Roman-Dutch Law in Modern South African Succession Law

278 Ars Aequi april 2014 verdieping

arsaequi.nl/maandblad  AA20140278 Roman-Dutch law in modern South African succession law

François du Toit*

Modern South African succession law adheres to many of the tenets of Roman-Dutch succession law, and present-day South African courts frequently invoke Roman-Dutch authority to address questions regarding contemporary succession law. This article explores the history and current significance of Roman-Dutch law in South African succession law.

1 Introduction of succession provides an excellent example Roman-Dutch law, the legal system developed of the mixed nature of the South African legal in the Netherlands through the reception system because the interplay of Roman-Dutch (particularly in the sixteenth and seventeenth law and English law has had a particular centuries) of Roman law and its synthesis historical dynamism in this branch of South with Germanic customary law, feudal law African private law. and canon law, was introduced at the Cape of Good Hope (present-day Cape Town) by Dutch The South African law of settlers from the middle of the seventeenth century. English law coalesced with Roman- succession provides an Dutch law in the aftermath of Britain’s oc- excellent example of the cupation of the Cape in 1806. The new British mixed nature of the South rulers retained Roman-Dutch law, but the law at the Cape came under increased English African legal system because legal influence as the British pursued an the interplay of Roman-Dutch aggressive policy of Anglicisation from 1820 law and English law has * Prof. F. du Toit is profes- onward. In the result, a mixed legal system sor of private law at the had a particular historical University of the Western developed that spread northward as Euro- Cape, South Africa. pean settlers moved to the southern African dynamism in this branch of 1 For a concise overview of interior.1 the development of South South African private law Africa’s common law and Roman-Dutch law remains part of South its mixed legal system, Africa’s common law to this day, although, by see A.B. Edwards, The reason of legislative and judicial adaptation, History of South African Law – An Outline, Durban: not consistently in its original form. Many 2 Roman-Dutch law and South Africa’s Butterworths 1996, p. 65- aspects of modern South African private law mixed legal system 101; R. Zimmermann & are governed exclusively by the common D. Visser, ‘Introduction: South African Law as a law; South African private law is, therefore, 2.1 Historical contextualisation Mixed Legal System’, in: R. particularly infused with Roman-Dutch law. Roman-Dutch law at the Cape of Good Hope Zimmermann & D. Visser This article highlights the place and role of was unaffected by the codification movement (eds.), Southern Cross: Civil Law and Common Roman-Dutch law in contemporary South in continental Europe during the eighteenth Law in South Africa, Ken- African succession law. The South African law and nineteenth centuries. Modern South wyn: Juta 1996, p. 2-30. arsaequi.nl/maandblad  AA20140278 verdieping Ars Aequi april 2014 279

African law remains uncodified and, although time, whether these statutes remain appli- statutes regulate many aspects of contempo- cable in modern South African law. In Spies rary South African law, South African courts v Smith,4 for example, the point was argued still rely on the so-called ‘old sources’ – docu- before the South African Appellate Division mented accounts of Roman-Dutch law from (now the Supreme Court of Appeal) that particularly the seventeenth and eighteenth article 12 of the Placaat of 4 October 1540 centuries – when applying the common law (the Perpetual Edict) regarding prohibited today. These old sources are:2 testamentary bequests of immovable property ––the works of Roman-Dutch institutional by a minor no longer constituted part of South writers such as Inleidinge tot de Holland- African law. Judge of Appeal Steyn found it sche Rechtsgeleertheyd (Hugo de Groot, unnecessary to decide this point, but never- 1583-1645), Het Roomsch-Hollandsch Recht theless opined that the article still found ap- (Simon van Leeuwen, 1626-1682) and Com- plication in contemporary South African law.5 mentarius ad Pandectas (Johannes Voet, 1647-1713); Modern South African law ––judgments handed down by Dutch courts, particularly those in the province of Hol- remains uncodified and, land; although statutes regulate ––legal opinions of Dutch jurists regarding many aspects of contemporary practical legal matters contained in com- pilations such as the Hollandsche Con- South African law, South sultatiën (compiled from 1645-1666) and African courts still rely on the 2 L. du Plessis, An Introduc- the Nederlands Advijsboek (compiled from tion to Law, Lansdowne: so-called ‘old sources’ when 3 Juta 1999, p. 48. 1693-1698); and 3 Edwards 1996, p. 63-64. ––statutes applicable in Holland and other applying the common law today 4 1957 (1) SA 539 (A). Dutch provinces. 5 551B-C. 6 R. van den Bergh, ‘The Statutes – particularly placaaten – that British rule at the Cape from 1806 occasioned, Remarkable Survival of applied in Holland prior to the Dutch settle- despite the retention of Roman-Dutch law by Roman-Dutch Law in ment at the Cape supplemented and extended the new British rulers, a significant English Nineteenth-Century South Africa’, Fundamina 2012-1, Roman-Dutch law at the Cape. South African law influence on the civilian legal system p. 85-87. courts have had to determine, from time to existent at the Cape. During the century that followed, this influence spread also to the law of the other British colonies in southern Africa (among others, the erstwhile Boer Republics of the Transvaal and Orange Free State that came under British rule after the Anglo-Boer War (1899-1902)). The survival of Roman-Dutch law under British rule in nineteenth-century South Africa is indeed remarkable. According to Van den Bergh this survival can be ascribed to, first, the legal education of a number of colonial jurists at distinguished Dutch universities; secondly, translations of Roman-Dutch texts into English in order to make these accessible to English-speaking jurists; and, finally, the emotional attachment to the Dutch legal heritage of many descendants of the original Dutch settlers at the Cape.6 Roman-Dutch law’s survival, and its coales- cence with aspects of English law, yielded the mixed jurisdiction that typifies modern South African law.

