In February 2025 the high court did not have any difficulty in drawing the controversial line between a testator’s freedom to decide on how their assets are to be distributed after death and the constitutional values which infuse all South African law or conduct. The court declared a provision in a will leaving money to a far right, supremist group void.
In his lifetime the deceased, diagnosed with borderline personality disorder and on medication, became obsessed with the idea of an impending genocide of white people in South Africa. He sought to leave his estate to the far right supremacist group. The group Boerelegioen, styled itself as a civil defence movement that enables citizens to resist the promised slaughter of whites in RSA as well as the theft of their property.
The court found that the fundamental purpose of the Boerelegioen was allegedly to undo, through unlawful means, the prescripts of the Constitution of the RSA. The Boerelegioen, an admitted white supremacist organisation, had, as its core objective, activities such as the training of paramilitary and vigilante groups, in violation of the law. There were three possible entities using the name Boerelegioen to which the money could have been bequeathed. It was held that the bequest was vague concerning the entity which was the intended beneficiary. Additionally, the will did not specify the portion that the Boerelegioen was meant to use for the activities of training camps.
The activities of Boerelegioen would be unlawful both under the Private Security Industry Regulation Act of 2001 and under the Constitution.
In the constitutional era, public policies are rooted in the Constitution and the values it enshrines. In a previous decision, the constitutional imperative to remove racially restrictive clauses in conflict with public policy from the conditions of an education trust were held to take precedence over freedom of testation. The common law provides for a declaration of unenforceability where a provision in a will is contrary to public policy as in this case. The court declared the bequest in the will void for vagueness and contrary to public policy. The assets of the estate will be devolved by intestate succession.
Not every bequest that discriminates between parties will be set aside. The discrimination must be unfair. Provisions such as in this case, which are manifestly contrary to the values of the Constitution preserving human rights and freedoms, will not be upheld by a court.