Case

Harksen v Lane Case in detail.

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Course
Law Of Insolvency (INS311)

Institution
University Of The Western Cape (UWC)

Book
Hockly\'s Insolvency Law Casebook

A detailed document on the Harksen v Lane case. Referencing the Hugo case. Use of Section 8, 9 and 21. Touches on the equality clause. Discrimination as a result of differentiation and a lot more.

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Uploaded on June 28, 2021
Number of pages 4
Written in 2020/2021
Type Case
Professor(s) Lennie
Grade A

harksen v lane
the equality clause
hugo case
section 8
section 21
differentiation amounting to discrimination

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Harksen v Lane
- GOLDSTONE:

- The Relevant Provisions of the (Insolvency) Act:

- S21: all property of the spouse of a person whose estate has been provisionally
sequestrated shall automatically vest in the master and then in the trustee of the
insolvent estate.

- S21 (2): the trustee shall release any of the above such property if it is proven that the
property falls within the listed categories (property owned before the marriage;
property received under a marriage settlement; property acquired during the marriage
but by a title valid against creditors of the insolvent).

- S21 (4): solvent spouse may apply to court for the release of the vested property.

- Spouse carries burden of proof to show that the property is actually his/ (but usually)
hers.

- S21(10): solvent spouse can approach the court to exclude property for a period
determined by the court if it can be shown that the effect of the vesting would be a
negative influence on trade, or would result in serious prejudice against the solvent
spouse. In such cases the solvent spouse must show that he/she can protect the interest
of the insolvent estate.

- OBJECTIONS: constitutional (interim) breaches: S8 - the right to Equality, and S28 –
the right to property.

The Equality Clause:
- It was contested by Harksen that the provisions of S21 were violations of the Equality
Clause (S8 Interim Constitution) on the following grounds:
 By imposing severe obligations/burdens on the solvent spouse that it does not
impose on other people the insolvent has had relations with S21 promulgate
unequal treatment of solvent spouses, discriminating, unfairly, against them.
 It discriminates against solvent spouses who are not traders
- It was submitted that the above violated S8 (1) – Equality before the law, and S8 (2) –
Unfair Discrimination.

- Is there Differentiation?

- S 8(1) – equality before the law – Analysis:
 Now S 9(1)
- Does the section in contention differentiate between people/ categories of
- people? If not there can be no claim.
- If it does, is there a rational connection between the differentiation in question
and the legitimate governmental purpose it was designed to achieve?
- If there is a rational connection then there is no breach of S 8(1)
- If the there is a rational connection…
- … Does the Differentiation Amount to Unfair Discrimination?
- S 8(2) – unfair discrimination – Analysis:

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