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[1996] ZACC 9
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Brink v Kitshoff NO (CCT15/95) [1996] ZACC 9; 1996 (4) SA 197; 1996 (6) BCLR 752 (15 May 1996)
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THE CONSTITUTIONAL COURT OF SOUTH
AFRICA
CASE NO CCT
15/95
Annette
Brink
Applicant
and
Andre Kitshoff
NO
Respondent
Heard on: 9 November 1995
Judgment
delivered on: May 1996
JUDGMENT
[1]
CHASKALSON P:
This is another case in which difficulties have arisen
in regard to the application of the provisions of section 102(1) of the
Constitution.
[2] Section 102(1) which deals with the referral of constitutional issues to
this Court by a provincial or local division of the
Supreme Court, and sections
103(3) and (4) which deal with referrals of constitutional issues raised in
other courts, are necessary
to address problems of jurisdiction. A provincial
or local division of the Supreme Court has jurisdiction under section 101 of the
Constitution to determine certain constitutional issues. In the absence of a
consent to jurisdiction in terms of section 101(6)
it has no jurisdiction to
give a decision on the constitutionality of an Act of Parliament, to rule on
disputes of a constitutional
nature between the national government and any
other organ of government, or to deal with disputes between organs of state of
different
provinces.
[3] No provision is made for proceedings to be initiated in the Constitutional
Court, but section 100(2) empowers the Constitutional
Court to make provision in
its rules for direct access to the Court where it is in the interest of
justice to do so in respect
of any matter over which it has
jurisdiction. Such provision has been made by rule 17 which permits
direct access in exceptional
circumstances only, which will ordinarily
exist only where the matter is of such urgency, or otherwise of such public
importance,
that the delay necessitated by the use of the ordinary procedures
would prejudice the public interest or prejudice the ends of justice
and good
government.
[4] The procedures, which are prescribed by sections 102(1), (2), and (3) and
sections 103(2), (3) and (4) of the Constitution, contemplate
that
constitutional issues within the exclusive jurisdiction of the Constitutional
Court will be raised formally in proceedings
before the Supreme Court or other
courts, and will only be referred to the Constitutional Court for its decision
in circumstances
where it would be appropriate to do so. It is in the first
instance the responsibility of the Supreme Court to decide whether or
not the
circumstances are appropriate.
[5] Thus, if the validity of any legislation is challenged in the Magistrates
Court or other court which has no jurisdiction to deal
with such challenge, the
presiding officer must either act in terms of section 103(2) and deal with the
matter on the assumption
that the legislation is valid, or if he or she is
of the opinion that it is in the interest of justice to do
so,
[1]
postpone the
proceedings in terms of section 103(3) to enable the party who has raised the
matter to apply to the Supreme Court for
relief in terms of section 103(4). The
Supreme Court has the power in terms of section 103(4) to deal with the issue
itself if it
is within its jurisdiction or to refer it to the Constitutional
Court if it is beyond its jurisdiction. To exercise the power to
refer the
issue to the Constitutional Court, the provincial or local division concerned
must be of the opinion that a decision on
the validity of the law will be
material to the adjudication of the matter, that there is a reasonable prospect
that the relevant
law will be held to be invalid, and that it is in the interest
of justice that the issue be decided. If a decision is taken to refer
the issue
to the Constitutional Court the provincial or local division concerned must make
a finding on any evidence that may be
relevant to the constitutional issue. This
will be necessary only if oral evidence has to be heard and although that is not
specifically
stated, the provision clearly contemplates that in such event the
evidence will be heard by the provincial or local division
concerned.
[6] Sections 102(1), (2), and (3) prescribe the procedure to be followed in
dealing with constitutional issues raised in proceedings
before a provincial or
local division. They provide:
(1) If, in any matter before a provincial or local division of the Supreme
Court, there is an issue which may be decisive for the
case, and which falls
within the exclusive jurisdiction of the Constitutional Court in terms of
section 98(2) and (3), the provincial
or local division concerned shall, if it
considers it to be in the interest of justice to do so, refer such matter to the
Constitutional
Court for its decision: Provided that, if it is necessary for
evidence to be heard for the purposes of deciding such issue, the
provincial or
local division concerned shall hear such evidence and make a finding thereon,
before referring the matter to the Constitutional
Court.
(2) If, in any matter before a local or provincial division, there is any issue
other than an issue referred to the Constitutional
Court in terms of subsection
(1), the provincial or local division shall, if it refers the relevant issue to
the Constitutional Court,
suspend the proceedings before it, pending the
decision of the Constitutional
Court.
(3) If, in any matter before a provincial or local division, there are both
constitutional and other issues, the provincial or local
division concerned
shall, if it does not refer an issue to the Constitutional Court, hear the
matter, make findings of fact which
may be relevant to a constitutional issue
within the exclusive jurisdiction of the Constitutional Court, and give a
decision on such
issues as are within its
jurisdiction.
The Constitution contemplates that constitutional disputes will ordinarily be
dealt with by the provincial or local division before
the Constitutional Court
is engaged; and this is so even if the only issue in the case is a
constitutional issue within the exclusive
jurisdiction of the Constitutional
Court. This follows from the language of section 102(1) and (2) which
necessarily implies that
section 102(1) is applicable to cases in which the only
issue is the one to be referred to the Constitutional Court, and section
102(17)
which makes provision for appeals to the Constitutional Court against a decision
of the Supreme Court refusing a referral
where the only issue raised is
a constitutional issue within the exclusive jurisdiction of the Constitutional
Court.
[7] The Constitution requires the Supreme Court to deal with constitutional
issues raised in proceedings brought before it in terms
of sections 102(1) or
103(4), if such issues are within its jurisdiction. Where the constitutional
issues raised in proceedings
before it, are within the jurisdiction of the
provincial or local division, they will ordinarily be considered in conjunction
with
the other issues in the case, and any appeal will be dealt with in
accordance with the provisions of sections 102(4), (5), (6) and
(7); such
appeals will also be subject to the rules of the Supreme Court and the
Constitutional Court.