2.2 Abolition of aspects of Roman-Dutch law under English rule Photo: Marten Hoogstraat Certain aspects of Roman-Dutch law did not, (www.whiteframe.nl) however, survive under British rule and were © Ars Aequi abolished statutorily. The law of succession 280 Ars Aequi april 2014 verdieping arsaequi.nl/maandblad  AA20140278

was particularly vulnerable in this regard, placed by nineteenth-century English law as the demise of Roman-Dutch law’s union testamentary freedom. In the result, all versal succession illustrates. Roman-Dutch manifestations of forced heirship, such as law prescribed that, upon adiation, the heir the legitimate portion13 as well as the Falcid- succeeded ex lege to the deceased’s assets and ian and Trebellian fourths,14 were abolished liabilities, and that the heir had to represent statutorily under English influence in the four 7 M.M. Corbett, G. Hofmeyr and administer the deceased estate. Roman- southern African British colonies during the & E. Kahn, The Law of Dutch law acknowledged the appointment of latter half of the nineteenth and early twen- Succession in South Africa, Lansdowne: Juta 2001, 15 an executor, but the executor’s function was tieth centuries. Modern South African law p. 7. merely to assist the heir in the winding-up of is, therefore, devoid of the typical Romanist- 8 In order to protect an the estate.7 This practice was entirely foreign Continental forced heirship devices.16 heir from financial ruin through the inheritance to the British, and the Cape Ordinance 104 South African law nevertheless recognises of an insolvent estate, of 1833 replaced the system of universal suc- that a person’s indigent minor child, whether Roman-Dutch law permit- cession (and, by implication, repealed all its born in or out of wedlock, has a common-law ted the heir to accept the inheritance subject to the 8 incidentals such as the beneficium inventarii ) claim for maintenance against such person’s benefit of an inventory. with the English system of executorship.9 deceased estate. It is interesting to note that The heir’s liability for the Under this system the executor takes charge the initial recognition of this claim in Carelse deceased’s debts was then limited to the assets that 17 of the deceased estate, collects the debts owed v Estate De Vries was based on a judicial were inherited: Corbett to the estate, pays estate creditors, and dis- misreading of the Roman-Dutch writer Simon e.a. 2001, p. 8. tributes the net assets among the deceased’s van Groenewegen’s De Legibus Abrogatis.18 9 Corbett e.a. 2001, p. 8. 10 1955 (3) SA 361 (A). successors. The English-law version of execu- South African courts have, nevertheless, 11 364G. It must be noted torship spread beyond the Cape and gained a consistently followed the Carelse decision, and that, notwithstanding firm foothold in modern South African law. In in Glazer v Glazer19 the Appellate Division the court’s reference to legatees, the position is the 10 Greenberg v Estate Greenberg the Appellate confirmed that it has become settled law. The same with regard to heirs. Division emphasised the absence of universal Appellate Division in the Glazer case was not, 12 N.J. van der Merwe & C.J. succession in contemporary South African law however, willing to extend the Carelse court’s Rowland, Die Suid-Afri- kaanse Erfreg, Pretoria: when it acknowledged that a deceased’s suc- misreading of Van Groenewegen in order Van der Walt en Seun cessors do not acquire ownership of estate as- to provide patrimonial protection also for a 1990, p. 616. sets through succession, but that the executor deceased’s surviving spouse.20 The absence of 13 Roman-Dutch law received the Roman law rules re- must transfer ownership to such successors: such protection prompted the South African garding the reservation of legislature to enact the Maintenance of Sur- portions of a deceased es- ‘The position under our modern system of administering viving Spouses Act 27 of 1990, under which a tate in favour of some of a deceased estates is that when a testator bequeaths property to deceased’s intestate heirs: a legatee the latter does not acquire dominium in the property deceased’s indigent surviving spouse enjoys a R.W. Lee, An Introduction immediately on the death of the testator but what he does statutory maintenance claim for the provision to Roman-Dutch Law, acquire is a vested right to claim from the testator’s executors London: Oxford University 11 of reasonable maintenance needs until death … delivery of the legacy.’ Press 1946, p. 369. or remarriage insofar as the surviving spouse 14 The prescripts of the Lex The abolition of aspects of Roman-Dutch law is unable to provide for such from own means Falcidia (40 B.C.) and under British rule affected also substantive and earnings.21 Legislative and judicial inter- the Senatusconsultum Trebellianum (56 A.D.) succession law. Arguably the best example vention in South Africa during the course of regarding the reservation of this phenomenon concerns the position the twentieth century has, therefore, obviated of a quarter of a deceased regarding imperative inheritance law. any negative economic effect on a deceased’s estate in favour of an heir (the Falcidian fourth) and immediate family members that the abolition of a quarter of fideicom- The abolition of aspects of of Roman-Dutch law’s forced heirship by the missary property in favour British might have occasioned. of the fiduciary heir (the Roman-Dutch law under Trebellian fourth) were received into Roman-Dutch British rule affected also 2.3 The purist movement enhances further law: Lee, 1946, p. 369. Roman-Dutch law’s status in contemporary 15 Act 23 of 1874 (Cape); Law substantive succession law. 7 of 1885 (Natal); Proc 28 South Africa of 1902 (Transvaal); Law Arguably the best example After formation of the Union of South Africa Book of 1902 (Orange Free of this phenomenon concerns in 1910 through the unification of the four State). 16 M.M. Corbett, G. Hofmeyr, British colonies in southern Africa, a ‘purist the position regarding H.R. Hahlo & E. Kahn, The movement’ against the ‘pollution’ of Roman- Law of Succession in South imperative inheritance law Dutch law (particularly by English law) Africa, Lansdowne: Juta 1980, p. 34. further enhanced the status of Roman-Dutch 17 (1906) 23 SC 532. Forced heirship was part of Roman-Dutch law in South Africa. The so-called ‘purists’ 18 Particularly ad D 34.1.15. law at the Cape.12 However, the reservation were legal scholars, university teachers 19 1963 (4) SA 694 (A) 707A. 20 707A-B. of fixed portions of deceased estates in favour and judges who advocated adherence to the 21 Art. 2(1) Maintenance of of certain persons offended the high premium tenets of Roman-Dutch law, and they op- Surviving Spouses Act. arsaequi.nl/maandblad  AA20140278 verdieping Ars Aequi april 2014 281

posed the so-called ‘modernists’ who sought influence in South Africa, the court, in typical reliance on English law to modernise (what purist fashion, contextualised undue influence they perceived as) antiquated Roman-Dutch within South Africa’s Romanist-Civilian com- law. 22 Purist jurisprudence was particularly mon law. Judge of Appeal Steyn commenced prevalent during the 1950s, and judgments his judgment with a reference to the afore- on the law of succession from this period il- mentioned case of Finucane v MacDonald, lustrate South African courts’ dynamic move and then said: away from earlier reliance on English law to, ‘In [the Finucane] case … the Court, without reference to any of from the middle of the twentieth century, firm our sources of law, proceeded from the premise that the English adherence to Roman-Dutch law. law regarding “undue influence” in wills corresponds with the principles of our law. It may be that this premise may be proven correct on closer investigation, but it does not absolve me of the After formation of the Union of duty to examine our sources of law and to decide this matter in 31 South Africa in 1910 through accordance with the principles laid down therein.’ the unification of the four The Judge of Appeal’s use of the phrase ‘our British colonies in southern sources of law’ is an unambiguous reference to the old sources of Roman-Dutch law because Africa, a ‘purist movement’ he noted particularly the insistence of Roman- against the ‘pollution’ of Dutch institutional writers such as Voet32 and Roman-Dutch law further Van Bijnkershoek33 that ‘the pen of the dying must be free’ and that it is contra bonos mores enhanced the status of Roman- to deprive a testator of this freedom.34 The Dutch law in South Africa Judge of Appeal also pointed out these writers’ acknowledgement that not all interfer- South African courts’ engagement with the ences with expressions of testamentary intent impact of undue influence on the validity of occasion nullity of a testamentary disposition testamentary dispositions provides an exam- – the interference must have negated a testa- 22 Du Plessis 1999, p. 56-61. ple of this phenomenon.23 Early South African tor’s volition and caused the making of a will 23 Testamentary undue influ- judgments on testamentary undue influence contrary to that which the testator intended.35 ence occurs when another person exerts influence (from the second half of the nineteenth and Judge of Appeal Steyn then proceeded to over a testator to make the first half of the twentieth centuries) relied decide the factual question before him regard- a will or testamentary greatly on English legal authority. For exam- ing testamentary undue influence on