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.