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[2006] ZACC 4
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Van der Merwe v Road Accident Fund and Another (CCT48/05) [2006] ZACC 4; 2006 (4) SA 230 (CC); 2006 (6) BCLR 682 (CC) (30 March 2006)

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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 48/05
VANESSA MICHELLE VAN DER MERWE Applicant
versus
THE ROAD ACCIDENT FUND First Respondent
THE MINISTER OF JUSTICE AND Second Respondent
CONSTITUTIONAL
DEVELOPMENT
WOMEN’S LEGAL CENTRE TRUST Amicus
Curiae
Heard on : 24 November 2005
Decided on : 30 March
2006
JUDGMENT
MOSENEKE DCJ:
Introduction
[1]
This case concerns the
constitutional validity of legislative provisions that concern patrimonial
arrangements between spouses married
in community of property and of profit and
loss. More pointedly, the provisions regulate the right of a spouse married in
community
of property to recover delictual patrimonial damages arising from
bodily injury inflicted by the other
spouse.
[2]
The impugned provision is section
18(a) of the Matrimonial Property Act 88 of 1984 (the Act). It is however,
convenient to set out
sections 18(a) and (b):
“[18] Certain damages excluded from the community and recoverable from the
other spouse.
Notwithstanding the fact that a spouse is married in community of
property─
(a)
any
amount recovered by him by way of damages, other than damages for patrimonial
loss, by reason of a delict committed against him,
does not fall into the joint
estate but becomes his separate
property;
(b)
he may recover from the other
spouse damages, other than damages for patrimonial loss, in respect of bodily
injuries suffered by him
and attributable either wholly or in part to the fault
of that spouse.”
[3]
The provisions
are said to be bad because they unjustifiably intrude upon the
dignity
[1]
and
non-discrimination
[2]
guarantees our
Constitution affords everyone. Ndita AJ sitting in the Cape High
Court
[3]
(High Court) upheld this
contention in relation only to section 18(b) of the Act and declared the
provision to be inconsistent with
the Constitution and
invalid.
[4]
In the result, the High
Court made the following
order:
“(1) The inclusion of the words ‘
other than damages for
patrimonial loss
’ in
section 18(b)
of the
Matrimonial Property Act No
88 of 1984
is declared to be inconsistent with the Constitution.
(2) The words ‘
other than damages for patrimonial loss
’ in
section 18(b) should be removed and substituted with ‘
including damages
for patrimonial loss
.’
(3) The order in paragraph 2 only comes into effect from the moment of the
making of this order.
(4) This order shall have no effect on judgments that have already been handed
down.
(5) There is no order as to the costs of these
proceedings.”
[5]
Before us are three matters.
The first is an application brought by Mrs Vanessa van der Merwe
(“applicant”) in terms of
section
172(2)(d)
[4]
of the Constitution for
confirmation of the order of constitutional invalidity made by the High Court.
She also seeks ancillary
relief in the form of a variation of the court order to
be confirmed. The second is a direct appeal by the Road Accident Fund
(“the
Fund”) against the order of constitutional
invalidity.
[5]
The third is an
application for joinder of the Minister of Justice and Constitutional
Development as a party to the proceedings.
I propose to dispose of the joinder
issue first.
[6]
For some obscure reason, the
Minister was not a party to the proceedings before the High Court. In her
papers, the applicant attributes
the omission to “mutual error” of
both parties. The judgment of the High Court is silent on the issue of joinder.
Be
that as it may, now before us is an application for the joinder of the
Minister. The application appears to have been compelled
by the complaint in
the Fund’s notice of appeal that the High Court improperly granted an
order of constitutional invalidity
in respect of an act of parliament in the
absence of the responsible Minister. On receipt of the application, the
Minister consented
to the joinder. She also gave notice that she does not
oppose the confirmation of the order of constitutional invalidity and that
she
will abide the decision of this Court.
[7]
Wisely so, none of the other
parties opposed her being made a party to these proceedings because the
grievance of non-joinder of the
Minister before the High Court is a good one.
On a number of occasions this Court
[6]
has emphasised that when the constitutional validity of an act of parliament is
impugned the Minister responsible for its administration
must be a party to the
proceedings inasmuch as his or her views and evidence tendered ought to be heard
and considered. Rudimentary
fairness in litigation dictates so. There is
another important reason. When the constitutional validity of legislation is in
issue,
considerations of public interest and of separation of powers surface.
Ordinarily courts should not pronounce on the validity of
impugned legislation
without the benefit of hearing the state organ concerned on the purpose pursued
by the legislation, its legitimacy,
the factual context, the impact of its
application, and the justification, if any, for limiting an entrenched right.
The views of
the state organ concerned are also important when considering
whether, and on what conditions, to suspend any declaration of
invalidity.
[8]
Similar considerations apply
in confirmation proceedings before this Court. Rule
5(1)
[7]
enjoins the joinder of the
authority of state responsible for the administration of the law whose
constitutional validity is at issue.
Rule
5(2)
[8]
is explicit and peremptory in
its terms. It provides that the Court shall not make an order of constitutional
invalidity of legislation
unless the authority concerned is joined as a party to
the proceedings. It is indeed trite that the contentions and evidence, if
any,
advanced by the state functionary charged with the administration of legislation
under scrutiny are vital, if not indispensable,
for proper ventilation and
ultimate adjudication of the constitutional challenge to the validity of
legislation.
[9]
It is therefore appropriate
and necessary to join the Minister as second respondent. I shall order so.
Nothing more need to be said
about the joinder.
[10]
One observation may be made
about the Minister’s participation in these proceedings. Even though the
Minister supports the
confirmation of the declaration of invalidity of the
legislation and abides the decision of this Court, rightly so, she has caused
to
be submitted written and oral argument on behalf of the government. Both were
indeed helpful. Being charged with the administration
of the legislation, it is
salutary to hear the Minister on why the impugned provision is good or as in
this case, on why and to what
extent it falls short of the constitutional
standard and on the remedy that might be
appropriate.
The facts
[11]
The facts are simple and
sparse, yet disturbing. On 24 October 1999 and at Pick ‘n Pay in
Goodwood, on a public road, a vehicle
with registration letters and numbers BXW
288F then driven by Mr David van der Merwe (the insured driver) collided with
Mrs Vanessa
van der Merwe. At the time of the collision the applicant and the
insured driver were married in community of property. It is common
cause
between the parties that the insured driver intentionally knocked his wife over
with the motor vehicle and went on to reverse
over her while she was lying on
the ground. It comes as no surprise that their marriage has since been ended.
They are divorced.
[12]
Mrs Van der Merwe
instituted action in the High Court against the Fund seeking to recover special
and general damages arising from
her bodily injuries. The Fund is the statutory
body that is liable to compensate the applicant for damages arising from bodily
injuries
caused by the driving of a motor vehicle. However, the Fund is liable
to compensate the applicant only if she could institute a
lawful claim against
the driver of the motor vehicle that caused her bodily
harm.
[9]
[13]
In
her particulars of claim, Mrs Van der Merwe specifies her bodily injuries to
include a ruptured bladder, a fractured pelvis including
fractures of the right
acetabulum, right superior and inferior pubic rami and left inferior pubic
ramus, skeletal fracture, severe
contusions, soft tissue injury to her back,
lacerations and permanent disfigurement of her buttocks and stomach. All of
these injuries
resulted in her prolonged hospitalisation, suffering, pain and
discomfort, loss of amenities of life, permanent disability and cosmetic
disfigurement. On this account, she claims damages of nearly R500.000.00
consisting of special damages made up of past and future
medical expenses and
future loss of income earning capacity and general damages for pain and
suffering, loss of amenities of life
and
disfigurement.
[14]
The Fund has pleaded that
it has no knowledge of the nature and extent of the bodily injuries or the
related damages alleged but does
not admit them. In addition, the Fund raised a
special plea in which it admitted that the applicant is entitled to claim
“non-patrimonial
damages” such as “general damages”, but
denied liability to compensate the applicant for any “patrimonial
damages” by reason of the provisions of section 18(a) and (b) of the Act
read with section 19(a)
[10]
of the
Act which in effect prohibit claims for patrimonial damages between spouses
married in community of property.
[15]
The applicant met the
special plea with a replication that section 18(a) and
(b)
[11]
of the Act unfairly
discriminates on the ground of marital
status
[12]
against persons married
in community as opposed to persons married under other property regimes. She
added that the legislative
barrier to recover delictual patrimonial loss also
implicated her right to dignity
[13]
and constituted an arbitrary deprivation of
property.
[14]
In
the High Court
[16]
The High Court heard the
matter as a stated case in terms of Uniform Rules
33(1)
[15]
and
(2)
[16]
and on a terse set of agreed
facts recounted in the preceding paragraphs. In essence, both parties invited
the court to decide whether
sections 18(a) and (b) had the effect of preventing
spouses from claiming damages for patrimonial loss from each other, and if so
whether taken together the provisions offend sections 9(3), 10 and 25(1) of the
Constitution, and, if they do, to grant appropriate
relief.
[17]
The High Court found that
section 18(b) does prevent a claim for delictual patrimonial loss and that the
restriction unfairly discriminates
against spouses married in community of
property. It found that unlike spouses in other forms of marriages, they are
forbidden from
claiming patrimonial damages between themselves
.
The High
Court found that the unfair discrimination was on marital status, as prohibited
by section 9(3) and presumed unfair by section
9(5) of the
Constitution.
[17]
It also found
that the denial of a right of action to recover patrimonial loss arising from
bodily injury must be seen in the context
of the prevalence of domestic violence
in this country. The Court found that the prohibition is likely to have a more
adverse impact
on women than men and thus constitutes indirect discrimination
against women. The prohibition also impairs the dignity of spouses
subject to
it, especially women. The Court did not consider the constitutional validity of
section 18(a) of the Act nor the claim
based on arbitrary deprivation of
property.
[18]
The High Court found that
the discrimination is not justifiable under section
36(1)
[18]
of the Constitution. As a
consequence, it held section 18(b) of the Act to be invalid in so far as it
includes the words “other
than damages for patrimonial loss.” The
Court made an order that these words be struck out and replaced by the words
“including
damages for patrimonial loss.” As we already know, this
order is the object of the present
proceedings.
