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Moseneke and others v Master of the High Court (CCT51/00) [2000] ZACC 27; 2001 (2) BCLR 103; 2001 (2) SA 18 (6 December 2000)
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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 51/00
DIKGANG ERNEST MOSENEKE First
Applicant
KARABO MABEL MOSENEKE Second Applicant
MALATSI VINCENT
MOSENEKE Third Applicant
KABELO DUNSTAN MOSENEKE Fourth
Applicant
TIEGO MOSENEKE Fifth Applicant
versus
THE MASTER
OF THE HIGH COURT Respondent
Heard on : 21 November 2000
Decided on : 6 December
2000
JUDGMENT
SACHS J:
Introduction
| [1] | This case, which concerns
the administration of deceased estates, reminds us that transition is a process.
According to laws enacted
during our racist past, when a white person dies
without leaving a will his or her estate must be administered by the Master of
the
High Court. When a black person dies intestate, however, his or her estate
must be administered by a magistrate. This difference,
rooted as it clearly is
in racist attitudes and practices of the past, must change. Yet as this case
illustrates, such change cannot
be achieved with a simple stroke of a
pen. |
| [2] | In October 1999 Mr Sedise
Samuel John Moseneke, a retired principal and inspector of schools, died without
leaving a will. His estate
included immovable property, motor vehicles, shares,
unit trusts and insurance policies. He is survived by his widow, a retired
schoolteacher, and four sons, all of whom are professional persons with
university degrees leading what they describe as an “urban
lifestyle”. The widow and the sons are the applicants in this matter, and
I shall refer to them as “the
family”. |
| [3] | Shortly after the
family’s attorneys had formally lodged a death notice with the Master,
they forwarded, under cover of a letter
dated 25 February 2000, a host of
documents to the Master. The family first learnt from a magistrate, and not the
Master, that the
magistrate was administering the
estate. |
| [4] | The law governing the
administration of the estates of black people who die intestate is as follows.
Section 23(7)(a) of the Black
Administration
Act[1] (section 23(7))
provides: |
“Letters of administration from the Master of the Supreme Court shall not
be necessary in, nor shall the Master or any executor
appointed by the Master
have any powers in connection with, the administration and distribution
of—
(a) the estate of any Black who has died leaving no valid
will”.
Regulation 3(1) (regulation 3) was
promulgated under the Black Administration
Act[2] and deals with the
administration of “the estates of deceased blacks”. It
reads:
“All the [designated] property in any estate [of a black person who dies
leaving no valid will] . . . shall be administered
under the supervision of the
magistrate in whose area of jurisdiction the deceased ordinarily resided and
such magistrate shall give
such directions in regard to the distribution thereof
as shall seem to him fit and shall take all steps necessary to ensure that
the
provisions of the Act and of these regulations are complied
with.”
The effect of these provisions is that the
Master of the High Court has no power to deal with intestate black estates,
although he
administers black estates where a will has been left, and all
estates of white, coloured and indian people.
| [5] | The family’s attorneys
wrote to the Master expressing great concern at being subjected to differential
treatment on the grounds
of race. They stated that they had been instructed to
record that there was nothing in the Black Administration Act which prohibited
the Master from proceeding with the administration and distribution of the
estate. This latter statement was incorrect. Following
on their letter to the
Master, the family commenced proceedings in the Transvaal High Court (the High
Court) in which they failed
to identify properly the source of the
discrimination. Without challenging the provisions of the Act, an order was
sought that the
Master be directed to register and administer the estate, and
that a declaration be made that his refusal to do so was unlawful and
unconstitutional. The Master lodged a report with the court stating that in
terms of the Act and its regulations, his office did
not have jurisdiction to
register or administer black intestate estates. The report indicated that the
Department of Justice was
in the process of rationalising its legislation and
bringing it into line with constitutional values, but that this raised complex
issues which were still the subject of discussion within the
department. |
| [6] | The family then filed a
supplementary affidavit in which they averred that the Act and the regulations
were unconstitutional and invalid.
They gave notice that they would seek to
amend their notice of motion to include a prayer to that effect in the relief
they claimed.
