The Evolution of Freedom of Testation in Post-Constitutional South Africa


  • Mpho Bapela University of Mpumalanga


'Discrimination'; 'equality'; 'unfairness'; 'public policy'; 'constitutionalism'


In South Africa, freedom of testation has been an enjoyed practice from ancient times. It gave testators comfort in knowing that when they depart, their legacies and property would be looked after by those they had chosen to survive their estates. Before the advent of the Constitution, testators used to abuse this freedom. There existed a tendency to exercise this freedom without limitations. However, the Constitutional epoch brought about changes in the manner the testators exercised their freedom of testation. Amongst other things, was the limitation to freedom of testation. Legislation and Common Law also contributed to restricting or limiting this freedom. Against this backdrop, this article investigates the impact of the Constitution on freedom of testation in South Africa under the current constitutional dispensation. The paper is predicated on the assumption that freedom of testation gave testators leeway to promote discrimination and unfairness. Therefore, this paper will show that freedom of testation has evolved and no longer absolute in South Africa, with the Courts playing an important role in the process.  


Bauman, R.W. (1992). Constitutional Reform in South Africa. Constitutional Forum, Vol 3, pp107-116.

Browder, O. (1941). Conditions and Limitations in Restraint of Marriage. Current Legal Thought, Vol. 8, pp 3-15.

de Waal, M.J. & Schoeman-Malan, M.C. (2015). Law of Succession. Cape Town: Juta and Company [Pty] Ltd.

Dlamini, C.R.M. (1989). Parliamentary Sovereignty, A Bill of Rights and Judicial Review. De Rebus, pp 865-871.

du Toit, F. (2001). The Constitutionally Bound Dead Hand? The Impact of Constitutional Rights and Principles on Freedom of Testation in South African Law. Stellenbosch Law Review, Vol. 12, pp 222-257.

du Toit, F. (2012). Constitutionalism, Public Policy and Discriminatory Testamentary Bequests - A Good Fit between Common Law and Civil Law in South Africa's Mixed Jurisdiction. Tulane European and Civil Law Forum, Vol. 27, pp 97-132.

Hahlo, H. R. (1950). Jewish Faith and Race Clauses in Wills. South African Law Journal, Vol. 67, pp 231-244.

Johnson, ID. (2011). There's a will, But No Way--Whatever Happened to the Doctrine of Testamentary Freedom and What Can (Should) We Do to Restore It?. Vol. 4, Estate Planning Journal, pp 105-126.

Joubert, C.P. (1968). Jewish Faith and Race Clauses in Roman-Dutch Law. South African Law Journal, Vol. 85, pp 402-420.

Juma, L. (2012). Human Rights and Conflict Transformation in Africa: Some Thoughts on the Transformative Values of Human Rights. Speculum Juris, Vol. 1, pp 1-20.

Langa, P. (2006). Transformative Constitutionalism. Stellenbosch Law Review, Vol. 17, pp 351-360.

Matsemela, P. (2015). Modern freedom of testation in South Africa: Its application by the courts. Vol. 2 Journal of Law, Society, and Development pp 93-119

Modiri, J. M. (2013). Race As/And the Trace of The Ghost: Jurisprudential Escapism, Horizontal Anxiety and The Right to Be Racist in Boe Trust Limited. Potchefstroom Electronic Law Journal, Vol. 16, pp 581-614.

Rosa, S. (2011). Transformative Constitutionalism in a Democratic Developmental State. Stellenbosch Law Review, Vol. 3, pp542-562.

Sherman, J.G. (1999). Posthumous Meddling: An Instrumental Theory of Testamentary Restraints on Conjugal and Religious Choices. University of Illinois Law Review, Vol. 1999, pp 1273-1330.

Van der Vywer, J.D. (1982). Parliamentary Sovereignty, Fundamental Freedoms and a Bill of Rights. South African Law Journal, Vol. 4, pp 557-588.

Van Zyl, D.H. (1998). Justice and the New Constitutional Dispensation in South Africa. De Jure Vol. 31, pp 44-50.

Wunsh, B. (1983). Post-mortem variation of wills and trusts: taxation consequences. De Rebus, pp 286-289.




How to Cite

Bapela, M. (2024). The Evolution of Freedom of Testation in Post-Constitutional South Africa. Acta Universitatis Danubius. Juridica, 20(1), 7–21. Retrieved from