Brink v Kitshoff NO

• Jurisdiction: South Africa
• Citation: 1996 (4) SA 197 (CC)

Brink v Kitshoff NO
1996 (4) SA 197 (CC)

1996 (4) SA p197

Citation	1996 (4) SA 197 (CC)
Case No	CCT 15/95
Court	Constitutional Court
Judge	Chaskalson P, Mahomed DP, Ackermann J, Didcott J, Kentridge AJ, Kriegler J, Langa J, Madala J, Mokgoro J, O'Regan J, Sachs J
Heard	November 9, 1995
Judgment	May 15, 1996
Counsel	E Bertelsmann SC (with him H T Venter) for the applicant.; M Helberg SC (with him A J Louw) for the respondent.; J Kentridge (with her M Chaskalson) for the amicus curiae (the Centre for Applied Legal Studies of the University of the Witwatersrand).

Flynote : Sleutelwoorde E

Constitutional practice — Courts — Constitutional Court — Referral in terms of s F 102(1) of Constitution of the Republic of South Africa Act 200 of 1993 — Requirements for — Where constitutional issue within exclusive jurisdiction of Constitutional Court is raised, Provincial or Local Division is required by s G 102(1) to have regard to two matters upon which exercising of power to refer issue to Constitutional Court is dependent — First, whether issue is one which may be decisive of the case; and, secondly, whether it would be in interest of justice to refer issue to Constitutional Court — Not in interests of justice to refer issue based upon a contention that has no reasonable prospect of being upheld by Constitutional Court — Nor is it ordinarily in interests of justice for cases to be H heard piecemeal — As general rule, if possible to decide case without deciding constitutional issue it should be done — Where ruling as to decisiveness of constitutional issue depending in part on point of law within jurisdiction of Provincial or Local Division, point of law should be considered and decided by such Provincial or Local Division — Referral should not be made unless that I decision leads to conclusion that constitutional issue may indeed be decisive.

Constitutional practice — Courts — Constitutional Court — Referral in terms of s 102(1) of Constitution of the Republic of South Africa Act

1996 (4) SA p198

A 200 of 1993 — Evidence necessary for determination of constitutional issue — Such should be placed before Supreme Court at time of application for referral — Litigant wishing to rely on evidence not covered by Rule 34 of Constitutional Court Rules has duty to ensure that such evidence placed on record before asking for issue to be referred to Constitutional Court — Referring Judge should also be satisfied that any evidence necessary for proper determination of issue is on record before making referral — If either party wishes to rely on evidence B beyond scope of Rule 34 to support its submissions concerning terms of order, affidavits containing such evidence to be placed before Court at referral phase and not tendered after referral has been made.

C Constitutional practice — Courts — Constitutional Court — Referral in terms of ss 102(1), (2), (3) and ss 103(2), (3) and (4) of Constitution of the Republic of South Africa Act 200 of 1993 — Responsibility of Supreme Court to control referrals to Constitutional Court an important function which is necessary both to ensure that hearing of cases not disrupted by frivolous or unnecessary applications to D refer issues to Constitutional Court, and to ensure that, if determination of constitutional issue may be decisive, it should only be referred after all evidence necessary for such decision has been placed on record.

Constitutional law — Human rights — Right to equality before the law and right E not to be unfairly discriminated against in terms of s 8 in chap 3 of Constitution of the Republic of South Africa Act 200 of 1993 — Interpretation of — Constitution an emphatic renunciation of past in which inequality systematically entrenched — Interpretation of s 8 must, perhaps more than any of other provisions in chap 3, F be based on specific language of s 8, as well as on South Africa's own constitutional context — Although most visible and most vicious pattern of discrimination in South Africa racial, other systematic motifs of discrimination inscribed on social fabric — Section 8 adopted in recognition that discrimination against people who are members of disfavoured groups can lead to patterns of G group disadvantage and harm — Such discrimination unfair, building and entrenching inequality amongst different groups in society — Necessary both to proscribe, and to permit positive steps to redress effects of, such discrimination — Need to prohibit such patterns of discrimination and to remedy their results H primary purposes of s 8 and, in particular, ss (2), (3) and (4).

