Public equality and private sexism?

Is a person making a will entitled to be sexist?

That question recently came before the Cape High Court, and the outcome may be surprising.

Well over a century ago, a wealthy couple executed a will. In it, they distributed their numerous farms and other properties between their four sons and two daughters, subject to a fideicommissum. A fideicommissum is a provision that an heir must transfer an inherited property to a specific other person on their own death. On each son or daughter’s death, shares in the properties would go to that son or daughter’s own sons, and thereafter those grandsons’ sons. If there were no sons, then brothers or nephews might inherit.

One of the couple’s children, Cornelius, inherited certain properties from his parents in terms of the fideicommissum. He died in 1957, leaving behind three sons and six daughters. The properties he had inherited were passed on to his three sons (the grandsons) in equal shares, to the exclusion of his six daughters.

When the first grandson died, he left no children, and his shares in the properties went to his brothers in terms of the will. When the second grandson died, his shares went to his sons (the great grandsons). The third grandson had five daughters and no sons. He and the great grandsons, his nephews, treated the properties on the basis that they would ultimately belong to the great grandsons in terms of the will. A year before his death, however, he was advised that the fideicommissum may be unconstitutional, and he made a will leaving his shares in the properties to his five daughters instead.

An executor was called upon to wind up his estate, and was faced with the third grandson’s will leaving his estate to his daughters on the one hand, and the original will which excluded his daughters from inheriting the properties on the other hand, along with a claim to the properties from the great grandsons.

The daughters and executor took the view that the terms of the fideicommissum were unfairly discriminatory on the basis of sex, and should be set aside as being against public policy and unconstitutional. They approached the court for direction, asking the court to remove the discrimination against female descendants from the original will, to enable the daughters to inherit their late father’s properties.┬áThe Master of the court accepted the third grandson’s will in favour of his daughters, and abided the decision of the court on the validity of the fideicommissum. The great grandsons opposed the application.

The court considered wills creating charitable and educational trusts which had discriminated against Jews, women and those not “of European descent”. These had been varied by the courts to remove the unfair discrimination. In at least one case, the discrimination on the basis of race had not been deemed unfair, and an application to vary terms had been refused.

The court drew a distinction between wills having a public character (providing for ongoing bursaries, for example) and those which were strictly private in nature. In the latter cases, the freedom of testation of the person making the will should be respected, the court reasoned, even if the wishes expressed were unreasonable. No potential heir enjoys the right to an inheritance, and the maker of a will is free to disinherit whomever they please.

In the present case, the parties were in agreement that there was unfair gender discrimination in the fideicommissum. The argument centred around the appropriate limits on freedom of testation – and whether the maker of a will was required to refrain from unfair discrimination.

The court considered which was the lesser of two evils – unfair discrimination against a small group of potential female heirs (as the discrimination against an earlier generation of potential female heirs, and their female heirs in turn, was past and irrevocable, and this substitution was the final one in terms of the will), or incursion upon a testator’s freedom to arrange their estate as they chose. The court decided that, even if the fideicommissum perpetrated unfair discrimination against the daughters, this was a reasonable and justifiable limitation upon their right to equality. The freedom of testation had primacy in the private sphere. The application to remove the discrimination from the will, accordingly failed, and the great grandsons inherited the properties in place of the daughters.

In sum, this judgment means that the maker of a will is indeed entitled to be sexist, as regards their family members – but in general not as regards public beneficiaries of charities or educational bursaries set up through their will.

One wonders whether the result would be the same if the maker of a will disinherited descendants of a specific race or religion instead of a specific gender.



Cape High Court upholds rights of trans people and their spouses

The Alteration of Sex Description and Sex Status Act was signed into law in 2004. It was a groundbreaking piece of legislation, intended to enable transgender and intersex people to correct their official birth certificates and identity books or cards, by updating the gender assigned to them at birth, to their accurate gender identity.

While the law represented progress, it has been subject to criticism – and not only from those who believe that gender is biologically determined, with exclusive reference to one’s genitals visible at birth.

Reliable local statistics are hard to find, but with estimates that about 1,7% of a population are likely to be intersex, and about 0,5% transgender, a full 2,2% of the South Africa population (or 1,2 million people) might benefit from the Act’s provisions. In the 10 years following the enactment of the law, however, only 95 people were able successfully to access its provisions. Something has clearly gone wrong.

The Department’s inconsistent and unfair implementation of the Act came before the Cape Town High Court late last year. A number of happily married, trans individuals had applied for correction of their gender on their official identity documents. The applicants had all been married in accordance with the Marriage Act, to spouses of the opposite sex. The correction of records would have the result that they were in same sex marriages going forward. The Department refused to assist two of the applicants unless they divorced their spouses – and a third was assisted but had their marriage deleted from the official records and their married name dispensed with, without their consent.

The cases came before court, with orders sought (1) compelling the Department to assist applicants in terms of the Act regardless of their marital status, and in the alternative (2) declaring the statutory framework constitutionally invalid to the extent that it disallowed the correction of the recorded gender of a married person.

The Court considered the statutory framework, and noted that the Marriage Act dealt primarily with the solemnisation of a marriage – that is, who was authorised to act as a marriage officer, and what formula should be followed to conclude a marriage. Nothing in the Act prohibited a spouse in a marriage from later altering their recorded gender. The Civil Unions Act provided a parallel system for the solemnisation of same sex marriages. Once solemnised, the distinction ended and there was only one institution of marriage (reached by different routes).

Thus, the Court found, an alteration of gender records was in no way irreconciliable with the continuation of a marriage solemnised under either law.

The Court thus ruled that the Department, in its treatment of the applicants, had infringed their constitutional rights and failed in its legal obligations. Marital status and whether a marriage was solemnised under the Marriage Act or Civil Unions Act, was entirely irrelevant. The Department was directed to process the alteration applications of the first two applicants, and restore in its records the marriage of the third applicant, within 30 days.