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    • PER: 2022 Volume 25
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    • PER: Potchefstroom Electronic Law Journal
    • PER: 2022 Volume 25
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    King v De Jager : Implications for Religion Based Discrimination in Wills

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    Date
    2022
    Author
    Osman, Fatima
    Effendi, Gökşen
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    Abstract
    In King v De Jager 2021 5 BCLR 449 (CC), the Constitutional Court held that a clause in a private will that unfairly discriminated against beneficiaries based on gender was unlawful and unenforceable. This note considers the implications of the judgment for religion-based discrimination in wills, and in particular wills that incorporate the gender-discriminatory Islamic system of inheritance. After explaining the Constitutional Court judgment, the note argues that the Court was well within its powers to consider the enforceability of discrimination in the private sphere. More importantly, we argue that the case rings a bell of caution regarding gender-discriminatory provisions in private wills. Gender-based discrimination in Islamic inheritance law perpetuates disadvantage against a historically disadvantaged group, and the courts and legislature have been emphatic in their stance against gender discrimination in inheritance. The note thus argues that a testator's religious beliefs are not enough to tip the scales and render gender discrimination justifiable. We urge individuals who want to dispose of their assets following their religious beliefs to seek estate planning advice, cognisant of the potential impact of King v De Jager CC.
    URI
    http://hdl.handle.net/10394/39765
    http://dx.doi.org/10.17159/1727-3781/2022/v25i0a11989
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    • PER: 2022 Volume 25 [68]

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