Die afdwinging van 'n modus vir 'n onpersoonlike doel
Abstract
Although a testator or donor may burden a bequest or donation subject to a
modus (or purpose) which does not have a direct beneficiary or object, it was
not possible to enforce the modus in the South African law. An example of such
modus is where the testator bequeaths his farm to his son, subject to the duty to
develop a hiking trail for the general public on the farm. The fact that such modi
are unenforceable negatively influenced the value thereof as an estate-planning
tool. The purpose of this dissertation is to find a means to enforce such modi in
the private law.
To meet the purpose the juristic nature of the modus and the history of the
actiones populares (the actions through which a modus with an indirect purpose
was enforced in the Roman Law), are considered. Thereafter the effect of
section 38 of the Constitution, 1996 and the use of class actions and public
interest actions to enforce modi with an indirect purpose, where constitutional
issues are at stake, are discussed. Reference is also made to the use of class
actions and public interest actions in the United States of America, India and
Europe.
The role of the South African courts to allow class actions and public interest
actions as causes of action are then discussed and attention is drawn to the
judgements in the two Ngxuza-decisions, where the High Court and Supreme
Court of Appeal confirmed the use of class actions. Finally, the extension of
class actions and public interest actions to the private law sphere is proposed in
view of the Constitutional Court's judgement in the Carmichele-case and recent
decisions of other courts.
The dissertation concludes that it should be possible in the South African law to
enforce a modus with an indirect purpose and that such modi should be available
to estate planners as an estate-planning tool.
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- Law [834]