South Africa: Constitutional Court

JUDGMENT

GOLDSTONE J:

Introduction

1. In this case the constitutionality of certain provisions of the Insolvency Act 24 of 1936, as amended (“the Act”), comes before us by way of a referral from Farlam J in the Cape of Good Hope Provincial High Court¹ made in terms of section 102(1) of the Constitution of the Republic of South Africa Act 200 of 1993 (“the interim Constitution”).

2. The referral came about in consequence of the sequestration of the estate of Mr Jürgen Harksen (“Mr Harksen”). The final sequestration order was granted in the Cape of Good Hope Provincial Division of the Supreme Court (as it then was) on 16 October 1995. The applicant in these proceedings, Mrs Jeanette Harksen (“Mrs Harksen”), was at that time married out of community of property to Mr Harksen. The first and second respondents are the trustees in the insolvent estate of Mr Harksen (“the trustees”). The third respondent is the Master of the Cape of Good Hope Provincial High Court (“the Master”). The fourth respondent is the Minister of Justice (“the Minister”).

3. There was no appearance in this Court on behalf of the trustees, the Master or the Minister. We were informed by the trustees that there were insufficient funds in the insolvent estate to allow them to brief counsel. They, as did the other respondents, informed the Court that they will abide its decision on the questions referred to it. Mr W Trengove SC and Mr D Spitz appeared on behalf of an amicus curiae, the Council of South African Banks. We are indebted to the amicus, and especially to its counsel, for the most helpful heads of argument they filed and oral submissions they made at the hearing of the referral.

4. As indicated above, the sequestration of the insolvent estate of Mr Harksen commenced in October 1995, during the period of operation of the interim Constitution. Section 4(1) of the interim Constitution provided that:

“This Constitution shall be the supreme law of the Republic and any law or act inconsistent with its provisions shall, unless otherwise provided expressly or by necessary implication in this Constitution, be of no force and effect to the extent of the inconsistency.”

Section 7(2) provided that:

“This Chapter shall apply to all law in force . . . during the period of operation of this Constitution.”

In accordance with these sections any provision of a law inconsistent with the bill of rights became invalid and of no force and effect upon the coming into operation of the interim Constitution.²

5. The Constitution of the Republic of South Africa, 1996 (“the 1996 Constitution”) came into force on 4 February 1997. Although the matter was referred to this Court on 25 March 1997, the application for the referral was launched on 18 December 1996, prior to the coming into operation of the l996 Constitution. It was therefore “pending” on the date on which the 1996 Constitution came into operation. Item 17 of schedule 6 to the 1996 Constitution provides that:

“All proceedings which were pending before a court when the new Constitution took effect, must be disposed of as if the new Constitution had not been enacted, unless the interests of justice require otherwise.”

6. In the present case it was accepted by counsel that there were no “interests of justice” which required the referral to be decided in accordance with the 1996 Constitution. I can find no ground for holding that such interests obtain in this case. It follows that the provisions and procedures of the interim Constitution apply to the matter referred and the constitutionality of the impugned sections must be decided with reference thereto.

The Relevant Provisions of the Act

6. In this case the sections of the Act which are impugned are sections 21, 64 and 65. They are alleged to be inconsistent with certain provisions of the bill of rights to the extent that they impact on the property and affairs of a solvent spouse upon the sequestration of the estate of an insolvent spouse. At the outset, it is convenient to set out the relevant provisions of the Act.

6. In terms of section 20(1) of the Act, the effect of the sequestration of the estate of an insolvent is to divest the insolvent of his or her estate and to vest it in the Master until a trustee has been appointed. Thereafter the estate vests in the trustee. Section 21(1) of the Act provides:

“The additional effect of the sequestration of the separate estate of one of two spouses who are not living apart under a judicial order of separation shall be to vest in the Master, until a trustee has been appointed, and, upon the appointment of a trustee, to vest in him all the property (including property or the proceeds thereof which are in the hands of a sheriff or a messenger under a writ of attachment) of the spouse whose estate has not been sequestrated (hereinafter referred to as the solvent spouse) as if it were property of the sequestrated estate, and to empower the Master or trustee to deal with such property accordingly, but subject to the following provisions of this section.”

There then follow a number of provisions³ which are designed to protect the legitimate interests of the solvent spouse.

9. In terms of the section⁴ “spouse” refers not only to a wife or husband in the legal sense but also to a wife or husband married according to any law or custom, as well as women and men living with each other as if they were married.

9. Section 21(2) provides that once the solvent spouse proves that his or her property falls into one of the following categories, the trustee shall release it:

(a) property of the solvent spouse acquired before her or his marriage to the insolvent or before 1 October, 1926;

(b) property acquired by the solvent spouse under a marriage settlement;

(c) property acquired by the solvent spouse during the marriage by a title valid as against creditors of the insolvent;

(d) those policies of life insurance which are protected by the provisions of the Insurance Act 27 of 1943;

(e) property acquired with, or with the income or proceeds of, property referred to above.

11. The category of property acquired by the solvent spouse during the marriage by a title valid against creditors of the insolvent was substantially widened by section 22 of the Matrimonial Property Act 88 of 1984. In terms thereof, donations between spouses, formerly invalid, were made legal and therefore enforceable. Some of the effects of that development on section 21 of the Act were considered by Kriegler J in Snyman v Rheeder NO.⁵ At the outset, the learned Judge referred to a passage from the judgment of Greenberg JP in Maudsley’s Trustee v Maudsley.⁶ Part of that passage reads as follows:

“Apart from authority I see no reason why the words ‘title valid as against creditors’ should have any special meaning, and why they should not mean a title which under the provisions of the law are so valid. In other words, there is nothing in sec. 21(c) which creates any new ground of validity or invalidity and all that is effected by sec. 21 in relation to property which is claimed by the solvent spouse to fall under sec. 21(c) is that the onus is cast on the spouse to prove the validity whereas under the law before 1926 the onus rested on the trustee to prove the invalidity. One knows that before the amendment of the law in 1926, it was a common practice for traders (and perhaps others) to seek to avoid payment of their debts by putting property in their wives’ names; on insolvency the burden rested on the trustee to attack the wife’s title. If sec. 21 is regarded as merely shifting the onus on to the solvent spouse, it nevertheless affords some relief in the direction of preventing the evil to which I have referred. If one goes further and interprets sec. 21 as creating new substantive grounds for attacking the property of a spouse, this would amount to depriving such spouse of the benefits of the law of marriage out of community of property, and in my opinion very clear wording would be required to effect this object.”

