Freedom of testation in relation to discriminatory gender and religious exclusive charitable trusts

Abstract

Public policy has been described as one of the founding pillars of common law, playing an influential and sometimes a deciding role in the application of any area of law, be it public or private. It is therefore not surprising that even the law of testate succession and testamentary charitable bequests finds itself ever so affected by the role of public policy and its continued evolving nature. Central to the development of public policy is the influence of the Constitution and human rights instruments in democratic societies such as South Africa, calling for it to be in line with notions of equality and human dignity. Thus even common law concepts of freedom of testation although having a constitutional guarantee under section 25 of the Constitution, must respect and uphold the equality clause and avoid unfair discrimination in the public sphere. This dissertation investigates how freedom of testation in relation to testamentary trusts has been dealt before and after the advent of the Constitution. It examines how discriminatory provisions with restrictions based on gender and religion affect public policy considerations in the post constitutional dispensation. It also considers how notions of public policy in Common Law and Roman-Dutch Law were somewhat lenient in giving effect to trusts which were discriminatory in order to achieve the public benefit which it was created for. It also considers how constitutionalism and public policy are applied in other international jurisdictions and finally evaluate the problem with discriminatory charitable bequests and recommend a way forward when dealing with public benefit trusts.