Submissions
[19]
In this Court, as in the
High Court, the applicant urged upon us to hold that section 18(b) of the Act
does not codify but merely
varies the common law by creating an exception to its
blanket exclusion of all claims for delictual damages between spouses married
in
community of property. The exception is said to permit recovery of
non-patrimonial damages in respect of bodily injury. On this
argument it is
said that we need not enquire into the constitutional validity of the provisions
of section 18(b) or “read
down”
[19]
the provisions. All
we need to do is to develop the common law to remove the source of the
constitutional grievance.
[20]
This submission need not
detain us. The High Court was right in refusing to be drawn into the debate
whether the legislative provision
codifies or merely creates an exception to the
common law. Whatever the defects may be in the common law of marriage in
community
of property, section 18(b) drastically alters the position by
permitting the injured spouse to recover damages for bodily injury
attributable
to the fault of the other
spouse.
[20]
The rub however is that
in doing so section 18(b) makes it clear that recoverable damages would be
“other than damages for
patrimonial loss.” Whilst it does not
exclude other forms of damages, it clearly prohibits recovery of damages
directed at
satisfying patrimonial loss in particular. It is that legislative
bar which is the origin of the constitutional grievance before
us and not the
common law. Therefore, the constitutional challenge at hand does not
necessitate the development of the common
law
[21]
but pre-eminently concerns
the constitutional validity of the impugned section.
[21]
There is a more compelling consideration
why we should decline the invitation to develop the common law only and not to
enquire into
the validity of the offending legislation. The High Court has made
an order of constitutional invalidity of a section in an act
of parliament.
Under our Constitution, the order has no force unless this Court confirms
it.
[22]
It seems to me self-evident
that once an order of constitutional invalidity is made by the High Court and
referred to this Court
it is not open to us to refuse to enquire into the
validity or otherwise of the legislation. The Court is obliged to pronounce
upon
the constitutional validity of the impugned provision and thereby confirm
or refuse to confirm the order.
[23]
If it were otherwise, the order of constitutional invalidity of the High Court
would languish in limbo and needlessly spawn public
uncertainty.
[24]
[22]
Only in the alternative, does
applicant seek confirmation of the order in respect of section 18(b) on the
ground that it constitutes
unfair discrimination based on marital status.
However, she does not, rightly so in my view, seek an order of constitutional
invalidity
in respect of section 18(a) or section 19 of the Act. The High Court
has not pronounced on these provisions and this Court has not
been asked to do
so. Nor are we minded to do so as we have not had the benefit of argument on
the constitutional validity of these
sections.
[23]
Applicant also argued that
the prohibition in section 18(b) amounts to an arbitrary deprivation of property
in terms of section 25
of the Constitution. Given the conclusion I have come to
on the applicant’s main ground of attack based on equality, I need
not
reach the argument premised on arbitrary deprivation of
property.
[24]
Last, applicant asks that
should the order of constitutional invalidity be confirmed, it ought to be
tailored to claims for patrimonial
loss arising from bodily injury committed
with intent only. This argument has no merit. The mental element of
“fault”
is a requirement in section 18(b). Its dual meaning of
“intent” or “negligence” is well entrenched in the
common law of delict.
[25]
Nothing
in the argument persuades me that in the context of domestic or marital bodily
injury, it ought to be restricted to the
more onerous test of intent. Also, it
should not be forgotten that the provisions of section 18(b) extend to bodily
injury arising
from road and other accidents, which ordinarily arise due to
negligent rather than wilful conduct. I conclude that there is no good
reason
for restricting the reach of section 18(b) to claims for patrimonial loss
arising from bodily injury inflicted with intent
only.
[25]
I turn to the submissions
of the Fund. It opposes confirmation of the order of constitutional invalidity
on several grounds. First,
the Fund submits that the impugned provision does
not amount to differentiation and that if it does, the differentiation bears a
rational connection to a legitimate government purpose. The purpose is to
regulate rights and obligations of different matrimonial
property regimes.
Second, it argues that the state did not unfairly discriminate against the
applicant directly or indirectly on
the ground of marital status or any other
ground. The challenged provision does not make a differentiation on a ground
listed in
section 9(3) of the Constitution or on an “analogous
ground”.
[26]
The argument
goes that properly understood, the specified ground of “marital
status” in section 9(3) of the Constitution
does not refer to differences
between patrimonial consequences within marriage but refers to differentiation
between people who are
married and people who are not
married.
[26]
The Fund argues further
that even if the differentiation is based on marital status, it is not unfair or
even if it is unfair, it
is justifiable under section 36 of the Constitution
because the applicant had adopted the marital regime out of her own choice and
in that way, it is argued, she has waived her right to claim patrimonial damages
arising from the delict of her spouse.
[27]
In another argument, the
Fund submits that there is no factual basis to the High Court’s conclusion
that section 18(b) constituted
indirect discrimination because it was more
detrimental to women than men and for considering the constitutionality of the
section
in the context of an upsurge in domestic
violence.
[28]
At this point it is
convenient to record that the Women’s Legal Centre Trust applied for and
was admitted as amicus curiae.
The amicus introduced written and oral argument,
which is not only different but also useful to the Court. The nub of its
submission
is that section 18(b) offends the equality, dignity, freedom and
security of the person,
[27]
and
access to courts
[28]
guarantees of
our Constitution. What stands out in the submissions of the amicus is the
emphasis on the uneven power relations between
men and women in marriages. The
amicus argues that the constitutional validity of section 18(b) must be seen
within the social context
of the prevalence of domestic violence in South Africa
and its gendered nature; the effect of physical abuse on women in particular
and
their economic vulnerability within
marriage.
The common law and section 18(b) of
the Act
[29]
I have already held that
the pre-eminent concern of this case is not the development of the common law
but the constitutional validity
of section 18(b). It is nonetheless beneficial
to restate the impugned section’s common law substratum that spouses who
are
fettered to a joint estate may not sue each other for delictual loss; be it
patrimonial or non-patrimonial.
[29]
The rule in effect ousts legal redress for delictual loss of any kind arising
from the wrongdoing of a spouse against another.
The amicus argues, and it must
be right, that this rule owes its origin to boundless patriarchy in a setting
where the husband wielded
marital power over the wife and children born of the
marriage, and was the exclusive administrator of the joint
estate.
[30]
As long as the marriage
endured, the estate was deemed to be one, indivisible and subject to one
command. Short of a divorce, a
wife married in community of property dared not
to sue her husband for any cause in
delict
[31]
because it would be
futile to do so:
“. . . law of a joint estate was and is at common law the obstacle to an
action between spouses married with community of property,...neither
has a
separate estate and what he or she recovers from the other comes out of the
joint estate and falls back instantly into the
joint
estate.”
[32]
Equally trite is that in a marital property regime where each
spouse has a separate estate, the common law restriction on claims in
delict has
no place. That explains why the bar to sue one’s spouse does not extend
to marriages out of community of
property.
[33]
[30]
This onerous and dated rule
of the common law was soon to fall foul of evolving societal notions of gender
equality within marriage
and the equal worth of spouses. On 1 November 1984,
chapters II and III of the Act jettisoned much of the gender differentiation
found in the common law of marriage in community of property. The legislation
made drastic inroads into the theoretical unity and
inviolability of the joint
estate and recast the common law of marriage irreversibly. A few examples will
suffice. The chapters
abolished the marital power of the husband over the
person and property of his wife,
[34]
equalised the power of the wife to that of the husband to manage the joint
estate,
[35]
subjected juristic acts
affecting the joint estate to the consent of the other
spouse,
[36]
and immunised and
protected monetary and other financial receipts by a spouse from interference by
the
other.
[37]
[31]
Importantly
for the present purpose, the Act introduced “separate property”
which does not form part of the joint
estate.
[38]
Section
18(b)
[39]
confers on a spouse a
claim in delict against the other for damages other than for patrimonial loss
arising from bodily injury.
The amount so recovered does not fall into the
joint estate but becomes her or his separate property in terms of 18(a). In
turn,
section 19
[40]
directs that an
injured spouse must recover damages and costs from the separate estate of the
guilty party absent which the damages
and costs are recoverable by way of an
appropriate adjustment on dissolution of the joint
estate.
[41]
[32]
The question that must be
asked is why did these far-reaching legislative reforms authorise legal redress
for non-patrimonial loss,
but not for patrimonial damages arising from bodily
harm? Put otherwise, in the light of our constitutional setting, which
legitimate
purpose of government is advanced by the distinction in section 18(b)
between claims for patrimonial and non-patrimonial damages
and in turn between
people in marriages in and in marriages out of community of
property?
[33]
In this Court, the Fund
formulated the government purpose pursued by section 18(b) no higher than the
need to regulate patrimonial
consequences of marriage. It is indeed so that
matrimonial property law, whether of common law or statutory variety, pursues at
a generic level, the object of regulating proprietary consequences of marriage.
That does not mean, however, that when the constitutional
validity of a specific
rule of the law of matrimonial property is in issue, the generic purpose
overrides the specific purpose of
the rule of law under challenge. A court
remains obliged to identify and examine the specific government object sought to
be achieved
by the impugned rule of law or provision. In other words, we are
obliged to look at the specific purpose of section 18(b) even though
the general
purpose of regulating property arrangements in marriage may not in itself be
open to constitutional doubt.
[42]
For present purposes, the question is not whether it is constitutionally
authorised to regulate patrimonial consequences of marriage
by law, but whether
a specific part of the scheme is constitutionally
tolerable.
[34]
In my view the Minister is
right when she contends that the purpose sought to be achieved by the
differentiation in section 18(b)
is to avoid the futility of spousal claims.
Sinclair explains the purpose in clear terms:
“Actions sounding in property or money between spouses married according
to a system of universal community do not make sense,
for everything is owed and
owned in common. For this reason the common law did not provide for the
possibility that the spouses
might have an action in delict against each other
for defamation, assault, bodily injury arising out of an accident, and so
on.”
[43]
[35]
We
know that section 18(b) permits claims in delict between spouses sharing a joint
estate, arising from bodily injury provided the
damages sought are
non-patrimonial. What remains is to determine whether the distinction between
patrimonial and non-patrimonial
damages and between marriages in and out of
community is rationally related to the purpose sought to be
advanced.