[8] Where, however, a constitutional issue within the exclusive jurisdiction of
the Constitutional Court is raised in a matter, the
provincial or local division
is empowered by section 102(1) to refer such issue to the Constitutional Court
for its decision. It
is not, however, obliged to do so. It is required by the
section to have regard to two further matters upon which the exercising
of the
power is dependent. First, whether the issue is one which may be decisive for
the case; and secondly, whether it would be
in the interest of justice to refer
the issue to the Constitutional Court. The referral should only be made if both
these requirements
have been satisfied.
[9] The importance of the second issue has been stressed in a number of
decisions where it has been pointed out that it is not in
the interest of
justice to refer an issue which is based upon a contention that has no
reasonable prospect of being upheld by the
Constitutional Court. It has also
been pointed out that it is not ordinarily in the interest of justice for cases
to be heard piecemeal,
and that as a general rule if it is possible to decide a
case without deciding a constitutional issue this should be
done.
[2]
[10] The importance of the first issue is referred to by Didcott J in
Luitingh v Minister of
Defence
,
[3]
where he held that the
requirement that it may be decisive was satisfied once
the ruling given there may
have a crucial bearing on the eventual outcome of the
case as a whole, or on any significant aspect of the way in which its remaining
parts ought to be handled. This would include an issue which, if
decided in favour of the party who has raised it, would
put an end to or
materially curtail the litigation. It would also include an issue such as the
constitutionality of the provisions
of
section 217(1)(b)(ii)
of the
Criminal
Procedure Act, 1977
, dealing with the onus of proof in relation to the
admissibility of a confession in a criminal trial, which arose in
S v
Zuma
[4]
and
S v
Mhlungu
.
[5]
In
Zuma
's
case, which had been wrongly referred for other reasons, the decision of the
entire case in fact depended on where the onus lay.
In
Mhlungu
's case a
ruling would determine the way in which the voir dire was to be conducted, and
was also necessary in fairness to the accused
to enable them to decide whether
or not to give evidence.
[11] Evidence that may be necessary for the determination of a constitutional
issue should be placed before the Supreme Court at
the time of the application
for referral. Frequently, this can be done on affidavit. There may, however,
be exceptional cases
in which it is necessary for oral evidence to be led in
respect of the constitutional issue, and the proviso to
section 102(1)
requires
that in such cases the provincial or local division concerned shall
hear
the evidence and make findings thereon before referring the issue to the
Constitutional Court. This requirement is clearly directed
towards avoiding the
delays and inconvenience that would be caused if such evidence had to be dealt
with by a court of eleven judges.
Rule 34
of the Rules of the Constitutional
Court provides that a party may also make use of material that does not
specifically appear on
the record, provided that the facts are common cause or
otherwise incontrovertible, or are of an official, scientific, technical,
or
statistical nature capable of easy verification. Frequently it will not be
necessary for evidence to be placed before the Court
for the purposes of the
decision on the constitutional issue; but there will be occasions on which such
evidence will be necessary,
particularly when it is sought to justify a
limitation of a right entrenched under Chapter Three of the
Constitution.
[12] A litigant who wishes to rely on evidence that is not covered by rule 34,
has a duty to ensure that such evidence is placed
on record before asking for an
issue to be referred to the Constitutional Court, and the referring judge should
also be satisfied
that any evidence necessary for the proper determination of
the issue is on record before making the referral. It should be borne
in mind in
this regard, that an important part of any decision is the order to be made in
terms of sections 98(5) or (6) of the Constitution.
If either party wishes to
rely on evidence beyond the scope of rule 34 to support its submissions
concerning the terms of the order,
the affidavits containing such evidence
should be placed before the court at the referral phase and should not be
tendered after
the referral has been made.
[13] Although the language of sections 102(1), (2) and (3) differs from the
language of sections 103(2), (3),and (4), they have in
common the fact that the
Supreme Court has the responsibility of controlling referrals to the
Constitutional Court. This is an important
function which is necessary both to
ensure that the hearing of cases is not disrupted by frivolous or unnecessary
applications to
refer issues to the Constitutional Court, and to ensure that if
the determination of a constitutional issue may be decisive, it should
only be
referred after all the evidence necessary for such a decision has been placed on
record.
[14] Where, as in the present case, a ruling as to the decisiveness of the
constitutional issue depends in part on a point of law
within the jurisdiction
of the provincial or local division, the law point should be considered and
decided by the provincial or
local division concerned, and a referral should not
be made unless that decision leads to the conclusion that the constitutional
issue may indeed be decisive. These procedures ensure that litigation proceeds
in an orderly fashion, that constitutional issues
are only referred to the
Constitutional Court when they are ripe for hearing, and that the Constitutional
Court has the benefit of
the reasons of the provincial or local division for the
referral when it is called upon to deal with the matter. Applications for
referral are not mere formalities and ought not to be treated as such by the
parties seeking a referral, or by the courts to whom
an application for a
postponement under section 103(3) or a referral under section 103(4) or section
102(1) is made.
[15] In the present case the issue referred to this Court concerns the
constitutionality of section 44 of the Insurance Act, 1944.
It is an issue
within the exclusive jurisdiction of the Constitutional Court and the
requirement that there be a reasonable prospect
of success was clearly
satisfied. The consideration that presents a difficulty in the present case is
whether the issue is one which
may be decisive for the case. As appears from
the judgment of O'Regan J, the answer to that question depends upon whether the
date
on which the deeming provision takes effect is the date of the concursus
creditorum or some earlier date. This is relevant because
the deceased died
before the Constitution was in force and if the vesting of the creditors
rights to the proceeds of the
insurance policy took effect on or before that
date it would not be subject to attack even if section 44 was invalidated by the
Constitution
when it came into
force.
[6]
A ruling as to the
constitutionality of section 44 could, however, be decisive for the case if the
relevant date is the date of
the concursus creditorum. A finding as to the
relevant date was therefore necessary for the purpose of deciding whether or not
the
issue was a proper one for referral in terms of section 102(1). This Court
has no jurisdiction to make such a finding, which was
relevant not only for the
purposes of the referral but also for the making of an order in terms of section
98(5) or (6) of the Constitution.
The Transvaal Provincial Division should have
been asked to make a finding on this issue. This was not done and as a result
the
referral has not been made in accordance with the requirements of section
102(1).