Kriegler J went on to say at 505H - 506B:

“Ek meen dat die geleerde Regterpresident se opmerkings besonder van pas is nou dat die regsverbod teen skenkings tussen egliede opgehef is. Daar moet versigtig omgegaan word met gewysdes wat gehandel het met die eertydse regsposisie. Die toets is nou subtieler aangesien die ware doel met 'n skenking nou ook ondersoek moet word.

Artikel 21(2)(c) vereis steeds bewys van ’n regsgeldige titel. Die gesonde verstand verg nog steeds dat sodanige bewys wel deeglike bewys moet wees vanweë die aanspraakmaker se eksklusiewe kennis van die tersaaklike gegewens asook vanweë die verstaanbare versoeking tot verdoeseling. Maar 'n skenking kan nou sodanige titel verleen. Daar moet beklemtoon word dat die vereiste van goeie trou nog steeds bly staan. Dit moet 'n ware skenking wees. ’n Skyntransaksie sal nog steeds nie aan die solvente eggenoot 'n regsgeldige titel verleen nie. Die vraag of ’n egte skenking nietemin deur die bepalings van art 26, 29, 30 of 31 van die Insolvensiewet getref kan word en of dit 'n aanspraak ingevolge art 21(2)(c) gebaseer op ’n skenking sou kon fnuik, hoef nie hier uitgemaak te word nie. Ook nie die moeiliker vraag of ’n skenking aangeveg kan word as ’n vervreemding sonder teenwaarde soos bedoel in art 26 van die Wet nie.”

It is also unnecessary for the purpose of this judgment to consider these interesting questions referred to by Kriegler J which concern the relationship between section 21(2) and the provisions in the Act relating to dispositions by the insolvent which may be set aside under sections 26, 29, 30 and 31 of the Act.⁷ What is now relevant is that since donations between spouses are no longer illegal the category of property which the solvent spouse may reclaim has been widened considerably.

12. In terms of section 21(3), if the solvent spouse is in the Republic and the trustee is able to ascertain her or his address, the trustee may not, without the leave of the High Court, realize property which ostensibly belongs to the solvent spouse until the expiry of six weeks written notice to that spouse of his or her intention to do so. That notice must be published in the Government Gazette and a newspaper circulating in the district where the solvent spouse resides or carries on business. The notice must invite all separate creditors of that spouse to prove their claims in the insolvent estate. Section 21(5) makes provision for such creditors of the solvent spouse to share in the proceeds of such property in priority to the separate creditors of the insolvent estate. It should be emphasised that these provisions are intended, firstly, to protect the solvent spouse from a trustee alienating property in which that spouse has good title as against the creditors of the insolvent estate; and, secondly, to protect creditors of the solvent spouse who acted to their prejudice by dealing with the solvent spouse in respect of property ostensibly hers or his and in fact that of the insolvent spouse.

12. Sections 21(4) and (10) make provision for judicial intervention to protect the property of the solvent spouse in certain circumstances. Section 21(4) reads thus:

“The solvent spouse may apply to the court for an order releasing any property vested in the trustee of the insolvent estate under subsection (1) or for an order staying the sale of such property or, if it has already been sold, but the proceeds thereof not yet distributed among creditors, for an order declaring the applicant to be entitled to those proceeds; and the court may make such order on the application as it thinks just.”

Section 21(10) makes provision for the High Court to order that property of the solvent spouse will not immediately vest in either the Master or the trustee if the solvent spouse is carrying on business as a trader, apart from the insolvent spouse, or if the solvent spouse is likely to suffer serious prejudice by reason of an immediate vesting. The court may make such an order for such period as it thinks fit only if it is satisfied that the solvent spouse is willing and able to make arrangements safeguarding the interest of the insolvent estate in such property. During that period the solvent spouse must prove her or his claim to the property. The trustee will then either release the property to the solvent spouse or, if it is not released, upon expiry of the period the property shall vest in the Master or the trustee.

14. Finally, as far as section 21 is concerned, subsection (12) provides that if the trustee in error releases any property alleged to belong to the solvent spouse, he or she shall not be debarred from subsequently proving that it belongs to the insolvent estate and recovering it.

14. In terms of section 16(1), the registrar of the court which grants a final order of sequestration shall cause a copy of the order to be served by the deputy sheriff on the solvent spouse, who, in terms of section 16(3), is obliged within seven days to lodge a statement of his or her affairs with the Master.⁸

14. I turn now to consider the provisions of sections 64 and 65 of the Act. In terms of section 64(1), the insolvent must attend the first and second meetings of the creditors of the insolvent estate unless he or she has previously obtained written permission from the presiding officer to be absent. Such permission may be granted after consultation with the trustee.

14. Section 64(2) grants the presiding officer the authority to summon any person who is known or upon reasonable ground believed to be or to have been:

(a) in possession of any property which belonged to the insolvent, the insolvent’s estate or to the spouse of the insolvent before or after the sequestration of his or her estate; or

(b) indebted to the estate.

18. This includes the summoning of persons (including the insolvent’s spouse) who in the opinion of the presiding officer may be able to give any material information concerning the business, affairs or property of the insolvent or the insolvent’s spouse. This may pertain to the period before and after sequestration of the insolvent’s estate.

18. At such a meeting the presiding officer, the trustee and any creditor who has proved a claim against the estate, or the agent of any of them, may interrogate under oath any person so called concerning all matters relating to the property, business and affairs of the insolvent and his or her spouse in respect of the period before or after the sequestration of the estate. The presiding officer has the discretion to disallow questions which are either irrelevant or which may unnecessarily prolong proceedings.⁹

18. Section 65(2) goes on to provide that persons summoned to produce books or documents may invoke the law relating to privilege as applicable to a witness summoned to produce a book or document or giving evidence in a court of law.

18. In terms of section 65(2A)(a), the presiding officer shall order that where a person testifying is obliged to answer questions which may incriminate him or her, or where he or she is to be tried on a criminal charge and the evidence may prejudice him or her at such trial, the proceedings take place in camera. Moreover, no information regarding such questions and answers may be published in any manner whatsoever, nor may such answers be admissible in subsequent criminal proceedings, except where the criminal charges involve perjury.

