Ostrich town's sexist legacy ruffles feathers
Sisters put faith in constitution but lose out to male relatives
In the ultimate battle of the sexes, the descendants of a founding father of the "ostrich capital of the world" are scratching at each other over his will, which leaves his riches only to male offspring in perpetuity.
On one side of the Oudtshoorn legal battle playing out in the High Court in Cape Town are Carel and Catherina de Jager's great-granddaughters; on the other, their sons and male cousins.
Trudene Forword and her four sisters are challenging the wording of the 115-year-old will, which discriminates against female descendants. Their sons claim they are "male descendants of Kalvyn de Jager" and stand to benefit. But Forword's cousin, Cornelius de Jager, and his three brothers disagree.
Harry Joffe, the head of legal services at Discovery Life, described the case as "a classic clash between the constitution and the right to freedom of testation".
He said courts could strike out blatantly racist and sexist clauses, "but this one is a little more tricky because the will is not overtly sexist. It involved farms, and maybe, for example, the testator felt the male heirs would be able to farm and not the female ones - remember, this will was from the early 1900s. This case is on the borderline and that is why it is difficult for the court.
"It's a debate that keeps coming up: whether you've got the right to do what you want in a will. But on the other hand, you can't offend the constitution. It's a question of when you cross the line," he said.
People were advised not to put "clauses like this in their wills; it only leads to litigation, and it is really not acceptable in 2017".
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. Their daughters, Johanna and Georgina, also benefited, but a clause ensured the property returned to the De Jager family when they died.De Jager's grandson Kalvyn had five daughters: Forword, Kalene Roux, Annelie Jordaan, Elna Slabber and Surina Serfontein. Kalvyn's brother, Johan, had three sons; Cornelius, Johannes and Arnoldus de Jager. As the will stands, the male cousins stand to inherit Kalvyn's portion - "a half share in three portions of farm properties in the Oudtshoorn district" - following his death in 2015.
The sisters' lawyer, James King, said in court papers: "The court is requested to amend the discriminatory provisions [in the will], both in terms of the common law and by a direct application of the constitution.
"The effect of discriminatory provisions also has serious consequences for the daughters because they are disinherited, thereby denied the opportunity to own the ... property. [The cousins] have already inherited a share of the property after the death of their father." Johan died in 2005.
Cornelius hit back. "Seeing that Kalvyn de Jager [a grandson of the testator] died without sons, his share should thus go to his deceased brother Johan's sons and their sons and grandsons," he said in court papers.
"We deny that the grounds for the daughters' and great-grandsons' various claims are legitimate. 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."
Judge Lee Bozalek dismissed the application last month. "Although the [cousins] have been successful in their opposition, [Forword and her sisters' case] was by no means frivolous or obviously without merit.
"At its heart, moreover, lay a constitutional challenge in the field of private testamentary dispositions based on the right to equality, in which field, since the adoption of the constitution, there has been little or no litigation directly on point," the judge ruled.
Forword declined to comment this week and referred questions to King, who said the battle was not over. "We will ask leave to appeal very soon." He declined to say whether the ligation had strained family relations.
Cornelius's lawyer, Johannes Harmse, said he didn't know the family personally but "would think [it] would put a strain on the relationship, but I actually don't know".
What the 1902 will saysWith respect to the bequest of grounds/land to their sons and daughters . . . it is the will and desire of the [testators] that such grounds/land will devolve, following the death of their children, to said children’s sons and following the death of the said grandsons again and in turn to their sons, in such a way that, in the case of the death of any son or son’s son who does not leave a male descendant, his share/portion will fall away on the same conditions as above and therefore passes to his brothers or their sons