They undertook in their affidavit to cause a copy of the
application to be served on the Minister of Justice and Constitutional
Development (the Minister), who is the Minister responsible for the
administration of the Black Administration Act. |
| [7] | Although the papers were
served on the Minister, the notice of motion was not amended so as to challenge
the constitutional validity
of section 23(7) or the regulations. The Minister
did not oppose the application, which was set down on the unopposed roll in the
High Court. The family’s attorneys prepared and presented a draft order
to the Court. The draft order reads as
follows: |
“1. The Provisions of Clause 3(1) of the Regulations promulgated in terms
of the Black Administration Act, No 38 of 1927, as
amended and published in
Government Gazette number 10601, Government Notice number R.200 of 6 February
1987, are declared invalid,
unconstitutional and of no force an effect.
2. The Respondent is ordered to immediately register and oversee the
administration and distribution of the estate of the Late Sedise
Samuel John
Moseneke in accordance with the Provisions of the Administration of Estate Act,
no 66 of 1965, as amended.”
The terms of
section 23(7) of the Black Administration Act were not brought to the attention
of the judge in the High Court who made
an order in terms of the draft. The
Registrar of the High Court referred that order to this Court for
confirmation.[3]
| [8] | It is not clear, however,
that this is an order which necessarily requires confirmation in terms of
section 172(2)(a) of the Constitution,
which provides as
follows: |
“The Supreme Court of Appeal, a High Court or a court of similar status
may make an order concerning the constitutional validity
of an Act of
Parliament, a provincial Act or any conduct of the President, but an order of
constitutional invalidity has no force
unless it is confirmed by the
Constitutional Court.”
Although regulation 3 was made
by the State President during the apartheid era, it may constitute
“conduct of the President”
as contemplated by section
172(2)(a).[4] As will appear,
however, it is not necessary to decide this issue in this case.
| [9] | The High Court’s order
has in fact had an unanticipated and drastic effect. The declaration that
regulation 3(1) was invalid
deprived magistrates of any competence to deal with
what the Black Administration Act called “the estate of any Black who has
died leaving no valid will”. At the same time, section 23(7) of the Black
Administration Act prohibits the Master from administering
and distributing the
estate of any black person who has died leaving no valid will. The result is
that such estates cannot be administered
at all. As the Master reported to this
Court, an impasse has resulted with: |
“no official procedures in place to ensure the proper administration of
the intestate estates of Blacks. No registration processes
will be in place, no
authorities / directions to administer these estates can be issued, financial
institutions will not release
monies for funerals, payments of debts,
maintenance of dependents, etc. Transfer of properties will not take place . .
. Chaos
in the administration of intestate estates of Blacks will ensue. (In
fact that [has] already happened . . . .)”
| [10] | Upon receipt of the
referral from the High Court, the President of this Court issued directions
which required the parties to consider
whether an invalidation of section 23(7)
by the High Court could be inferred, and whether this Court could confirm such
invalidation;
alternatively, whether there was some other procedure under which
this Court could declare section 23(7) to be invalid; if so, whether
it should
do so; what order it should make; and whether or not any order should be
suspended.[5] |
| [11] | In response to these
directions, the family submitted written argument contending that the High Court
had indeed implicitly invalidated
section 23(7). Alternatively, they asked that
they be granted direct access to this Court to apply for an order declaring the
section
to be invalid.[6] In either
event, they requested that the order of unconstitutionality should take effect
from the date on which this Court made
its order so as not to affect estates
already distributed. |
| [12] | For his part, the Minister
explained that having been given but few days notice of the High Court
proceedings and inadequate information
as to the nature of the order sought by
the applicant in that Court, he had not appreciated the implications of the
order as ultimately
sought and obtained by the family. He contended that the
High Court order was subject to confirmation by this Court and argued that
it
should not be confirmed. If however, the Court were to confirm the order, he
argued that the declaration of invalidity should
be suspended for a period of
three years to enable parliament to correct the defects in the legislation in as
harmonious and effective
a manner as possible. In the alternative, he noted an
appeal against the judgment of the High Court. |
| [13] | During argument, it was