18. Section 66(2) of the Act empowers the presiding officer to commit to prison a person summoned to appear under section 64 who fails to do so without a reasonable excuse. Section 66(3) empowers the presiding officer to commit to prison, inter alia, any person who:

“Refuses to answer any question lawfully put to him under the said section [section 65] or does not answer the question fully and satisfactorily”.¹⁰

23. Section 139(1) of the Act provides:

“Any person shall be guilty of an offence and liable to a fine not exceeding R500 or to imprisonment without the option of a fine for a period not exceeding six months if he is guilty of an act or omission for which he has been or might have been lawfully committed to prison in terms of subsection (2) or (3) of section 66.”

The legal effect and consequences of these provisions, to the extent that they are now relevant, will be considered below.

The Facts

24. Pursuant to the statutory vesting of her property in the Master and then the trustees, the latter caused the property of Mrs Harksen to be attached. According to her statement of affairs, that property has a value of R6 120 352,50. None of it has been released by the trustees to Mrs Harksen and it would appear that no application for such release has been made by her.

24. Mrs Harksen was summoned, under sections 64 and 65 of the Act, to subject herself to interrogation at the first meeting of the creditors in the insolvent estate of Mr Harksen, and to produce at the meeting:

“all documentation relating to [her] financial affairs and the financial affairs of Jürgen Harksen.”

For reasons not now pertinent, the magistrate who presided at the meeting of creditors set aside the summons. However, on 9 December 1996, Farlam J set aside the ruling of the magistrate and directed Mrs Harksen to subject herself to the interrogation and to produce the documents referred to in the summons.¹¹ That order precipitated the present proceedings impugning the constitutionality of section 21 of the Act and those portions of sections 64 and 65 that provide for enquiries into the estate, business, affairs or property of the spouse of an insolvent person.

Necessity to Exhaust Non-Constitutional Remedies

26. It was submitted on behalf of the amicus curiae that the referral was not appropriate because Mrs Harksen had not exhausted her non-constitutional remedies. In this regard we were referred to the judgment of this Court in Motsepe v Commissioner for Inland Revenue.¹² At para 21, Ackermann J said:

“The referral may very well be defective for another reason. This Court has laid down the general principle that ‘where it is possible to decide any case, civil or criminal, without reaching a constitutional issue, that is the course which should be followed’, and has applied this principle specifically to section 102(1) referrals and obiter to applications for direct access. On an objective assessment of the present case it was unnecessary to decide the constitutional issue because Mrs Motsepe could, by following the objection and appeal procedures provided for in the Act, have avoided the barriers imposed by ss 92 and 94 of the Act and the sequestration application could have been decided in the light of the outcome of such procedures.” (Footnote omitted)

Neither in the Motsepe case nor in the decisions referred to by Ackermann J did this Court lay down any hard and fast rule to the effect that in no case should referrals be made to this Court where non-constitutional remedies have not been exhausted. In any event, the present case is distinguishable. In Motsepe there was no attack by the taxpayer upon the constitutionality of the objection and appeal procedures available, that is, the non-constitutional remedies. The only remedy open to Mrs Harksen for reversing the automatic vesting of her property in the trustees was to bring an application to court under section 21, one of the sections which she seeks to have declared unconstitutional. Furthermore she would have had to submit herself to interrogation under the other sections of the Act, which she now similarly seeks to impugn. This is therefore not a case in which there were in fact any non-constitutional remedies open to her. This objection to the referral is thus without merit.

The Constitutionality of the Impugned Sections of the Act

27. It will be convenient to consider initially the attack made on the constitutionality of section 21 of the Act. Thereafter I shall consider the objections directed at sections 64 and 65.

Section 21 of the Act

28. On behalf of Mrs Harksen, her counsel, in impugning the constitutionality of section 21 of the Act, relied upon the provisions of both section 8 (“the equality clause”) and section 28 (“the property clause”) of the interim Constitution. I propose to consider the property clause first.

The Property Clause

29. Section 28 of the interim Constitution provides as follows:

“(1) Every person shall have the right to acquire and hold rights in property and, to the extent that the nature of the rights permits, to dispose of such rights.

(2) No deprivation of any rights in property shall be permitted otherwise than in accordance with a law.

(3) Where any rights in property are expropriated pursuant to a law referred to in subsection (2), such expropriation shall be permissible for public purposes only and shall be subject to the payment of agreed compensation or, failing agreement, to the payment of such compensation and within such period as may be determined by a court of law as just and equitable, taking into account all relevant factors, including, in the case of the determination of compensation, the use to which the property is being put, the history of its acquisition, its market value, the value of the investments in it by those affected and the interests of those affected.”

30. The submission on behalf of Mrs Harksen was that the provisions of section 21(1) of the Act constitute an expropriation of the property of the solvent spouse without any provision for compensation as required by section 28(3). The starting point of the argument is that the vesting constitutes a transfer of ownership of the rights in the property of the solvent spouse to the Master and, on appointment, to the trustee.¹³ Reliance was placed upon the decision of the Appellate Division in De Villiers NO v Delta Cables (Pty) Ltd.¹⁴ In that case Van Heerden JA discussed at some length whether the vesting of the property of the solvent spouse in the Master or a trustee, in terms of section 21(1) of the Act, had the effect of transferring ownership in that property to them. As appears from the judgment,¹⁵ it was found not to be necessary finally to decide that question. However, Van Heerden JA, with the concurrence of the other four members of the court, expressed the firm view that full ownership in the solvent spouse’s property did in fact pass to the trustee of the insolvent estate. For the purpose of this judgment I shall assume that to be the effect of section 21.

30. The word “expropriate” is generally used in our law to describe the process whereby a public authority takes property (usually immovable) for a public purpose and usually against payment of compensation.¹⁶ Whilst expropriation constitutes a form of deprivation of property, section 28 makes a distinction between deprivation of rights in property, on the one hand (subsection (2)), and expropriation of rights in property, on the other (subsection (3)). Section 28(2) states that no deprivation of rights in property is permitted otherwise than in accordance with a law.¹⁷ Section 28(3) sets out further requirements which need to be met for expropriation, namely, that the expropriation must be for a public purpose and against payment of compensation.