the bequest which that testa- 24 tor would not otherwise ple, in Executors of Cerfonteyn v O’Haire the aforementioned common-law authority, and have made; in other words, court cited the English case of Parfitt v Law- without invoking a single English-law source. the testator’s volition is less25 in support of its finding that in South Purist judgments such as Spies v Smith displaced by that of the influencer: Spies v Smith Africa, as in England, the party who alleges therefore contributed significantly to Roman- 1957 (1) SA 539 (A) 547C- undue influence bears the burden of proof; Dutch law’s status in modern South African D. moreover, that no presumption of undue influ- law in general, and its law of succession in 24 1873 Buch 47 72. 25 (1872) LR 2 P&D 462. ence arises on the basis of any relationship particular. 26 (1903) 24 NLR 484 490. that existed between the deceased and the 27 (1885) 11 PD 81. alleged influencer. In Taylor v Pim26 a South 28 1942 CPD 19 33-34. Purist judgments such as 29 1920 AC 349. African court cited with approval the English 30 1957 (1) SA 539 (A). case of Wingrove v Wingrove27 where it was Spies v Smith contributed 31 545A-B. My translation said that, to establish testamentary undue significantly to Roman-Dutch from the original Afri- influence, it must be shown that ‘the will of kaans. law’s status in modern South 32 29.6.1. the testator was coerced into doing that which 33 De Captatoriis Institutioni- he did not desire to do.’ And in Finucane v African law in general, and its bus, Cap 10. 28 34 545H. MacDonald the court opined that the South law of succession in particular 35 546A-548A. African legal position on testamentary undue 36 Intestate succession occurs influence accords fully with that espoused when a deceased did not leave a valid will or when in the leading English case of Craig v Lam- 3 Roman-Dutch law and modern South the deceased’s valid will oureux.29 Engagement with Roman-Dutch African intestate succession law36 became inoperative after authority on testamentary undue influence is The States-General of the Netherlands the deceased’s death (in other words, the will is no conspicuously absent from these judgments. introduced the system of intestate succession longer capable of imple- However, in Spies v Smith,30 a judgment by under the Schependomsrecht, as contained mentation): M.J. de Waal the Appellate Division handed down dur- in the Political Ordinance of 1580 and the & M.C. Schoeman-Malan, Law of Succession, Wetton: ing the late 1950s and generally considered Interpretation Ordinance of 1594, to the Juta 2008, p. 14. the locus classicus on testamentary undue Dutch East Indies and its outstations through 282 Ars Aequi april 2014 verdieping arsaequi.nl/maandblad  AA20140278

the Octrooi of 1661. The Octrooi thus be- particular weight to the view expressed in his 37 For an overview of the came law also at the Cape of Good Hope, and Verhandeling van het Hollandsch, Zeelandsch historical background to the South African law of 43 the South African common law of intestate en de Westvrieslandsch Versterfrecht: intestate succession, see succession accordingly comprises the rules Van der Merwe & Rowland ‘Als een testament eerst na dood van den Testateur zyne kracht laid down in the Political Ordinance, the 1990, p. 21-25. verliest, men dan niet moet inzien, wie de naaste is geweest tot 38 Parentelae are orders 37 Interpretation Ordinance and the Octrooi. de successie ten tyde van ‘t overlyden, maar wie de naaste is ten of succession: the first 44 The South African legislature subsequently tyde van ‘t verval van het testament...’ parentela consists of the adapted these common-law rules on numer- deceased’s descendants; the second parentela of ous occasions, among others in regard to the Based on the foregoing analysis of common- the deceased’s parents position of a deceased’s surviving spouse and law authority, Judge of Appeal Joubert and their descendants; the position of a deceased’s adopted children. concluded that the position in modern South the third parentela of the deceased’s grandparents The current Intestate Succession Act 81 of African law is that, where a deceased testator and their descendants; and 1987 repealed all the common-law rules and left a valid will which took effect on death but so on. The rule that the later statutory adaptations, and largely codi- which subsequently became inoperative, the estate does not climb applies between the different fied South African intestate succession law. intestate estate does not vest retroactively at parentelae: any relation Du Plessis has argued that, notwithstanding the date of the testator’s death but rather at in, say, the first parentela, such codification, the provisions of the Intes- the time of the will’s inoperativeness.45 even a remote one such as a great-grandchild, tate Succession Act still exhibit many of the The Harris case, therefore, provides a strik- prevents devolution of the characteristics of the mixed intestate succes- ing example of South African courts’ invoca- estate to the deceased’s sion system that typified later Roman-Dutch tion of, among others, Roman-Dutch authority parents in the second parentela: Corbett e.a. law. These characteristics include the system to resolve contemporary intestate succession 2001, p. 564. of parentelae and the associated principle of questions. 