Reconsidering the indignus principle in the South African law of succession
Authors Shaun Barns, Ayden Thompson
Source: Acta Juridica, 2014, p. 123 – 131
The application of vague public policy principles to the question of disqualification from benefits in the South African law of succession is becoming the norm in our courts. Little or no regard is being given to the traditional overarching Roman-Dutch principle that ‘no person may benefit from his or her own wrongdoing or benefit from what is punishable.’ In this article we argue that the oversight stems from a misinterpretation of the seminal case of Taylor v Pim. It is not suggested that the application of public policy considerations to cases of disqualification has led to unjust or prejudicial outcomes, but rather that these outcomes could just as easily have been reached if the courts had given true regard to the applicable Roman-Dutch law principles, which were consistently applied by the courts in the 18th and 19th centuries. It is submitted that to subscribe once again to the Roman-Dutch law will remove the possible vagueness introduced by public policy considerations and will avoid startling outcomes in the future.