30. The distinction between expropriation (or compulsory acquisition as it is called in some other foreign jurisdictions) which involves acquisition of rights in property by a public authority for a public purpose and the deprivation of rights in property which fall short of compulsory acquisition has long been recognised in our law. In Beckenstrater v Sand River Irrigation Board,¹⁸ Trollip J said:

“[T]he ordinary meaning of ‘expropriate’ is ‘to dispossess of ownership, to deprive of property’ (see e.g. Minister of Defence v. Commercial Properties Ltd. and Others, 1955 (3) S.A. 324 (N) at p. 327G); but in statutory provisions, like secs. 60 and 94 of the Water Act, it is generally used in a wider sense as meaning not only dispossession or deprivation but also appropriation by the expropriator of the particular right, and abatement or extinction, as the case may be, of any other existing right held by another which is inconsistent with the appropriated right. That is the effect of cases like Stellenbosch Divisional Council v. Shapiro, 1953 (3) S.A. 418 (C) at pp. 422-3, 424; S.A.R. & H. v. Registrar of Deeds, 1919 N.P.D. 66; Kent, N.O. v. S.A.R. & H., 1946 A.D. 398 at pp. 405-6; and Minister van Waterwese v. Mostert and Others, 1964 (2) S.A. 656 (A.D.) at pp. 666-7.”

33. The Zimbabwean Constitution also provides that property may not be compulsorily acquired, save under a law which requires the acquiring authority to pay fair compensation.¹⁹ In Hewlett v Minister of Finance and Another,²⁰ Fieldsend CJ considered the meaning of “acquire” in those sections of the Constitution. He referred²¹ to the following dictum of Innes CJ in Transvaal Investment Co Ltd v Springs Municipality:²²

“. . . juristically, the word ‘acquire’ connotes ownership; the ordinary legal meaning implies the acquisition of dominium. To acquire a thing is to become the owner of it. No doubt it may be used in a wider sense so as to include the acquisition of a right to obtain the dominium; but the narrower meaning is the accurate and more obvious one.”

Fieldsend CJ continued:²³

“It is true, too, that ‘compulsory acquisition’ is used in both English and Roman-Dutch law to denote the expropriation of property by an authority - whether State, local or public utility - usually for some public purpose, most commonly in relation to land. It is, of course, common cause that property in s 16 is not limited to land.

Cases relied upon by Mr Kentridge clearly establish that it is not every deprivation of a right which amounts to a compulsory acquisition of property, as for example regulation of a landlord’s rights which in effect diminished his rights (Thakur Jagannatha Baksa Singh v United Provinces 1946 AC 327 (PC)), regulations which limited an owner’s right to build above a certain height on his land (Belfast Corporation v OD Cars Ltd 1960 AC 490), and legislation allowing licensed pilots to provide pilotage only if they were employed by the port authority (Government of Malaysia v Selangor Pilot Association (supra)).

It is perhaps of some significance to note that in almost all the post-colonial constitutions granted by Britain in Africa the section reciting the fundamental freedoms protected refer to the right not to be deprived of property without compensation whereas the sections giving actual protection provide that no property of any description shall be compulsorily taken possession of and no interest in or right [over] property of any description shall be compulsorily acquired except on certain conditions including compensation. This is clear recognition that there is a distinction between deprivation and acquisition, and also an indication that not every deprivation of property must carry compensation with it. Indeed government could be made virtually impossible if every deprivation of property required compensation.”

In Davies and Others v Minister of Lands, Agriculture and Water Development,²⁴ Gubbay CJ cited the aforesaid passages with approval and held²⁵ that section 11(c) of the Zimbabwe Constitution does not afford protection against deprivation of property by the State “where the act of deprivation falls short of compulsory acquisition or expropriation.”

34. The Constitution of India originally had a property clause²⁶ which recognised the distinction between compulsory acquisition and requisition which was held to be a less intrusive form of deprivation of property. In H.D. Vora v State of Maharashtra,²⁷ it was said by Bhagwati J:

“The two concepts [compulsory acquisition and requisition] . . . are totally distinct and independent. Acquisition means the acquiring of the entire title of the expropriated owner whatever the nature and extent of that title may be. The entire bundle of rights which was vested in the original holder passes on acquisition to the acquirer leaving nothing to the former . . . . The concept of acquisition has an air of permanence and finality in that there is transference of the title of the original holder to the acquiring authority. But the concept of requisition involves merely taking of ‘domain or control over property without acquiring rights of ownership’ and must by its very nature be of temporary duration.”

(It is unnecessary to consider whether there is a difference between the concept of requisition used in the Indian provision and deprivation used in the interim Constitution.)

35. While the legal effect of section 21(1) may be to “transfer” ownership of the property of the solvent spouse to the Master or trustee, in order to determine whether or not such a “transfer” constitutes an expropriation of that property for the purposes of the property clause, regard must be had to the broad context and purpose of section 21 as a whole. Apart from the question as to whether the transfer of the property of the solvent spouse is for a “public” purpose, to regard the vesting under section 21(1) as an expropriation, in my opinion, is to ignore the substance of the provision. The purpose and effect is clearly not to divest, save temporarily, the solvent spouse of the ownership of property that is in fact his or hers. The purpose is to ensure that the insolvent estate is not deprived of property to which it is entitled.²⁸ The fact that the onus of establishing his or her ownership of the property is placed upon the solvent spouse should not in any way be confused with the purpose of the provision. In any vindicatory action the claimant has to establish ownership. The onus of proof had to be placed on either the Master or the trustee or on the solvent spouse. Having regard to which of those parties has access to the relevant facts, the onus was understandably and justifiably placed on the solvent spouse.

35. Again, on the assumption that the effect of section 21 is to “transfer” ownership of the property of the solvent spouse to the Master or the trustee, the section does not contemplate or intend that such transfer should be permanent or for any purpose other than to enable the Master or the trustee to establish whether any such property is in fact that of the insolvent estate. Again, there is no intention to divest the solvent spouse permanently of what is rightfully hers or his or to prejudice the solvent spouse in relation to her or his property. Hence the provisions enabling the solvent spouse to seek the assistance of the court in order to obtain the release of that which is his or hers and to seek the protection of the court in the event of the trustee wishing to sell such property prior to its release. So, too, the provision enabling the court to order the exclusion of property of the solvent spouse from the operation of a vesting order in the event that such spouse is a trader or is likely to suffer serious prejudice by reason of an immediate vesting. The whole thrust of section 21 is merely to ensure that property which properly belonged to the insolvent ends up in the estate. The statutory mechanism employed is temporarily to lay the hand of the law upon the property of both the insolvent spouse and the solvent spouse and to create a procedure for the release by the trustee or the court of that which in fact belongs to the solvent spouse.

