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When Dulcie Harper launched legal action to ensure her two adopted children would inherit from their grandfather’s trust just like his other grandchildren, very few lawyers would have put money on her success.

Long established law and precedent were firmly against her. Key among these was the 1937 Children’s Act, still in force during 1953 at the time the grandfather, Louis John Druiff, finalised a trust deed setting out how his money would be inherited by his descendants. This law said that adopted children could not inherit unless a will specifically indicated that they were to be included as beneficiaries. Druiff did not make it clear that his adopted grandchildren were to inherit. Quite the opposite, it seemed.

Harper’s case was contentious

As far as the outcome of Harper’s legal action was concerned, the sceptics appeared correct. Her high court application failed. So did her appeal to the supreme court of appeal (SCA) in Bloemfontein. After that, though Harper had died by this time, her children tried a final time and challenged the SCA decision at the constitutional court (CC).

When the CC delivered its decision earlier this year, it was obvious that the issue had deeply divided the justices. Five out of nine (and so the most slender of majorities) supported the view that the provisions of the Children’s Act applied but that despite these provisions and the weight of other law quoted and followed by the high court and the SCA, the adopted children should inherit.

Four judges (including the Chief Justice, Mogoeng Mogoeng) supported two different minority decisions. Given that the outcome was so close – five to four – it is clear that the majority view, turning established legal views upside down, was a close-run thing.

The constitutional court’s decision

How did the five justices reach this conclusion? And what did they find to counter the heavy weight of law and precedent pulling in the opposite direction?

Justice Nonkosi Zoliswa Mhlantla, permanently appointed to the CC in November 2015, wrote the lead decision in the case. One of the three preliminary questions she needed to resolve was whether to condone the application for leave to appeal against the SCA decision given that it was brought several months late.

Lawyers for Harper’s children explained that after her death, the executor of her estate decided not to appeal further. The children wanted make a last attempt at the CC, but they did not have the money. Eventually, they were able to obtain legal aid funding to bring the case but finalising representation caused some delay. Mhlantla held that the delay had not caused any prejudice and that the explanation was reasonable. This section of the judgment is also interesting, though, because it shows that even the executor of Harper’s estate held out no hope of the matter being successful in the constitutional court.

A month before the case was argued, the court heard that one of Harper’s two children had died and, as the second preliminary question, the co-executors of his estate successfully asked that they be substituted as applicants in the matter instead.

The last preliminary question was whether it was in the interests of justice for the CC to hear the matter. Mhlantla said the court should give its opinion because the case involved some important issues, among them that this was the first time the CC had been asking to consider whether excluding adopted children from the benefits of a ‘testamentary instrument’ (in this case a trust deed) amounted to unfair discrimination.

She examined the Children’s Act and the grandfather’s trust deed, and came to the conclusion that Harper’s two adopted children were excluded and could not benefit from the trust.

But that was not the end of the matter: it was still open for the court to find that, because it excluded adopted children, the trust deed was ‘contrary to public policy’.

Interpretation of the trust deed

Lawyers for the two children argued that if the trust deed, properly interpreted, meant they were excluded from benefitting, then their constitutional rights, particularly rights to equal treatment, were infringed. The trust deed should instead be interpreted in a way that ‘promotes the spirit … and objects of the Bill of Rights’, and that does not discriminate against adopted children on the basis of their birth and status, as had for so long happened in the past.

The other respondents in the case – grandchildren and some great-grandchildren (descendants of grandchildren who had died) – disagreed. They quoted the long-established rule that there is ‘no right to inherit’ and said that the fundamental right to ‘freedom of testation’ ranked no lower than the right to equality.

True, said Mhlantla, freedom of testation is a key principle and someone making a will is allowed to dispose of assets ‘freely’ – except where the law restricts this freedom. And one of these restrictions is that clauses ‘contrary to public policy are unenforceable.’

When trust provisions are contrary to public policy

The CC had already intervened in a case involving a public charitable trust that awarded bursaries to students. Because the bursary could be awarded only to students of ‘European descent’, excluding also Jewish and female students, the CC decided that the provisions were contrary to public policy and unenforceable.

But in this case, a private trust was involved and because it was private, the grandfather’s freedom of testation ought to be interfered with as little as possible, Mhlantla held.

But still, she wrote – and at this point the likely outcome becomes clearer – even provisions of private trusts could not be enforced if they are contrary to public policy. ‘The private and public divide in trust law does not mean that a court is permitted to countenance any kind of unfair discrimination in a trust simply because it is considered private.’

The key question, she said, was whether excluding adopted children amounted to ‘unfair discrimination’ in the trust deed. The trust deed referred to biological descendants only, and thus differentiated on the basis of ‘birth’ between biological and adopted descendants. Like children ‘born extra-maritally’, adopted children were stigmatised and suffered an impairment of dignity.

It was the first time that the CC had recognised that discrimination on the basis of birth also referred to adopted children, but there was international law and decisions from foreign jurisdictions that pointed in this direction as well, said Mhlantla.

Discrimination against adopted children based on their ‘birth’ is an infringement

She wrote that a child’s recognition as a full part of an adoptive family was tied to that child’s dignity rights. Not being treated as a full part of a family because of being adopted ‘stifled’ the right to dignity, and allowing adopted children to be discriminated against on the grounds of their ‘birth’ undermined the purpose of adoption and infringed the dignity of those children.

Adopted children had tended to experience a pattern of discrimination that made them a ‘vulnerable group’, with their dignity negatively affected just because of their ‘adoptive status’. A trust deed that excluded adopted children thus unfairly discriminated against them ‘on the basis of their birth’ and so was ‘contrary to public policy and unenforceable’.

The constitutional court’s ruling has a broad impact

The bottom line? The grandfather’s bequest should be implemented as though the exclusion of adopted children did not exist, and the adopted children should be given their share of the trust capital.

For the families involved in this case the outcome will be significant. But does it have any broader impact, particularly since the Children’s Act has been amended and the law no longer permits discrimination on the grounds of adoption? Yes, it does. Most immediately, it has helped raise awareness of residual social discrimination experienced even today, by people who have been adopted.

The outcome also seems to indicate that there has been a significant shift in the way the highest court approaches trusts and wills. In the past the court seemed more reluctant to develop grounds based on public policy that would allow long-entrenched aspects of the law of private property to be disturbed. In particular, the right of someone to dispose of property as they wish has been affected by the way the court handled this case. This aspect of the decision, in particular, could have far-reaching consequences.

But the decision should also encourage people who believe they have been unfairly discriminated against via some official or legal instrument to consider a legal challenge. Just because there is a long tradition of accepting discrimination doesn’t mean that the apex court will find it should continue. The willingness of the highest court to think broadly, out of the box, in this case, should be an encouragement to rethink any practice that diminishes the dignity of a person or group.