[6]
[16] In the present case an application was made on the 23rd March 1995 to the
Transvaal Provincial Division, before which the case
was pending, for the issue
of the constitutionality of section 44 of the Insurance Act to be referred to
this Court, and that application
was granted on the 28th March. The parties
failed at the time to appreciate the importance of the date of the vesting of
creditors
rights under section 44 of the Insurance Act, and it was for
this reason that the provincial division was not asked to determine
such date.
This was before the judgments in
S v Mhlungu, S v Vermaas
, and
Du
Plessis v De Klerk
had been given. Practitioners and Courts were not yet
familiar with the provisions of the new Constitution or with the procedures
to
be followed in the referral of constitutional issues to this Court. It had also
not yet been made clear by this Court that the
Constitution will not
ordinarily
[7]
be construed as
interfering with vested rights, and as the judgments in
S v Mhlungu
and
Du Plessis v De Klerk
show, there was considerable confusion at the time
of the application for referral in this case in regard to the applicability of
the Constitution to issues that had arisen prior to the date on which it came
into force.
[17] Although they have some features in common there are material differences
between the present case and
Luitingh
s case.
Luitingh
s case was referred to this Court more than a month after
judgment had been given in
Zuma
s case and at a time when it had
already been made clear that rule 17 is not intended to be used to
legitimate an
incompetent
reference.
[8]
One of the
issues in
Luitingh
s case was whether the Plaintiffs claim
had been extinguished before the Constitution came into force; if it had been
the constitutional issue would have been irrelevant. Despite the uncertainty
that existed in regard to the retrospectivity
of the
Constitution, it had never been suggested, nor could it reasonably have been
suggested, that one of the consequences of the
coming into force of the
Constitution was to revive extinguished debts. Finally, there was no pressing
need to deal with the constitutional
issue raised in
Luitingh
s
case, as the same issue had been argued in another case before this court, and
in which the issue would be resolved.
[18] The parties in the present case desire that a decision be given on the
constitutional issue. The issue as to the constitutionality
of section 44 of
the Insurance Act is one of importance on which we have heard full argument by
parties with an interest in the outcome,
and in respect of which we are in a
position to give judgment. Although we do not have jurisdiction to determine the
time of the
vesting of creditors rights under section 44 of the
Insurance Act I am satisfied that there is a reasonable prospect that
on the
facts of the present case, the relevant date may be held to be the date of the
concursus creditorum, which means that there
is a reasonable prospect that the
constitutional issue will prove to be decisive for the case. Having regard to
this, to the uncertainty
that existed at the time of the referral in regard both
to the procedures to be followed and the reach of the Constitution, and to
the
fact that the public interest and the ends of justice and good government will
be served by the delivery of a judgment on the
constitutional issue by this
Court, I consider that the matter is one in which we can exercise our power to
grant direct access to
the
parties.
[9]
It should, however, be
clearly understood that uncertainty as to the procedures to be followed or the
reach of the Constitution can
no longer be regarded as excuses for incorrect
referrals, and that this Court has a discretion, even where exceptional
circumstances
have been established, to refuse to grant permission for a matter
to be brought directly to it. It will not hesitate to exercise
that discretion
when it considers it appropriate to do so.
A
CHASKALSON
PRESIDENT, CONSTITUTIONAL COURT
Mahomed DP, Ackermann J,
Didcott J, Kentridge AJ, Kriegler J, Langa J, Madala J, Mokgoro J,
ORegan J and Sachs J concur in
the judgment of Chaskalson P
[19]
O'REGAN J
: The question referred to the court in this matter was
whether section 44 of the Insurance Act, 27 of 1943 ('the Act'), is in conflict
with the provisions of chapter 3 of the Constitution of the Republic of South
Africa Act, 200 of 1993 ('the Constitution'), in so
far as it discriminates
against married women by depriving them, in certain circumstances, of all or
some of the benefits of life
insurance policies ceded to them or made in their
favour by their husbands.
[20] Section 44 of the Act provides as
follows:
(1) If the estate of a man who has ceded or effected a life policy in terms of
section
forty-two
or
forty-three
has been sequestrated as
insolvent, the policy or any money which has been paid or has become due
thereunder or any other asset into
which any such money was converted shall be
deemed to belong to that estate: Provided that, if the transaction in question
was entered
into in good faith and was completed not less than two years before
the sequestration
--
(a) by means or in pursuance of a duly registered antenuptial contract, the
preceding provisions of this subsection shall not apply
in connection with the
policy, money or other asset in question;
(b) otherwise than by means or in pursuance of a duly registered antenuptial
contract, only so much of the total value of all such
policies, money and other
assets as exceeds thirty thousand rand shall be deemed to belong to the said
estate.
(2) If the estate of a man who has ceded or effected a life policy as aforesaid,
has not been sequestrated, the policy or any money
which has been paid or has
become due thereunder or any other asset into which any such money was converted
shall, as against any
creditor of that man, be deemed to be the property of the
said man --
(a) in so far as its value, together with the value of all other life policies
ceded or effected as aforesaid and all moneys which
have been paid or have
become due under any such policy and the value of all other assets into which
any such money was converted,
exceeds the sum of thirty thousand rand, if a
period of two years or longer has elapsed since the date upon which the said man
ceded
or effected the policy; or
(b) entirely, if a period of less than two years has elapsed between the date
upon which the policy was ceded or effected, as aforesaid,
and the date upon
which the creditor concerned causes the property in question to be attached in
execution of a judgment or order
of a court of
law.
[21] Section 44(3) of the Act is concerned with spouses married in community of
property and protects life insurance policies owned
by a wife from attachment in
certain circumstances. It has no bearing on the facts of the case before us and
this judgment is therefore
concerned solely with subsections (1) and (2) of
section 44.
