DRITTWIRKUNG AND THE PUBLIC/ PRIVATE DIVIDE IN THE LAW OF GIFTS: TROUBLESOME DEVELOPMENTS IN SOUTH AFRICA
Abstract: This article investigates recent South African jurisprudence on the public/private divide in the law of gifts, based on the dichotomy between public and private gifts. It analyses post-constitutional judgments in which South African High Courts and the Supreme Court of Appeal ostensibly accepted the existence of the divide in South African law. It also examines two recent judgments in which the South African Constitutional Court rejected the divide, albeit with some equivocation. The article questions the prudence of summarily proscribing the divide and, drawing comparatively on corresponding aspects of Dutch law, suggests that the divide safeguards private autonomy and the free and voluntary exercise of the ius disponendi in the law of gifts. It proposes that courts exercise perceptive restraint when resolving policy-based challenges to private gifts. The article attends to the limited circumstances in which judicial intrusion on dispositive intent in the private sphere may be justified.
Keywords: discrimination; equality; freedom of contract; freedom of testation; gifts; ius disponendi; ownership; private autonomy; trusts