submitted on behalf of the Minister that although the Minister had not been a
party to the proceedings in
the High Court, he was entitled to appeal against
the order because he should have been joined in those proceedings in the light
of the fact that they concerned the invalidity of a regulation administered by
his department.[7] It is clear that
the Minister should have been a party to the proceedings in the High
Court.[8] If the order made by the
High Court falls within the scope of section 172(2) of the Constitution he is
entitled to appeal to this
Court against the order
made.[9] This Court has the power to
regulate its own process taking into account the interests of
justice.[10] Because there is a
need to deal with this matter expeditiously, I consider that the best solution
to the problem that has arisen
is to permit the Minister to join the proceedings
as a party and appeal against the order made. This serves the interests of
justice
and avoids the need to determine whether section 172(2)(a) applies to
regulations made by State Presidents prior to the coming into
force of the
interim Constitution. Whether or not such an order is subject to confirmation
under section 172 raises difficult questions
which can better be resolved at
another time in litigation, where the parties have had adequate opportunity to
consider the issues
and present detailed argument to this Court on them and this
Court has the opportunity to consider the implications of such
arguments. |
| [14] | It is convenient to
summarise the practical considerations referred to in the papers. The Master
says that his office is not in a
position at this stage to manage the estates of
black people who have died intestate, because of lack of human resources,
infrastructure,
training and finance. He states that magistrates attended to
the administration of some 66 000 intestate black estates during 1999.
Furthermore, he notes that the offices of the Masters of the High Courts are
already under substantial pressure and barely manage
to cope with their current
workload. He considers that if all intestate estates handled by the magistrates
were to be transferred
to these offices, the result would most probably be
chaos. |
| [15] | The Minister urges that the
administration and distribution of the estates of black people remain in the
hands of magistrates for
the moment. He states that magistrates are to be found
in every small town and are therefore conveniently located close to the people;
their methods of administration of deceased estates are informal and relatively
swift; they have a better understanding of customary
law; and Master’s
fees do not have to be paid. |
| [16] | The Minister indicated that
the laws regulating succession and the administration of estates were already
receiving attention from
parliament and the South African Law
Commission.[11] He observed that a
draft bill, the Amendment of Customary Law of Succession
Bill,[12] was discussed in both
parliamentary justice committees in September or October of 1999. This Bill
proposed the repeal of section
23 of the Black Administration Act and provides
that all estates are to be administered in terms of the provisions of the
Administration
of Estates Act.[13]
In terms of section 3(2) of this Bill, it is proposed that the Master could
delegate his powers to administer estates to a magistrate
in cases where the
estate is valued at less than an amount set by the Minister in regulations
published in the Gazette. The Minister
would also be able to make regulations
to govern the reporting of such estates. In addition, the Bill seeks to amend
the Intestate
Succession Act[14] in
order to make provision for claims of spouses married under customary law. The
Minister did not say what had happened to the
Bill since its introduction in
parliament over a year
ago.[15] |
| [17] | A further dimension to the
debate was added by the Women’s Legal Centre Trust who applied for and
were granted the right to
make written and oral submissions as an amicus
curiae. They contended that in the case of intestate estates of deceased
Africans, race, gender and culture interacted in a way which discriminated
directly and indirectly against African widows. The amicus supported the
invalidation of both section 23(7) and regulation 3(1) on the basis that the
procedures adopted under the Administration
of Estates Act functioned in
practice in a manner which was far more protective of the rights of African
women than those employed
in terms of the regulations under the Black
Administration
Act.[16] |
The
application for direct access
| [18] | Counsel argued that it
could be inferred from the High Court order that section 23(7) of the Act had
been declared invalid even if
the order did not say so expressly. It is not
necessary to decide whether or not in principle this Court may ever confirm an
order
not actually and explicitly made but existing only by inference. It must
be doubted whether this can be done. The family applied
in the alternative for
direct access to this Court in terms of rule
17.[17] In the light of this
