Emma’s fund now for all races

2010-10-02 00:00

THE University of KwaZulu-Natal, who are the administrators of what was a “white women only” multi-million rand education trust, have came out the victors in what has been an eleven year court battle to have the “racist clause” overturned.

An appeal was brought before a panel of five judges in the Supreme Court of Appeals (SCA) a few months ago by two Durban advocates appointed by the court as curators.

They represented the interest of potential beneficiaries after the high court ruled in favour of the university in 2009.

The advocates argued that it was dangerous to fiddle with the terms of bequests. However, the appeal was also dismissed by the SCA yesterday.

The fund was established in 1938 by a Sir Charles George Smith, believed to have been a leader in South Africa’s sugar industry in those days. Smith is also said to have been a senator in the union government.

He died in 1941, leaving a large portion of his wealth to the Emma Smith Educational Fund, named after his mother. Smith’s will stipulated that the fund was to be paid out only to needy girls of British/South African or Dutch/South African descent. These girls also needed to be Durban residents.

Wanting the discriminatory terms removed, then vice-chancellor of the University of Natal and the council challenged this at High Court in 1999 labelling the clause “racist” and an “embarrassment”.

According to court papers filed by the university, this was because it flew in the face of the institution’s non-racial policies, as well as what was a radically transformed South Africa.The order sort to erase such words as “European”, “British South Africa” and “Dutch South Africa” since the university believed that the whole aim of the fund was to provide higher education opportunities for disadvantaged women with local ties. Because of the racial conditions, however, the trustees said they were not only susceptible for lawsuits, but unable to find enough beneficiaries who qualified for the fund.

The university’s lawyers argued that while Smith’s decision was “enlightened” at the time, he had no way of knowing South Africa’s dramatic metamorphosis.

The high court ruled on a decision to have the multi-million rand trust benefit young women of all races in 2009. This was in addition to amending the residential restrictions from benefiting only Durban girls to girls in the entire eThekwini municipality.

The university’s victory was not total, however, since the SCA found there was no evidence to support their claim that the Durbanites-only clause would hamper the Emma Smith fund in reaching its objectives.

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