[22] One effect of these provisions is that, where a life insurance policy has
been ceded to a woman, or effected in her favour,
by her husband more than two
years before the sequestration of her husband's estate, she will receive a
maximum of R30 000 from the
policy. If it was ceded or taken out less than two
years from the date of sequestration, she will receive no benefit from the
policy
at all. Similarly, once two years has elapsed since the policy was ceded
to a wife, or effected in her favour, the policy or any
money due thereunder, to
the extent that it exceeds R30 000, will be deemed, as against the creditors of
the husband, to form part
of the husbands estate. Such proceeds may
therefore be attached by judgment creditors of the husband in execution of a
judgment
against him. If less than two years has elapsed since the date of the
cession or taking out of the policy and the date of attachment
by a creditor of
her husband, all the proceeds of the policy will be deemed to be part of the
husbands estate. The Act contains
no similar limitation upon the effect
of a life insurance policy ceded or effected in favour of a husband by a
wife.
[23] Counsel for Mr A Kitshoff NO, the respondent, pointed out that sections
44(1) and (2), and their predecessors, section 26(2)
of the Insolvency Act, 32
of 1916, and section 28 of the Insurance Act, 37 of 1923, were enacted at a time
when donations between
spouses during a marriage were prohibited. One of the
effects of sections 44 (1) and (2) and their predecessors was therefore to
provide some relief to married women in the context of the prevailing law
governing matrimonial property. During the 1980s, however,
the Legislature
enacted legislation which altered substantially the proprietary consequences of
marriage (the
Matrimonial Property Act, 88 of 1984
, and the Marriage and
Matrimonial Property Law Amendment Act, 3 of 1988). Section 22 of the 1984 Act
abolished the common law provision
which had forbidden donations between
spouses. Sections 44 (1) and (2) therefore no longer have the beneficial effect
referred to
by counsel. As a consequence of that change in the law, the effect
of the provision, which had formerly been to provide some benefit
to married
women, was altered so that it, in effect, was prejudicial to
them.
[24] The facts in the case referred to this court are as follows: a life
insurance policy valued at approximately R2 million in
respect of Mr P Brink was
taken out during 1989. The policy reflected Mr Brink as the owner of the policy
and in 1990 he ceded,
or purported to cede, it to his wife, Mrs A Brink, who is
the applicant before this court. On 9 April 1994 Mr Brink died. Mr A
Kitshoff,
the Respondent before this court, was appointed as executor of the estate and on
23 May 1994, in terms of section 34(1)
of the Administration of Estates Act, 66
of 1965, ('the Estates Act'), he sent a notice to creditors informing them that
the estate
was insolvent. In terms of section 44 of the Act, the executor
demanded that the assurer (Liberty Life Association of Africa) pay
into the
estate all but R30 000 of the proceeds of the life insurance policy. When the
assurer refused to do so, the executor launched
an application in the Transvaal
Provincial Division of the Supreme Court for an order compelling the assurer to
pay over the proceeds.
Mrs Brink, the assurer and the Master of the Supreme
Court were cited as respondents in that application.
[25] Mrs Brink made a counter application seeking an order that the life
insurance policy be rectified to reflect her, and not her
husband, as the
original owner of the policy. She also raised the question of the
constitutionality of section 44 of the Act. On
28 March 1995 the parties
applied to the Supreme Court for a consent order referring the question of the
constitutionality of section
44 to this court in terms of section 102(1) of the
Constitution. That order was granted.
[26] In this case, the insurance policy was taken out and ceded and the
applicant's husband died before the Constitution came into
force. The question
of whether this Constitution can have application to events that occurred before
it came into operation on the
27 April 1994 has been decided in
Du Plessis
and others v De Klerk
and others
CCT8/95, an unreported judgment of
this court delivered in May 1996. In that case, Kentridge AJ, speaking for the
court, held that
the Constitution would not ordinarily be construed as
interfering with rights which had vested before it came into force (at para
20).
[27] Although that judgment had not been handed down when this case was argued,
Mr Bertelsmann, for the applicant, developed his
argument on the assumption that
the Constitution would only apply to the present case if the executors
claim to the proceeds
of the policy arose after the Constitution came into
force. According to his argument, on a proper reading of section 44(1), an
estate only becomes entitled to the proceeds of the policy once the estate has
been sequestrated. He pointed out that the deceased
estate had never been
formally sequestrated. However, Mr Bertelsmann argued, relying upon
Miller
NO v Smit
1986 (1) SA 320
(C) at 326, that the estate would become entitled
to the proceeds of the policy once a
concursus creditorum
had been
initiated in terms of section 44(2), read with section 34 of the Estates Act.
This could be brought about by the provisions
of section 34 of the Estates Act
without a formal sequestration order. In terms of this section, where an
executor discovers that
an estate is insolvent, he or she may send a notice to
all creditors reporting on the insolvency of the estate. If a majority of
the
creditors do not require the executor to surrender the estate for sequestration
in terms of the
Insolvency Act, 24 of 1936
, the executor may, within a period
specified in the notice, which may not be less than fourteen days after sending
it, proceed with
an informal insolvency procedure governed by the provisions of
section 34 of the Estates Act. At that stage, a
concursus creditorum
is
deemed to have been initiated. In the present case, a section 34 notice was
sent out on 23 May 1994 and Mr Bertelsmann argued
in reliance on section 34 that
a
concursus creditorum
came into existence fourteen days later and that
it was only then that the estate could have acquired a right to the proceeds of
the policy.
[28] The jurisdiction of this court is limited to the interpretation, protection
and enforcement of the provisions of the Constitution
(in terms of section 98(2)
of the Constitution) and any other matter over which it is expressly given
jurisdiction. Neither the
question of when an estate becomes entitled to the
proceeds of a life insurance policy in terms of section 44, nor the question of
when a
concursus creditorum
will be initiated, are constitutional
questions. This court accordingly does not have jurisdiction over such
matters.
[29] The first question to be considered is whether, in the circumstances, the
reference of the constitutional issue to this Court
is proper. That issue is
discussed fully in the judgment of Chaskalson P with which I am in complete
agreement. In short, section
102(1) of the Constitution provides three
prerequisites for a valid referral: the issue referred must fall within the
exclusive
jurisdiction of the Constitutional Court, it must be shown that the
issue may be decisive of the case and the judge
of the
provincial or local division must consider it in the interest of justice for the
issue to be referred. In
S v Mhlungu
[1995] ZACC 4
;
1995 (3) SA 867
(CC);
1995 (7) BCLR
793
(CC) (at para 59) Kentridge AJ held that it was implicit within the third
requirement that there be reasonable prospects of success
in regard to the issue
referred. (See also
Ferreira v Levin NO
1996 (1) SA 984
(CC);
1996 (1)
BCLR 1
at para 7.)
