Acta Juridica - Volume 2014, Issue 1, 2014
Volume 2014, Issue 1, 2014
Source: Acta Juridica 2014, pp VII –VIII (2014)More Less
Each year an issue of Acta Juridica is dedicated to a particular theme. In 2011 it was decided by the Acta Juridica Committee that the 2014 issue would be dedicated to the law of succession and trusts, to mark the considerable developments that have occurred in these areas of law. As a precursor to the compilation of this volume, a Succession and Trusts Conference was held at the University of Cape Town in September 2012. Leading South African academics were invited to present papers on their respective areas of research. This volume contains many of the conference papers, as well as further contributions that were elicited as a result of a general call for papers.
Author Gys HofmeyrSource: Acta Juridica 2014, pp 1 –8 (2014)More Less
The view that judges expound the law but do not create law (iudicis est ius dicere non facere), while embodying the broad principle of the division of function between the legislature and the judiciary, no longer holds sway. It is now generally acknowledged that one of the consequences of the judicial process is the creation of new law. The common law in particular frequently embodies principles which, although firmly established, may require extension, limitation or adaptation when applied to particular facts. Nor are norms of conduct or policy considerations static. Great judges, in dealing with these and like situations, have unquestionably contributed to the development of new law. The late Mr Justice Michael McGregor Corbett was such a judge.
Author Karin LehmannSource: Acta Juridica 2014, pp 9 –40 (2014)More Less
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.
Author Mohamed PalekerSource: Acta Juridica 2014, pp 41 –77 (2014)More Less
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.
Section 2(3) of the Wills Act 7 of 1953 : a retrospective and critical appraisal of some unresolved issuesSource: Acta Juridica 2014, pp 78 –103 (2014)More Less
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.
Author J. JamneckSource: Acta Juridica 2014, pp 104 –122 (2014)More Less
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.
Source: Acta Juridica 2014, pp 123 –131 (2014)More Less
The application of vague public policy principles to the question of disqualification from benefits in the South African law of succession is becoming the norm in our courts. Little or no regard is being given to the traditional overarching Roman-Dutch principle that 'no person may benefit from his or her own wrongdoing or benefit from what is punishable.' In this article we argue that the oversight stems from a misinterpretation of the seminal case of Taylor v Pim. It is not suggested that the application of public policy considerations to cases of disqualification has led to unjust or prejudicial outcomes, but rather that these outcomes could just as easily have been reached if the courts had given true regard to the applicable Roman-Dutch law principles, which were consistently applied by the courts in the 18th and 19th centuries. It is submitted that to subscribe once again to the Roman-Dutch law will remove the possible vagueness introduced by public policy considerations and will avoid startling outcomes in the future.
A few comments on the (possible) revival of the customary law rule of male primogeniture : can the common-law principle of freedom of testation come to its rescue?Author Christa RautenbachSource: Acta Juridica 2014, pp 132 –159 (2014)More Less
The customary law rule of male primogeniture has been declared unconstitutional and invalid, and legal sources of the common law of succession have been tailored to provide for the devolution of estates which were formerly regulated by the customary law of succession. Two questions are addressed in this contribution. Firstly, has the legal development over the last few years left us with a unified system of succession or do we still have parallel systems of succession laws which necessitate the application of choice of law rules to determine which system is relevant where a testator was subject to customary law during his lifetime? The evidence seems to suggest that the law of succession remains, at least in theory, a combined system which will require a choice at some time or other, especially when the applicable legal rules must be determined. When one has to deal with public policy issues, the interaction between the common and customary law of succession brings us to the second question, viz. the scope and application of freedom of testation in customary law and, more particularly, the question whether or not a testator living under a system of customary law can revive the rule of male primogeniture by exercising his or her right to freedom of testation. A cursory perusal into this issue reveals that the law as it stands is anything but clear. The application of common-law principles in the customary law of succession and vice versa leads to interesting results and anomalies which will challenge future approaches to the law of succession in general and the customary law of succession in particular.
Faskh (divorce) and intestate succession in Islamic and South African law : impact of the watershed judgment in Hassam v Jacobs and the Muslim Marriages BillAuthor Najma MoosaSource: Acta Juridica 2014, pp 160 –191 (2014)More Less
This article deals with intestate succession against the background of the complex Islamic legal aspects of faskh and talaq as forms of divorce. It elaborates on the divergent views held by Islamic scholars and explains the foundational principles of Islamic law. The article offers a new perspective on the ground-breaking case of Hassam v Jacobs and sheds light on its surrounding circumstances and factual background in order to indicate that the Cape High Court may have unnecessarily pronounced on the recognition of polygynous Muslim marriages, an issue which in fact may not have been before the court. The article also examines how the Islamic law of divorce is practically administered by Islamic organisations within Cape Town. Practical recommendations are offered for dealing with the complexities of recognising and administering aspects of Islamic law in secular courts and the interaction with Islamic bodies administering Muslim personal law.
