern testation is arguably less emotive and there exists a strand of scholarship that views current testation as a vehicle which eliminates the individuality of the testator through the use of alienating and technical legal terms. Sneddon, for example, highlights that despite self-referencing terms – 'I', 'me', 'my' and 'mine' – a will removes the testator's voice. She explains that the assumption of a 'false' voice diminishes the estate planning experience from the individual's perspective and results in a flat document that may not effectively convey the individual's wishes in a manner that is absorbable by the individual's family and beneficiaries.78While estate planning does include a process whereby a testator's wishes are converted into legal terminology, this is not sufficient to conclude that the communicative function of a will simply evaporates. The fact remains that a testator's distributional choices can be highly expressive. Whether a testator is drafting their will with or without the assistance of lawyers, the very act of drafting means that the testator must clarify their feelings about other individuals, their possessions and death itself. In this way, a testator does not simply arrange for the management and distribution of their wealth when they die; in testation they are making a statement.Horton extracts two factors that make testation unique. Firstly, it operates against the backdrop of death which can have the effect of liberating the testator from stifling social norms. The ability to be frank and more revealing in death 'vests testation with a raw sincerity that no other communication can match'.79 The second sui generis quality of testation is its sheer comprehensiveness, as 'although we constantly exercise dominion over our possessions during life, only once – when we make a will or trust – do we exercise our dominion over all our possessions.'80These two factors result in a further entanglement between property and personhood, an entanglement that has been documented by scholars in other disciplines. Radin argues that '[m] ost people possess certain objects they feel are almost part of themselves'81 and James similarly explains that between what man calls me and what he simply calls mine the line is difficult to draw. We feel and act about certain things that are ours very much as we feel and act about ourselves.82It is beyond the scope of this paper to provide a detailed account or critique of the link between property and personhood, but it is worth noting that the motivations behind such self-identification with one's possessions are numerous, and there is variation in an individual's awareness of this self-identification or not.83A testator need not identify with their property, nor do they need to have a minimum value of wealth in order to trigger the expressive function of a will. The distribution of property and the selection of beneficiaries itself convey feelings of gratitude, disappointment and, as I argue in part IV, belonging. A testamentary instrument also openly conveys the worldview, opinions, beliefs and values of the testator in a way that a contract of donation simply does not. The communicative value of each legal instrument is not equal for the reasons outlined above. The law attaches greater weight to the opinions and beliefs of a testator, particularly when those opinions and beliefs are in conflict with the prevailing public norms of the community, and thus requires a court to make an evaluation about its enforceability.South African courts have had to consider enforcing discriminatory bequests prior to the enactment of the Constitution, and the cases of King and Wilkinson extend this examination to bequests contained in private testamentary instruments for the first time. In both cases the testator's wishes were not enforced, but it must be emphasised that the testator's communicati