35. In all the circumstances which I have described, the provisions of section 21 do not have the purpose or effect of a compulsory acquisition or expropriation of the property of the solvent spouse whether by a public authority or at all. I am of the opinion therefore that there is no basis for regarding the effect of section 21 as an expropriation of the rights in the property of the solvent spouse.

35. It follows that it is unnecessary to decide whether for the purposes of section 21 of the Act the Master or a trustee constitutes a public authority or whether the vesting is for a public purpose.

35. If the provisions of section 21 do not amount to an expropriation then it follows that they do not contravene the provisions of section 28(3) of the interim Constitution. Counsel for Mrs Harksen informed us during argument that they do not rely on the provisions of sections 28(1) or (2) of the interim Constitution. That carried with it the concession that if section 21 of the Act does not amount to an expropriation of the property of the solvent spouse then its constitutionality is not impugned at all by section 28. It follows that the attack on section 21 founded upon the property clause falls to be dismissed. Having reached this conclusion it is unnecessary to consider the application of the limitations clause in this context.

The Equality Clause

40. It was further submitted on behalf of Mrs Harksen that the provisions of section 21 of the Act were in violation of the equality clause of the interim Constitution.²⁹ More particularly it was contended that the vesting provision constitutes unequal treatment of solvent spouses and discriminates unfairly against them; and that its effect is to impose severe burdens, obligations and disadvantages on them beyond those applicable to other persons with whom the insolvent had dealings or close relationships or whose property is found in the possession of the insolvent. Moreover, to the extent that section 21(10) favours solvent spouses who are “traders”, it discriminates against solvent spouses who are not “traders”. It was submitted further that section 21(2), which entitles a solvent spouse to claim the return of what in fact belongs to him or her, does not save the provision. There may be a number of innocent reasons why the solvent spouse is not able to establish that the property belongs to him or her. Counsel for Mrs Harksen suggested that the provisions of section 21 constituted a violation of both sections 8(1) (a denial of equality before the law and equal protection of the law) and 8(2) (unfair discrimination).

40. Attacks on legislation which are founded on the provisions of section 8 of the interim Constitution raise difficult questions of constitutional interpretation and require a careful analysis of the facts of each case and an equally careful application of those facts to the law. It was stated in the majority judgment in Prinsloo v Van der Linde and Another³⁰ that this Court:

“should be astute not to lay down sweeping interpretations at this stage but should allow equality doctrine to develop slowly and, hopefully, surely. This is clearly an area where issues should be dealt with incrementally and on a case by case basis with special emphasis on the actual context in which each problem arises.”

Without in any way departing from that cautious approach, it appears to me that it would be helpful now to take stock of this Court’s equality jurisprudence. In this regard I shall draw particularly on our judgments in the Prinsloo case and in President of the Republic of South Africa and Another v Hugo.³¹

Section 8(1) Analysis

42. Where section 8 is invoked to attack a legislative provision or executive conduct on the ground that it differentiates between people or categories of people in a manner that amounts to unequal treatment or unfair discrimination, the first enquiry must be directed to the question as to whether the impugned provision does differentiate between people or categories of people. If it does so differentiate, then in order not to fall foul of section 8(1) of the interim Constitution there must be a rational connection between the differentiation in question and the legitimate governmental purpose it is designed to further or achieve. If it is justified in that way, then it does not amount to a breach of section 8(1).

Section 8(2) Analysis

43. Differentiation that does not constitute a violation of section 8(1) may nonetheless constitute unfair discrimination for the purposes of section 8(2). The foregoing is my understanding of the judgment in Prinsloo.³² It was there stated in the majority judgment that:

“If each and every differentiation made in terms of the law amounted to unequal treatment that had to be justified by means of resort to s 33, or else constituted discrimination which had to be shown not to be unfair, the Courts could be called upon to review the justifiability or fairness of just about the whole legislative programme and almost all executive conduct. . . . The Courts would be compelled to review the reasonableness or the fairness of every classification of rights, duties, privileges, immunities, benefits or disadvantages flowing from any law. Accordingly, it is necessary to identify the criteria that separate legitimate differentiation from differentiation that has crossed the border of constitutional impermissibility and is unequal or discriminatory ‘in the constitutional sense’.

. . . .

Taking as comprehensive a view as possible of the way equality is treated in s 8, we would suggest that it deals with differentiation in basically two ways: differentiation which does not involve unfair discrimination and differentiation which does involve unfair discrimination.” (Footnotes omitted).

In dealing with differentiation which does not involve unfair discrimination the Court stated:³³

“It must be accepted that, in order to govern a modern country efficiently and to harmonise the interests of all its people for the common good, it is essential to regulate the affairs of its inhabitants extensively. It is impossible to do so without differentiation and without classifications which treat people differently and which impact on people differently. It is unnecessary to give examples which abound in everyday life in all democracies based on equality and freedom. Differentiation which falls into this category very rarely constitutes unfair discrimination in respect of persons subject to such regulation, without the addition of a further element. . . .

It is convenient, for descriptive purposes, to refer to the differentiation presently under discussion as ‘mere differentiation’. In regard to mere differentiation the constitutional State is expected 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. . . .

Accordingly, before it can be said that mere differentiation infringes s 8 it must be established that there is no rational relationship between the differentiation in question and the governmental purpose which is proffered to validate it. In the absence of such rational relationship the differentiation would infringe s 8. But while the existence of such a rational relationship is a necessary condition for the differentiation not to infringe s 8, it is not a sufficient condition; for the differentiation might still constitute unfair discrimination if that further element . . . is present.” (Footnotes omitted)

44. If the differentiation complained of bears no rational connection to a legitimate governmental purpose which is proffered to validate it, then the provision in question violates the provisions of section 8(1) of the interim Constitution. If there is such a rational connection, then it becomes necessary to proceed to the provisions of section 8(2) to determine whether, despite such rationality, the differentiation none the less amounts to unfair discrimination.

