Whites-only bursaries to be scrapped

Western Cape High Court Judge Siraj Desai struck a blow for poor people exploited by microlenders when he declared EAOs against a group of Stellenbosch workers unlawful. photo: Supplied

Western Cape High Court Judge Siraj Desai struck a blow for poor people exploited by microlenders when he declared EAOs against a group of Stellenbosch workers unlawful. photo: Supplied

Published Apr 25, 2015

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Cape Town -

Whites-only student bursaries at Stellenbosch University are set to become a thing of the past after a ruling in a test case in the Western Cape High Court declared such discriminatory bequests violate the constitution.

The case followed an investigation by a task team set up by the university into whites-only bequests.

The investigation resulted in the adoption of a policy that these discriminatory bursaries would no longer be advertised, and that steps would be taken to remedy the situation.

The application went to court on Monday, where Judge Siraj Desai declared the word “white” in the will of one Martha Maria Hattingh null and void, and in violation of the constitution.

There were eight such bursaries, the court heard.

In an affidavit before the court, the university’s vice rector for learning and teaching, Arnold Schoonwinkel, said Hattingh died in 1992, leaving behind a will in which she bequeathed all her personal belongings to her sisters, cash to one of the sisters, her brother, a neighbour and The Animal Protection Society.

The remainder of her estate was bequeathed to the university for the establishment of the MM Hattingh Student Bursary. But she specified that the bursary should be for the benefit of white students in need.

The will, annexed to Schoonwinkel’s affidavit, was dated August 26, 1988 - at a time when apartheid was at its breaking point.

It was during that year that former President Nelson Mandela was moved to the-then Victor Verster Prison.

Schoonwinkel said discussions with Hattingh’s family revealed that she had been very conservative, and would not have agreed to the word “white” being deleted from her testament.

Her nephew and the husband of her niece told the university’s attorneys that Hattingh and her husband were alive in the time of the Anglo-Boer War (1899-1902), and lived in an era in which white people looked out for one another.

Hattingh, known as Aunt Millie, was a teacher who strove for the promotion of Afrikaners and the Afrikaans language, while her husband chaired the Transvaal Education Department, as it was then known.

Schoonwinkel said the view of Hattingh’s niece was that the bursary should only go to white people in need, because Hattingh did not have any children of her own, and cared about the needs of needy white people.

Another family member recalled that Hattingh said she was sure that the university would not grant the bursary to “non-whites”.

However, Schoonwinkel pointed out that the university had a policy drawn up by Gerhard Lubbe, a professor in the university’s law faculty, which declared it would not associate itself with any bursary or loan which unfairly discriminated against individuals.

He said the university was committed to taking measures to remedy this.

“There is no place in the South Africa in which we currently live for a bursary that is limited to white students.”

He said he had been advised that the courts had previously found that, in instances such as this, the principle of freedom of testation was limited by the constitutional guards against racial discrimination.

He said the university’s view was there was no basis for the justification of such discrimination.

Judge Desai granted the order on Monday, and also ordered the costs of the application be paid from the estate.

University spokesman Martin Viljoen said, with reference to the constitution and the university’s policy, the tertiary institution was committed to measures to redress inequalities stemming from discrimination in the past. It did not discriminate on the basis of race, gender, religion, culture or language.

“Against the backdrop of this application, the university will evaluate other similar bequests and donations to ensure that it measures up to the constitutional and statutory framework with regard to equality and the prevention of unfair discrimination, and consider possible steps.”

Stellenbosch case not only one in which judges have over-ruled wills

While Stellenbosch University has told the Western Cape High Court it has set up a team to wipe out discriminatory provisions in wills offering students financial assistance, it |is not the only tertiary institution which has had to turn to the courts on the issue.

- In 2010, the University Of KwaZulu-Natal welcomed a Supreme Court of Appeal (SCA) ruling upholding an earlier judgment that an exclusively white female educational fund be opened to students of all races.

The university was the trustee of the Emma Smith Educational Fund, which was founded by Sir Charles George in 1938 in honour of his mother.

In his will, Sir Charles said bursary applicants had to be “European girls born of British South African or Dutch South African parents who have resided in Durban for more than three years”.

The fund has an estimated value of R27 million.

However, the SCA found that the fund was “racially restrictive” and went against the equality clause in the bill of rights.

- In December 2007, the executor of the deceased estate of Oranjezicht resident George Strates obtained a Western Cape High Court injunction to change a clause in Strates’s will which allowed for whites-only university bursary funds at UCT.

Executor Marthinus Steyn told the court he lodged the application because he could not find a university to accept the bequest.

The court ruled that the applicable clause in the will be amended to exclude any racial restrictions.

- In 2006 the Western Cape High Court ruled that a bursary set up to exclusively fund white male UCT graduates was racist and sexist. It ordered the removal of the offending portions set out in the 1920s will of Sea Point doctor Edmund Scarbrow, which invited UCT students or alumni, who are “required to be matriculants, of European descent, male and gentile with limited or no means” to apply for financial assistance for overseas study.

The court struck out an entire codicil Scarbrow had made in which he specified that recipients should not be of Jewish descent.

Saturday Argus

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