39 W. du Plessis, ‘Regshisto- het goed klimt niet;38 a cognatic system where riese Grondslae van die Wet op Intestate Erfopvol- both male and female descendants can repre- The Harris case provides a ging 81 van 1987’, De Jure sent another; and a system based on degrees 1990-2, p. 246. of relationship where, in terms of the Intes- striking example of South 40 1987 (3) SA 563 (A). 41 572G. The maxim means tate Succession Act, in the third or further African courts’ invocation that it is better to seek the parentelae those nearest in degree of rela- of, among others, Roman- sources than to follow the tionship to the deceased will inherit. In this tributaries, or, stated more Dutch authority to resolve plainly, that adherence to light, the current Intestate Succession Act’s basic law is essential be- legal-historical roots can be traced, according contemporary intestate fore exploring exceptions. to Du Plessis, to, among others, the Twelve 42 574I. succession questions 43 Judge of Appeal Joubert Tables, classical and post-classical Roman law, relied on the 1774-publi- Germanic law and Roman-Dutch law.39 cation of Van der Vorm’s The common law continues to govern intes- work, and referenced particularly the second tate succession matters not regulated by the 4 Roman-Dutch law and modern South part regarding intestate Intestate Succession Act, and South African Africa testate succession law46 inheritance, p. 7, par. 4. courts readily invoke common-law authority to The modern South African law of testate suc- 44 574J-575B. 45 575D. resolve such matters. For example, in Harris v cession typifies the mixed nature of the South 46 Testate succession occurs Assumed Administrator, Estate Macgregor40 the African legal system.47 The diverse wills of when the deceased left a Appellate Division had to establish the time Roman-Dutch law were utilised by the Dutch valid will. The deceased is referred to as the ‘testator’ of vesting where intestacy supervened after a at the Cape from the middle of the seven- for purposes of testate testator’s death in the event that such testa- teenth century and, therefore, became part succession: De Waal & tor’s will became inoperative. Judge of Appeal of the South African common law of testate Schoeman-Malan 2008, p. 3. Joubert commenced his judgment as follows: succession. From the middle of the nineteenth 47 For a concise overview century the British introduced legislation of the mixed nature of ‘I start with an investigation of the position in our common that mirrored the English Wills Act of 1837 the South African law of law, my approach being melius est petere fontem quam sectari testate succession, see 41 rivulos.’ in regard to the execution of wills, and the F. du Toit, ‘Succession so-called statutory or ‘underhand’ will became Law in South Africa – A Judge of Appeal Joubert then investigated, the dominant will form at the Cape. Other Historical Perspective’, in: K.G.C. Reid, M.J. de Waal among others, the Institutes of Gaius, the southern African British colonies (which later & R. Zimmermann (eds.), Institutes of Justinian, and thereafter refer- became South African provinces) followed the Exploring the Law of Suc- enced the respective commentaries on Justin- Cape’s example, but different formalities for cession – Studies National, Historical and Compara- ian’s Institutes of the Roman-Dutch writers the execution of the underhand will applied tive, Edinburgh: Edinburgh Arnoldus Vinnius and Paulus Voet.42 The in the various regions. The Wills Act 7 of 1953 University Press 2007, Judge of Appeal next identified Hobius van achieved uniformity regarding the execu- p. 67-77. 48 Van der Merwe & Rowland der Vorm as ‘the leading Roman-Dutch au- tion of wills throughout South Africa by, first, 1990, p. 119-120. The thority on intestate succession’ and attached abolishing all the then-remaining common- Wills Act commenced on arsaequi.nl/maandblad  AA20140278 verdieping Ars Aequi april 2014 283

