A "white girls only" decree in a multimillion-rand education trust administered by the University of KwaZulu-Natal will come under the scrutiny of judges of the Supreme Court of Appeal in a potentially precedent-setting case which could impact on all charitable bequests.
The university claims the R27 million Emma Smith Educational Fund is an "embarrassment" and went to court last year, securing an order from Judge Chris Nicholson amending its discriminatory terms.
But two Durban advocates - appointed by the court as curators representing the interests of "potential beneficiaries" of the fund - have taken Nicholson's judgment on appeal, arguing that it is dangerous to fiddle with the terms of bequests and that public law standards should not apply to private behaviour.
While there have been similar cases before the courts in the past, a determination by the appeal court will clarify whether it is legal to discriminate in a bequest.
The man behind the problem is the late industrialist and politician Sir Charles George Smith who, when he died in 1941, bequeathed some of his estate to the then council of the University College, to be held in a trust named after his mother, Emma.
He stipulated that the money was to be used for the benefit of "European girls born of British/South African or Dutch/South African parents".
In his judgment, Nicholson said it was obvious Sir Charles was a generous man who was concerned that poor white girls would not get a proper education.
It appeared he was also keen to heal the rift between Afrikaner and English speakers, which was a serious problem at the time.
The university argued that while the bequest was "enlightened" at the time, South Africa was now radically transformed and the university itself had anti-discrimination policies.
It said the bequest, in its present terms, was not in the public interest.
But the curators - advocates Douglas Shaw, QC, and Andrea Gabriel - point to the constitutional right of freedom of testation and the choice of an individual to dispose freely of their property in death, which goes to the heart of human dignity and freedom.
They say there is no law prohibiting private acts of testamentary choice and that it is inherent in all bequests that some people will not qualify to benefit.
"If the university is embarrassed by this and feels it cannot properly carry out its function, then it should request the appointment of another trustee - not an amendment to the trust."
Concern has been raised about the impact the case would have on other bequests.
It was argued that this could lead to more court challenges, the ripple effect being a possible reduction in charitable bequests, which would harm society.
The Smith bequest should not be used in an attempt to create an equal society, it was argued.
The matter is similar to a case regarding a trust created in 2002 - eight years into the new dispensation - which provided for education of white students with MSc degrees in organic chemistry to study overseas, on condition they returned to South Africa.
The motive appeared to be aimed at stopping the so-called brain drain and the Western Cape High Court did not tamper with the condition last year.
However, in another matter in 1993, involving a trust for a children's home for "destitute white children", a court scratched out the racial tag when presented with the fact that there were few persons eligible to benefit.
The Smith matter will come before the Bloemfontein court next month.
