News clipping – iafrica.com – 1 October 2010

Court changes trust fund

Money from a multi-million Rand education trust fund for white women only at the University of KwaZulu-Natal was available to all races after the Supreme Court of Appeal (SCA) dismissed an appeal on Friday.

The SCA dismissed an appeal against a judgment and order that set aside a racially restrictive clause limiting the beneficiaries of the Emma Smith Educational Fund to white women.

The fund was established by bequest to the then Natal University College in the will of Sir Charles George Smith, a prominent industrialist and politician, who passed away in 1941.

The trust was to go towards the higher education of “European girls born of British South African or Dutch South African parents”, who have been resident in Durban for a period of at least three years immediately preceding the grant or payment.

The university applied successfully to the high court to have the racially restrictive clause removed and the residential qualification of “Durban” to the “Ethekwini Municipality” amended.

The curators ad litem for potential beneficiaries of the fund appealed to the SCA.

A panel of five judges unanimously held that there was a 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.

The SCA set aside the high court ruling in terms of “Durban” on the grounds that there was no evidence supporting the finding that a potential bursar who had to live in “Durban” would hamper the achievement of the fund’s objectives.

The Emma Smith Education Fund was one of the largest currently administered by the University of KwaZulu-Natal. When the matter went to court its assets had increased in value to about R27-million of which about R4-million was available for distribution to potential bursars. - Sapa