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The Women's Legal Centre is a non-profit, independent law centre that seeks to achieve equality for women in South Africa. As access to justice is largely inaccessible to poor women, particularly black women, the WLC plays an important role in litigating in their interest and providing them with access to free legal advice.The Centre has identified 5 strategic focus areas. These are violence against women; fair access to resources in relationships; access to land/housing; access to fair labour practices and access to health care (particularly reproductive health care).

Summary of BOE Judgment

THE BOARD OF EXECUTORS in THE BENJAMIN GODLIEB HEYDENRYCH
Cape High Court: Case : 9688/08

On the 6th of December 2011 the High Court of South Africa varied the terms of three trusts due to the discriminatory provisions based on race, colour and sex and/or gender regarding potential beneficiaries of such trust funds.

The case dealt with three different trusts; the George King Trust, Heydenrych Trust, Houghton Trust. Initially the applicant sought an order deleting certain provisions of the trusts which discriminated directly on the grounds of race and colour. The two remaining trusts, namely Houghton and Heydenrych, also discriminated directly on grounds of sex and/or gender; the latter furthermore discriminated indirectly on grounds of race. The Women’s Legal Centre intervened as amicus curiae in order to consider and address the remaining contentious provisions in the wills.

The Court has no general power to vary the terms of wills, contracts or other trust instruments. However, there are certain exceptions in terms of common law. It was these exceptions, namely a direct application of the Constitution and section 13 of the Trust Property Control Act 57 of 1988 that were applied by the Court. Section 13 empowers the Court to delete or vary provisions in a trust under two circumstances; (1) the provision must bring about consequences which in the opinion of the court the founder did not contemplate or foresee (2) the provision must either hamper the achievements of the objects of the founder or prejudice the interest of the beneficiaries or be in conflict with public interest.

The main issues to be determined were the following: (i) The issue of discrimination based on race; (2) Sex and gender discrimination and the selection criteria “by British descent” which were raised by the WLC; (iii) To determine whether the two jurisdictional facts are present to intervene in terms of section 13 of the Trust Property Control Act.

With reference to the issue of discrimination based on race the main focus in the case was the language used in the trusts. “European”, “white group”, “white population” and “shall be British descent” were the terms under consideration.

The Court believed that the WLC correctly argued that the fact that a post constitutional parliament had enacted the right to equality (Section 9 of the Constitution) and the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (particularly sections 7, 29(2) ) is indicative of public policy and the community’s legal convictions in this sphere.
It was on these instruments, case law dealing with similar matters,  on the basis of public interest, and the fact that it was determined that the testators would not have foreseen that the allocation of scholarship by trust on a discriminatory basis would be rendered unconstitutional and unlawful that the High Court decided to vary the terms in the three trusts. In this manner it confirmed the decisions rendered in previous case-law.