application, nothing further need be said on the question whether it is possible
to infer an order of invalidity
in circumstances where an express order has not
been made. Exceptional circumstances exist which warrant the grant of direct
access
to the applicants. |
| [19] | It is clearly in the
interests of justice that the crisis affecting the administration of intestate
estates be resolved as quickly
as possible. This Court has frequently stated
that direct access should only be granted in exceptional
circumstances.[18] In my view,
there are three special factors in the present matter which, in combination,
provide strong support for granting the
family direct access. The first is that
the interests of justice require a speedy unblocking of the administrative
impasse which
probably affects thousands of families, many of whom may be in
desperate need of access to resources presently tied up in deceased
estates that
cannot be administered. The second is that the section and the regulation are
so manifestly discriminatory that there
can be no doubt as to their
unconstitutionality. It is not necessary therefore for extensive evidence to be
led and evaluated in
order for a decision on the constitutional issue to be
reached. The third factor is that both the Minister and the Master ultimately
supported the matter being dealt with on the basis of direct
access.[19] Taken together, these
factors constitute exceptional circumstances which dictate that direct access be
granted. In the result,
I proceed on the basis that the despite the flawed
character of the proceedings launched in the High Court, the public interest
requires
that the family nevertheless be granted direct access to challenge the
constitutionality of the section and the regulation. I turn
now to consider the
merits of that application as well as the merits of the appeal noted by the
Minister. |
The constitutionality of section
23(7)(a) and regulation 3(1)
| [20] | The Black Administration
Act has been described by this Court as “an egregious apartheid law which
anachronistically has survived
our transition to a non-racial
democracy.”[20] Subordinate
legislation made under it has been referred to as part of a demeaning and racist
system,[21] as obnoxious, and as not
befitting a democratic society based on human dignity, equality and
freedom.[22] The Act systematised
and enforced a colonial form of relationship between a dominant white minority
who were to have rights of citizenship
and a subordinate black majority who were
to be administered.[23] As Ngcobo J
pointed out in DVB Behuising: |
“The Native Administration Act, 38 of 1927, appointed the Governor-General
(later referred to as the State President) as ‘supreme
chief’ of all
Africans. It gave him power to govern Africans by proclamation. The powers
given to him were virtually absolute.
He could order the removal of an entire
African community from one place to another. The Native Administration Act
became the most
powerful tool in the implementation of forced removals of
Africans from the so-called “white areas” into the areas reserved
for them. These removals resulted in untold suffering. This geographical plan
of segregation was described as forming part of ‘a
colossal social
experiment and a long term
policy’”[24] (References
omitted)
| [21] | It is painful that the Act
still survives at all. The concepts on which it was based, the memories it
evokes, the language it continues
to employ, and the division it still enforces,
are antithetical to the society envisaged by the Constitution. It is an affront
to
all of us that people are still treated as “blacks” rather than
as ordinary persons seeking to wind up a deceased estate,
and it is in conflict
with the establishment of a non-racial society where rights and duties are no
longer determined by origin or
skin colour. |
| [22] | There can be no doubt that
the section and the regulation both impose differentiation on the grounds of
race, ethnic origin and colour,[25]
and as such constitute discrimination which is presumptively unfair in terms of
section 9(5) of the Bill of
Rights.[26] The Minister and the
Master suggested that the administration of deceased estates by magistrates was
often convenient and inexpensive.
However, even if there are practical
advantages for many people in the system, it is rooted in racial discrimination
which severely
assails the dignity of those concerned and undermines attempts to
establish a fair and equitable system of public
administration.[27] Any benefits
need not be linked to this form of racial discrimination but could be made
equally available to all people of limited
means or to all those who live far
from the urban centres where the offices of the Master are located. Given our
history of racial
discrimination, I find that the indignity occasioned by
treating people differently as “blacks”, as both section 23(7)
and
the regulations do, is not rendered fair by the factors identified by the
Minister and the Master. I conclude therefore that
both provisions create
unfair discrimination within the meaning of section 9(3) of the Constitution.