[30] On the construction of section 102(1) adopted by Chaskalson P, it is
necessary for Mr Bertelsmann to show that the Constitution
may have a decisive
bearing on the outcome of the case. Whether it will or not in this case depends
on whether Mr Bertelsmanns
construction of section 44 of the Act and
section 34 of the Estates Act is correct or not. This is a matter which falls
outside
our jurisdiction and within the jurisdiction of the Supreme Court and is
a question which should have been answered before this referral
was made.
Accordingly, the referral in this case is improper. However, for the reasons
given by Chaskalson P (at paragraphs 16
- 18), I consider that this is an
appropriate case in which to grant direct access in terms of section 100(2) of
the Constitution
read with rule 17.
[31] Sections 44 (1) and (2) of the Act are challenged on the ground that they
constitute a breach of section 8 of the Constitution.
Section 8 provides
that:
(1) Every person shall have the right to equality before the law and to equal
protection of the law.
(2) No person shall be unfairly discriminated against, directly or indirectly,
and, without derogating from the generality of this
provision, on one or more of
the following grounds in particular: race, gender, sex, ethnic or social
origin, colour, sexual orientation,
age, disability,
religion, conscience, belief, culture or
language.
(3) (a) This section shall not preclude measures designed to achieve the
adequate protection and advancement of persons or groups
or categories of
persons disadvantaged by unfair discrimination, in order to enable their full
and equal enjoyment of all rights
and freedoms.
(b) ...
(4)
Prima facie
proof of discrimination on any of the grounds specified
in subsection (2) shall be presumed to be sufficient proof of unfair
discrimination
as contemplated in that subsection, until the contrary is
established.
[32] All the parties who appeared before us conceded that sections 44(1) and (2)
constituted a breach of section 8 of the Constitution.
The applicant and the
Centre for Applied Legal Studies, which was admitted as
amicus curiae
,
presented detailed and helpful argument as to the manner in which section 8
should be interpreted. This is the first case in which
the court has been
directly concerned with section 8, and in particular section 8(2), of the
Constitution and some consideration
of the approach to that section is
appropriate.
[33] Equality has a very special place in the South African Constitution. The
preamble states that
... there is a need to create a new order in which all South Africans will be
entitled to a common South African citizenship in a
sovereign and democratic
constitutional state in which there is equality between men and women and people
of all races ....
Furthermore, section 33(1) of the Constitution states that rights entrenched in
chapter 3 may be limited to the extent only that
it is 'justifiable in an open
and democratic society based on freedom and equality'. It is not surprising
that equality is a recurrent
theme in the Constitution. As this court has said
in other judgments, the Constitution is an emphatic renunciation of our past in
which inequality was systematically entrenched. (
S v Makwanyane
[1995] ZACC 3
;
1995 (3)
SA 391
(CC);
1995 (6) BCLR 665
(CC) at paragraphs 218, 262, 322
; Shabalala
and others v Attorney-General, Transvaal and another
[1995] ZACC 12
;
1996 (1) SA 725
(CC);
1995 (12) BCLR 1593
, at paragraph 26
.)
[34] Section 35(1) of the Constitution requires us to have regard to
international law to interpret the rights it entrenches. The
concepts of
'equality before the law' and 'discrimination' are widely used in international
instruments. Article 7 of the Universal
Declaration of Human Rights 1948
provides that:
All are equal before the law and are entitled without any discrimination to
equal protection of the law. All are entitled to equal
protection against any
discrimination in violation of this Declaration and against any incitement to
such discrimination.
Article 26 of the International Covenant on Civil and Political Rights 1966
provides that:
All persons are equal before the law and are entitled without any
discrimination to the equal protection of the law. In this respect,
law shall
prohibit any discrimination and guarantee to all persons equal and effective
protection against discrimination on any ground
such as race, colour, sex,
language, religion, political or other opinion, national or social origin,
property, birth or other status.
In addition, there are other international conventions dealing with specific
aspects of discrimination such as the International
Convention on the
Elimination of all Forms of Racial Discrimination 1966, the Convention on the
Elimination of all Forms of Discrimination
against Women 1980, the Convention
against Discrimination in Education 1960 and the International Labour
Organisation (ILO) Discrimination
(Employment and Occupation) Convention
1958.
[35] As well as the international instruments, many countries have
constitutional provisions protecting equality and prohibiting
discrimination.
One of the oldest of such provisions is the Fourteenth Amendment of the
Constitution of the United States of America,
which provides that no state shall
'deny to any person within its jurisdiction the equal protection of the laws'.
Although this
provision contains no specific reference to discrimination, it is
widely perceived to be a precursor to equality provisions in many
modern
constitutions. Similarly, the extensive jurisprudence developed by the United
States Supreme Court has informed much of the
jurisprudence on equality of other
courts. A central principle of the United States jurisprudence has been to
impose different levels
of scrutiny on different categories of legislative
classification. The most stringent level of scrutiny is reserved for
classifications
based on race or nationality, or those that invade fundamental
rights. Such classifications are almost inevitably considered to
be a breach of
the Fourteenth Amendment. An intermediate level of scrutiny is applied to
classifications concerning gender or socio-economic
rights. The third level of
scrutiny requires merely that a classification be shown to have a rational
relationship to the legislative
purpose. (See Laurence H Tribe
American
Constitutional Law
2nd ed chapter 16; Geoffrey R Stone, Louis M Seidman,
Cass R Sunstein, Mark V Tushnet
Constitutional Law
2nd ed chapter 5.)
[36] The Indian Constitution, too, protects equality and seeks to outlaw
discrimination. Article 14 and 15(1) provide
that:
14. The State shall not deny to any person equality before the law or the
equal protection of the laws within the territory of
India.
15. (1) The State shall not discriminate against any citizen on grounds only
of religion, race, caste, sex, place of birth or any
of them.
