Crossing the public/private sphere divide - limiting freedom of testation in the private sphere – King v De Jager 2021 4 SA 1 (CC)

Abstract

A fundamental principle of the law of testate succession is freedom of testation, which is indirectly protected in section 25(1) of the Constitution of the Republic of South Africa, 1996 (hereafter the Constitution). However, freedom of testation is not absolute and is subjected to common law, statutory law and constitutional law limitations. In the past, courts were not hesitant to limit the freedom of testation based on public policy concerns if the contested clause was present in a testamentary instrument in the public sphere. These statutory limitations include but are not limited to, sections 9 and 36 of the Constitution. Since private testamentary instruments do not affect the general public, courts have been reluctant to interfere with them until recently. The issue arises when constitutional rights and the testator's final wishes are imbalanced in the private or public sphere. The main issue that is addressed is the circumstances under which a court may limit a testator's freedom of testation whereby there are possible discriminatory provisions in a testamentary instrument within the private sphere. The study elaborates on the importance of freedom of testation and the limitations thereof concerning the common law, legislation, and the Constitution. Furthermore, applicable judgments delivered since the enactment of the Constitution are discussed. The study further examines the Constitutional Court cases of King v De Jager [2021] ZACC 4 (19 February 2021) and Wilkinson v Crawford [2021] ZACC 8 (16 April 2021) where "discriminatory" provisions limited freedom of testation in the private sphere.