Van der Merwe v Road Accident Fund and Another (Women's Legal Centre Trust as Amicus Curiae)

• Jurisdiction: South Africa
• Citation: 2006 (4) SA 230 (CC)

Van der Merwe v Road Accident Fund and Another (Women's Legal Centre Trust as Amicus Curiae)
2006 (4) SA 230 (CC)

2006 (4) SA p230

Citation	2006 (4) SA 230 (CC)
Case No	CCT48/2005
Court	Constitutional Court
Judge	Langa CJ, Moseneke DCJ, Mokgoro J, Ngcobo J, Sachs J, Skweyiya J, Van Der Westhuizen J and Yacoob J
Heard	November 24, 2005
Judgment	March 30, 2006
Counsel	B David for the applicant.; Theoniel Potgieter SC (with him Mohamed Salie) for the first respondent.; Krishna Pillay for the second respondent.; O Mooki for the Amicus Curiae.

Flynote : Sleutelwoorde D

Constitutional practice — Parties — Joinder — Constitutional validity of legislation in issue — Minister responsible E for its administration must be party to proceedings — Minister's views and evidence ought to be heard and considered — Courts should not pronounce on validity of legislation without benefit of hearing organ of State concerned on purpose pursued by legislation, its legitimacy, factual F context, impact of its application and justification, if any, for limiting entrenched right — Views of State organ also important when considering whether, and on what conditions, to suspend any declaration of invalidity.

Constitutional practice — Declaration of statutory invalidity — Once made by High Court, not open to Constitutional Court, when order referred to it in terms of G s 172(2)(d) of Constitution to refuse to enquire into validity or otherwise of legislation in question — Court obliged to pronounce upon constitutional validity of impugned provision and confirm or refuse to confirm order.

Constitutional law — Human rights — Right to equality before the law and not to be unfairly discriminated H against — Justification of differentiation — When law differentiates between people or classes of people, it will fall foul of constitutional standard of equality if it is shown that differentiation not having legitimate purpose or rational relationship to purpose advanced to validate it — In such circumstances impugned law infringing at outset right to equal protection and benefit of law under s 9(1) of Constitution — Such legislation conferring benefits or I imposing burdens unevenly and without rational basis — This amounting to arbitrary differentiation and breaching 'rational differentiation' standard set by s 9(1) of Constitution.

Constitutional law — Legislation — Validity of — Waiver by persons affected by law of right to attack validity of law — Constitutional validity of J

2006 (4) SA p231

legislation not deriving from personal choice, preference, subjective consideration or other conduct of person affected by A it — Objective validity of law stemming from Constitution itself — Constitution in s 172(1) making it plain that, when deciding constitutional matter within its power, court must declare any law inconsistent with Constitution invalid — Such obligation not dependent on conduct of litigants or holders of rights in issue — Waiver cannot confer validity on law that otherwise lacks legitimate purpose. B

Constitutional law — Human rights — Right to equality before the law and not to be unfairly discriminated against — Provision in s 18(b) of Matrimonial Property Act 88 of 1984 that, notwithstanding that spouse married in community of property, he or she may recover from other spouse damages, C other than for patrimonial loss, in respect of bodily injuries attributable to fault of other spouse — Such provision differentiating between spouses married in community of property and those married out of community of property in respect of their proprietary interests — Such distinction a relic of common law of marriage which is not useful — Legislative scheme of Act, ss 18(a), (b), 19 and 20, having irreversibly undermined government purpose of preserving unity of joint D estate — Section 18(b) arbitrarily preventing fullest possible compensation for spouses who are victims of wrongdoing of their marriage partners — Section drawing impermissible differentiation between spouses married in and out of community of property in respect of right to recover such damages — Differentiation not legitimate as it is E arbitrary and not serving legitimate public end — In doing so, s 18(b) limiting right to equal protection and benefit of the law guaranteed by s 9(1) of Constitution — Section unconstitutional.

Headnote : Kopnota

When the constitutional validity of an Act of Parliament is impugned the Minister responsible for its administration must be a F party to the proceedings inasmuch as his or her views and evidence tendered ought to be heard and considered. Furthermore, 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 G 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. (Paragraph [7] at 241D - G.)

It is self-evident that, once an order of constitutional invalidity is made by a High Court and referred to the Constitutional Court in terms H of s 172(2)(d) of Constitution of the Republic of South Africa, 1996, it is not open to the latter Court 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. If it were otherwise, the order of constitutional invalidity of the High Court I would languish in limbo and needlessly spawn public uncertainty. (Paragraph [21] at 246E - 247B.)

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 J

2006 (4) SA p232

rational relationship to the purpose advanced to validate it. Absent the A precondition of a rational connection the impugned law infringes, at the outset, the right to equal protection and benefit of the law under s 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 B norm that the Constitution imposes, inasmuch as it breaches the 'rational differentiation' standard set by s 9(1) thereof. (Paragraph [49] at 257C - F.)

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 s 2, proclaims that the Constitution is the supreme law and that law inconsistent with it C is invalid. Several other provisions of the Constitution buttress this foundational injunction in a democratic constitutional State. For example, s 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, D s 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 E conduct of litigants or holders of the rights in issue. Consequently, a submission that a waiver would, in the context of a case, confer validity to a law that otherwise lacks a legitimate purpose has no merit. (Paragraph [61] at 261B - F.) (Yacoob J dissenting: see paras [80] - [81].)

The applicant had instituted an action in a High Court against the first respondent for damages arising from bodily injuries she had F sustained when a motor vehicle, driven by her husband, had collided with her. It was common cause between the parties that the applicant's husband had intentionally knocked her over with the motor vehicle. At the time of the collision the applicant and her husband were married in community of property, but they were subsequently divorced. The first respondent, being the statutory body that was liable to compensate G the applicant for damages arising from bodily injuries caused by the driving of a motor vehicle, was, however, so liable only if the applicant could institute a lawful claim against the driver of the motor vehicle that caused her injuries. The first respondent raised a special plea to the claim in which it admitted that the applicant was entitled to claim 'non-patrimonial damages' such as 'general damages', but denied liability to compensate the applicant for any H 'patrimonial damages' by reason of the provisions of s 18(a) and (b) of the Matrimonial Property Act 88 of 1984 read with s 19(a) of the Act which in effect prohibited claims for patrimonial damages between spouses married in community of property. In a replication the applicant averred that s 18(a) and (b) of the Act unfairly discriminated on the ground of marital status against persons married I ...