IALS Lunchtime Seminar: The Public/Private Divide in the Law of Gifts and Trusts: Recent South African Jurisprudence on the Limitation of Freedom of Disposition Evaluated from a Legal-Comparative Perspective
22 Jan 2020, 12:00 to 22 Jan 2020, 14:00
IALS Conference Room, Institute of Advanced Legal Studies, 17 Russell Square, London WC1B 5DR
Speaker: Francois du Toit, Senior Professor of Law, Faculty of Law , University of the Western Cape.
Legal systems that recognise private ownership invariably also acknowledge the private owner’s right (and commensurate freedom) to dispose autonomously of privately-owned property. Such disposition can occur inter vivos (e.g. by way of a contract) or mortis causa (e.g. by way of a testamentary gift and/or trust). These legal systems also recognise that the ius disponendi is not absolute, but that it is subject to an array of limitations. Limiting the ius disponendi in terms of public policy is common to most, if not all, of the aforementioned legal systems insofar as they disallow dispositions of property that violate public policy. The proper manner and appropriate extent of the policy-based limitation of freedom of disposition has been, and continues to be, a much-debated issue among legal scholars. Some scholars (and courts) propose the public/private divide as a “mechanism” to strike a workable balance between a disponor’s exercise of personal autonomy when effecting a disposition of property on the one hand, and countervailing (frequently constitutionally-guaranteed) policy imperatives such as equality and non-discrimination on the other hand.
The public/private divide features pertinently in the law of gifts and trusts, and dictates (in broad terms) that charitable gifts and trusts operate in the public domain and are thus more susceptible to judicial scrutiny on the basis of policy imperatives of a public nature (e.g. the equality norm) than non-charitable or private gifts and trusts that function exclusively in the private sphere. Put differently, dispositions by way of charitable gifts and trusts are (more) open to policy-based judicial encroachment than dispositions by way of private gifts and trusts: a disponor’s exercise of the ius disponendi is thus by and large insulated from judicial scrutiny if that disponor chose to cast his or her disposition in the form of a private gift or trust rather than a charitable one. Contemporary South African courts and legal scholars have increasingly been confronted with the “tension” between the ius disponendi and public policy in the law of gifts and trusts, in particular since the advent of South Africa’s democratic constitutional dispensation in the mid-1990s. The paper therefore evaluates critically the extent to which the public/private divide has been assimilated into South African jurisprudence on point as a mechanism to diffuse this “tension.” The paper also contextualises the South African legal position by comparatively situating it within the broader global legal discourse on the policy-based limitation of the freedom of disposition and, thus, on the intersection of, or, alternatively, the boundaries between, private law and public law.
This seminar is free but advance booking is required.
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