(2) No citizen shall, on grounds only of religion, race, caste, sex, place of
birth or any of them, be subject to any disability,
liability, restriction or
condition with regard to -
(a) access
to shops, public restaurants, hotels and places of public entertainment; or
(b) the use of wells, tanks, bathing ghats, roads and places of public resort
maintained wholly or partly out of State funds or dedicated
to the use of the
general public.
(3) Nothing in this article shall prevent the State from making any special
provision for women and children.
(4) Nothing in this article or in clause (2) of article 29 shall prevent the
State from making any special provision for the advancement
of any social and
educationally backward classes of citizens or for the Scheduled Castes and the
Scheduled Tribes.
[37] In interpreting article 14, the Indian Supreme Court has required that any
legislative classification or distinction be shown
first to be founded on
'intelligible differentia' which have a rational relation to the object sought
to be achieved by the impugned
legislation. Article 15 is understood as an
instance of the right to equality protected by article 14. (Basu
Shorter
Constitution of India
10th ed at 63; Seervai
The Constitution of India
3rd
ed, volume 1 at Chapter 9.)
[38] In Canada article 15 of the Charter on Rights and Freedoms provides
that:
(1) Every individual is equal before and under the law and has the right to the
equal protection and equal benefit of the law without
discrimination and, in
particular, without discrimination based on race, national or ethnic origin,
colour, religion, sex, age or
mental or physical disability.
(2) Subsection (1) does not preclude any law, program or activity that has as
its object the amelioration of conditions of disadvantaged
individuals or groups
including those that are disadvantaged because of race, national or ethnic
origin, colour, religion, sex, age
or mental or physical
disability.
In
Andrews v Law Society of British Columbia
(1989) 36 CRR 193
, the
Supreme Court of Canada held that the primary purpose of section 15 was to
prevent discrimination on the grounds listed in section
15(2) or on grounds
analogous to those listed. (See P W Hogg
Constitutional Law of Canada
3rd ed 1164 - 65.)
[39] This cursory consideration of the international conventions and the foreign
jurisprudence makes it clear that the prohibition
of discrimination is an
important goal of both national governments and the international community.
However, it also illustrates
that the various conventions and national
constitutions are differently worded and that the interpretation of national
constitutions,
in particular, reflects different approaches to the concepts of
equality and non-discrimination. The different approaches adopted
in the
different national jurisdictions arise not only from different textual
provisions and from different historical circumstances,
but also from different
jurisprudential and philosophical understandings of equality.
[40] As in other national constitutions, section 8 is the product of our own
particular history. Perhaps more than any of the other
provisions in chapter 3,
its interpretation must be based on the specific language of section 8, as well
as our own constitutional
context. Our history is of particular relevance to
the concept of equality. The policy of apartheid, in law and in fact,
systematically
discriminated against black people in all aspects of social life.
Black people were prevented from becoming owners of property or
even residing in
areas classified as 'white', which constituted nearly 90% of the landmass of
South Africa; senior jobs and access
to established schools and universities
were denied to them; civic amenities, including transport systems, public
parks, libraries
and many shops were also closed to black people. Instead,
separate and inferior facilities were provided. The deep scars of this
appalling programme are still visible in our society. It is in the light of
that history and the enduring legacy that it bequeathed
that the equality clause
needs to be interpreted.
[41] Although our history is one in which the most visible and most vicious
pattern of discrimination has been racial, other systematic
motifs of
discrimination were and are inscribed on our social fabric. In drafting section
8, the drafters recognised that systematic
patterns of discrimination on grounds
other than race have caused, and may continue to cause, considerable harm. For
this reason,
section 8(2) lists a wide, and not exhaustive, list of prohibited
grounds of discrimination.
[42] Section 8 was adopted then in the recognition that discrimination against
people who are members of disfavoured groups can lead
to patterns of group
disadvantage and harm. Such discrimination is unfair: it builds and entrenches
inequality amongst different
groups in our society. The drafters realised that
it was necessary both to proscribe such forms of discrimination and to permit
positive steps to redress the effects of such discrimination. The need to
prohibit such patterns of discrimination and to remedy
their results are the
primary purposes of section 8 and, in particular, subsections (2), (3) and (4).
[43] Sections 44 (1) and (2) of the Act treat married women and married men
differently. This difference in treatment disadvantages
married women and not
married men. The discrimination in sections 44(1) and (2) is therefore based on
two grounds: sex and marital
status. Section 8(2) does not require that the
discrimination be based on one ground only; it specifically states that it may
be
based on ' one or more' grounds. Nor is it a difficulty for the applicant
that section 8(2) mentions only one of the grounds, sex.
The list provided in
section 8(2) is not exhaustive. The subsection states expressly that the list
provided should not be used
to derogate from the generality of the prohibition
on discrimination. It is not necessary to consider whether the other ground of
discrimination, marital status, would be a ground which would constitute unfair
discrimination for the purposes of section 8. It
is sufficient that the
disadvantageous treatment is substantially based on one of the listed prohibited
grounds, namely, sex.
[44] Although in our society, discrimination on grounds of sex has not been as
visible, nor as widely condemned, as discrimination
on grounds of race, it has
nevertheless resulted in deep patterns of disadvantage. These patterns of
disadvantage are particularly
acute in the case of black women, as race and
gender discrimination overlap. That all such discrimination needs to be
eradicated
from our society is a key message of the Constitution. The preamble
states the need to create a new order in 'which there is equality
between men
and women' as well as equality between 'people of all races'. The Constitution
proposes the establishment of a Commission
on Gender Equality which shall
'promote gender equality'. It is clear, therefore, that legal rules which
discriminate against women,
as do sections 44(1) and (2), are in breach of
section 8(2), unless it can be shown that they fall within the terms of section
8(3).
It was not argued, nor could it have been, that sections 44(1) and (2)
could be saved on that ground. Once it is established that
a legal rule or
provision is in breach of section 8, the question remains as to whether that
particular rule or provision may be
justified in terms of section
33.
