The Supreme Court of Appeal in South Africa in The Curators Ad Litem To Certain Potential Beneficiaries of the Emma Smith Educational Fund v The University of Kwa Zulu Natal  ZASCA 136 (1st October 2010) dismissed an appeal against a judgment that set aside a racially restrictive clause limiting the beneficiaries of the Emma Smith Educational Fund to white women. The fund was established by a bequest to the then-Natal University College in the will of Sir Charles George Smith, an industrialist and politician who died in 1941. The trust was for the higher education of ‘European girls born of British South African or Dutch South African parents’, resident in Durban for at least three years. The university applied to the High Court to have the racially restrictive clause removed and the residential qualification of ‘Durban’ amended to ‘Ethekwini Municipality’. With respect to racially restrictive clause the University contended that it is contrary gto public policy and is in conflict with public interest. The curators ad litem for the fund appealed to the SCA, but the panel of five judges unanimously held that there was a constitutional imperative to remove racially restrictive clauses in conflict with public policy but denied the change of name from ‘Durban’ to ‘Ethekwini Municipality’. With respect to the racially restrictive clause, the SCA noted that since the Bill of Rights applies to all law including the law relating to charitable trusts there can be no question that in the public sphere a racially discriminatory testamentary disposition cannot pass constitutional muster. The Court accordingly held that the constitutional imperative to remove racially restrictive clauses that conflict with public policy from the conditions of an educational trust intended to benefit prospective students in need, administered by a publicly funded educational institution such as a university takes precedence over freedom of testation particularly given the fundamental values of the SA Constitution. The Curators had argued that amending the trust will breach the freedom of testation and have a chilling effect upon future private educational bequests. It would appear from the judgment that had the trust been made in favour of a private educational establishment the apparently racially restrictive clause may have been upheld.
— Enyinna Nwauche, African Network of Constitutional Lawyers