Constitutional law — Legislation — Validity of — Declaration of invalidity — Validity of s 44(1) and (2) of Insurance Act 27 of 1943 depriving married women in certain circumstances of all or some of benefits of life insurance policies ceded to I them or made in their favour by their husbands — Sections discriminating against such women on grounds of sex in violation of s 8(2) of Constitution of the Republic of South Africa Act 200 of 1993 — No reasonable basis existing for limitation of fundamental rights by s 44(1) and (2) since purposes sought to be achieved by sections not requiring distinction to be drawn between married women and married men — J

1996 (4) SA p199

Discrimination occasioned by the provisions cannot be said to be reasonable or justifiable in light of purposes of legislation — Therefore inconsistent with Constitution and declared invalid. A

Constitutional law — Legislation — Validity of — Declaration of invalidity — Validity of s 44(1) and (2) of Insurance Act 27 of 1943 — Power of Constitutional Court in B terms of s 98(6)(a) of Constitution of the Republic of South Africa Act 200 of 1993 in interests of justice and good government not to invalidate all acts done or permitted in terms of invalid legislation since commencement of Constitution — Generally, interests of justice requiring that protection of Constitution be C effective from date upon which it came into force — If order of invalidity of s 44(1) and (2) made applicable only to causes of action arising after date of order, some married women would be denied protection of Constitution — Nevertheless, cogent reasons of good government existing against making order subjecting estates wound up and finalised or proceeds of life insurance policies D attached by judgment creditors in good faith in reliance on s 44(1) and (2) to further challenge or investigation — Court accordingly declaring s 44(1) and (2) invalid with effect from 27 April 1994, but exempting from that declaration payments made as result of operation of s 44(1) and (2) before date of order.

Headnote : Kopnota

Sections 44(1) and (2) of the Insurance Act 27 of 1943 deprived married women, in E certain circumstances, of all or some of the benefits of life insurance policies ceded to them or made in their favour by their husbands. A life insurance policy in respect of one B had been taken out during 1989. In 1990 B ceded the policy to his wife, the applicant in the present case. On 9 April 1994 B died. On 23 May 1994, the executor of B's estate, the respondent in the present case, acting in terms of s 34(1) of the F Administration of Estates Act 66 of 1965, sent a notice to creditors informing them that the estate was insolvent. In terms of s 44 of the Insurance Act, the respondent demanded that the assurer pay into the estate all but R30 000 of the proceeds of the life insurance policy. When the assurer refused to do so, the executor launched an application in a Provincial Division for an order compelling the assurer to pay over the G proceeds. The applicant instituted a counter-application seeking an order that the life insurance policy be rectified to reflect her, and not her husband, as the original owner of the policy and raising the question of the constitutionality of s 44 of the Insurance Act. On 28 March 1995 the parties applied to the Provincial Division for a consent order referring the question of the constitutionality of s 44 to the Constitutional Court in terms of s 102(1) of the Constitution of the Republic of South Africa Act 200 of 1993. The order was granted. The Constitutional Court first considered the question of the validity of the referral.

Held (per Chaskalson P, the other members of the Court concurring), that the H Constitution contemplated that constitutional disputes would ordinarily be dealt with by a Provincial or Local Division before the Constitutional Court was engaged; and this was so even if the only issue in the case was a constitutional issue within the exclusive jurisdiction of the Constitutional Court. (Paragraph [6] at 206C-E.)

Held, further, that, where a constitutional issue within the exclusive jurisdiction of the I Constitutional Court was raised in a matter, the Provincial or Local Division was empowered by s 102(1) of the Constitution to refer such issue to the Constitutional Court for its decision - it was not, however, obliged to do so. It was required by the section to have regard to two further matters upon which the exercising of the power was dependent: first, whether the issue was one which might be decisive of the case; and, secondly, whether it would be in the interests of justice to refer the issue to the Constitutional Court. The referral should only be made if both these requirements were satisfied. (Paragraph [8] at 206G-I.) J

1996 (4) SA p200

A Held, further, that it would not be in the interests of justice to refer an issue which was based upon a contention that had no reasonable prospect of being upheld by the Constitutional Court: it was, furthermore, not ordinarily in the interests of justice for cases to be heard piecemeal and, as a general rule, if it was possible to decide a case without deciding a constitutional issue, this...