Patrimonial and non-patrimonial
damages
[36]
A good starting point for
probing the rationality of the distinction found in section 18(b) is the
relationship in law between patrimonial
and non-patrimonial damages. That
understanding will inform the constitutional appropriateness of granting legal
redress to one
class of married couples and denying it to
another.
[37]
The Act does not define
“damages” or “damages for patrimonial loss”. Its
meaning must be garnered from the
common law. The notion of damages is best
understood not by its nature but by its purpose. Damages are “a monetary
equivalent”
of loss “awarded to a person with the object of
eliminating as fully as possible [her or] his past as well as future
damage.”
[44]
The primary
purpose of awarding damages is to place, to the fullest possible extent, the
injured party in the same position she
or he would have been in, but for the
wrongful conduct. Damages also represent “the process through which an
impaired interest
may be restored through
money.”
[45]
To realise this
purpose our law recognises patrimonial and non-patrimonial damages. Both seek
to redress the diminution in the
quality and usefulness of a legally protected
interest. It seems clear that the notion of damages is sufficiently wide to
include
pecuniary and non-pecuniary loss and it is understood to do so
ordinarily in practice.
[38]
Thus patrimonial damages,
which in practice are also called special damages, aim to redress, to the extent
that money can, the actual
or probable reduction of a person’s patrimony
as a result of the delict or breach of
contract.
[46]
In this sense
patrimonial damages are said to be a “true
equivalent”
[47]
of the loss.
Ordinarily they are calculable in money. Well-settled examples in bodily injury
claims are past and future medical
expenses, past and future loss of income,
loss of earning capacity, and loss of support.
[39]
On the other hand
non-patrimonial damages, which also bear the name of general damages, are
utilised to redress the deterioration
of a highly personal legal interests that
attach to the body and personality of the claimant. However, ordinarily the
breach of
a personal legal interest does not reduce the individual’s
estate and does not have a readily determinable or direct monetary
value.
Therefore, general damages are, so to speak, illiquid and are not instantly
sounding in money.
[48]
They are not
susceptible to exact or immediate calculation in monetary terms. In other
words, there is no real relationship between
the money and the loss. In bodily
injury claims, well-established variants of general damages include “pain
and suffering”,
“disfigurement”, and “loss of amenities
of life.”
[40]
Besides bodily integrity,
our law recognises and protects other personality interests such as
dignity,
[49]
mental
integrity,
[50]
bodily
freedom,
[51]
reputation,
[52]
privacy,
[53]
feeling,
[54]
and
identity.
[55]
A wrongful reduction
of the quality of these personality interests or rights entitles the victim to
non-patrimonial damages.
[41]
Yet, it is important to
recognise that a claim for non-patrimonial damages ultimately assumes the form
of a monetary award. Guided
by the facts of each case and what is just and
equitable,
[56]
courts regularly
assess and award to claimants general damages sounding in money. In this sense,
an award of general damages to
redress a breach of a personality right also
accrues to the successful claimant’s patrimony. After all, the primary
object
of general damages too, in the non–patrimonial sense, is to make
good the loss; to amend the injury. Its aim too is to place
the plaintiff in
the same position she or he would have been but for the
wrongdoing.
Equality analysis
[42]
I now turn to the equality
analysis. To that end a good start would be to recite the equality and unfair
discrimination test enunciated
by this Court in
Harksen v Lane NO and
Others
:
[57]
(a) “Does the provision differentiate between people or categories of
people? If so, does the differentiation bear a rational
connection to a
legitimate government purpose? If it does not then there is a violation of
section 8(1). Even if it does bear a
rational connection, it might nevertheless
amount to discrimination.
(b) Does the differentiation amount to unfair discrimination? This requires a
two stage
analysis:
(i)
Firstly,
does the differentiation amount to “discrimination”? If it
is
on a specified ground, then discrimination will
have been established. If it is not on a specified ground, then whether or not
there
is discrimination will depend upon whether, objectively, the ground is
based on attributes and characteristics which have the potential
to impair the
fundamental human dignity of persons as human beings or to affect them adversely
in a comparably serious manner.
(ii)
If the differentiation
amounts to “discrimination”, does it amount to
“unfair discrimination”? If it has
been found to have been on a specified ground, then the unfairness will be
presumed.
If on an unspecified ground, unfairness will have to be established
by the complainant. The test of unfairness focuses primarily
on the impact of
the discrimination on the complainant and others in his or her situation.
If, at the end of this stage of the enquiry, the differentiation is found not to
be unfair, then there will be no violation of section
8(2).
(c) If the discrimination is found to be unfair then a determination will have
to be made as to whether the provision can be justified
under the limitations
clause (section 33 of the interim Constitution).”
Does the section differentiate?
[43]
Yes, section 18(b) does
differentiate. On a plain reading it denies a spouse married in community of
property the right to claim
damages for patrimonial loss arising from bodily
injury inflicted by the other spouse. However, in doing so the section, in
effect,
draws a distinction amongst different classes of domestic partnerships.
For the present purpose, the differentiation operates between
marriages in
community of property and marriages out of community of property. More
accurately, the differentiation is between the
proprietary interests and
protections, which the section attaches to the two marital
regimes.
[44]
Applicant, the Minister,
and the amicus urged us to find that the distinction drawn by the section
breaches the equality guarantee
in two respects. It infringes the right to
equal protection and benefit of the law under section 9(1) of the Constitution
because
it does not further a legitimate government purpose. In the second
instance, it constitutes unfair discrimination under section
9(3) of the
Constitution because it is based on “marital status”, a ground
prohibited by section 9(5) of the Constitution
and it has not been shown that
the discrimination is not unfair.
[45]
I dispose of the submission
on “marital status” first. To me it seems plain that the
differentiation made by section
18(b) is not about a protectable interest or
burden that attaches to married people but is denied unmarried people. The
distinction
created by section 18(b) is in essence between the different
proprietary consequences of marriages in and out of community of property.
This
is not a case where the law withholds from unmarried people a protection or
right which it grants to married people. This
is a case in which the law denies
one class of married people a protection that another class
enjoys.
[46]
The equality jurisprudence
of this Court on the specified ground of “marital status” so far
relates to protectable interests
or disabilities of being married or not being
married.
[58]
In advancing the
argument that the differentiation is on the specified ground of marital status,
the Minister sought refuge in the
decision of this Court in
Daniels v
Campbell NO.
[59]
However
this decision does not assist the cause of the Minister. In
Daniels
the
Court held that the discrimination complained of had occurred in the past in
respect of marital status precisely because legislative
protection was withheld
from Muslim spouses on the unsustainable interpretive pretext that their
marriages were not marriages at
all. In that case, what the old and
constitutionally unacceptable judicial interpretation of the word
“spouse” had resulted
in was in effect denial of the very legal
status, official classification and formal recognition or standing of
marriage.
In
Volks NO v
Robinson
[60]
the
specified ground of marital status was engaged because the impugned law accorded
benefits to married people which it did not accord
to unmarried
people.
[61]
However the
present case is different. The challenged measure merely regulates and
distinguishes rights and duties that attach to different property
regimes within
marriage.
[47]
The applicant urged upon us
to adopt a generous and expansive meaning of “marital status” as
required when giving effect
to a right in the Bill of
Rights.
[62]
For this proposition
applicant referred to dictionary meaning of “marital” and
“status”.
[63]
None
appear to support the meaning contended for. Be that as it may, it is open to
doubt whether the specified ground of marital
status is engaged by the impugned
legislative differentiation. If that were so, it would imply that any
difference in proprietary
consequences of marital regimes prescribed by the
common law or legislation is presumptively discriminatory and unfair unless
shown
not to be. In my view such a generous and far-reaching understanding of
“marital status” in section 9(3) of the Constitution
may well be
untenable. However, given the conclusion I have come to on the rationality
requirement of equality under section 9(1)
of the Constitution, I need not, in
this case, reach a final conclusion on whether the differentiation is on the
specified ground
of marital status. For the same reason I need not reach the
question whether the differentiation constitutes unfair discrimination
on any
other specified or “analogous”
ground.
[64]
Does
the differentiation bear a rational connection to a legitimate government
purpose
?
[48]
I am at the point of
enquiring whether the differentiation brought into being by section 18(b)
evinces a rational connection to the
governmental purpose proffered to validate
it. For the appropriate test I turn to
Prinsloo v Van der Linde and
Another
[65]
in which this
Court explained that in the first leg of the equality test the constitutional
state is bound to act in a rational manner:
“It should not regulate in an arbitrary manner or manifest ‘naked
preferences’ that serve no legitimate governmental
purpose, for that would
be inconsistent with the rule of law and the fundamental premises of the
constitutional state. The purpose
of this aspect of equality is, therefore, to
ensure that the State is bound to function in a rational manner. This has been
said
to promote the need for governmental action to relate to a defensible
vision of the public good, as well as to enhance the coherence
and integrity of
legislation.”
[66]
[49]
It is so that
laws rarely prescribe the same treatment for everyone. Yet it bears repetition
that when a law elects to make differentiation
between people or classes of
people it will fall foul of the constitutional standard of equality, if it is
shown that the differentiation
does not have a legitimate purpose or a rational
relationship to the purpose advanced to validate it. Absent the pre-condition
of
a rational connection the impugned law infringes, at the outset, the right to
equal protection and benefit of the law under section
9(1) of the Constitution.
This is so because the legislative scheme confers benefits or imposes burdens
unevenly and without a rational
criterion or basis. That would be, an arbitrary
differentiation which neither promotes public good nor advances a legitimate
public
object. In this sense, the impugned law would be inconsistent with the
equality norm that the Constitution imposes, inasmuch as
it breaches the
“rational differentiation” standard set by section 9(1)
thereof.
[67]
[50]
The
charge of the irrationality and inequity of section 18(b) is neither novel nor
of recent origin.
[68]
In fact it
well precedes our constitutional dispensation. The Minister and the amicus drew
our attention to the 1982 SA Law Commission
Report
[69]
that preceded the
enactment of the Act. We were referred to an insightful critique of section 18
of the Act and its underlying common
law
rationale:
“Contrary to the position in marriages out of community of property, one
spouse cannot claim on the ground of delict against
the person to whom he or she
is married in community of property. Not only is this state of affairs clearly
anomalous, but its injustice
is also particularly striking where the actual
defendant is a third party, for example an insurance company. Should a husband,
for
example, run his wife down and injure her, she could well succeed against
the third-party insurer if they were married out of community
of property, but
would have no claim at all if they were married in community of
property.”