1 January 1954, but was law will forms and, secondly, by regulating The judgment of the Appellate Division in Du subsequently amended on uniformly the execution of the underhand will Plessis v Strauss57 provides a telling example a number of occasions. 49 A testamentary fideicom- in South Africa and the erstwhile Southwest- of contemporary South African courts’ firm missum is created when Africa (now Namibia).48 adherence to Roman-Dutch law when resolv- a testator bequeaths Whereas English law exerted considerable ing testate succession matters regarding the property to a beneficiary (the fiduciary) subject to influence on the South African law of testate content of wills. In this case the court had to the provision that, after a succession in regard to the formal aspects determine whether a testator’s use of a si sine certain time has elapsed or of wills, the majority of the testamentary liberis decesserit clause with regard to a fidu- a particular condition has been fulfilled, the property institutions and constructs encountered in ciary under a testamentary fideicommissum must go over to a further modern South African wills (such as the fide- (a clause bearing reference to the death of the beneficiary (the fideicom- icommissum,49 the modus,50 and the right of fiduciary without being survived by children) missary). For example, 51 a testator leaves a farm accrual ) originated in Roman law and were created a tacit fideicommissum in favour of to his son (the fiduciary), received as such into Roman-Dutch law and the children that such fiduciary did indeed and stipulates that, upon South African law. A notable exception is the leave. Judge of Appeal Van Heerden conduct- the son’s death, the farm must go over to his (the English-law trust that was introduced at the ed a thorough investigation of Roman-Dutch testator’s) grandson (the Cape by British settlers during the first half authority and concluded that it was the prac- fideicommissary): De Waal of the nineteenth century. The foreignness of tice in Holland during the seventeenth and & Schoeman-Malan 2008, p. 150. the Common-law trust to South Africa’s civil- eighteenth centuries that a sine liberis clause, 50 A testamentary modus ian legal tradition prompted the Appellate coupled to a conditional fideicommissary is created when an Division to attempt a ‘Romanist reconfigura- substitution, created a presumption that the inheritance or a legacy 52 is burdened with a duty tion’ of the trust by equating the English- testator established a tacit fideicommissum imposed on the heir or law trust to the Roman and Roman-Dutch in favour of the liberi (children) who are the legatee to do something or fideicommissum and, commensurately, a trus- testator’s descendants. The Judge of Appeal not to do something. For 53 example, a testator leaves tee to a fiduciary. This equation came under found fortification for this view in particularly a farm to his son subject to increased judicial and scholarly criticism, Cornelis van Bijnkershoek’s Observationes the obligation that the son and the Appellate Division authoritatively Tumultuariae, a collection of judgments of must pay a cash amount to 58 his (the testator’s) daugh- rejected the identification of the trust with the Hoge Raad. Judge of Appeal Corbett, ter: De Waal & Schoeman- the fideicommissum in Braun v Blann and who handed down a concurring judgment in Malan 2008, p. 141. Botha54 when it held that it is both historical- the Du Plessis case, addressed earlier South 51 The right of accrual permits a testamen- ly and jurisprudentially wrong to identify the African court cases in which a different view tary beneficiary to succeed trust with the fideicommissum and to equate on a testator’s use of a sine liberis clause was proportionally to a benefit a trustee with a fiduciary; instead the court expressed, and he stated emphatically: that a co-beneficiary under labelled the trust, for purposes of modern the same will cannot take ‘Preference must be given to the [law of Holland] since Holland or declines to take. For South African law, as a legal institution sui is from where our common law derives … I accept the law of example, a testator leaves generis. It must be noted, however, that the Holland, as propounded by my Brother Van Heerden. And I a cash amount to two ben- South African common law of trusts is infused agree that the South African case law should not be permitted eficiaries (with the implica- to override the law of Holland.’59 tion that the amount must with principles of Roman and Roman-Dutch be divided equally between law in regard to, among others, the standard the two) and provides that, should either beneficiary of care, diligence and skill expected of trustees The approach of petere fontes – going back to predecease the testator, (being that of the bonus et diligens paterfamil- the primary sources of South Africa’s Roman- the deceased beneficiary’s ias55) and the remedies of trust beneficiaries Dutch common law – evident in the Harris half must accrue to the surviving beneficiary so against trustees in breach of trust (the prin- judgment on intestate succession, is, there- that the latter receives the cipal remedy for the recovery of patrimonial fore, equally discernable in the Du Plessis entire amount: De Waal loss being the actio legis Aquiliae56). judgment on testate succession. & Schoeman-Malan 2008, p. 200. 