[45] Section 33 provides that:
(1) The rights entrenched in this Chapter may be limited by law of general
application, provided that such limitation --
(a)
shall be permissible only to the extent that it is --
(i) reasonable; and
(ii) justifiable in an open and democratic society based on freedom and
equality; and
(b) shall not negate the essential content of the right in
question,
and provided further that any limitation to --
(aa)
a right entrenched in section 10, 11, 12, 14(1), 21, 25 or 30(1)(d) or (e) or
(2); or
(bb) a right entrenched in section 15, 16, 17, 18, 23 or 24, in so far as
such right relates to free and fair political activity,
shall, in addition to being reasonable as required in paragraph (a) (i), also be
necessary.
[46] For sections 44 (1) and (2) to be held to be permissible limitations in
terms of section 33, it must be shown that they are
reasonable and justifiable
in an open and democratic society based on freedom and equality, and that they
do not negate the essential
content of section 8. It is now well established
that section 33 involves a proportionality exercise, in which the purpose and
effects
of the infringing provisions are weighed against the nature and extent
of the infringement caused. It is to that exercise that I
now
turn.
[47] Sections 44 (1) and (2) appear to have been enacted with two purposes in
mind: the first was to provide married women with
a benefit which would
otherwise have been denied to them because of the effect of the common law rule
prohibiting donations between
spouses. As discussed above, this beneficial
purpose is no longer achieved because the common law rule was abolished in the
mid-1980s.
The provisions are now therefore disadvantageous to married women.
The second apparent purpose of the section is to protect the
interests of
creditors of insolvent estates. This purpose is still achieved by the
provisions. There is no question that protecting
creditors is a valuable and
important public purpose. There can be no dispute either that the close
relationship between spouses
may sometimes lead to collusion or
fraud.
[48] However, I am not persuaded that the distinction drawn between married men
and married women, which is the nub of the constitutional
complaint in this
case, can be said to be reasonable or justifiable. No cogent reasons were
advanced by the respondent as to why
sections 44 (1) and (2) apply only to
transactions in which husbands effect policies in favour of, or cede them to,
their wives,
and not to similar transactions by wives in favour of their
husbands. There seems to be no reason why fraud or collusion does not
occur
when husbands, rather than wives, are the beneficiaries of insurance policies.
Avoiding fraud or collusion does not suggest
a reason as to why a distinction
should be drawn between married men and married women.
[49] Nor could the respondent demonstrate that there were not other legislative
provisions which could reasonably serve the purpose
of protecting the interests
of creditors in a manner less invasive of constitutional rights. The
Insolvency
Act, 24 of 1936
, contains a series of provisions in terms of which transactions
which took place prior to the insolvency may be impeached if it is
shown, for
example, that they were collusive, or resulted in undue preference being given
to certain creditors (see
sections 26
,
29
,
30
and
31
of the
Insolvency Act).
The
Insolvency Act also
contains specific provisions for the property of the
spouse of an insolvent to vest in the Master and thereafter in the trustee
(section 21).
If these provisions are not considered sufficient, there seems to
be no reason either why Parliament could not enact a provision
similar to
sections 44
(1) and (2) which does not discriminate against married women.
Indeed, it appears from information placed before us by the Financial
Services
Board that draft legislation has been prepared which contains a provision
similar to
sections 44
(1) and (2), but which does not discriminate against
married women.
[50] In the circumstances, it is clear that
sections 44(1)
and (2) result in a
breach of
section 8.
The respondent has failed to show that there is any
reasonable basis for the constitutional breach caused. The purposes sought
to
be achieved by the provisions do not require a distinction to be drawn between
married women and married men. The discrimination
occasioned by the provisions
cannot be said to be reasonable or justifiable in the light of the purposes of
the legislation. In
my view, therefore, the respondent has failed to provide
sufficient justification for the infringement caused by
sections 44(1)
and (2).
In the circumstances, it is not necessary to consider whether they constitute a
negation of the essential content of the
right to equality. From the above, it
is clear that
sections 44(1)
and (2) are therefore inconsistent with the
Constitution and this court must therefore hold them
invalid.
[51] Section 98(5) of the Constitution requires this court to declare invalid
any law found to be inconsistent with the Constitution.
The court is granted a
discretion to suspend that declaration of invalidity in terms of the proviso to
section 98(5) if it considers
it to be in the interests of justice and good
government. The respondent could point to no compelling reason of good
government
for the court to exercise its discretion under section 98(5) and
suspend the effect of the declaration of invalidity. In the absence
of such a
reason, there can be no grounds upon which the court would exercise that
discretion.
[52] A further discretion is conferred upon this court by section 98(6). That
subsection provides as follows:
Unless the Constitutional Court in the interests of justice and good government
orders otherwise, and save to the extent that it
so orders, the declaration of
invalidity of a law or provision thereof
--
(a) existing at the commencement of this Constitution, shall not invalidate
anything done or permitted in terms thereof before the
coming into effect of
such declaration of invalidity; or
(b) passed after such commencement, shall invalidate everything done or
permitted in terms thereof.
[53] Sections 44 (1) and (2) of the Act came into force before the Constitution
commenced on the 27 April 1994, and therefore section
98(6)(a) is of application
to it. If this court were to declare subsections (1) and (2) of section 44
invalid, the ordinary effect
would be not to invalidate any reliance on those
provisions since the Constitution came into force.
[54] In
S v Bhulwana; S v Gwadiso
[1995] ZACC 11
;
(1996 (1) SA 388
(CC);
1995 (12) BCLR
1579
(CC)), in considering the discretion conferred on the court in section
98(6)(a), we held that:
Central to a consideration of the interests of justice in a particular case is
that successful litigants should obtain the relief
they seek. It is only when
the interests of good government outweigh the interests of the individual
litigants that the Court will
not grant relief to successful litigants. In
principle too, the litigants before the Court should not be singled out for the
grant
of relief, but relief should be afforded to all people who are in the same
situation as the litigants (see
US v Johnson
[1982] USSC 132
;
457 US 537
(1982);
Teague
v Lane
[1989] USSC 69
;
489 US 288
(1989)). On the other hand, as we state in
S v Zuma
(at para 43), we should be circumspect in exercising our powers under
section 98(6)(a) so as to avoid unnecessary dislocation and
uncertainty in the
criminal justice process. (at para 32)
[55] Although that was a criminal case and this case is not, the considerations
relevant to an exercise of discretion in terms of
section 98(6)(a) are similar.