The viability for women's rights of incorporating Islamic inheritance laws into the South African legal systemAuthor Waheeda AmienSource: Acta Juridica 2014, pp 192 –218 (2014)More Less
The call by certain sections of the South African Muslim community for the recognition of Muslim Personal Law in South Africa is a call to recognise Islamic-based private laws that include Muslim family law and Islamic inheritance laws. The proposed Muslim Marriages Bill deals only with Islamic-based family laws of marriage, divorce, guardianship and custody of and access to minor children. This paper interrogates the viability for women's rights of also recognising Islamic inheritance laws within the South African legal framework. It is argued that such recognition will impact negatively on the rights of women as well as adopted children and children born out of wedlock to Muslim parties. Currently, these marginalised groups have sufficient protection within the secular intestate succession laws of South Africa. For those parties who wish to assert their Islamic inheritance rights, they can avail themselves of the option of leaving a will. It is therefore proposed that the status quo should not be changed by affording separate recognition to Islamic inheritance laws.
Author M.J. De WaalSource: Acta Juridica 2014, pp 219 –242 (2014)More Less
Against the background of growing interest in the introduction of the trust (in either a general or a more restricted format) in continental Europe, it is evident that the trust as envisaged in Book X of the European Draft Common Frame of Reference (DCFR) constitutes yet a further model or template for a general continental European trust institution. The DCFR trust is of interest to South African lawyers for at least three reasons. First, it would be interesting to compare the South African trust with the DCFR model and to establish in which respects these two 'civilian incarnations' of the trust show differences and/or similarities. Secondly, comparative research has proven itself of great value in the trust context and the DCFR trust now provides a further model to which South African lawyers can look for possible solutions to trust problems. Thirdly, as will become apparent in this contribution, English common-law thinking has had a significant influence on the architecture of the DCFR trust. This in itself raises several important questions, specifically regarding the operation of the DCFR trust in a civilian environment that shows some parallels to South African law. The analysis in this contribution will show that, although the DCFR trust does exhibit a number of crucial 'English' characteristics, it is certainly not a replica of the English trust model. However, it is argued - with reference to the experience of mixed jurisdictions such as Scotland and South Africa - that the importance of the theoretical nature of a particular trust model should not be over-emphasised. The focus should rather be on whether a particular trust device functions properly in all its different dimensions, among them the central issues of trust creation, trust administration and the sufficient protection of trust beneficiaries.
Author Theunis ClaassenSource: Acta Juridica 2014, pp 243 –267 (2014)More Less
The variation of inter vivos trusts has for a long time been regarded as settled law. Once the beneficiaries have accepted the benefits as conferred, the trustees would only be able to amend the trust deed with the consent of the beneficiaries. The recent case of Potgieter and Another v Potgieter NO and Others 2012 (1) SA637 (SCA) has caused some discussion on whether this rule should also be applied to the situation where a trustee is given express variation powers by the trust deed. The author starts out with a consideration of the legal character of an inter vivos trust, after which follows a brief discussion on the traditional requirements for variation of such a trust. The author then considers the continued validity of these rules given the Potgieter case and recent academic views thereon. In this regard particular emphasis is placed on the impact of express variation powers as provided for in the trust deed and the nature of the benefits being accepted. Lastly the role of the trustee's fiduciary duties and the possible impact thereof on the validity of a variation are considered. The author concludes that Potgieter leaves the existing legal position regarding the variation of inter vivos trusts unchanged, but that regard should be had to the nature of the benefit being accepted, as the mere acceptance of a spes would not entitle the beneficiary to protection against variation.
Author Latiefa AlbertusSource: Acta Juridica 2014, pp 268 –292 (2014)More Less
This article compares the South African trust and the waqf. The article will firstly involve a concise analysis of the theories on the possible predecessors of the use while providing a historical contextualisation of the use and the trust. Secondly, a comparison will be made between the South African trust on the one hand, and the waqf on the other hand, the latter being one of the theories advanced as a possible source of the use. This comparison, it is hoped, will pave the way for further comparative research regarding the waqf as a means of advancing the development of South African trust law.