[70]
[51]
In my view the
distinction made by section 18(b) on claims for patrimonial damages between
spouses married in and out of community
is a relic of the common law of
marriage, which is simply not useful. The distinction drawn by section 18
displays a pre-occupation
with the conceptual cohesion of a joint estate. After
all in theory “everything is owed and owned in
common”
[71]
and “what he
or she recovers from the other comes out of the joint estate and falls back
instantly”.
[72]
Thus by
refusing the physically brutalised spouse a claim for patrimonial loss against
the other spouse, the common law, so too
section 18(b) seeks to retain the
notional purity of the universal community and to escape the futility of damages
that would come
from and return to joint
patrimony.
[52]
But the rub is that the
government purpose to preserve the unity of the joint estate and to avoid the
futility of spousal claims for
bodily injury has fallen away. That much the
Minister charged with the administration of the impugned law acknowledges. She
readily
disavows the rationality or legitimacy of the government purpose now
advanced by the section. It is so that the legislative scheme
of the Act and in
particular of sections 18(a) and (b), 19 and 20 which have a bearing on claims
for non-patrimonial loss arising
from personal injury, has irreversibly
undermined that purpose. As we observed earlier, sections 18(a) and (b) confer
on a spouse
in community of property the right to recover damages other than
patrimonial damages for bodily injury by reason of delict committed
by the other
spouse. The damages do not fall into the joint estate but become the separate
property of the injured spouse.
[53]
Section 19 recognises a
spousal right of recourse against the separate estate of the other spouse, or if
there is none, against the
joint estate upon its division. Significantly,
spouses are no longer bound inexorably to a joint estate till death or divorce
do
them part. Section 20(1)
[73]
allows a court, on application of a spouse on specified grounds, to order the
immediate division of the joint estate in equal shares
or other equitable basis.
This a court may do during the marriage to avoid serious prejudice by actual or
threatening conduct of
the other spouse. Indeed, section 20(2) also empowers a
court to order, subject to conditions it sets, that the community of property
be
replaced by another property system whilst the marriage
subsists.
[74]
[54]
There is no rational
account why the scheme or purpose of the Act stops short of granting redress in
the form of patrimonial damages
resulting from spousal violence. The claim
would not be futile because the proceeds of the claim would not accrue to the
common
patrimony but would become separate property of the battered spouse. In
that event, clearly the guilty spouses will not benefit
from their wilful or
negligent misdeeds.
[55]
Equally absurd is to
withhold from spouses in joint estates patrimonial redress against physical
abuse but to grant it to spouses
married out of community of property. It does
not seem to me that the risk of bodily harm at the hands of a spouse is an
essential
or defining difference between the two types of marital property
regimes. Nothing suggests that spouses in the one class merit greater
protection from wilful domestic battery or accidental bodily injury than spouses
in the other. The anomaly and arbitrariness assumes
even more startling
proportions when the claim arising from spousal violence lies against a third
party insurer. The insurer is
not liable in the one instance of marriage in
community of property but is liable in the case of marriage out of community of
property.
Why should the negligent driving of a spouse in the one class of
marriage attract delictual relief and not under a different marital
regime? In
my view no legitimate end dictates this
distinction.
[56]
Another important
consideration is that there is no rational divide between patrimonial and
non-patrimonial damages for purposes of
spousal claims against each other for
delictual personal injury. As we have seen
earlier,
[75]
the principal
distinction between the two classes of damages is that non-patrimonial damages
seek to redress the loss or reduction
of a highly personalised interest, which
does not affect the claimant’s estate and is not readily calculable in
monetary terms.
Whereas patrimonial loss ordinarily affects the patrimony and
represents a true pecuniary equivalent of the
damages.
[76]
What is crucial for
the present purpose is that the law of damages recognises special and general
damages to afford the fullest
possible redress for delictual harm. Both classes
of damages seek to redress the deterioration or reduction of the quality or
usefulness
of a legally protected interest. In both cases the injured party
loses something and receives money as reparation. Stated differently,
the
principal object of damages, whatever the kind, is to “neutralise loss
through the addition of a new patrimonial
element”.
[77]
By prohibiting
recovery of patrimonial damages for personal injury, section 18(b) arbitrarily
prevents the fullest possible compensation
for spouses who are victims of
violence, negligent driving or other wrongdoing that leads to bodily harm by
their marriage partners.
[57]
Another pointer to
arbitrariness is that whilst there are definitional differences between
patrimonial and non-patrimonial damages,
in bodily injury claims the distinction
is often blurred because the infringed personality interest often causes loss
that affects
both the person and the patrimony. For an example we need not look
far. Mrs Van der Merwe, the applicant, was run over by her husband
intentionally. On her version, she sustained grievous bodily injuries which
have given rise to general damages in the form of pain
and suffering,
disfigurement and loss of amenities of life and to special or patrimonial
damages for loss of earnings and earning
capacity and hospital and medical
expenses. Thus infringement of bodily integrity is not a reliable predictor of
the nature or class
of damages that may flow. The absence of a reliable
distinction between patrimonial and non-patrimonial damages in bodily injury
suits in itself demonstrates that the distinction made in section 18(b) is at
best tenuous and thus falls foul of the requirement
of a rational
differentiation.
[58]
The section draws an
impermissible differentiation between spouses married in and out of community of
property in respect of the right
to recover patrimonial damages suffered from
bodily injury attributable either wholly or in part to the fault of the other
spouse.
The differentiation is not legitimate because in itself it is arbitrary
and furthermore it does not serve a legitimate public end.
In doing so, section
18(b) limits the right to equal protection and benefit of the law guaranteed by
section 9(1) of our Constitution.
The question is whether such limitation is
justifiable?
Justification
[59]
The Fund contends that the
limitation of the applicant’s right to equal protection and benefit of the
law is reasonable and
justifiable in an open and democratic society based on
human dignity, equality and freedom. To that end, the Fund urged upon us
that
marriage is a matter of choice and so too are the proprietary consequences of
marriage. The applicant chose marriage in community
of property and, goes the
argument, it is fair and reasonable that she be kept to the immutable
consequences of her choice. It is
now not open to her to challenge the
constitutional validity of the law she opted to marry
under.
[60]
This argument resolves
itself into a waiver defence.
[78]
It implies an undertaking by married people not to attack the legal validity of
the laws that regulate their marriages.
[61]
This line of reasoning
falters on two grounds. First, the constitutional validity or otherwise of
legislation does not derive from
the personal choice, preference, subjective
consideration or other conduct of the person affected by the law. The objective
validity
of a law stems from the Constitution itself, which in section 2,
proclaims that the Constitution is the supreme law and that law
inconsistent
with it is invalid.
[79]
Several
other provisions of the Constitution buttress this foundational injunction in a
democratic constitutional state. A few
should suffice. Section 8(1) affirms
that the Bill of Rights applies to all law and binds all organs of state
including the judiciary.
Section 39(2) obliges courts to interpret legislation
in a manner that promotes the spirit, purport and objects of the Bill of Rights.
And importantly, section 172(1) makes plain that when deciding a constitutional
matter within its power, a court must declare that
any law that is inconsistent
with the Constitution is invalid to the extent of its inconsistency. Thus the
constitutional obligation
of a competent court to test the objective consistency
or otherwise of a law against the Constitution does not depend on and cannot
be
frustrated by the conduct of litigants or holders of the rights in issue.
Consequently, the submission that a waiver would, in
the context of this case,
confers validity to a law that otherwise lacks a legitimate purpose, has no
merit.
[62]
Second, ordinarily the
starting point of a justification enquiry would be to examine the purpose the
government articulates in support
of the legislation under challenge. In this
case the government did not proffer a purpose to validate the impugned
provision. If
anything, the government contends that the provision is
inconsistent with the Constitution because it is irrational or unfairly
discriminatory.
It correctly, in my view, disavowed the existence of a
legitimate purpose for withholding a right of recourse for patrimonial loss
from
physically brutalised spouses in marriages in community of property whilst
granting the protection to spouses in other forms
of marriages or indeed to
parties in other domestic partnerships.
[63]
Of course, the pursuit of a
legitimate government purpose is central to a limitation analysis. The court is
required to assess the
importance of the purpose of a law, the relationship
between a limitation and its purpose and the existence of less restricted means
to achieve the purpose. However, in this case there is no legitimate purpose to
validate the impugned law. The absence of a legitimate
purpose means that there
is nothing to assess. The lack of a legitimate purpose renders, at the outset,
the limitation unjustifiable.
I am satisfied that section 18(b) of the Act is
inconsistent with the Constitution because it limits the equality provision of
section
9(1) without any justification.
Dignity, gender discrimination and domestic
violence
[64]
The amicus presented three
compelling arguments on dignity, gender discrimination and domestic abuse to
support the contention that
the impugned provisions are constitutionally
intolerable. The arguments are mutually re-enforcing and often seem to point to
intersectional
limitation of these vital constitutional
protections.
[65]
First, on their argument,
the challenged section desecrates the intrinsic and equal worth promised by
section 10 of the Constitution
to everyone including victims of spousal
brutality and of accidents attributable to the wilful or negligent wrongdoing by
spouses.
Yet section 18(b) immunises spouses married in community of property
from all patrimonial claims, even those which arise from degrading
domestic
battery. No one can credibly suggest that the domestic road rage Mrs Van der
Merwe had to endure is not an affront to her
self-worth and dignity. Yet the
law refuses to hold fully accountable and liable its perpetrator. In other
words her bodily harm
is not actionable in a material respect, yet spouses,
women in particular, situated in another form of marriage are worthy of full
protection.
[66]
Second, the amicus urged us
to find that section 18(b) is problematic because it amounts to indirect and
unfair discrimination against
women. To this assertion, the Fund protested that
the scantily stated facts does not permit a speculative foray into the
conditions
under which women married in community of property find themselves.
