Testeervryheid in die Suid-Afrikaanse reg in die lig van 'n handves van regte

[摘要] ENGLISH ABSTRACT:Freedom of testation is one of the underlying principles of the South African law of testatesuccession. South African testators may therefore dispose of their assets by way of will inany manner they deem fit. This freedom is however not absolute and is indeed restricted inaccordance with certain social and economic considerations - some of the restrictions on freetestamentary disposition originated at common law while others are couched in the form ofstatute. The boni mores or legal convictions of the community is one of the socially foundedmechanisms which operate to limit freedom of testation in South African law. The SouthAfrican legislature as well as the South African courts have however been somewhat remissin attending to (and rejuvinating) the legal position regarding the restriction of freedom oftestation in terms of the boni mores. The need for legal development in this area is all themore acute in view of South Africa's new constitutional dispensation - the interpretation andapplication of South Africa's final Constitution has rendered the influence of constitutionalrights and principles on private law (and therefore also on freedom of testation) a pertinentlegal issue.In view of the above-mentioned considerations, this work entails a general study of freedomof testation with specific reference to the application of a constitutionally founded boni morescriterionon the restriction of free testamentary disposition. This study proceeds with duecognisance of relevant juridical, social and economic considerations which provide a basis forboth freedom of testation and its limitation. In this regard a historical perspective is obtainedat the outset through an analysis of the approach to freedom of testation in Roman andRoman-Dutch law. The position with regard to South African law is thereafter investigated.The traditional approach to freedom of testation (and its restriction) is examined first,whereafter the possible impact of relevant provisions of the South African Bill of Rights onfree testamentary disposition is considered from a theoretical perspective. A comparativestudy then follows. In this regard the approach to freedom of testation in both common lawand continental or civil law legal systems is investigated. English and Australian law areconsidered as examples of the former while Dutch, Belgian and German law are consideredas examples of the latter.The investigation into all the legal systems mentioned above has a dual focus. On the onehand the support which is rendered to freedom of testation in each legal system is considered.This support is readily founded on the acknowledgement in each system of private ownershipand hence private succession, the latter which in turn acknowledges testamentary freedom.Other elements of the law of testate succession which render support to freedom of testationin each system are also examined. The restriction of free testamentary disposition in eachlegal system is investigated on the other hand. This investigation is principally focused onthe impact of the boni mores, legal convictions of the community, public interest, publicpolicy (the last-mentioned consideration is of particular importance in common law legalsystems) and the good morals (particularly relevant in civil law legal systems) on therestriction of freedom of testation.Proposals for a future approach to the restriction of freedom of testation in South African lawin accordance with a constitutionally founded boni mores-criterion are advanced in the closingchapter. The principal proposal in this regard is couched in the form of a new statutoryprovision which would best address the legal problem under discussion. This proposal is thenillustrated with reference to practical examples.

[发布机构] Stellenbosch University