They also constitute a limitation
of the right to dignity entrenched in section
10.[28] |
| [23] | I cannot accept that the
provisions are reasonable and justifiable in an open and democratic society
based on equality, freedom and
dignity.[29] No such society would
tolerate differential treatment based solely on skin colour, particularly where
the legislative provisions
under consideration formed part of a larger package
of racially discriminatory legislation which disadvantaged black people
systematically
and effectively. It is not necessary to decide whether or not a
temporary continuation of such unfair measures could have been justified
in
terms section 36 in the earliest period of transition. The fact is that six
years have passed since the installation of constitutional
democracy and the
provisions have been challenged by persons whose dignity has been wounded. Such
convenience as the provisions
might achieve can be accomplished equally well by
a non-discriminatory provision. There can be no justification whatsoever for
their
continuation on the statute book in a democratic society based on freedom,
dignity and equality. |
| [24] | I accordingly hold that the
section and the regulation are inconsistent with the Constitution and
invalid. |
A just and equitable order
| [25] | The real problem in this
case is to devise an order that is just and equitable in all the
circumstances.[30] To keep a
manifestly racist law on the statute books is to maintain discrimination; to
abolish it with immediate effect without
making practical alternative
arrangements is to provoke confusion and risk injustice. Such a dilemma is
inherent in transition.
The Black Administration Act, as its very name
indicates, both reminds us of South Africa’s shameful and
“disgraceful”[31] past
and continues to make invidious and wounding distinctions on grounds of race.
It survives, however, because it has become encrusted
with processes of great
practical, day-to-day importance to a large number of
people. |
| [26] | Complete rationalisation of
such anachronistic laws as the Black Administration Act will take time, as it
involves both practical
problems of administration and difficult policy
questions relating to the achievement of equality in our culturally diverse and
pluralistic
society. In the present matter, however, the launching of
inadequately focused legal proceedings converted what was an inevitable
tension
between the old and the new, into an avoidable crisis requiring a rapid remedy
from this Court. How, then, may we cleanse
our statute book of all traces of a
law which was a pillar of “the past of a deeply divided society
characterised by strife,
conflict, untold suffering and
injustice”,[32] while at the
same time preventing undue dislocation and hardship? During the hearing of this
matter, the Court canvassed a possible
solution to the difficulty, which the
parties accepted, although the amicus did
not. |
| [27] | It was common cause that
transactions already completed under the regulation and section should not be
disturbed. It was also agreed
that a period of two years would be appropriate
to enable parliament to review the whole field of succession and administration
of
deceased estates in an harmonious and effective manner which would fully
respect the rights entrenched in the Constitution. The
difficulty was how to
protect rights in the interim period. To subject the families of black people
who die intestate to the continuing
indignity of racist treatment would not be
acceptable. The order that this Court makes as a temporary measure gives all
African
families a choice in circumstances where a member of the family dies
intestate and the estate is not governed by the principles of
customary
law.[33] They can require the
Master to administer the deceased estate as provided for in the Administration
of Estates Act, or else opt
for the cheaper and more accessible process under
the control of the local magistrate, as regulated by the Black Administration
Act.
This choice is achieved by giving immediate effect to the invalidation of
section 23(7)(a), but suspending the declaration of invalidity
in respect of
regulation 3(1) for two years. In short, the Master is empowered to administer
black intestate estates immediately,
while the special empowerment of
magistrates will continue under the Black Administration Act for not longer than
two years. In
order to make it clear that there is a choice, the word
“shall” in regulation 3 must be read for the period of the
suspension
to mean “may”. The magistrates’ jurisdiction is
therefore not exclusive and obligatory, but concurrent and
permissive. |
| [28] | We were informed that an
order in these terms has the support of the Master, and is probably capable of
effective enforcement. To
the extent, however, that unexpected and serious
practical problems might appear in future, provision is made in the order for
its
terms to be varied on application by any interested
person. |
| [29] | It should be mentioned that
counsel for the amicus found herself unable to agree with the proposed
order. She contended that because of the acute effects on widows and children
of
the way in which estates were administered by magistrates, there was a need
for this Court to make an order which would be operative
as soon as possible.
She argued that regulation 3 was the gateway into a system of administration
which placed women and children
of customary unions in an extremely vulnerable
position. On the other hand, the Administration of Estates Act expressly
provides
that widows should participate in the appointment of an executor, or be
appointed as an executor.[34] She
accordingly proposed that the operation of the declaration of invalidity in
respect of the regulation be suspended until 31
March 2001, a period much
shorter than the two years proposed by the
parties. |
| [30] | The questions raised by the
amicus are no doubt of major importance. If the foundational value of
creating a non-sexist society is to be
respected,[35] proper consideration
has to be given to the way the measures concerned impact in practice both on the
dignity of widows and their
ability to enjoy a rightful share of the
family’s worldly goods. There is not enough material before us, however,
to justify
in this matter an investigation into what are complex questions
thrown up by the intersection of race, gender, culture and class.
It is clear
however, that the order made in this case does not affect the right of any
person to approach a competent court for
other suitable constitutional relief
relating to the issues raised by the
amicus. |
| [31] | None of the parties sought
an order for costs. None is made. |
The
order
The following order is made:
1. The application in terms of Rule 17 for direct access to this Court by the
applicants is granted.
2. Section 23(7)(a) of the Black Administration Act 38 of 1927 is declared to be
inconsistent with the Constitution and invalid with
effect from the date of this
order.
3. The Minister of Justice and Constitutional Development is joined as a second
respondent in the proceedings initiated in the High
Court, and is granted leave
to appeal in this Court against the order made by the High
Court.
4. The appeal by the Minister is upheld in part. The order of the High Court is
set aside and replaced with the following order:
4.1 Regulation 3(1) of the Regulations published in Government Notice 10601 of 6
February 1987 is declared to be inconsistent with
the Constitution and
invalid.
4.2 The order of invalidity in 4.1 above is suspended for a period of two years.
4.3 During the period of suspension referred to in para 4.2, the word
“shall” in regulation 3(1) is to be read as meaning
“may”.
5. Any interested person may approach this Court for a variation of this order
in the event of serious administrative or practical
problems being
experienced.
6. The Master of the High Court, Pretoria, shall administer the estate of the
late Sedise Samuel John Moseneke in accordance with
the provisions of the
Administration of Estates Act 66 of 1965.
7. The Minister of Justice and Constitutional Development is requested to ensure
that this order is brought to the attention of all
Masters of the High Courts
and all magistrates dealing with the administration of estates under the Black
Administration Act 38 of
1927 and the regulations promulgated
thereunder.
Chaskalson JP, Langa DP, Ackermann J,
Goldstone J, Kriegler J, Mokgoro J, Ngcobo J, O’Regan J, Yacoob J and
Madlanga AJ concur
in the judgment of Sachs J.
For the applicants: IV Maleka instructed by Hack Stupel & Ross.
For the Respondents: J L van der Merwe SC and SM Lebala instructed by the
State Attorney, Pretoria.
For the amicus curiae: J Kentridge instructed by the Women’s
Legal Centre Trust.
[1] Act 38 of 1927.
[2] The regulations are issued in
terms of section 23(10) of that Act, which
states:
“The Governor-General may make regulations not inconsistent with this Act
—
(a) prescribing the manner in which the estates of deceased Blacks shall be
administered and
distributed”.
[3] Section 167(5) of the Constitution
provides that:
“The Constitutional Court makes the final decision whether an Act of
Parliament, a provincial Act or conduct of the President
is constitutional, and
must confirm any order of invalidity made by the Supreme Court of Appeal, a High
Court, or a court of similar
status, before that order has any
force.”
[4] Section 3(2)(b)(i) of schedule 6
to the 1996 Constitution provides that a reference in pre-1994 legislation to
the State President
shall be construed as a reference to the President under the
new Constitution:
“Unless inconsistent with the context or clearly inappropriate, a
reference in any remaining old order legislation—
. . .
(b) to a State President, Chief Minister, Administrator or other chief
executive, Cabinet, Minister’s Council or executive
council of the
Republic or of a homeland, must be construed as a reference
to—
(i) the President under the
new Constitution, if the administration of that legislation has been allocated
or assigned in terms of
the previous Constitution or this Schedule to the
national executive”
The regulation in question was promulgated by the State President in 1987.
[5] The directions stated
that:
“ . . .