It is so that ordinarily when a court is invited to decide a
legal issue only on
an agreed set of facts, it may not depart from the facts. However when the
constitutional validity of a law
or conduct is challenged by invoking one or
more guarantees in the Bill of Rights, contextual analysis is often all
important.
[80]
The validity or
otherwise of a law has implications that go well beyond the parties before
court. It is a matter of public
concern.
[81]
For that reason a
court is obliged, where appropriate, to consider the context, historical or
social or textual, in which the guarantees
should be understood and the impugned
law operates. It is however unnecessary to resolve the question whether the
facts in the stated
case provide ample platform to decide the challenge premised
on indirect gender discrimination. This is so because I uphold the
applicant’s claim on another basis which disposes of the
appeal.
[67]
There is nonetheless much
cogency in the submission of the amicus that despite its gender-neutral terms,
the probable effect of section
18(b) on women married in community of property
is likely to be more devastating than on their male counterparts. There is no
doubt
that in our society domestic violence and economic vulnerability are
gendered in nature. Both are a sad sequel to patriarchy. Women
are more likely
to fall victim to the battery, abuse or negligent driving of their domestic
partner than otherwise and are therefore
more likely to be non-suited for
patrimonial damages than their husbands. Even more demeaning is that victims of
domestic and other
violence within marriages in community of property would have
to solicit their abuser’s consent to meet medical and other bills
or to
make up loss of earnings out of the joint estate. Moreover, in these
circumstances third party insurers, if any, are not liable
to reimburse the
injured spouse or the joint estate. In this way, the burden of abuse and
economic dependency becomes mutually reinforcing
and most
intolerable.
[68]
The facts that impelled Mrs
Van der Merwe to seek satisfaction illustrate this devastation. Not even a
divorce from her abuser entitles
her to escape the adverse consequences of being
rendered claimless under section 18(b) in time if needed. Although on its face
the
provision appears gender-neutral, there is much to be said for the inference
that it is bound to work a more severe hardship on women
married in community of
property than men similarly situated.
[69]
Third, the amicus and the
applicant invited us to hold that section 18(b) omits to protect patrimonial
loss derived from spousal bodily
injury. Both submit that the omission by the
state unjustifiably limits freedom from all forms of violence from either public
or
private resources as envisaged in section 12(1)(c) of the Constitution. It
is so that section 18(b) attaches limited adverse patrimonial
consequences to
domestic violence, be it negligent or wilful. Spouse batterers and wrongdoers
in delict are in effect immunised
from making good patrimonial damages of their
marriage partners. This ouster provision seems to be at odds with the
constitutional
protection extended to a person’s bodily
integrity.
[82]
However once again,
given the conclusion I have reached on the equality provisions under section
9(1) I need not express a firm view
on this
contention.
Remedy
[70]
I have found that section
18(b) of the Act is inconsistent with the equality provision of section 9(1) of
the Constitution because
it fails the rational differentiation test. The Fund
urged that even if we were to find for her, Mrs Van der Merwe is not entitled
to
a remedy as she is effectively asking the Court to legislate in a complex area
of matrimonial law on a narrow point only to preserve
her claim against the
Fund. On this argument, the major engine for law reform should be the
legislature and not the judiciary.
[71] The
submission has no merit on several accounts. First, the submission is out of
sync with the express duty that sections 172(1)(a)
and
(b)
[83]
impose on this Court and
other competent courts. If it finds so, this Court must declare that section
18(b) is inconsistent with
the Constitution but only to the extent of the
inconsistency. Thereafter it must make an order that is just and equitable and
may
limit the retrospective effect of the declaration of invalidity. Second,
Mrs Van der Merwe and others similarly situated are entitled
to a proper
vindication of their constitutional rights violated by the legislation. Another
compelling consideration is that the
order we make must constitute immediate and
effective relief. It must eliminate the source of the constitutional complaint
in a
way that provides a meaningful
remedy.
[84]
Severance and
reading-in
[72] The applicant, the amicus, and the Minister were in
agreement that a remedial order of severance and reading-in is appropriate
and
the least invasive of the legislative role of Parliament. They urged us to
resort to severance and reading-in as the High Court
did but subject to a
modification that the patrimonial damages recovered under section 18(b) fall
outside the joint estate and become
the separate property of the injured spouse,
something the High Court omitted to do.
[73] Severance of words from a
legislative provision is appropriate where it is necessary to remove an
offending portion from the
provision. Reading words into a provision arises
when it is necessary to add words in order to cure it of constitutional
inconsistency.
The cases set useful
guidelines.
[85]
The
“cured” provision must be consistent with the Constitution and its
basic values. The result of the curative process
must interfere with the
statute as little as possible. The remedial step should be capable of
sufficient precision and should be
as faithful as possible to the legislative
scheme at hand. Lastly, the resort to the surgical remedies of severance and
reading-in
should not be preferred if they are likely to lead to an
“unsupportable budgetary intrusion”.
[74] Having weighed the
applicable guidelines on the remedy of severance and reading-in, I am persuaded
that the inclusion of the
words “other than damages for patrimonial
loss” in section 18(b) of the Act is inconsistent with the Constitution
and
should be so declared. I have come to the conclusion that it would be just
and equitable that the offending words should be severed
from the
provision.
[75] I also find that the omission from section 18(b) of the
Act of the words “[s]uch damages do not fall into the joint estate
but
become the separate property of the injured spouse” after the words
“either wholly or in part to the fault of that
spouse” is
inconsistent with the Constitution and invalid. In the order I will make, the
declaration of constitutional invalidity
will be accompanied by an appropriate
reading-in order to that effect. This approach to the order will resolve the
obvious omission
in the order of the High Court. As the order presently stands,
patrimonial damages recovered under section 18(b) would nonetheless
revert to
the joint estate. The words inserted to the order I propose to make, make it
clear that patrimonial damages will accrue
to the separate estate of the injured
spouse.
[76] I need only add that the proposed severance and reading-in
do not seem to cause any budgetary intrusion. Neither the Minister
nor the Fund
suggested otherwise. In any event, it is not improbable that, as a result of
this judgment, claims to the Fund from
spouses married in community of property
will increase. That outcome would, in my view, be salutary because the relief
granted by
this Court would be serving a purpose that the Constitution
authorises.
Retrospective effect
[77] I am now called upon to
decide whether the order I make should limit the retrospective effect of the
declaration of invalidity.
In authorising an order limiting the retrospective
effect of constitutional invalidity, section 172(1)(b)(i) of the Constitution
in
effect implies that ordinarily the order has retrospective
consequences.
[86]
Ordinarily
parties concerned about the likely retrospective effect of an order of
invalidity bear the burden to advance grounds
for limiting its
effect.
[87]
The Minister supported
the order of the High Court to the effect that it shall have no effect on
judgments that have already been
handed down. The Fund made no submission on
this issue. I think that the interest of justice requires that Mrs Van der
Merwe and
people similarly situated should get effective relief immediately from
this order. I have not been referred to any major administrative
dislocation or
other consideration that militates against making the order retrospective. I
have not been pointed to any prejudice;
nor can I find any. I plan to limit the
operation of the order to claims in which a final court order has not been
made.
[88]
Costs
[78] The
High Court made no costs order. It did not furnish reasons for making the
applicant bear costs of her application in that
court. In this Court, the Fund,
the Minister and the amicus do not seek costs. The applicant has advanced
several grounds why she
should be awarded costs in the High Court and in this
Court. It is indeed so that she challenged in the High Court and in this Court,
the constitutional validity of a statute and in the process raised and
ventilated important constitutional principles that will redound
to the benefit
of many affected spouses. Mrs Van der Merwe is an immediate beneficiary of the
outcome of the case; but it is also
true that there are similarly situated
people who are not before us. The outcome of this litigation has a wide reach
and is clearly
in the public interest.
[79] On the other hand, the Fund
is a juristic entity created by statute and funded by the state. It operates
under the control of
the Minister of
Transport.
[89]
It opposed the
initial application in the High Court and mounted an appeal to this Court
against that order. It did so even in
the face of the stance of another
minister of state that the law impugned is bad and constitutionally
insupportable. I know no good
reason why a private citizen in the position of
Mrs Van der Merwe should forfeit the opportunity to recover onerous costs in two
courts only to the benefit of a state organ, which failed to say why it should
not be ordered to pay costs. All things considered,
it is just and equitable
that the Fund should pay the costs of the applicant in the High Court and in
this Court.
The order
[80] In the result I make the following
order:
1. The Minister of Justice and Constitutional Development is joined as the
second respondent in these proceedings.
2. The order of constitutional invalidity made by the Cape High Court on 13
September 2005 in respect of
section 18(b)
of the
Matrimonial Property Act 88 of
1984
is confirmed subject to the variations set out in paragraphs 4, 5 and 6
below.
3. The order of the Cape High Court is varied to read as
follows:
(a)
It
is declared that the inclusion of the words “other than damages for
patrimonial loss” in
section 18(b)
of the
Matrimonial Property Act 88 of
1984
is inconsistent with the Constitution and
invalid.
(b)
The words “other than
damages for patrimonial loss” in
section 18(b)
of the
Matrimonial Property
Act 88 of 1984
are severed.
(c)
The omission
from
section 18(b)
of
Matrimonial Property Act 88 of 1984
of the words
“[s]uch damages do not fall into the joint estate but become the separate
property of the injured spouse”
after the words “either wholly or in
part to the fault of that spouse” is inconsistent with the Constitution
and invalid.
(d)
The words “[s]uch
damages do not fall into the joint estate but become the separate property of
the injured spouse” shall
be read in after the words “either wholly
or in part to the fault of that spouse” in section 18(b) of
Matrimonial
Property Act 88 of 1984
.
4. Paragraphs 3(a) to 3(d) of this order shall operate retrospectively except
only for claims under
section 18
of the
Matrimonial Property Act 88 of 1984
in
which final judgments had been handed down on the date this order was made.
5. The Road Accident Fund is ordered to pay the costs of the applicant, Mrs Van
der Merwe, in the Cape High Court application under
case no 1803/2002 and in the
confirmation proceedings in this Court.
6. The appeal of the Road Accident Fund against the judgment and order of the
Cape High Court handed down on 13 September 2005 in
case no 1803/2002 is
dismissed with costs.
Langa CJ; Mokgoro J, Ngcobo J; Sachs J, Skweyiya J,
Van der Westhuizen J and Yacoob J concur in the judgment of Moseneke
DCJ.
