The modus in modern South African succession law
Authors J Jamneck
Affiliations: Professor in the Department of Private Law, Unisa
Source: Acta Juridica, 2014, p. 104 – 122
A modus is defined as a qualification or obligation added to a gift or testamentary disposition whereby the person benefited is required to devote the property he receives, or the value thereof, in whole or in part to a specific purpose. Writers and commentators seem to have neglected research of the concept as the last in-depth discussion of the modus was published in 1968. As a result of a lack of discussion on the topic, the enforceability of the modus caused many problems and led to various opinions on its enforceability, especially where the modus for an impersonal purpose is concerned. Traditionally this type of modus was seen as being practically impossible to enforce and the term ‘unenforceable’ came to be generally used whenever there is no-one available to see to the enforcement of the modus. In modern South African law, with the revival of class actions and an action akin to the actio popularis, this position has changed. The conclusion to be made is that there is definitely an enforceable modus under modern law which did not previously exist, namely the modus for an impersonal purpose involving constitutional rights. The Supreme Court of Appeal has also recognised enforcement of rights other than constitutional rights by means of class actions and the Constitutional Court has even broadened the scope of application of these actions to include any action in the interests of justice. A modus for an impersonal purpose is therefore capable of being enforced by any member of a group if such enforcement would be in the interests of justice. On the other hand, it may still be impossible to enforce a modus which may only affect the beneficiary or no-one at all if not fulfilled.