LONG WALK FOR WOMEN

Mduduzi Manana, Grace Mugabe and an unusual inheritance case in the courts all help to make August a month to remember (but not in a good way)

August 2017 was a tougher-than-usual SA Women’s Month. It began with the deputy minister of higher education, Mduduzi Manana, giving a dramatic, personal, late-night lesson on the reality of gender violence, viciously assaulting at least two women.

A couple of weeks later, government officials retro-gifted immunity from prosecution to Grace Mugabe, wife of Zimbabwe’s President Robert Mugabe, after she assaulted a woman at a Johannesburg hotel. Another lesson here, not about government cowardice and failure to uphold human rights — we have known this for a long time — but rather that violence against women may sometimes be carried out with impunity by other women, particularly when the attacker is more powerful.

While the morgues, hospitals and courts produced the usual number of femicide and rape cases in August, one extraordinary civil matter caught my attention.

It was brought by the co-executors of a will who asked whether a court may amend the wording of a testament — in this case the will of Kalvyn de Jager, who died in May 2015 — when it discriminates against female descendants. The roots of the dilemma lie in the 1902 joint will made by De Jager’s grandparents, containing a provision effectively ensuring that for the next several generations, certain of their properties would go only to male descendants.

There are complicated family-tree issues and legal technicalities involved, but in principle, the court had to weigh two rights: the right of someone to dispose of his or her estate as they please, and the right to equality — “not to be unfairly discriminated against” — on the other. As there were female descendants barred from inheriting the De Jager properties, this was very much a live issue.

The law says that once the wishes of a testator are clear, the court must give effect to them unless “prevented by some rule or law from doing so”.

But that principle is not completely unrestricted.

“Relevant social and economic considerations” might curb the right to dispose of your goods as you want. For example, if the provisions “offend against public policy” they might be set aside by a court.

And our post-apartheid consti- tution, with its strong stress on equality, might require a fresh look at the issue, said Judge Lee Bozalek, who heard the matter.

Four cases have already been tested in court in the new era, involving testamentary trusts providing funds for scholarships or bursaries, to which clearly inappropriate restrictions, related for example to race or gender, had been attached.

The De Jager case was different, said Judge Bozalek. This was a private will that did not involve any “system” or “practice” preventing women in general from inheriting property.

Rather, it was a “one-off, private testamentary disposition” by the original will-makers.

Existing rights

Preventing females from inheriting might be discriminatory, said the judge, and it might be unfair. But as no-one was “entitled” to inherit, exclusion from a will would not take away existing rights.

If a court were able to “rewrite” private wills that were discriminatory, it could open a “Pandora’s box of litigation”.

Judicial intervention where funds were used for public purposes was different. That involved considering “altered terms for how property that has been bequeathed should be administered”.

The dispute over the De Jager will, on the other hand, could have seen a court deciding whether the property should have been left to a particular person in the first place.

No doubt the decision was correct in law, but it reminds women how very far we still have to go in fighting discrimination and inequality.

Because no-one was ‘entitled’ to inherit, exclusion from a will would not take away existing rights