Contact Us
20 April 2021
UWC’s Professor Francois du Toit features prominently in Constitutional Court case on discrimination against adopted children
The Law Faculty of the University of the Western Cape features prominently in a recent landmark Constitutional Court judgment that ruled against the exclusion of adopted children as beneficiaries under a trust. 

In his judgment, Constitutional Court Judge Stevan Majiedt makes several references to articles written by Private Law Professor Francois du Toit on the subject. 

The matter of Wilkinson and Another v Crawford N.O. and Others [2021], deals with the interpretation of a trust deed that was executed at a time when legislation excluded adopted children from inheritance, unless the deed conveyed a clear intention to include them. 

Judge Nonkosi Mhlantla, who penned the majority judgment in the case, noted with reference to Du Toit v Minister of Welfare and Population Development [2002] ZACC 20; 2003 (2) SA 198 (CC); 2002 (10) BCLR 1006, that “family life as contemplated by the Constitution can be provided in different ways and that legal conceptions of the family and what constitutes family life should change as social practices and traditions change”.

The Judge ruled that “vulnerability experienced by adopted children warrants protection by virtue of the best interests of the child principle, coupled with the importance of family life. In this case, the application of the proviso, and hence the exclusion of adopted children solely on the basis of their birth, only serves to perpetuate the discrimination that they, as a class, have been (and continue to be) subjected to”.

“The Wilkinson judgment is a landmark decision regarding the impact of the Constitution and public policy on South African private law generally, and its law of trusts in particular. It sends a clear message to trust practitioners to steer their clients away from excluding potential trust beneficiaries in a facially discriminatory manner. It furthermore puts the best interests of the child at the forefront of constitutional jurisprudence on South African trust law,” said Prof. Du Toit. 

The judgment set aside a ruling by the Supreme Court of Appeal and ordered that the adopted children be declared capital beneficiaries of a portion of the trust capital.

Read the judgement here: