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Harksen v Lane - Right of equality
Constitutional Law (University of Cape Town)
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Harksen v Lane
GOLDSTONE:
The Relevant Provisions of the (Insolvency) Act:
S21: all property of the spouse of a person whose estate has been provisionally
sequestrated shall automatically vest in the master and then in the trustee of the
insolvent estate.
S21 (2): the trustee shall release any of the above such property if it is proven that the
property falls within the listed categories (property owned before the marriage;
property received under a marriage settlement; property acquired during the marriage
but by a title valid against creditors of the insolvent).
S21 (4): solvent spouse may apply to court for the release of the vested property.
Spouse carries burden of proof to show that the property is actually his/ (but usually)
hers.
S21(10): solvent spouse can approach the court to exclude property for a period
determined by the court if it can be shown that the effect of the vesting would be a
negative influence on trade, or would result in serious prejudice against the solvent
spouse. In such cases the solvent spouse must show that he/she can protect the interest
of the insolvent estate.
OBJECTIONS: constitutional (interim) breaches: S8 - the right to Equality, and S28 –
the right to property.
The Equality Clause:
It was contested by Harksen that the provisions of S21 were violations of the Equality
Clause (S8 Interim Constitution) on the following grounds:
 By imposing severe obligations/burdens on the solvent spouse that it does not
impose on other people the insolvent has had relations with S21 promulgate
unequal treatment of solvent spouses, discriminating, unfairly, against them.
 It discriminates against solvent spouses who are not traders
It was submitted that the above violated S8 (1) – Equality before the law, and
S8 (2) – Unfair Discrimination.
Is there Differentiation?
S 8(1) – equality before the law – Analysis:
 Now S 9(1)
1. Does the section in contention differentiate between people/ categories of
people? If not there can be no claim.
2. If it does, is there a rational connection between the differentiation in question
and the legitimate governmental purpose it was designed to achieve?
- If there is a rational connection then there is no breach of S 8(1)
- If the there is a rational connection…
… Does the Differentiation Amount to Unfair Discrimination?
S 8(2) – unfair discrimination – Analysis:
 Now S9(3) & (4)
 Differentiation that does not violate S8(1) may still constitute unfair
discrimination
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


Differentiation is often required for the purpose of efficiently harmonizing
interests in a modern country. However, the state is required to act rationally.
If there is a rational connection between the differentiation and the
government purpose it is necessary to move onto S8 (2) to see whether,
despite the rational, the differentiation amounts to unfair discrimination.
Determining the presence of unfair discrimination entails a 2 stage analysis:
1. Does the differentiation amount to discrimination? (I.e. is there any
discrimination?)
2. If so, is the discrimination unfair?
1. What Constitutes DISCRIMINATION?
 There are 2 categories of differentiation:
i.
Differentiation on listed grounds. (In such cases the discrimination is
presumed unfair)
- In terms of listed grounds discrimination relates to unequal treatment
of people based on attributes and characteristics attaching to them.
ii.
Differentiation on analogous grounds. (NO presumption of unfairness)
- In terms of analogous grounds discrimination = treating persons
differently in a way that impairs their fundamental dignity as human
beings (who are inherently equal in human dignity).
- There will be discrimination on analogous grounds if it is based on
characteristics and attributes which have the potential to impair the
dignity of persons as human beings.
Whether the discrimination is listed or analogous grounds is an objective matter.
If it is found that the discrimination falls under neither analogous nor listed grounds,
the claim falls away.
If it is found, on either of these categories, that there has been discrimination, it is
necessary to move to step 2: was the discrimination unfair?
Remember:
 If discrimination is on listed grounds it is presumed to be unfair, but the
contrary may be established.
 If discrimination is on analogous grounds, unfairness must be clearly
established before the court finds there has been a breach of the equality
clause…
2. What Constitutes UNFAIR DISCRIMINATION? (Impact Test)
(The purpose of the equality clause is not merely to avoid discrimination against those
of disadvantaged groups. It also serves to recognize the establishment of a society in
which all humans are accorded equal dignity and respect, regardless of their
membership to particular groups.)
As mentioned, if the discrimination is on a listed ground the discrimination is
presumed to be unfair.