YACOOB J:
[81] I have read
the judgment prepared by Moseneke DCJ in this matter. I agree with all of it
except for paragraph 61.
[82] In my view, the choice argument may well
have been relevant to the justification analysis if, there had, at the very
least, been
a legitimate governmental purpose. I agree with the finding that
there is no legitimate governmental purpose present to support
any justification
of the law under attack in this case. In this event, the justification analysis
fails on that ground and that
ground alone.
For the applicant: B David
instructed by J L Martinson & Co.
For the amicus curiae: O Mooki
instructed by the Women’s Legal
Centre.
For the first respondent: Theoniel Potgieter SC and Mohamed Salie
instructed by Ebrahims Incorporated.
For the second
respondent: Karrisha Pillay instructed by the State Attorney.
[1]
Section 10 of the Constitution
provides that: “Everyone has inherent dignity and the right to have their
dignity respected
and protected.”
[2]
Section 9(3) of the
Constitution provides that:
“The state may not unfairly discriminate directly or indirectly against
anyone on one or more grounds, including race, gender,
sex, pregnancy, marital
status, ethnic or social origin, colour, sexual orientation, age, disability,
religion, conscience, belief,
culture, language and
birth.”
[3]
Van der Merwe v RAF
(CPD) Case No 1803/02, 13 September 2005,
unreported.
[4]
Section 172(2)(d) of the
Constitution provides that:
“Any person or organ of state with a sufficient interest may appeal, or
apply, directly to the Constitutional Court to confirm
or vary an order of
constitutional invalidity by a court in terms of this subsection.”
[5]
The first respondent has an
automatic right of appeal to this Court because Section 172(2)(d) grants a party
with sufficient interest
the right to appeal directly to the Constitutional
Court to confirm or vary an order of constitutional invalidity.
[6]
Mabaso v Law Society of the
Northern Province, and Another
[2004] ZACC 8
;
2005 (2) BCLR 129
(CC);
2005 (2) SA 117
(CC)
at paras 13-14;
Jooste v Score Supermarket Trading (Pty) Ltd (Minister of
Labour Intervening)
[1998] ZACC 18
;
1999 (2) BCLR 139
(CC);
1999 (2) SA 1
(CC)
at
paras 6-8;
Parbhoo and Others v Getz NO and Another
1997 (10) BCLR 1337
(CC);
1997 (4) SA 1095
(CC) at para 5;
JT Publishing (Pty) Limited v
Directorate of Publications and Another
1995 (1) BCLR 70
(T);
1995 (1) SA
735
(T) at 73D-F.
[7]
Rule 5(1) of the Rules of the
Constitutional Court provides that:
“In any matter, including any appeal, where there is a dispute over the
constitutionality of any executive or administrative
act or conduct or
threatened executive or administrative act or conduct, or in any inquiry into
the constitutionality of any law,
including any Act of Parliament or that of a
provincial legislature, and the authority responsible for the executive or
administrative
act or conduct or the threatening thereof or for the
administration of any such law is not cited as a party to the case, the party
challenging the constitutionality of such act or conduct or law shall, within
five days of lodging with the Registrar a document
in which such contention is
raised for the first time in the proceedings before the Court, take steps to
join the authority concerned
as a party to the proceedings.”
For a discussion of the rule see
Mabaso
above n 6 at paras 13-14;
Jooste
above n 6 at paras 6-8.
[8]
Rule 5(2) of the Rules of the
Constitutional Court provides that:
“No order declaring such act, conduct or law to be unconstitutional
shall be made by the Court in such matter unless the provisions
of this rule
have been complied with.”
For a discussion of this rule see
Mabaso
above n 6;
Jooste
above n 6.
[9]
Sections 17(1)
,
19
(a) and
21
of
the
Road Accident Fund Act 56 of 1996
.
Section 17(1)
reads:
“(1)The Fund or an agent shall─
(a) subject to this Act, in the case of a claim for compensation under this
section arising from the driving of a motor vehicle where
the identity of the
owner or the driver thereof has been established;
(b) subject to any regulation made under section 26, in the case of a claim for
compensation under this section arising from the
driving of a motor vehicle
where the identity of neither the owner nor the driver thereof has been
established,
be obliged to compensate any person (the third
party) for any loss or damage which the third party has suffered as a result of
any
bodily injury to himself or herself or the death of or any bodily injury to
any other person, caused by or arising from the driving
of a motor vehicle by
any person at any place within the Republic, if the injury or death is due to
the negligence or other wrongful
act of the driver or of the owner of the motor
vehicle or of his or her employee in the performance of the employee’s
duties
as employee.”
Section 19(a) reads:
“The Fund or an agent shall not be obliged to compensate any person in
terms of section 17 for any loss or
damage─
(a) for which neither the driver nor the owner of the motor vehicle concerned
would have been liable but for section
21.”
Section 21 reads:
“When a third party is entitled under section 17 to claim from the Fund or
an agent any compensation in respect of any loss
or damage resulting from any
bodily injury to or death of any person caused by or arising from the driving of
a motor vehicle by
the owner thereof or by any other person with the consent of
the owner, that third party may not claim compensation in respect of
that loss
or damage from the owner or from the person who so drove the vehicle, or if that
person drove the vehicle as an employee
in the performance of his or her duties,
from his or her employer, unless the Fund or such agent is unable to pay the
compensation.”
[10]
Section 19(a) above n 9.
[11]
“[18] Certain damages
excluded from the community and recoverable from the other spouse.
Notwithstanding the fact that a spouse is married in community of
property-
(a)
any
amount recovered by him by way of damages, other than damages for patrimonial
loss, by reason of a delict committed against him,
does not fall into the joint
estate but becomes his separate
property;
(b)
he may recover from the other
spouse damages, other than damages for patrimonial loss, in respect of bodily
injuries suffered by him
and attributable either wholly or in part to the fault
of that
spouse.”
[12]
Section 9(3) of the Constitution prevents unfair discrimination on this ground.
For full text of section 9(3) see above n 2.
[13]
For the full text of section
10 see above n 1.
[14]
Section 25 of the
Constitution states that:
“(1) No one may be deprived of property except in terms of law of general
application, and no law may permit arbitrary deprivation
of
property.”
[15]
Rule 33(1) reads:
“Special cases and adjudication upon points of law─
(1) The parties to any dispute may, after institution of proceedings, agree upon
a written statement of facts in the form of a special
case for the adjudication
of the
court.”
[16]
Rule 33(2) reads:
“(2)(a) Such statement shall set forth the facts agreed upon, the
questions of law in dispute between the parties and their
contentions thereon.
Such statement shall be divided into consecutively numbered paragraphs and there
shall be annexed thereto copies
of documents necessary to enable the court to
decide upon such questions. It shall be signed by an advocate and an attorney
on behalf
of each party or, where a party sues or defends personally, by such
party.
(b) Such special case shall be set down for hearing in the manner provided for
trials or opposed applications, whichever may be more
convenient.
(c) If a minor or person of unsound mind is a party to such proceedings the
court may, before determining the questions of law in
dispute, require proof
that the statements in such special case so far as concerns the minor or person
of unsound mind are
true.”
[17]
See
above n 12.
Section 9(5) of the Constitution provides that:
“Discrimination on one or more of the grounds listed in subsection (3) is
unfair unless it is established that the discrimination
is
fair.”
[18]
Section 36(1) of the Constitution provides that:
“(1) The rights in the Bill of Rights may be limited only in terms of
law of general application to the extent that the limitation
is reasonable and
justifiable in an open and democratic society based on human dignity, equality
and freedom, taking into account
all relevant factors, including-
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose; and
(e) less restrictive means to achieve the purpose.”
[19]
The term “reading
down” ordinarily refers to an interpretation of legislation, where
reasonably possible, in a manner
which renders it consistent with rather than
inimical to the Constitution. For enunciation of this interpretative rule see
Daniels v Campbell NO and Others
[2004] ZACC 14
;
2004 (7) BCLR 735
(CC);
2004 (5) SA 331
(CC);
Investigating Directorate: Serious Economic Offences and Others v
Hyundai Motor Distributors (Pty) Ltd and Others: In re: Hyundai
Motor
Distributers (Pty) Ltd and Others v Smit NO and Others
[2000] ZACC 12
;
2000 (10) BCLR 1079
(CC);
2001 (1) SA 545
(CC) at para 24;
National Coalition for Gay and Lesbian
Equality and Others v Minister of Home Affairs
and Others
[1999] ZACC 17
;
2000 (1)
BCLR 39
(CC);
2000 (2) SA 1
(CC) at 44H-J and 45A-E.
[20]
Compare Van der Spuy
New
Marriage Property Act 88 of 1984
(Cosmos Publication, 1984) at 59.
[21]
As to when is it appropriate
to develop the common law see
K v Minister of Safety and Security
[2005] ZACC 8
;
2005
(9) BCLR 835
(CC) at paras 16-17;
S v Thebus and Another
[2003] ZACC 12
;
2003 (10) BCLR
1100
(CC);
2003 (6) SA 505
(CC);
Carmichele v Minister of Safety and Security
and Another
(Centre for Applied Legal Studies Intervening)
[2001] ZACC 22
;
2001 (10) BCLR
995
(CC);
2001 (4) SA 938
(CC).
[22]
Section 172(2)(a) provides
that:
“The Supreme Court of Appeal, a High Court or a court of similar status
may make an order concerning the constitutional validity
of an Act of
Parliament, a provincial Act or any conduct of the President, but an order of
constitutional invalidity has no force
unless it is confirmed by the
Constitutional Court.”
Also see section 167(5) which
reads:
“The Constitutional Court makes the final decision whether an Act of
Parliament, a provincial Act or conduct of the President
is constitutional, and
must confirm any order of invalidity made by the Supreme Court of Appeal, a High
Court, or a court of similar
status, before that order has any
force.”