44. The determination as to whether differentiation amounts to unfair discrimination under section 8(2) requires a two stage analysis. Firstly, the question arises whether the differentiation amounts to “discrimination” and, if it does, whether, secondly, it amounts to “unfair discrimination”. It is as well to keep these two stages of the enquiry separate. That there can be instances of discrimination which do not amount to unfair discrimination is evident from the fact that even in cases of discrimination on the grounds specified in section 8(2), which by virtue of section 8(4) are presumed to constitute unfair discrimination, it is possible to rebut the presumption and establish that the discrimination is not unfair.³⁴

What Constitutes Discrimination

46. Section 8(2) contemplates two categories of discrimination. The first is differentiation on one (or more) of the fourteen grounds specified in the subsection (a “specified ground”³⁵). The second is differentiation on a ground not specified in subsection (2) but analogous to such ground (for convenience hereinafter called an “unspecified” ground) which we formulated as follows in Prinsloo:

“The second form is constituted by unfair discrimination on grounds which are not specified in the subsection. In regard to this second form there is no presumption in favour of unfairness.³⁶ . . . .

Given the history of this country we are of the view that ‘discrimination” has acquired a particular pejorative meaning relating to the unequal treatment of people based on attributes and characteristics attaching to them. . . . [U]nfair discrimination, when used in this second form in section 8(2), in the context of section 8 as a whole, principally means treating persons differently in a way which impairs their fundamental dignity as human beings, who are inherently equal in dignity. ³⁷

. . . .

Where discrimination results in treating persons differently in a way which impairs their fundamental dignity as human beings, it will clearly be a breach of section 8(2). Other forms of differentiation, which in some other way affect persons adversely in a comparably serious manner, may well constitute a breach of section 8(2) as well.³⁸

There will be discrimination on an unspecified ground if it is based on attributes or characteristics which have the potential to impair the fundamental dignity of persons as human beings, or to affect them adversely in a comparably serious manner.

47. The question whether there has been differentiation on a specified or an unspecified ground must be answered objectively. In the former case the enquiry is directed at determining whether the statutory provision amounts to differentiation on one of the grounds specified in section 8(2). Similarly, in the latter case the enquiry is whether the differentiation in the provision is on an unspecified ground (as explained in para 46 above). If in either case the enquiry leads to a negative conclusion then section 8(2) has not been breached and the question falls away. If the answer is in the affirmative, however, then it is necessary to proceed to the second stage of the analysis and determine whether the discrimination is “unfair”. In the case of discrimination on a specified ground, the unfairness of the discrimination is presumed, but the contrary may still be established. In the case of discrimination on an unspecified ground, the unfairness must still be established before it can be found that a breach of section 8(2) has occurred.

47. Before proceeding to the second stage of the enquiry, it is necessary to comment briefly on one aspect of the specified and unspecified grounds of differentiation which constitute discrimination. In the above quoted passage from Prinsloo it was pointed out that the pejorative meaning of “discrimination” related to the unequal treatment of people “based on attributes and characteristics attaching to them”. For purposes of that case it was unnecessary to attempt any comprehensive description of what “attributes and characteristics” would comprise.

47. It is also unnecessary for purposes of the present case, save that I would caution against any narrow definition of these terms. What the specified grounds have in common is that they have been used (or misused) in the past (both in South Africa and elsewhere) to categorize, marginalise and often oppress persons who have had, or who have been associated with, these attributes or characteristics. These grounds have the potential, when manipulated, to demean persons in their inherent humanity and dignity. There is often a complex relationship between these grounds. In some cases they relate to immutable biological attributes or characteristics, in some to the associational life of humans, in some to the intellectual, expressive and religious dimensions of humanity and in some cases to a combination of one or more of these features. The temptation to force them into neatly self-contained categories should be resisted. Section 8(2) seeks to prevent the unequal treatment of people based on such criteria which may, amongst other things, result in the construction of patterns of disadvantage such as has occurred only too visibly in our history.

What Constitutes Unfair Discrimination

50. The nature of the unfairness contemplated by the provisions of section 8 was considered in paras 41 and 43 of the majority judgment in the Hugo case³⁹.

The following was stated:

“[41] The prohibition on unfair discrimination in the interim Constitution seeks not only to avoid discrimination against people who are members of disadvantaged groups. It seeks more than that. At the heart of the prohibition of unfair discrimination lies a recognition that the purpose of our new constitutional and democratic order is the establishment of a society in which all human beings will be accorded equal dignity and respect regardless of their membership of particular groups. The achievement of such a society in the context of our deeply inegalitarian past will not be easy, but that that is the goal of the Constitution should not be forgotten or overlooked.

. . . .

[43] To determine whether that impact was unfair it is necessary to look not only at the group who has been disadvantaged but at the nature of the power in terms of which the discrimination was effected and, also at the nature of the interests which have been affected by the discrimination.”

In para 41 dignity was referred to as an underlying consideration in the determination of unfairness. The prohibition of unfair discrimination in the Constitution provides a bulwark against invasions which impair human dignity or which affect people adversely in a comparably serious manner. However, as L’Heureux-Dubé J acknowledged in Egan v Canada,⁴⁰ “Dignity [is] a notoriously elusive concept . . . it is clear that [it] cannot, by itself, bear the weight of s.15's task on its shoulders. It needs precision and elaboration.” It is made clear in para 43 of Hugo that this stage of the enquiry focuses primarily on the experience of the “victim” of discrimination. In the final analysis it is the impact of the discrimination on the complainant that is the determining factor regarding the unfairness of the discrimination.