52 M.J. de Waal, ‘The The judgment of the Appellate Uniformity of Ownership, 5 Roman-Dutch law and South African Numerus Clausus and Division in Du Plessis v the Reception of the Trust succession law under the Constitution, into South African Law’, Strauss provides a telling 1996 in: J.M. Milo & J.M. Smits The Constitution of 1996 is the bedrock of (eds.), Trusts in Mixed example of contemporary Legal Systems, Nijmegen: post-apartheid South Africa and constitutes, Ars Aequi Libri 2001, South African courts’ firm according to its first Chapter, the supreme p. 48, referring to the term adherence to Roman-Dutch law of South Africa.60 The Constitution has used by E. Cameron, ‘Why reshaped fundamentally the South African No Constructive Trust In law when resolving testate South African Law? The legal landscape over the past two decades, Experience of another succession matters regarding and it is arguable that the shift towards Mixed Legal System’, paper read at a seminar the content of wills constitutional jurisprudence during this on constructive trusts period occasioned a commensurate de- 284 Ars Aequi april 2014 verdieping arsaequi.nl/maandblad  AA20140278

crease in South African courts’ reliance on trary to public policy: judge Griesel said that common-law authority.61 The Constitution public policy ‘is a well-recognised common- organised by the Universities of Edinburgh and Strathclyde nevertheless recognises South Africa’s com- law ground limiting the principle of freedom and the Scottish Law Com- mon law and directs South African courts of testation and has been applied since Ro- mission, 19 October 1996, p. 9. to apply and develop the common law when man times.’71 The judge next acknowledged 53 Estate Kemp v McDonald’s Trustee 1915 AD 491 499. invoking a provision of the Constitution’s that public policy in contemporary South 54 1984 (2) SA 850 (A) 859E-F. Bill of Rights62 in regard to any natural or Africa is rooted in the Constitution and the 55 Sackville West v Nourse 1925 juristic person; moreover, it permits courts fundamental values it enshrines, and then AD 516 519-520. 56 Yorkshire Insurance Co Ltd to develop common-law rules to limit the proceeded to show that the limitations in v Barclays Bank (Dominion, application of any right contained in the Bill regard to race, religion and gender con- Colonial & Overseas) 1928 of Rights.63 tained in the disputed will indeed occasioned WLD 199 206-207. The Lex Aquilia (287 B.C.) regulated The Bill of Rights applies to all law in unfair discrimination in the constitutional liability for patrimonial dam- South Africa,64 also to private law and, thus, sense and were, therefore, contrary to public age in Roman law, and was to the law of succession. It is, therefore, un- policy.72 He concluded: received (and subsequently extended) in Roman-Dutch surprising that the Bill of Rights, especially ‘It follows, in my judgment, that this Court is empowered, in law: J. Neethling & J.M. Pot- its directives on equality and anti-discrim- terms of the existing principles of the common law, to order gieter, Law of Delict, Durban: ination,65 has been invoked on a number variation of the trust deed in question by deleting the offend- LexisNexis 2010, p. 8-9. ing provisions from the will.’73 57 1988 (2) SA 105 (A). of occasions during the post-constitutional 58 138B-G. era to challenge testamentary dispositions. 59 149E and 150G. In one such case, Minister of Education v Judge Griesel cautioned that his decision 60 Art. 2. 61 A cursory search of the online 66 Syfrets Trust Ltd, the court chose to decide to order the striking-out of the disputed South African law reports the matter in terms of the common law, but provisions does not bring about the nega- on www.jutalaw.co.za (last with due cognisance of the constitutional tion of freedom of testation but that ‘it accessed on 5 May 2013) re- vealed that, between 1975 and framework within which the South African simply enforces a limitation on the testator’s 1993 (the two decades preced- common law currently operates. freedom of testation that has existed since ing democratic constitution- The Syfrets Trust case concerned a chal- time immemorial.’74 I have argued that this alisation in South Africa), reported judgments contained lenge to a bursary bequest made under a legal-historical contextualisation by judge around 1010 references to charitable trust established in terms of a Griesel places the question of the limitation Johannes Voet and about 116 will and codicil executed in 1920 that limit- of freedom of testation under public-policy references to Hugo de Groot. The corresponding number of ed bursary recipients to university students imperatives in post-constitutional South references to these two lead- ‘of European descent only’ and excluded ex- Africa squarely within the realm of South ing institutional writers from pressly ‘persons of Jewish decent (sic), and Africa’s Romanist-Civilian common law,75 and 1994 to mid-2013 (the two 67 decades following the estab- females of all nationalities.’ The challeng- it thus underscores the continued importance lishment of full constitutional ers averred that the bequest’s exclusive na- of Roman-Dutch law for South African suc- democracy in South Africa) ture amounted to unfair discrimination, and cession law under the Constitution. approximated 472 with regard to Voet and 55 with regard they prayed that the aforementioned limita- to De Groot. This statistic tions imposed by the testator be struck from Contemporary South suggests, at least prima the will. The challengers advanced, among facie, that constitutional African courts’ continued authority supersedes reliance others, the direct application of the Consti- on common-law sources in tution’s equality and anti-discriminatory reliance on the old sources South Africa’s post-apartheid provisions as well as the common law, which constitutional dispensation. of Roman-Dutch law, among 62 The Bill of Rights is contained prohibits testamentary bequests that are in the Constitution’s ch. 2. illegal, immoral or contrary to public policy, others, when addressing 63 Art 8(3). See also art. 173. as grounds for the challenge.68 questions in the law of 64 Art 8(1). 65 Art 9. Judge Griesel chose to decide the matter succession, entrenched, and 66 2006 (4) SA 205 (C). ‘on the basis of the existing principles of 67 Par. 1. the common law, having proper regard to continues to secure, a place 68 Par. 9. 69 Par. 16. “the spirit, purport and objects of the Bill for Roman-Dutch law in 70 Par. 17. of Rights”.’69 The judge acknowledged that modern South African law 71 Par. 23. freedom of testation lies at the heart of the 72 Par. 47. 73 Par. 47. My emphasis added. South African common law of testate succes- 74 Par. 48. sion,70 but he also recognised that freedom 75 F. du Toit, ‘Constitutionalism, of testation has never been absolute or 6 Outlook Public Policy and Discrimina- tory Testamentary Bequests – unfettered – the common law places various It has been said that modern South African A Good Fit Between Common restrictions on this freedom. The restriction law is, arguably, more Roman-Dutch than Law and Civil Law in South pertinent to the matter before the Syfrets modern Dutch law itself.76 This article has Africa’s Mixed Jurisdiction?’, Tulane European and Civil court prescribes that courts will not give ef- shown that contemporary South African Law Forum 2012, p. 124. fect to testamentary directions that are con- courts’ continued reliance on the old sources 76 Du Plessis 1999, p. 48. arsaequi.nl/maandblad  AA20140278 verdieping Ars Aequi april 2014 285

of Roman-Dutch law, among others, when ‘Roman-Dutch law was a “rational, enlightened system of law, addressing questions in the law of succes- motivated by considerations of fairness” which combined “the wisdom of the Roman law jurists with the idealism of the Dutch sion, entrenched, and continues to secure, scholars” … in virtually every aspect o Roman-Dutch law one a place for Roman-Dutch law in modern will find equitable principles and remedies which give concrete 78 South African law. Roman-Dutch law has expression to its underlying concern with justice and fairness.’ also established a place and role for itself in South Africa’s post-apartheid constitu- It is submitted that, in light of this acknowl- tional dispensation where justice, equality edgment by the Constitutional Court on the and fairness have become important values. inherently equitable nature of Roman-Dutch This assertion is illustrated strikingly by the law, South African law, and its law of succes- South African Constitutional Court’s obser- sion in particular, will in future remain true vation in Le Roux v Dey (Freedom of Expres- to its Roman-Dutch legal heritage, and that sion Institute and Restorative Justice Centre this historical connectedness with Civil Law as Amici Curiae)77 where judges Froneman will stand South African law in good stead and Cameron referenced contemporary South as it seeks to meet twenty-first century legal

77 2011 (3) SA 274 (CC). African scholarship on Roman-Dutch law and challenges in the domestic, African and inter- 78 Par. 198. then said: national contexts.