The Anglo-Boer War had been over for just six months when Carel and Catherine de Jager sat down on a hot November day to sign their will.
Now the guns had fallen silent, their hometown of Oudtshoorn, in the Klein Karoo, was in the early stages of a new ostrich feather boom. It must have seemed like a good time to ensure their descendants were guaranteed a share of their rapidly accumulating farmland.
Probably the last thing on their minds was ubuntu, a word and a philosophy which didn’t really catch on for another 50 years.
And fresh from a war that marked a new start for SA in the British Empire, the De Jagers had no way of knowing what would happen in 1994. They could not have imagined the adoption of the constitution or the signing into law, in the first year of the 21st century, of the Promotion of Equality and Prevention of Unfair Discrimination Act.
But 119 years after they put pen to paper, all these factors have combined to overturn a key provision of their will that prevented female descendants inheriting their land.
The upshot of a Constitutional Court judgment last week is that the De Jagers’ five great-granddaughters — originally excluded from inheriting the De Jagers’ land because they are women — are now the half-owners of a string of farms that three male cousins must share with them.
Apart from the 1902 will, the case has its genesis in the 2015 death of Kalvyn de Jager, one of three grandsons who had benefited from the original will.
Kalvyn’s daughters decided to challenge the will’s patriarchal stipulation that only male De Jagers could inherit the land.
After being defeated in the Cape Town high court and the Supreme Court of Appeal, they took their argument to the ConCourt in February 2020, and just over a year later the judgment has gone their way.
The nine justices who grappled with the case all agreed the sisters’ case deserved to succeed, but they were split 5-4 on the reasons why.
Acting justice Margie Victor added her own concurring judgment in which she took aim at “patrimonial capitalism through inheritance”, which she said sustains unequal wealth distribution.
“The importance the law has accorded to freedom of testation in the past is precisely what sustains the unearned privileges in society such as male privilege,” said Victor, who in 1996 was the first woman elected to the Johannesburg Bar Council.
“By maintaining systems of privilege, it simultaneously traps vulnerable groups such as women in a cycle of poverty and entrenches systemic disadvantage.”
Ubuntu — “the idea that a society based on human dignity must take care of its most vulnerable members and leave no-one behind” — had been affirmed as a principle in SA law which should “inform all forms of adjudication”, said Victor.
“In the context of freedom of testation, ubuntu means that the constitution places a high premium on establishing a compassionate society which does not discard the humanity of any of its members.
“As such, the right to dispose of one’s property upon one’s death must be balanced against the discriminatory effect it may have, by precluding members of society from an adequate share in the wealth and resources of the nation.
“Considerations of ubuntu imply that the narrow-minded and self-indulgent understanding of freedom of testation should be tempered by considerations of social justice and equity.
“In this context ubuntu means nothing more than the adage that ‘none of us are free until all of us are free’ when dealing with freedom of testation within the context of gender equality.
“The rights to privacy and property should not be used as a smokescreen to shield structural inequality from constitutional scrutiny.”
The De Jagers owned the farms Stolsvlakte, Welgevonden, Wildehondekloof, Vogelfontein, Vinknestrivier and Buffelskraal as well as other properties. They bequeathed their wealth to their four sons, one of whom had three sons, Kalvyn, Corrie and Johan.
Kalvyn’s five daughters, now all married with their own children, are Trudene Forword, Kalene Roux, Annelie Jordaan, Elna Slabber and Surina Serfontein. The court case pitted them against Cornelius, Johannes and Arnoldus de Jager, the three sons of Johan, who died in 2005. Corrie was childless.
In court papers, Cornelius said even though Kalvyn’s will shared all his property equally between his daughters, it should be carved up in terms of the 1902 will. He admitted this amounted to unfair discrimination.
“Seeing that ... he died without sons, his share should thus go to his deceased brother Johan’s sons and their sons and grandsons,” he said.
“We have been advised that the common law under influence of the constitution ... did not develop to limit the testators’ testimonial freedom in a case like this where the fideicommissary heirs of certain assets were appointed based on their gender.”
Justice Chris Jafta, who wrote the main ConCourt judgment, said “even before the constitution came into force, unlawful terms of a will or trust deed were unenforceable on the ground that it was contrary to public policy for a court to enforce unlawful acts”.
He added: “This was a principle of the common law which remains good law even today. But now the principle is reinforced by the constitution, which declares that any law or conduct which is inconsistent with it, is invalid.
“A court may not enforce a will or trust deed which is inconsistent with the constitution. Instead, such will or trust deed must be declared invalid to the extent of its inconsistency with the constitution.”
Jafta said the Equality Act bolstered the sisters’ case. “Discrimination which is based on one of the prohibited grounds under the act is presumed unfair unless the respondent shows that it is fair. Gender is one of the prohibited grounds,” he said.
The outcome of the case was “just and equitable” because the three male cousins had already received the other half of the property from their father.
“It would be unjust for them to be entitled to the half that was held by the applicants’ father, over and above what they had already obtained,” said Jafta.