50. In order to determine whether the discriminatory provision has impacted on complainants unfairly, various factors must be considered. These would include:

(a) the position of the complainants in society and whether they have suffered in the past from patterns of disadvantage, whether the discrimination in the case under consideration is on a specified ground or not;

(b) the nature of the provision or power and the purpose sought to be achieved by it. If its purpose is manifestly not directed, in the first instance, at impairing the complainants in the manner indicated above, but is aimed at achieving a worthy and important societal goal, such as, for example, the furthering of equality for all, this purpose may, depending on the facts of the particular case, have a significant bearing on the question whether complainants have in fact suffered the impairment in question. In Hugo, for example, the purpose of the Presidential Act was to benefit three groups of prisoners, namely, disabled prisoners, young people and mothers of young children, as an act of mercy. The fact that all these groups were regarded as being particularly vulnerable in our society, and that in the case of the disabled and the young mothers, they belonged to groups who had been victims of discrimination in the past, weighed with the Court in concluding that the discrimination was not unfair;⁴¹

(c) with due regard to (a) and (b) above, and any other relevant factors, the extent to which the discrimination has affected the rights or interests of complainants and whether it has led to an impairment of their fundamental human dignity or constitutes an impairment of a comparably serious nature.

These factors, assessed objectively, will assist in giving “precision and elaboration” to the constitutional test of unfairness. They do not constitute a closed list. Others may emerge as our equality jurisprudence continues to develop. In any event it is the cumulative effect of these factors that must be examined and in respect of which a determination must be made as to whether the discrimination is unfair.

50. If the discrimination is held to be unfair then the provision in question will be in violation of section 8(2). One will then proceed upon the final leg of the enquiry as to whether the provision can be justified under section 33 of the interim Constitution, the limitations clause. This will involve a weighing of the purpose and effect of the provision in question and a determination as to the proportionality thereof in relation to the extent of its infringement of equality.

50. At the cost of repetition, it may be as well to tabulate the stages of enquiry which become necessary where an attack is made on a provision in reliance on section 8 of the interim Constitution. They are:

(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:

(b)(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.

(b)(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 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).

The Enquiry in the Present Case

54. I turn now to consider the constitutionality of section 21 of the Act in the light of the foregoing analysis.

1. Differentiation

55. That section 21 differentiates between the solvent spouse of an insolvent and other persons who might have had dealings with the insolvent is patent. It becomes necessary, therefore, to consider the governmental purpose of the section, whether that purpose is a legitimate one and, if so, whether the differentiation does have a rational connection to that purpose.

55. A similar provision appeared (without the extended definition of “spouse”) in a 1926 amendment to the Insolvency Act 32 of 1916. Its successor is section 21 of the Act. In De Villiers NO v Delta Cables (Pty) Ltd ⁴² Van Heerden JA said:

“The main object of s 21(1), read with s 21(2) and (4), is, no doubt, to prevent or at least to hamper collusion between spouses to the detriment of creditors of the insolvent spouse.”

That the provision soon appeared to have a salutary effect appears from the observation of Greenberg JP in Maudsley’s Trustees v Maudsley ⁴³ to the effect that:

“One knows that before the amendment of the law in 1926, it was a common practice for traders (and perhaps others) to seek to avoid payment of their debts by putting property in their wives’ names; on insolvency the burden rested on the trustee to attack the wife’s title.”

As Professor Smith points out, where a trader so acted:⁴⁴

“[t]he onus was then on the trustee to prove that the transactions in question were in fact simulated ones, a particularly difficult task because the proprietary rights as between spouses are usually matters within their own peculiar knowledge and it might not be possible for a trustee to separate the property of one from that of the other.”

57. Since the introduction of the section 21 provision in 1926, the position of women in our society has changed radically and for a number of years section 21 of the Act has served a much wider purpose than that referred to by Greenberg JP in the Maudsley⁴⁵ case. More and more women have become economically active and contribute out of their own income or investments to the property of a common household.⁴⁶ The consequence is that nowadays, in the case of honest spouses, who are married out of community of property, it is not infrequently a matter of complexity for the spouses themselves to determine which property in their possession belongs to each of them; or, indeed, which is held in co-ownership because both contributed to the purchase price. Having regard to the close identity of interests between many married couples,⁴⁷ they do not always make nice calculations and keep accurate records of their respective contributions to property they acquire. If it is difficult for them to do so, then so much more difficult and complex is it for a trustee who comes as a complete stranger to the financial affairs of the spouses. The provisions of section 21 thus assist a trustee in the important determination of which property in the possession of “spouses” belongs to the insolvent estate, not only in cases of collusion but also in the case of honest partners to a marriage or similar close relationship. This statutory mechanism is an appropriate and effective one.

57. In his attack on the rationality of section 21(1), counsel for Mrs Harksen relied upon the statement of Berman AJ in Enyati Resources Ltd and Another v Thorne NO and Another⁴⁸ to the effect that:

“The divesting of the property of the solvent spouse and the vesting thereof in the hands of the Master (and thereafter in the hands of the trustee) constitute a drastic and arbitrary invasion upon, and inroad into, the proprietary right of citizens . . . .”

Whilst in no way wishing to minimise the inconvenience, potential prejudice and embarrassment that the provisions of section 21 of the Act may cause to a solvent spouse, and even accepting that those consequences may be described as “drastic”, I cannot agree that they are arbitrary or without rationality. In my opinion, the legislature acted rationally in taking the view that the common law and the statutory remedies relating to impeachable transactions⁴⁹ were insufficient to enable the Master or a trustee to ensure that all the property of the insolvent spouse found its way into the insolvent estate. In particular, it must be acknowledged that remedies other than that provided by section 21 cast an onus on the Master or the trustee to establish ownership of property claimed from the solvent spouse. If a claim were to be contested, inevitable delays inherent in the legal system would result. Those delays, certainly in cases of collusion, could well be fatal to the recovery of property rightfully belonging to the insolvent estate. I am not overlooking the power of the High Court to grant relief by way of an interim interdict to protect the property or relief elsewhere provided in the Act. However, that relief would require some evidence from the Master or trustee which might not necessarily be available without a time consuming enquiry.

59. In respect of the question of onus it was stated in Prinsloo:⁵⁰

“In any civil case, one of the parties will have to bear the onus on each of the factual matters material to the adjudication of the dispute. So, in the case of an aquilian claim for damages arising from a veld fire, one of the parties will bear the onus concerning negligence. As long as the imposition of the onus is not arbitrary, there will be no breach of s 8(1). In rare circumstances, it may be that the allocation of onus will impair other constitutional rights and a challenge will then arise. That is not the case here.”