[23]
Khosa and Others v Minister of Social Development and Others
;
Mahlaule
and Another v Minister of Social Development and Others
[2004] ZACC 11
;
2004 (6) BCLR 569
(CC);
2004 (6) SA 505
(CC) at paras 31-32;
Moseneke and Others v The Master
of the High Court
[2000] ZACC 27
;
2001 (2) BCLR 103
(CC);
2001 (2) SA 18
(CC)
at para
8;
Investigating Directorate: Serious Economic Offences and Others
above
n 19 at para 3;
Minister of Welfare and Population Development v Fitzpatrick
and Others
[2000] ZACC 6
;
2000 (7) BCLR 713
(CC);
2000 (3) SA 422
(CC) at para 4;
Parbhoo
above n 6 at paras 2 and 5.
[24]
President, Ordinary Court
Martial, and Others v Freedom of Expression Institute and Others
[1999] ZACC 10
;
1999 (11)
BCLR 1219
(CC);
1999 (4) SA 682
(CC) at paras 14-15.
[25]
See Van der Merwe and
Olivier
Die Onregmatige Daad in die Suid-Afrikaanse Reg
331; Boberg
Law of Delict
vol. I:
Aquilian Liability
175.
[26]
On what an analogous ground
is, see
Volks NO v Robinson and Others
[2005] ZACC 2
;
2005 (5) BCLR 446
(CC) at para 48;
City Council of Pretoria v Walker
[1998] ZACC 1
;
1998 (3) BCLR 257
(CC);
1997 (4) SA 1
(CC) at para 29;
Harksen v Lane NO
[1997] ZACC 12
;
1997 (11) BCLR 1489
(CC);
1998
(1) SA 300
(CC) at para 46;
President of Republic of South Africa and Another
v Hugo
[1997] ZACC 4
;
1997 (6) BCLR 708
(CC);
1997 (4) SA 1
(CC);
Prinsloo v Van der
Linde and Another
[1997] ZACC 5
;
1997 (6) BCLR 759
(CC);
1997 (3) SA 1012
(CC) at para
31.
[27]
The guarantee is provided
for in sections 12(1)(c) and 12(1)(e) of the Constitution, which reads as
follows:
“Freedom and security of the person- (1) Everyone has the right to
freedom and security of the person, which includes the right
-
(c) to be free from all forms of violence from either public or private
sources;
(e) not to be treated or punished in a cruel, inhuman or degrading
way.”
[28]
This protection is provided
for in section 34 of our Constitution. The ambit of this protection is set out
in
Lesapo v North West Agricultural Bank and Another
[1999] ZACC 16
;
1999 (12) BCLR 1420
(CC);
2000 (1) SA 409
(CC) at paras 15-16 and 22.
[29]
Cronje et al
“Marriage”
LAWSA
vol 16, first re-issue para 78;
Tomlin v
London Lancashire Insurance Co Ltd
1962 (2) SA 30
(D) at 33F-G. Followed
more than twenty years later in
Delport v Mutual & Federal Insurance
1984 (3) 191 (D) at 193D-E.
[30]
In this regard the amicus
submitted that the justification of the barrier in section 18(b) may be derived
from the view that marriages,
during the sixteenth and seventeenth centuries in
Holland, were “contracted in community of property”. Within this
framework,
the rights of the husband were dominant over the rights of his wife,
and the question of whether a wife might sue a husband in delict
did not receive
sufficient recognition by authorities. For an analysis of what the marital power
of a husband entailed see Van Zyl
“
Section 13
of the
Matrimonial Property
Act─a
historical relic?”
CILSA
XXIII 1990 at 229-233.
[31]
See above n 29.
[32]
See
Tomlin
above n 29
at 33C-D.
[33]
Tomlin
above n 29 at
33C-D;
Rohloff v Ocean Accident and Guarantee Corporation Ltd
1960 (2)
291 (A) at 304A;
Young v Coleman
1956 (4) SA 213
(D & CLD) at 216F-G;
Cronje et al above n 29 at para 80.
[34]
See
Matrimonial
Property Act 88 of 1984
at
section 11(1)
which states
that
“[t]he common law rule in terms of which a husband obtains the marital
power over the person and property of his wife is hereby
repealed.”
[35]
See id at
section 14
stating
that “[s]ubject to the provisions of this Chapter, a wife in a marriage in
community of property has the same powers
with regard to the disposal of assets
of the joint estate, the contracting of debts which lie against the joint
estate, and the management
of the joint estate as those which a husband in such
a marriage had immediately before the commencement of this Act.”
[36]
See id at section 15(1)
declaring that “[s]ubject to the provisions of subsections (2), (3) and
(7), a spouse in a marriage
in community of property may perform any juristic
act with regard to the joint estate without the consent of the other
spouse.”
[37]
See id at section 15(3)
stating that:
“A spouse shall not without the consent of the other spouse-
(a) alienate, pledge or otherwise burden any furniture or other effects of
the common household forming part of the joint estate;
(b) receive any money due or accruing to that other spouse or the joint
estate by way of -
(i) remuneration, earnings, bonus, allowance, royalty, pension or gratuity, by
virtue of his profession, trade, business, or services
rendered by him;
(ii) damages for loss of income contemplated in subparagraph (i);
(iii) inheritance, legacy, donation, bursary or prize left, bequeathed, made or
awarded to the other spouse;
(iv) income derived from the separate property of the other spouse;
(v) dividends or interest on or the proceeds of shares or investments in the
name of the other spouse;
(vi) the proceeds of any insurance policy or annuity in favour of the other
spouse;
(c) donate to another person any asset of the joint estate or alienate such an
asset without value, excluding an asset of which the
donation or alienation does
not and probably will not unreasonably prejudice the interest of the other
spouse in the joint estate,
and which is not contrary to the provisions of
subsection (2) or paragraph (a) of this
subsection.”
Section 19 stating that:
“When a spouse is liable for the payment of damages, including damages for
non-patrimonial loss, by reason of a delict committed
by him or when a
contribution is recoverable from a spouse under the Apportionment of Damages
Act, 1956 (Act No. 34 of 1956), such
damages or contribution and any costs
awarded against him are recoverable from the separate property, if any, of that
spouse, and
only in so far as he has no separate property, from the joint estate
. . . ”
[38]
See
sections 1, 17(1)(a) and (b), 19 and 20.
[39]
See full text above n
11.
[40]
See
section 19 above
n 37.
[41]
In
Du Plessis v Pienaar
NO and Others
2003 (1) SA 671
(SCA);
[2002] 4 All SA 311
(SCA) at para 9 the
court held that whilst sections 17-19 of the Act authorise an estate separate
from the joint estate it does not
mean that either of the estates is protected
from the incursions of joint creditors of the spouses. If that were so it would
lead
to the anomaly that a debtor might be insolvent in relation to one estate
and not insolvent in relation to the other. The court concluded
that the Act
recognises the existence of separate property in the relationship between the
spouses between each other but it does
not affect the rights of third parties.
For purposes of the present case, we are not called upon to decide on the rights
of creditors
of an insolvent estate in relation to a separate estate.
[42]
See
S v Zuma and
Others
[1995] ZACC 1
;
1995 (4) BCLR 401
(CC);
1995 (2) SA 642
(CC) at paras 12-18 outlining
the interpretation of legislation and Constitutional principles. See also
Ex
Parte Minister of Safety and Security and Others: In Re: S v Walters and Another
[2002] ZACC 6
;
2002 (7) BCLR 663
(CC);
2002 (4) SA 613
(CC) at paras 34-39
explaining
the importance of interpretation of legislation in accordance
with the Constitution.
[43]
Sinclair
An Introduction
to the
Matrimonial Property Act
(Juta
& Co Ltd, Cape Town 1984) at
28-32; Boberg “Delictual actions between spouses: setting the record
straight”
(1984) 101 (4)
SALJ
613.
See also cases above n 29 and n
33.
[44]
Visser et al
Visser en
Potgieter’s
Law of Damages
2 ed (Juta & Co Ltd, Lansdowne
2003) at 19.
[45]
See id.
[46]
See Hutchinson “Back
to Basics: Reliance Damages for Breach of Contract Revisited” (2004) 121
SALJ
at 51; Erasmus and Gauntlett (updated by PJ Vissser)
“Damages”
LAWSA
(2005) vol 7 2 ed at 27 para 25.
[47]
See Visser et al above
n 44 at 33.
[48]
See
Evins v Shield
Insurance Co Ltd
1980 (2) SA 814
(AD) at 838 recognising that pain and
suffering which accompanies future medical treatment may be considered a part of
damages for
pain and suffering. See
also
Solomon and Another, NN.O v
De Waal
1972 (1) SA 575
(AD);
Eggeling and Another v Law Union & Rock
Insurance Co. Ltd
1958 (3) SA 592
(D) for association with disfigurement.
See generally
Administrator-General, South West Africa, v Kriel
1988 (3)
SA 275
(A);
Gillbanks v Sigournay
1959 (2) SA 11
(N);
Botha v Minister
of Transport
1956 (4) SA 375
(W) at 380 for damages for loss of amenities of
life
.
[49]
See
Brenner v Botha
1956 (3) SA 257
(T) recognising that verbal injuries may constitute an
impairment of an individual’s dignity if such injury amounted to degrading
and humiliating behaviour.
[50]
See generally Neethling et
al
Neethling’s Law of Personality
. See also Du Plessis and De
Ville “Personal Rights: Life, Freedom and Security of the Person, Privacy
and Freedom of Movement”
in Van Wyk et al
(eds)
Rights and
Constitutionalism: The New South African Legal Order.
See also
Christian
Lawyers’ Association v National Minister of Health and Others
2004
(10) BCLR 1086
(T);
2004 (4) All SA 31
(T);
Ferreira v Levin NO and Others;
Vryenhoek and Others v Powell NO and Others
1996 (1) BCLR 1
(CC);
1996 (1)
SA 984
(CC);
Matiso and Others v Commanding Officer, Port Elizabeth
Prison
and Others
1994 (3) BCLR 80
(SE);
1994 (4) SA 899
(SE). See
also eg
Coetzee v Government
of the RSA
[1995] ZACC 7
;
1995
(10) BCLR 1382
(CC);
1995 (4) SA 631
(CC).
[51]
See above n 50 and also
In Rail Commuters Action Group v Transnet t/a Metrorail
[2004] ZACC 20
;
2005 (4) BCLR 301
(CC);
2005 (2) SA 359
(CC) recognising the right to human dignity and personal
freedom.
