Die grondwetlikheid van geloofsklousules in testamente

Abstract

Freedom of testation is recognised as one of the founding principles of the South African law of estate succession. According to this principle, testators are free to dispose of their assets in a will in any manner they deem fit. Effect will not be given to testamentary provisions if compliance with such provisions are contra bonos mores or against public policy. Certain limitations in freedom of testation in selected common law and civil law legal systems exist. Since the enactment and commencement of the Constitution of the Republic of South Africa 1996, it became important to determine whether the Constitution and particularly the Bill of Rights constitute any additional limitations on freedom of testation. This study investigates this question with particular reference to the so-called testamentary faith and race clauses. The pre-1996 position is discussed in chapter 2 of this study. The case of Aronson v Estate Hart 1950 1 SA 539 (A) is the locus classicus as for testamentary faith and race clauses. The conclusion in this case was that testamentary faith and race clauses before the commencement of the Constitution were not contrary to public policy and consequently not invalid. In chapter 3 of this study, the position after the post-1996 position is discussed. The Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled. The question passed is whether or not the provisions of the Constitution amend the current legal position regarding testamentaly faith and race clauses, even though the Constitution is the supreme law of the Republic? Attention is drawn to the enforcement of the Constitution and relevant provisions of the Constitution. This study, inter alia, investigated the right to equality, the right to freedom of conscience, religion thought, belief and opinion, the right to human dignity and the general limitation clause. In the light of the purpose and aim of testamentary faith and race clauses, it seems likely that the right to human dignity, equality and religion as espoused in the Constitution, may be violated. Following the enactment of the Constitution, a testamentary faith and race clause may be contra bonos mores and accordingly invalid. Chapter 4 of this study recommends that a testator who wants to favour his religion should utilise other methods than testamentary faith and race clauses to favour his or her religion. For example, to place certain assets in a trust for his beneficiaries. This may ensure the protection of the rights of all people including the beneficiary.