If the discrimination was on an analogous ground the court must determine whether
the impact of the discrimination was serious. To determine whether the IMPACT is
serious (and thus unfair) the court must look at the following 3 categories:
 The group that has been disadvantaged
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The nature of the power that gave effect to the discrimination (by power it is
meant the assignment of rights that has the effect of giving one person power
over another – it took me ages to work that out!)
 The nature of the interests effected by the discrimination
The court must then consider:
a) The position of the complainants in society and whether they have suffered
from previous patterns of disadvantage, and whether the discrimination is on
listed grounds or not.
b) The nature of the provision or power and the purpose sought to be achieved by
it:
 If the purpose is not directed at impairing the complainants, but is
aimed at achieving a worthy and important social goal (e.g. furthering
equality, be it only in the long run, for all), this purpose may have a
bearing on whether the court decides whether the complainants have
actually suffered the impairment in question. E.g. Hugo:
 Presidential Act was intended to benefit 3 groups in society: prisoners that
were: disabled, young, or mothers of young children.
 All these groups were regarded as being vulnerable in society, and disabled
people + mothers of young children were regarded as belonging to groups
previously discriminated against. This weighed with the court in concluding
that the discrimination was NOT unfair.
c) Any other factors, to the extent that the discrimination has affected the rights
or interests of the complainants, and whether it has lead to an impairment of
their fundamental human dignity, or constitutes an impairment of comparably
serious nature.

-
These factors, (a)-(c), do not constitute a Numero Clausus
If the discrimination is found to be unfair, the provision in question will be
said to be in violation of S8 (2) – or what is now S9 (3)+(4).
If this is the case one must continue with a S36 analysis to determine whether
the Unfair Discrimination is justified.
The Enquiry in this Present Case
Is there Differentiation?
S 8(1) – equality before the law – Analysis:
1. The court conceded that S21 of the Insolvency Act patently differentiates
between the solvent spouse of an insolvent and other persons who might have
had dealings with the insolvent.
2. The court found that there was definitely a rational connection between the
differentiation created by S21 of the Insolvency Act and the legitimate
governmental purpose it was designed to achieve.
… Does the Differentiation Amount to Unfair Discrimination?
S 8(2) – unfair discrimination – Analysis:
1. Does the differentiation amount to discrimination?
The differentiation was NOT on any listed grounds. The differentiation arose from
marital status – i.e. their attributes/characteristics as solvent spouses. These attributes
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have the potential to impair the dignity of persons as human beings. It follows that
S21 amounted discrimination on analogous grounds.
2. Is the discrimination unfair?
Solvent spouses of an insolvent do not constitute a group that has previously been
discriminated against.
The nature of the provision is such that it protected the rights of creditors of insolvent
estates.
Was the impact serious? The court found that it wasn’t. Property was not necessarily
removed from the possession of the solvent spouse. It is merely attached by the sheriff
and may not be alienated or burdened until it is released.
It was held that the relevant sections were not inconsistent with the Interim
Constitution.
Miscellaneous
If you find that there has been unfair discrimination you then need to move onto a S36
analysis.
Ms A Pillay happens to think that we can all write at a rate of knots, and that students
running out of time in exams is just some myth, conjured up by some trickster lecturer
with a good sense of humor, over a cup of coffee in the staff common room. In hue of
these thoughts she offers the following advice (verbatim):
‘Even if, in your exam, you arrive at the conclusion that there is no unfair
discrimination, it is safe to always do a S36 analysis’.
She was then kind enough to tell us exactly how to work a Section bloody 36 analysis
into an answer where we have already concluded that there is absolutely no need for
such measures. Just in case we have, in what is more than likely going be 3 or 4 pages
of answer, completely misinterpreted the question, as a saving grace, we should write
(again, verbatim):
“In my opinion there is no unfair discrimination, but incase the court does not agree
with me here is a S36 analysis”.
Just like that. How very nice of her.
In these past exams I was not lucky enough to write a S36 analysis. For those of you
who were, you will know how long such an exercise may take. My advice, in light of
Ms A Pillay’s, and for what its worth, would be to bring, to the exam, a mechanical
arm and, perhaps, a spare pen. Further, to save what we exam-writing-students so
ignorantly refer to as time, I would suggest that when the convener is handing out the
answer booklets you ask for a small forest of them. Good luck.
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