The court must consider whether there are any reasons to believe that not
invalidating all acts done
or permitted in terms of sections 44 (1) and (2)
would be against the interests of justice or good
government.
[56] Since the Constitution came into force, estates may have been wound up and
finalised in terms of the
Insolvency Act, 24 of 1936
, or the
Administration of
Estates Act, 66 of 1965
, in good faith in reliance on
sections 44(1)
and (2).
It is also possible that the proceeds of life insurance policies contemplated by
section 44(2)
, or assets into which such proceeds have been converted, have been
attached and realised by judgment creditors in terms of the section.
There are
cogent reasons of good government against making an order which may render
proceedings which, to all intents and purposes,
have been concluded, subject to
further challenge or investigation. Such a possibility is not far-fetched. At
common law an unpaid
creditor of a deceased person has an action against heirs
or legatees who have been paid more than they were entitled to out of the
proceeds of the estate. (See
De Villiers v Bullbrand Fertilisers
Ltd
1941 TPD 131
;
Prinsloo v Woolbrokers Federation Ltd
1955 (2) SA 298
(N).)
The position of unpaid creditors of insolvent companies is different to the
position of an unpaid creditor of a deceased estate,
although they may have a
cause of action based on unjust enrichment. (See
Kommissaris van Binnelandse
Inkomste v Willers
1994 (3) SA 283
(A) at 333 and
Willis Faber Enthoven
(Pty) Ltd v Receiver of Revenue
[1991] ZASCA 163
;
1992 (4) SA 202
(A).)
[57] On the other hand, if the order of invalidity were to be made applicable
only to causes of action that arise after the date
of the order, it would deny
some married women the protection of the Constitution Generally speaking, the
interests of justice
require that the protection of the Constitution be
effective from the date upon which it came into force.
[58] In the circumstances of the present case, I take the view that the
interests of justice and good government can best be met
by an order which will,
on the one hand, avoid creating the possibility of litigation concerning estates
which have been wound up
or payments to judgment creditors which have been made,
while, on the other hand, not deprive women of the rights conferred upon
them by
the Constitution. This would be achieved by an order which invalidates the
deeming provisions of sections 44(1) and (2)
with effect from 27 April 1994, but
exempts from that order payments made as a result of the operation of deeming
provisions before
the date of this order.
[59] The question of costs was not an issue before this court. In making the
referral in terms of section 102(1), the Supreme Court
expressly reserved the
question of costs for later adjudication by that court. The parties before us
were equally at fault in relation
to the incorrect reference. The decision to
deal with the matter by way of our
power to grant direct access to litigants is one which benefits both parties and
which resolves an issue which may be of importance
to their litigation. In the
circumstances this is not a case in which it would be appropriate to make any
order as to costs.
[60] The following order is accordingly made:
1. It is declared that subsections (1) and (2) of section 44 of the Insurance
Act, 27 of 1943, are invalid.
2. In terms of section 98(6) (a) of the Constitution it is ordered that the
declaration of invalidity made in paragraph 1 shall invalidate
the deeming
provisions of sections 44(1) and (2) of the Insurance Act with effect from 27
April 1994, except to the extent that the
operation of such deeming provisions
has resulted, before the date of this order, in the payment of any money or the
delivery of
any asset, which, but for such provisions, would not otherwise have
formed part of the estate, to any creditor of the man, or any
beneficiary of his
estate.
3. The matter of
Brink v Kitshoff NO
is remitted to the Transvaal
Provincial Division to be dealt with in terms of this
judgment.
C.M.E. O'REGAN
JUDGE OF THE
CONSTITUTIONAL COURT OF SOUTH AFRICA
Chaskalson P, Mahomed DP, Ackermann
J, Didcott J, Kentridge AJ, Kriegler J, Langa J, Madala J, Mokgoro J and Sachs J
concur in the
judgment of ORegan J.
Case No : CCT
15/95
Counsel for the Applicant : E Bertelsmann SC
H T
Venter
Instructed by : Smits Uys & Van der Schyff
Attorneys
Counsel for the Respondent : M Helberg SC
A J
Louw
Instructed by : Bouwers Attorneys
Amicus Curiae : Centre for Applied Legal Studies,
University of the Witwatersrand
Counsel for Amicus Curiae : J
Kentridge
M Chaskalson
Instructed by : Wits Law Clinic
[1]
As to a magistrates
duties in this regard, see
Nel v Le Roux
CCT 30/95: judgment delivered on
4 April 1996.
[2]
S v Mhlungu & Others
[1995] ZACC 4
;
1995 (3) SA 867
(CC);
1995 (7) BCLR 793
(CC) at para 59;
S v Vermaas
[1995] ZACC 5
;
1995
(3) SA 292
(CC);
1995 (7) BCLR 851
(CC) at para 13;
Ynuico Ltd. v Minister of
Trade and Industry and Others
1995 (11) BCLR 1453
(T) at 1465B-E;
Bernstein and Others v Von Wielligh and Others
(CCT 23/95: judgment
delivered on 27 March 1996), at para 2.
[3]
(CCT 29/95): Judgment delivered
on 4 April 1996, paras 9 and 10.
[4]
[1995] ZACC 1
;
1995 (2) SA 642
(CC);
1995 (4)
BCLR 401
(SA).
[5]
[1995] ZACC 4
;
1995 (3) SA 867
(CC);
1995 (7)
BCLR 793
(CC).
[6]
Du Plessis v De Klerk
CCT 8/95: judgment delivered in May 1996. Whether there may be exceptional
circumstances in which an order in terms of section 98(6)
could render invalid
anything done prior to 27 April 1994, a question expressly left open in
De
Klerk
s case (at para 20 per Kentridge AJ) needs no further
consideration here. It is clear that the circumstances of the present
case do
not warrant such an order.
[6]
Luitingh v Minister of
Defence
(CCT/29/95: judgment delivered on 4 April 1996)
[7]
See the caveat in para 20 of the
judgment of Kentridge AJ in
Du Plessis v De Klerk
supra.
[8]
Zuma
's case (supra) at
para. 11.
[9]
See: section 100(2) of the
Constitution and rule 17. See also
S v Zuma
(supra), para 11.