As we have seen, section 21 has the effect of transferring an onus from the Master or a trustee to the solvent spouse. As was stated earlier,⁵¹ there is a good reason for transferring such onus to the solvent spouse in the circumstances of an insolvency of the insolvent spouse. Often facts necessary for the determination of the question of ownership will be peculiarly within the knowledge of the solvent spouse. It is thus rational that the onus should be cast upon the solvent spouse. As Didcott J said in his separate concurring judgment in the Prinsloo case:⁵²

“In our adversarial system of civil litigation one side or the other has to bear the onus of proof. Differentiation between the parties in that regard is thus inevitable. So is the disadvantage under which the side carrying the load often labours. Its location for specific issues depends not on doctrinaire considerations, but on wholly pragmatic ones.”

60. For reasons set out above there can be no doubt as to the existence of a rational connection between the differentiation created by section 21 of the Act and the legitimate governmental purpose behind its enactment. Moreover, in my opinion, reasonable procedures were introduced to safeguard the interests of the solvent spouse in his or her property. It follows that section 21 does not violate the provisions of section 8(1) of the interim Constitution.

2 Discrimination

60. The next question is whether the differentiation between solvent spouses and other persons who had dealings with insolvents constitutes discrimination. The differentiation is not on one of the specified grounds. Whether it constitutes discrimination on one of the unspecified grounds is an objective enquiry. In my opinion, this enquiry yields an affirmative result. Other persons who had dealings with the insolvent or whose property is found in the possession of an insolvent are not affected in the same way. Their property does not become vested in the Master or the trustee and they are not burdened with the onus of proving what is their property before it is released to them. They are not prevented from disposing of their property unless and until they prove their ownership either to the satisfaction of a trustee or a court of competent jurisdiction. The differentiation does arise from their attributes or characteristics as solvent spouses, namely their usual close relationship with the insolvent spouse and the fact that they usually live together in a common household.⁵³ These attributes have the potential to demean persons in their inherent humanity and dignity. In this regard it might also be mentioned that they have a relationship with the insolvent spouse similar to that of children or other persons who live under the same roof. The disadvantages of section 21 do not apply to the last mentioned categories. It follows that the provisions of section 21 of the Act do discriminate against the solvent spouse of an insolvent.

3 Unfair Discrimination

60. The discrimination complained of by Mrs Harksen does not fall within the fourteen specified grounds contained in section 8(2). Mrs Harksen thus bears the onus of persuading us on a balance of probabilities that the discrimination is unfair and hence outlawed by section 8(2). In the determination as to whether that onus has been discharged we must have regard to the considerations referred to in para 51 above. I shall consider each in turn.

The Position of Complainant in Society

60. The group here affected, namely solvent spouses, is not one which has suffered discrimination in the past and is not a vulnerable one. To adopt the words of O’Regan J in the Hugo case,⁵⁴ they are not a “vulnerable . . . group adversely affected by . . . discrimination”.

The Nature of the Provision

60. In this case the power was exercised by Parliament which has the right and duty to protect the public interest. In the Act, the legislature gave effect to that duty by protecting the rights of the creditors of insolvent estates. That is the purpose of section 21. That purpose is not inconsistent with the underlying values protected by section 8(2).

The Effect of the Discrimination on Solvent Spouses

60. In the consideration of the effect of section 21 one must assume that Masters and trustees will act reasonably and honestly and not wish to claim for insolvent estates that which solvent spouses are able to establish belongs to them. One must also assume that in an appropriate case the courts will intervene where they do not so act.⁵⁵ It must also be borne in mind that the statutory vesting of the property of the solvent spouse does not have as a consequence that such property is necessarily removed from the possession of the solvent spouse. It is attached by the sheriff of the magistrate’s court or by a deputy sheriff. They, as it were, place the hand of the law on the property and, of course, it may not be alienated or burdened by the solvent spouse prior to its release. Where the solvent spouse claims property as his or hers and fails to adduce evidence to establish that claim on a balance of probabilities then the insolvent estate is entitled to the property. The legal presumption is that property was owned by the insolvent and not by the solvent spouse. The effect is hence that the solvent spouse has not been divested of what was her or his property. And one must remember that the facts in issue will be peculiarly within the knowledge of the spouses themselves.

60. In the event that the solvent spouse has to resort to litigation, there is inconvenience and a degree of potential embarrassment to the extent that the litigation may become public. There is also inconvenience and a burden in that the solvent spouse will usually require legal assistance. Some solvent spouses may not have the funds to employ a lawyer and in that way suffer further potential prejudice. But that is an inevitable consequence of a dispute between a trustee of an insolvent estate and a solvent spouse as to ownership of property.

60. In my judgment the cumulative effect of these criteria, and in particular the impact of the inconvenience or prejudice on solvent spouses in the context of the Act, and having regard to the underlying values protected by section 8(2), does not justify the conclusion that section 21 of the Act constitutes unfair discrimination. Looked at from the perspective of solvent spouses, it is the kind of inconvenience and burden that any citizen may face when resort to litigation becomes necessary. Indeed it could arise whenever a vindicatory claim (whether justified or not) is brought against a person in possession of property. Again, the inconvenience and burden of having to resist such a claim does not lead to an impairment of fundamental dignity or constitute an impairment of a comparably serious nature.

60. It follows, in my opinion, that Mrs Harksen has not established that the provisions of section 21 of the Act, especially in its context, constitute unfair discrimination.

Sections 64 and 65

60. Another complaint made by Mrs Harksen is that the provisions of sections 64 and 65 of the Act offend against her constitutional rights under the equality clause, the property clause, the privacy clause (section 13) and, because of the criminal sanction created by section 139 of the Act, her rights to freedom and security of the person (section 11(1)) under the interim Constitution.

60. The arguments put before the Court by counsel for the applicant concerning the unconstitutionality of section 21 on the grounds that it infringes the equality and property clauses of the bill of rights were repeated in respect of sections 64 and 65 of the Act. For the same reasons that I would reject these challenges to section 21 of the Act, I would reject the similar challenges to sections 64 and 65 of the Act. More particularly, leaving section 21 aside, no creditor can have a legitimate complaint to being called as a witness under sections 64 and 65. Mrs Harksen’s complaint concerns her being questioned about her own property and affairs. On the basis that it is constitutional to vest the property of a solvent spouse temporarily in the Master or trustee, it follows that the solvent spouse similarly can have no legitimate complaint to being interrogated concerning her or his own property and affairs to the extent that they are relevant to the insolvent estate.