3. The issues that will be considered at the hearing are as
follows:
(i) Is paragraph 2 of the
order made by the High Court consistent with section 23(7) of the Black
Administration Act, 1927? If not,
and in view of the allegations made in the
first applicant’s supplementary affidavit dated 28 August 2000, and
paragraphs 4
and 5 of the master’s report, can it be inferred from the
terms of paragraph 2 of the order that the High Court considered
section 23(7)
to be inconsistent with the Constitution?
(ii) Can a declaration of invalidity be inferred from the terms of an order
or must there be a specific declaration of invalidity
in terms of section
171(1)(a) of the Constitution?
(iii) Is section 23(7) inconsistent with the Constitution?
4. If a declaration of invalidity of section 23(7) cannot be inferred from the
terms of the order made by the High Court, and bearing
in mind the provisions of
that section, what are the implications of paragraph 2 of the order for the
applicants, and for any executor
appointed by the master pursuant to the order
made?
5. What are the implications of the order as a whole for estates that have been
or are being wound up under the Black Administration
Act?
6. If the order made is not subject to confirmation by this Court, are there
circumstances which would permit this Court to deal
with the matter under rule
17 and consider the constitutionality of section 23(7), and what an appropriate
order would be if that
section were to held to be inconsistent with the
Constitution? If so, should that be
done?
7. If this Court is entitled to consider the issue of the constitutionality of
section 23(7) either under rule 15 or under rule 17,
what order should be made
in that regard, and in particular, if the section were to be held to be
inconsistent with the Constitution,
what order should be made under section
172(1)(b) of the Constitution concerning estates in the course of being wound up
under the
provisions of the Black Administration Act, and those which have been
wound up under that Act since the Constitution came into
force?”
[6] Section 167(6) provides
that:
“National legislation or the rules of the Constitutional Court must allow
a person, when it is in the interests of justice
and with leave of the
Constitutional
Court—
(a) to bring a matter directly to the Constitutional Court
. . . .”
Rule 17(2) of the
Constitutional Court states that the application must set out:
“(a) the grounds on which it is contended that it is in the interests of
justice that an order for direct access be granted;
(b) the nature of the relief sought and the grounds upon which such relief is
based;
. . . .”
[7] See Amalgamated Engineering
Union v Minister of Labour 1949 (3) SA 637 (A) at 659.
[8] See Parbhoo and Others v Getz
NO and Another 1997 (4) SA 1095 (CC); 1997 (10) BCLR 1337 (CC) at para 5.
See rule 10A of the Uniform Rules of Court and also rule 6(2) of the Rules of
this Court.
[9] In terms of section 172(2)(d),
which states:
“(d) Any person or organ of state with a sufficient interest may appeal,
or apply, directly to the Constitutional Court to
confirm or vary an order of
constitutional invalidity by a court in terms of this
subsection.”
[10] Section 173 of the
Constitution.
[11] Some of the difficulties have
been referred to by the South African Law Commission. It notes
that:
“The question of succession in customary law has been a burning issue for
some time, reaching its climax in June with the decisions
of the Supreme Court
of Appeal in the case of Mthembu v Letsela. The contested positions
involve, on the one side, the need to honour the Bill of Rights by removing laws
that discriminate against
women in matters of inheritance, and, on the other,
the recognition of customary law in the same constitution as part of the law
of
the land. The difficult task of trying to reconcile these provisions is
complicated in any case by the need to be alive to practical
realities and to
intervene in ways which do not worsen the situation of people in their daily
lives.
These complexities have already seen a draft Bill introduced in Parliament and
then withdrawn (1998), and three court case[s] culminating
in the Supreme Court
decision. It is worth noting that both the High Court and the Supreme Court of
Appeal endorsed the Law Commission’s
process of consultation as the best
guarantee of the participation of all stakeholders in this sensitive legislative
experiment .
. . ”.
Summary of the Law Commission Discussion Paper (“Customary Law”
Discussion Paper 93, Project 90 August 2000).
[12] B109-98.
[13] Act 66 of 1965.
[14] 81 of 1987.
[15] See, however, footnote 11 in
which it is suggested by the South African Law Commission that the Bill has been
withdrawn.
[16] Section 18(1) of the
Administration of Estates Act above n 13 provides that the Master may convene a
meeting with:
“the surviving spouse . . . the heirs of the deceased and all persons
having claims against the estate . . . for the purpose
of recommending to the
Master for appointment as executor or executors, a person or specified number of
persons.”
