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.
- 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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