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10.18.2010

Constitutional Restrictions on the Freedom of Testation in South Africa

The Supreme Court of Appeal in South Africa in The Curators Ad Litem To Certain Potential Beneficiaries of the Emma Smith Educational Fund v The University of Kwa Zulu Natal [2010] ZASCA 136 (1st October 2010) dismissed an appeal against a judgment that set aside a racially restrictive clause limiting the beneficiaries of the Emma Smith Educational Fund to white women. The fund was established by a bequest to the then-Natal University College in the will of Sir Charles George Smith, an industrialist and politician who died in 1941. The trust was for the higher education of ‘European girls born of British South African or Dutch South African parents’, resident in Durban for at least three years. The university applied to the High Court to have the racially restrictive clause removed and the residential qualification of ‘Durban’ amended to ‘Ethekwini Municipality’. With respect to racially restrictive clause the University contended that it is contrary gto public policy and is in conflict with public interest. The curators ad litem for the fund appealed to the SCA, but the panel of five judges unanimously held that there was a constitutional imperative to remove racially restrictive clauses in conflict with public policy but denied the change of name from ‘Durban’ to ‘Ethekwini Municipality’. With respect to the racially restrictive clause, the SCA noted that since the Bill of Rights applies to all law including the law relating to charitable trusts there can be no question that in the public sphere a racially discriminatory testamentary disposition cannot pass constitutional muster. The Court accordingly held that the constitutional imperative to remove racially restrictive clauses that conflict with public policy from the conditions of an educational trust intended to benefit prospective students in need, administered by a publicly funded educational institution such as a university takes precedence over freedom of testation particularly given the fundamental values of the SA Constitution. The Curators had argued that amending the trust will breach the freedom of testation and have a chilling effect upon future private educational bequests. It would appear from the judgment that had the trust been made in favour of a private educational establishment the apparently racially restrictive clause may have been upheld.

-- Enyinna Nwauche, African Network of Constitutional Lawyers

2 comments:

  1. In Shelley v Kramer, the US Supreme Court held that courts could not enforce racially-discriminatory restrictive covenants in private contracts to sell land, as the court's involvement would have constituted "state action".

    Conservative originalist Robert Bork (1990) criticised this decision for opening the door too wide. Applied consistently, Bork argued, it would mean that if you called the police to remove an unwanted religious doorknocker or a dinner guest who insisted on talking politics against your wishes, you would have contravened the First Amendment, or rather the court would do so merely by enforcing the common law of trespass.

    One response might be to argue that common law actions between individuals cannot, by definition, violate Constitutional rights. But the US Supreme Court rejected this view (at least in relation to defamation) in NYT v Sullivan - with, ironically, Bork's approval.

    A different way to rationalise such decisions would be to drop the term "state action" and hold that only "state complicity" can contravene the Constitution. If the police consistently remove Jehovah's Witnesses who insist on knocking on Mr Smith's door (and the courts hold that the JWs have committed the tort of trespass to property), neither the police nor the judges need to decide whether JW-ism is a "religion", whether doorknocking is protected behaviour, or (most crucially) whether Smith has discriminated by donating to the Salvation Army or St Vincent de Paul while sending the Watchtower folks packing. They can neutrally enforce a private decision.

    Likewise if Mrs Jones cuts her daughter Sarah out of her will, with no explanation. It may well be because Sarah converted to Scientology. Be that as it may, the courts don't need to adjudicate her intention; they can just enforce the will on its face.

    Otherwise, however, if Mrs Jones wrote into her will that any of her beneficiaries who convert to Scientology thereby disinherit themselves. Enforcing such a clause would make the courts complicit in direct religious discrimination. This is a closer analogy to Shelley v Kramer. The racist original owners were not just disposing of their own property (and deciding, in their minds, not to sell to anyone with black skin); they were seeking to enlist an arm of the state, the courts, to impose this on others, and to do it openly and publicly.

    Another way to put this principle is that private decisions can be unconstitutional (at least unenforceable, if not punishable) if they explicitly discriminate on their face, but that they are not subject to being declared unconstitutional for disparate impact. So if it happens that Rod Stewart marries a series of blonde white women, that's one thing, but if he announced publicly that he would categorically refuse to consider ever marrying a woman of colour, that would be a different matter. (I can't see how that particular matter would get into a constitutional court, but you get the idea...) This would also justify "Mrs Murphy" exceptions for individuals and very small businesses: as long as they don't write "Room Vacant - No Irish Need Apply" in their advertisements, their selection decisions are not subject to the sort of statistical scrutiny that should be used to flush out unstated (and even unconscious) racism in governmental agencies and larger business organisations.

    ReplyDelete
  2. In Shelley v Kramer, the US Supreme Court held that courts could not enforce racially-discriminatory restrictive covenants in private contracts to sell land, as the court's involvement would have constituted "state action".

    Conservative originalist Robert Bork (1990) criticised this decision for opening the door too wide. Applied consistently, Bork argued, it would mean that if you called the police to remove an unwanted religious doorknocker or a dinner guest who insisted on talking politics against your wishes, you would have contravened the First Amendment, or rather the court would do so merely by enforcing the common law of trespass.

    One response might be to argue that common law actions between individuals cannot, by definition, violate Constitutional rights. But the US Supreme Court rejected this view (at least in relation to defamation) in NYT v Sullivan - with, ironically, Bork's approval.

    A different way to rationalise such decisions would be to drop the term "state action" and hold that only "state complicity" can contravene the Constitution. If the police consistently remove Jehovah's Witnesses who insist on knocking on Mr Smith's door (and the courts hold that the JWs have committed the tort of trespass to property), neither the police nor the judges need to decide whether JW-ism is a "religion", whether doorknocking is protected behaviour, or (most crucially) whether Smith has discriminated by donating to the Salvation Army or St Vincent de Paul while sending the Watchtower folks packing. They can neutrally enforce a private decision.

    Likewise if Mrs Jones cuts her daughter Sarah out of her will, with no explanation. It may well be because Sarah converted to Scientology. Be that as it may, the courts don't need to adjudicate her intention; they can just enforce the will on its face.

    Otherwise, however, if Mrs Jones wrote into her will that any of her beneficiaries who convert to Scientology thereby disinherit themselves. Enforcing such a clause would make the courts complicit in direct religious discrimination. This is a closer analogy to Shelley v Kramer. The racist original owners were not just disposing of their own property (and deciding, in their minds, not to sell to anyone with black skin); they were seeking to enlist an arm of the state, the courts, to impose this on others, and to do it openly and publicly.

    Another way to put this principle is that private decisions can be unconstitutional (at least unenforceable, if not punishable) if they explicitly discriminate on their face, but that they are not subject to being declared unconstitutional for disparate impact. So if it happens that Rod Stewart marries a series of blonde white women, that's one thing, but if he announced publicly that he would categorically refuse to consider ever marrying a woman of colour, that would be a different matter. (I can't see how that particular matter would get into a constitutional court, but you get the idea...) This would also justify "Mrs Murphy" exceptions for individuals and very small businesses: as long as they don't write "Room Vacant - No Irish Need Apply" in their advertisements, their selection decisions are not subject to the sort of statistical scrutiny that should be used to flush out unstated (and even unconscious) racism in governmental agencies and larger business organisations.

    ReplyDelete

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