[17] Above n 6.
[18] See for example, Christian
Education South Africa v Minister of Education 1999 (2) SA 83 (CC); 1998 (12) BCLR 1449 (CC) at para 4 and the authorities referred to therein.
[19] A similar consideration led to
the grant of direct access in S v Zuma and Others 1995 (2) SA 642 (CC);
1995 (4) BCLR 401 (CC).
[20] See the judgment of Ngcobo J
in Ex Parte Western Cape Provincial Government and Others; In Re: DVB
Behuising (Pty) Ltd v North West Provincial Government and Another
2000 (4) BCLR 347 (CC) at para 1. The Black Administration Act was originally called the
Native Administration Act 38 of 1927. It has been amended
some 41 times.
[21] DVB Behuising above n 20
at para 2.
[22] See the judgment of Madala J in
DVB Behuising above n 20 at para 93.
[23] Mamdani comments on the nature
of this two-tier approach:
“The African colonial experience came to be crystallized in the nature of
the state forged through that encounter. Organized
differently in rural areas
from urban ones, that state was Janus-faced, bifurcated. It contained a
duality: two forms of power under
a single hegemonic authority. Urban power
spoke the language of civil society and civil rights, rural power of community
and culture.
Civil power claimed to protect rights, customary power pledged to
enforce tradition. The former was organized on the principle
of differentiation
to check the concentration of power, the latter around the principle of fusion
to ensure a unitary authority.
To grasp the relationship between the two, civil
power and customary power, and between the language each employed —
rights
and customs, freedom and tradition — we need to consider them
separately while keeping in mind that each signified one face
of the same
bifurcated state.”
Mamdani Citizen and Subject: Contemporary Africa and the Legacy of Late
Colonialism (New Jersey, Princeton University Press 1996) at 18.
[24] DVB Behuising above n 20
at para 41.
[25] Section 9(3)
states:
“The state may not unfairly discriminate directly or indirectly against
anyone on one or more grounds, including race, gender,
sex, pregnancy, marital
status, ethnic or social origin, colour, sexual orientation, age, disability,
religion, conscience, belief,
culture, language and
birth.”
[26] Section 9(5)
states:
“Discrimination on one or more of the grounds listed in subsection (3) is
unfair unless it is established that the discrimination
is
fair.”
[27] See the basic values and
principles governing public administration set out in section 195 of the
Constitution.
[28] Section 10 states
that:
“Everyone has inherent dignity and the right to have their dignity
respected and protected.”
[29] Section 36 provides
that:
“(1) The rights in the Bill of Rights may be limited only in terms of law
of general application to the extent that the limitation
is reasonable and
justifiable in an open and democratic society based on human dignity, equality
and freedom, taking into account
all relevant factors, including—
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose; and
(e) less restrictive means to achieve the purpose.”
[30] Section 172(1)(b) states
that:
“Powers of the courts in constitutional matters.— (1) When deciding
a constitutional matter within its power, a court—
. . .
(b) may make any order that is just and equitable,
including—
(i) an order limiting
the retrospective effect of the declaration of invalidity; and
(ii) an order suspending the declaration of invalidity for any period and on
any conditions, to allow the competent authority to correct
the
defect.”
[31] See the remarks of Mohamed J in
S v Mhlungu and Others 1995 (3) SA 867 (CC); 1995 (7) BCLR 793(CC) at
para 7.
[32] See the epilogue to the interim
Constitution.
[33] It should be noted that this
order does not refer to section 23(7)(b) of the Black Administration Act, a
provision which prohibits
the Master from dealing with certain kinds of property
accruing in terms of “Black law and custom”, as described in
sections
23(1) and (2) of the Act. The order also does not affect the other
regulations issued under the Black Administration Act which deal
with the powers
and duties of magistrates to supervise such property.
[34] Above n 16.
[35] Section 1 of the Constitution
reads:
“The Republic of South Africa is one, sovereign, democratic state founded
on the following
values:
. . .
(b) Non-racialism and non-sexism.”
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