Substantive Equality in the Private Sphere: Developments in South African Law on Testamentary Discrimination

Abstract The right to equality in South African law gives rise to duties borne by both the state and private actors. In the law of succession, this constrains private testators’ powers to discriminate. Doctrinal developments bear this out: in King v De Jager and Wilkinson v Crawford , a majority of the Constitutional Court extended the reach of anti-discrimination duties to private testamentary decisions. I evaluate these judgments through two lenses: a normative lens that focuses on the principled underpinnings of the Court’s approach to substantive equality, autonomy and the public / private divide; and an adjudicative lens that surveys how these duties should be given effect to avoid proliferating parallelism. I argue that the judgments are welcome and confirm that the private sphere is not insulated from demands of equality, but they nevertheless neglect the importance of both equality legislation and a harmonized approach to adjudicating the anti-discrimination duty’s reach into common law.