The modus in modern South African succession law

by | Sep 25, 2019 | ACTA, ACTA 2014

The modus in modern South African succession law

Authors J Jamneck

ISSN: 1996-2088
Affiliations: Professor in the Department of Private Law, Unisa
Source: Acta Juridica, 2014, p. 104 – 122

Abstract

A modus is defined as a qualification or obligation added to a gift or testamentary disposition whereby the person benefited is required to devote the property he receives, or the value thereof, in whole or in part to a specific purpose. Writers and commentators seem to have neglected research of the concept as the last in-depth discussion of the modus was published in 1968. As a result of a lack of discussion on the topic, the enforceability of the modus caused many problems and led to various opinions on its enforceability, especially where the modus for an impersonal purpose is concerned. Traditionally this type of modus was seen as being practically impossible to enforce and the term ‘unenforceable’ came to be generally used whenever there is no-one available to see to the enforcement of the modus. In modern South African law, with the revival of class actions and an action akin to the actio popularis, this position has changed. The conclusion to be made is that there is definitely an enforceable modus under modern law which did not previously exist, namely the modus for an impersonal purpose involving constitutional rights. The Supreme Court of Appeal has also recognised enforcement of rights other than constitutional rights by means of class actions and the Constitutional Court has even broadened the scope of application of these actions to include any action in the interests of justice. A modus for an impersonal purpose is therefore capable of being enforced by any member of a group if such enforcement would be in the interests of justice. On the other hand, it may still be impossible to enforce a modus which may only affect the beneficiary or no-one at all if not fulfilled.

Section 2(3) of the Wills Act 7 of 1953: a retrospective and critical appraisal of some unresolved issues

by | Sep 25, 2019 | ACTA, ACTA 2014

Section 2(3) of the Wills Act 7 of 1953: a retrospective and critical appraisal of some unresolved issues

Authors Linda Schoeman-Malan, François du Toit, Anton van der Linda, James Faber

ISSN: 1996-2088
Affiliations: Professor of Law, University of Pretoria; Professor of Law, University of the Western Cape; Professor of Law, University of Pretoria; Lecturer in Law, University of the Free State
Source: Acta Juridica, 2014, p. 78 – 103

Abstract

This article traces the history of s 2(3) of the Wills Act 7 of 1953 — the Act’s so-called ‘condonation provision’. It examines the reasons for the legislature’s introduction of a rescue provision in regard to formally irregular wills and amendments of wills, and surveys the manner in which South African courts have engaged with testamentary condonation to date. The article pays particular attention to three matters regarding s 2(3) that still pose challenges to courts in their engagement with testamentary rescue: the precise ambit of the condonation provision’s document requirement; some difficulties associated with the subsection’s intention requirement; and the question whether the subsection demands substantial compliance with execution and/or amendment formalities before condonation can occur. The authors submit that these unresolved matters require further legislative attention.

A grandchild’s claim to maintenance from a deceased grandparent’s estate

by | Sep 25, 2019 | ACTA, ACTA 2014

A grandchild’s claim to maintenance from a deceased grandparent’s estate

Authors Daniel Mackintosh, Mohamed Paleker

ISSN: 1996-2088
Affiliations: Associate Professor, Department of Private Law, UCT; Attorney of the High Court of South Africa
Source: Acta Juridica, 2014, p. 41 – 77

Abstract

The right of children to claim maintenance from deceased parents’ estates is well-established in South African law. Whether grandchildren can claim similar rights from deceased grandparents’ estates is unsettled: the courts have not overwhelmingly rejected such claims, nor have they strongly endorsed them. It would appear that the law is in a state of flux. This paper explores the evolution of maintenance claims against deceased estates so as to better understand the ambivalence towards maintenance claims of grandchildren against deceased grandparents’ estates. The paper contextualises the need for the recognition of such claims within the prevailing socio-economic climate in South Africa and contemporary constitutional rights and remedies. At the end, the paper discusses international trends, which recognise such claims to counter-balance freedom of testation.

Testamentary freedom versus testamentary duty: in search of a better balance

by | Sep 25, 2019 | ACTA, ACTA 2014

Testamentary freedom versus testamentary duty: in search of a better balance

Authors Karin Lehmann

ISSN: 1996-2088
Affiliations: Senior Lecturer, Faculty of Law, University of Cape Town
Source: Acta Juridica, 2014, p. 9 – 40

Abstract

This article has three objectives. The first is to demonstrate how restricted freedom of testation is in South Africa. The second is to provide a brief historical account of changing attitudes to freedom of testation in Roman, Roman-Dutch and English law, both in order to explain, and to serve as a counterpoint to, modern South African law. The third objective is to show that despite perceptions to the contrary, freedom of testation is in some senses arguably more restricted in South Africa than it is in our sister jurisdictions. These objectives have a common purpose. That purpose is to remind readers of the values that underpin freedom of testation and of the fact that it is difficult to design restrictions that promote the public interest in the ways intended, without also giving rise to unintended and undesirable consequences. The article sounds the caution that the existing and proposed restrictions may not be as reasonable, in an open and democratic society based on respect for human dignity, freedom and equality, as they first appear to be.

On the limits of cultural accommodation: KwaZulu-Natal MEC for Education v Pillay

by | Sep 25, 2019 | ACTA, ACTA 2015

On the limits of cultural accommodation: KwaZulu-Natal MEC for Education v Pillay

Authors Okyerebea Ampofo-Anti, Michael Bishop

ISSN: 1996-2088
Affiliations: Partner, Webber Wentzel; Attorney of the High Court of South Africa; Counsel, Constitutional Litigation Unit, Legal Resources Centre; Honorary Research Associate, University of Cape Town; Member of the Cape Bar
Source: Acta Juridica, 2015, p. 456 – 494

Abstract

In KwaZulu-Natal MEC for Education v Pillay, Chief Justice Langa held that it constituted unfair discrimination for a public school to prevent a learner from wearing a nose stud to school, because wearing the stud was a voluntary part of the learner’s religion and, more importantly, her culture. In this contribution we consider the limits of this type of cultural accommodation after Pillay by focusing on two questions: What types of beliefs and practices are "cultural"? And how should courts determine the burdens other must bear to accommodate cultural practices? First, we offer preliminary answers to three central questions that Pillay left unanswered: What is a culture? Who qualifies as a member of a culture? How do we determine which practices are part of a culture? Second, we discuss the role and meaning of "reasonable accommodation" and argue that Pillay mistakenly framed it as a balancing test between the interests of the learner and the school. In doing so, it obscured other important factors that should be considered.