[52]
National Media Ltd and Others v Bogoshi
[1998] ZASCA 94
;
1999 (1)
BCLR 1
(SCA);
1998 (4) SA 1196
(SCA) at 1216G-H;
O v O
1995 (4) SA 482
(W) at 490H-J;
Gardener v Whitaker
1994 (5) BCLR 19
(E);
1995 (2) SA 672
(E) at 690G-691A;
Holomisa v Argus Newspapers Ltd
1996 (6) BCLR 836
(W);
1996 (2) SA 588
(W) at 606F; cf
Potgieter v Kilian
1995 (11) BCLR 1498
(N),
1996 (2) SA 276
(N).
[53]
See
Jansen van Vuuren and
Another NNO v Kruger
[1993] ZASCA 145
;
1993 (4) SA 842
(A) holding that
the right to
privacy is a valuable right and that the communications with respect to an
individual’s HIV status was unreasonable
and unjustifiable.
[54]
See above n 49. See also
S v Makwanyane
[1995] ZACC 3
;
1995 (6) BCLR 665
(CC);
1995 (3) SA 391
(CC).
[55]
See
Kidson & Others v
SA Associated Newspapers Ltd
1957 (3) SA 461
(W) recognising that a
non-consensual publication which defamed a married woman may constitute an
infringement of identity and privacy.
[56]
See
Boberg
on
Delict
above n 25 and Visser and Potgieter on
Damages
above n 44
contending that with respect to the law of delict, the object is to place the
plaintiff in the position that the individual
would have been in, had the delict
not occurred, or where the plaintiff was prior to the breach. With respect to
contract, the
prima facie
goal is to place the individual in the position
that they would have been in, had the contract been performed. See
Rudman v
Road Accident Fund
2003 (2) SA 234
(SCA) outlining
the standard of
loss of earning capacity. See
Versfeld v South African Citrus Farms Ltd
1930 AD 452
establishing
that the measure of damages is determined by
considering where the plaintiff would have been had the contract been performed.
See
Coetzee v SA Railways & Harbours
1934 CPD 221
allowing
an
action for prospective damages on the basis that the plaintiff could demonstrate
a loss of future earnings as a result of his present
injury.
[57]
Harksen
above n 26 at
para 53; the test was confirmed in several subsequent decisions of this
Court.
[58]
Satchwell v President of
the Republic of South Africa and Another
[2003] ZACC 2
;
2004 (1) BCLR 1
(CC);
2003 (4) SA
266
(CC);
Volks
above n 26;
Du Toit and Another v Minister of Welfare
and Population Development and Others (Lesbian and Gay Equality Project as
Amicus Curiae)
[2002] ZACC 20
;
2002 (10) BCLR 1006
(CC);
2003 (2) SA 198
(CC);;
National
Coalition for Gay and Lesbian Equality
(2000)
above n 19;
National
Coalition for Gay and Lesbian Equality and Another v
Minister of Justice
and Others
1998 (12) BCLR 1517
(CC);
1999 (1) SA 6
(CC);
Fraser v
Children’s Court, Pretoria North and Others
1997 (2) BCLR 153
(CC);
1997 (2) SA 261
(CC);
Brink v Kitshoff NO
[1996] ZACC 9
;
1996 (6) BCLR 752
(CC);
1996 (4) SA 197
(CC). For a discussion of the ground of marital status as a
form of discrimination see also Currie and De Waal
The Bill of Rights
Handbook
5 ed (Juta, Lansdowne 2005) at 254-256.
[59]
Daniels
above
n 19.
[60]
Volks
above n 26.
[61]
Id at paras 51 and 56.
[62]
See for example
S v
Makwanyane
above n 54 at para 9.
[63]
Judy
The Concise Oxford
Dictionary
10
ed (Oxford University Press, Oxford 1999) at 872
and 1403.
[64]
On what constitutes an
analogous ground in unfair discrimination jurisprudence see n 26;
Prinsloo
Volks
above
n 26.
[65]
Prinsloo
above n 26.
In that case the Court applied the equality provision in section 8 of the
Interim Constitution. However, this Court
has affirmed several times that the
equality analysis under section 8 of the Interim Constitution applied equally to
the equality
provision found in section 9 of the Constitution. For examples see
Minister of Finance v Van Heerden
[2004] ZACC 3
;
2004 (11) BCLR 1125
(CC);
2004 (6) SA
121
(CC) at para 52;
Hoffman v South African Airways
2000 (11) BCLR 1211
(CC);
2001 (1) SA 1
(CC)
at para 29;
National Coalition for Gay
and Lesbian Equality (1998)
above n 58 at para 15.
[66]
See
Prinsloo
above n
26 at para 25.
[67]
Of course the constitutional
requirement of a rational connection between a law and its avowed purpose has
its source in section
2 of the Constitution which provides that it is the
supreme law and that law or conduct inconsistent with it is invalid and the
obligations
imposed by it must be fulfilled. On the rational connection
requirement in all law, whether it differentiates or not, see
Zondi v MEC for
Traditional and Local Government Affairs and Others
[2004] ZACC 19
;
2005 (4) BCLR 347
(CC);
2005 (3) SA 589
(CC) at para 90;
Bel Porto School Governing Body and Others v
Premier, Western Cape and Another
[2002] ZACC 2
;
2002 (9) BCLR 891
(CC);
2002 (3) SA 265
(CC) at paras 41 and 45;
Pharmaceuticals Manufacturers Association of SA and
Others: in Re Ex Parte Application of President of the Republic of South Africa
and Others
[2000] ZACC 1
;
2000 (3) BCLR 241
(CC);
2000 (2) SA 674
(CC)
at paras
84-86 and 90.
[68]
See above n 43 for academic
articles on the section written in the 1980s.
[69]
The full title of the report
is the “South African Law Commission Report pertaining to the matrimonial
property law with special
reference to the Matrimonial Affairs Act, 1953, the
status of the married women, and the law of succession in so far as it affects
spouses” (8
th
February 1982).
[70]
Id at 42.
[71]
See
Sinclair
above n
43 at 1.
[72]
See
Tomlin
above n 29
at 33C-D.
[73]
Section 20(1) reads:
“A court may on the application of a spouse, if it is satisfied that the
interest of that spouse in the
joint estate is being or will probably be
seriously prejudiced by the conduct or proposed conduct of the other spouse, and
that the
other person will not be prejudice thereby, order the immediate
division of the joint estate in equal shares or on such other basis
as the court
may deem just.” See
Bopape and Another v Moloto
2000 (1) SA 383
(T) at 387B;
Ex Parte Menzies et uxor
1993 (3) SA 799
(C) at 811B-F.
[74]
Section 20(2) reads:
“A court making an order under subsection (1) may order that the community
of property be replaced by
another matrimonial property system, subject to such
conditions as it may deem fit.”
[75]
See paras 36 to 41
above.
[76]
Erasmus and Gauntlett above
n 46 at 26 and 27; Visser et al above n 44 at 32.
[77]
Visser et al above n 44 at
165.
[78]
For a helpful discussion of
waiver in constitutional litigation see also Currie and de Waal above n 58 at
39-43.
[79]
See
Ferreira
above
n 50 at para 26; see also
Bhe and Others v Magistrate, Khayelitsha and
Others; Shibi v Sithole and Others; South African Human Rights Commission and
Another
v President of the Republic of South Africa and Another
[2004] ZACC 17
;
2005 (1)
BCLR 1
(CC);
2005 (1) SA 580
(CC) at para 46 and 148;
Daniels
above n 19;
National Coalition for Gay and Lesbian Equality (2000)
above n 19 at para
69
; De Kock and Others v Van Rooyen
2005 (1) SA 1
(SCA) at paras
23-27.
[80]
See Currie and De Waal above
n 58 at 156-157.
[81]
Bhe
above n 79 at
para 91;
Minister of Finance and Another v Van Heerden
above n 65 at
paras 22 and 139;
Ferreira
above n 50 at paras 170-174;
S v Makwanyane
above n 54 at para 10.
[82]
State v Baloyi
[1999] ZACC 19
;
2000
(1) BCLR 86
(CC);
2000 (2) SA 425
(CC) at paras 11-12. See also
Omar v
Government of South Africa and Others
[2005] ZACC 17
;
2006 (2) BCLR 253
(CC);
2005 (12) SA
65
(CC) at paras 16-19.
[83]
Section 172(1) reads:
“When deciding a constitutional matter within its power, a
court–
(a) must declare that any law or conduct that is inconsistent with the
Constitution is invalid to the extent of its inconsistency;
and
(b) may make any order that is just and equitable, including–
(i) an order limiting the retrospective effect of the declaration of invalidity;
and
(ii) an order suspending the declaration of invalidity for
any period and on any conditions, to allow the competent authority to correct
the defect.”
[84]
National Coalition for
Gay and Lesbian Equality and Others (2000)
above n 19 at para 65;
S v
Bhulwana; S v Gwadiso
[1995] ZACC 11
;
1995 (12) BCLR 1579
(CC);
1996 (1) SA 388
(CC) at para
32; see also
Satchwell
above n 58 at para 34 for the proposition that
reading in is more preferable than striking down an order and suspending a
declaration
that may not provide the desired relief.
[85]
See
Mabaso
above n 6
at para 47;
Daniels
above n 19 at para 34;
Ex Parte Minister of Safety
and Security and Others: In Re: S v Walters and Another
above n 42;
Satchwell
above n 58 at paras 27 and 34;
S v Manamela and Another
(Director-General of Justice Intervening)
[2000] ZACC 5
;
2000 (5) BCLR 491
(CC);
2000 (3)
SA 1
(CC) at para 56;
National Coalition for Gay and Lesbian Equality (2000)
above n 19 at paras 74-76.
[86]
National Coalition for
Gay and Lesbian Equality
(1998)
above
n 58 at paras
83-84.
[87]
Id at paras 83-89. See also
S v Mello and Another
[1998] ZACC 7
;
1998 (7) BCLR 908
(CC);
1998 (3) SA 712
(CC) at
para 14.
[88]
Compare
S v Bhulwana; S v
Gwadiso
above n 84 at 32; see also
S v Ntsele
1997 (11) BCLR 1543
(CC) at para 14.
[89]
See
section 10(1)
of the
Road Accident Fund Act 56 of 1996
.