“The plain and natural meaning, it seems to me, of those words, the Roman-Dutch law “as existing and applied” in the Province
of the Cape of Good Hope shall be the common law of this country, is that the law as “applied” there by the Courts, giving
effect to customs and desuetude and other modifications, and as “existing” by reason of the modifications, that is by
abrogations and fresh enactments introduced by statute, shall be the law of this country. That, to my mind, seems to be the natural
meaning to give to that section and to the words “as existing and applied”. If it were not so, the result would be -
for I see no reason for distinguishing in this respect between abrogating and enacting statutes – that the laws of this country
would be thrown back many generations, and that the antiquated provisions of the law, such as, for instance, those which deal with
the Palcidian and Trebellian portions, the Lex hac edictali or filial portion, the legitimate portion and other restrictions on the
freedom of testation, as well as the law dealing with prescription, in regard to immovable property, the law dealing with maritime
and shipping, fire, life and marine insurance, stoppage in transitu, bills of lading,letting and hiring, laesis enormis and many
other modifications which occur to one, would be of force and effect here. A system would have been introduced which, in so far as
it affects some of the most important and frequent transactions of daily life, is archaic and behind the requirements of the age.
That seems to me to be against the intention of the Legislature as indicated by this section, and further indicated by legislation
which has been introduced since the 1st January, 1920.”
If the common law rule is constitutional, the plaintiff in this matter would have been barred from inheriting from the deceased, as
article 66 of the Namibian Constitution provides that:
“(1)
Both the customary law and the common law of Namibia in force on the date of Independence shall remain valid to the extent to which
such customary or common law does not conflict with this Constitution or any other statutory law.
(2)
Subject to the terms of this Constitution, any part of such common law or customary law may be repealed
or modified by Act of Parliament, and the application thereof may be confined to particular parts of Namibia or to particular periods.”
[14]
The common law referred to in article 66 of the Namibian Constitution embraces, fully, the concept of
“Roman Dutch Law as existing and applied in the Cape of Good Hope” as explained by Gutsche J in the Tittel Case, supra. Accordingly, Roman Dutch Law which was applied in the Cape of Good Hope
through legislation, judicial precedent, custom or the pre-codal system of Old Authorities (such as the decisions of the High Court
of Holland, Grotius, Voet ect) are common law as envisaged in article 66 of the Namibian Constitution to the extent it has not fallen
in disuse. This becomes abundantly clear if regard is had to the wording of section (1)(1) of the Administration of Justice Proclamation
which provides that the “Roman Dutch Law as existing and applied in the Province of Good Hope…shall…be the Common Law of the Protectorate”. The concept “Common Law” as used in the Proclamation, and “common law” as used in Article 66 of the Namibian Constitution, must and does have the same meaning.
DID THE COMMON LAW RULE WHICH PROVIDES THAT ILLEGITIMATE CHILDREN CANNOT INHERIT INTESTATE FROM THEIR FATHERS, SURVIVE THE ADVENT
OF THE NAMIBIAN CONSTITUTION?
[15]
Article 10(2) of the Namibian Constitution provides:
“No persons may be discriminated against on the grounds of sex, race, colour, ethnic origin, religion, creed or social or economic status.”
[16]
In the authorotive judgment of the Namibian Supreme Court in Muller v President of the Republic of Namibia, 1999 Nr 190 (SC), Strydom CJ dealt with article 10(2) and stated:
“In regard to art 10(2), there seems to be no basis, on the strength of the wording of the sub-article, to qualify the extent of the
impact hereof and to save legislation which discriminates on one of the enumerated grounds from unconstitutionality on the basis
of a rational connection and legitimate legislative object test. As was pointed out by Mr Light this would permit a relevant legislative
purpose to override the constitutional protection of non-discrimination. Article 10(2) which guarantees non-discrimination on the
basis of the grounds set out therein would be defeated if the doctrine of reasonable classification is applied thereto and would
be to negate that right. See Thibaudeau’s case supra at 36 and Egan’s case supra 103 to 197. The grounds mentioned in
art 10(2), namely sex, race, colour, ethnic origin, religion, creed or social or economic status, are all grounds which, historically, were singled out for discriminatory practices exclusively based on stereotypical application
of presumed group or personal characteristics. Once it is determined that a differentiation amounts to discrimination based on one
of these grounds, a finding of unconstitutionality must follow.” and further
“The steps to be taken in regard to this sub-article are to determine-
(i)
whether there exists a differentiation between people or categories of people;
(ii)
whether such differentiation is based on one of the enumerated grounds set out in the sub-article;
(iii)
whether such differentiation amounts to discrimination against such people or categories of people; and
(iv)
once it is determined that the differentiation amounts to discrimination, it is unconstitutional unless it is covered by the provisions
of art 23 of the Constitution.”
[17]
Applying the test as laid down by Strydom C.J in the Muller – case, supra, I conclude that;
(i)
as far as intestate inheritance is concerned, there indeed exists a differentiation between legitimate and illegitimate children.
In fact that is what the common law rule is all about;
(ii)
as I endeavored to point out, the differentiation is based on the social status of illegitimate children. Mr Vaatz who appeared for
first defendant, submitted that, today, society looks upon illegitimate children in a much more benevolent manner than was the case
a couple of hundred years ago. That may be so, but it is not modern day society’s views which are in issue in this matter.
It is the rule of the common law prohibiting illegitimate children to inherit intestate from their fathers. That common law rule
still crucifies illegitimate children for the sins of their “lustful parents”. As I have endeavored to show, the existence of the common law rule is rooted in punishment, and not, as Mr Vaatz suggested,
to create certainty for the executor when he finalizes the estate. Today, loving partners and parents, have the right to live together
as a family with their children without being married. But should the father die intestate, his children may not inherit. The common
law rule knows no boundaries. Whether a child was born from love or “lust”, the rule discriminates, simply based on the status which was forced upon the child by ancient rule.
(iii)
the differentiation indeed amounts to discrimination against “illegitimate children”. By design or result, the social stigma which attached to adulterous and incestuous children was transferred to children born
out of wedlock. This appears to be the case simply because the maxim “een wyft maakt geen bastaard” had been echoed from generation to generation, apparently without much legal philosophical reflection;
(iv)
having come to the above conclusion, I hold that the common law rule did indeed became invalid, and unconstitutional on 21 March 1990.
See: Myburgh v Commercial Bank of Namibia, 2000 NR 255 (SC) @ 263 E, where Srydom C.J, stated the following:
“Coming to sub-art (b) it seems to me that when interpreted in context with arts 66(1) and 140(1) that there is no conflict in this
regard. Article 66(1), as previously pointed out, renders invalid any part of the common law to the extent to which it is in conflict
with the Constitution. As also pointed out, this occurred when the Constitution took effect. The article does not require a competent
Court to declare the common law unconstitutional and any declaratory issued by competent Court would be to determine the rights if
parties where there may be uncertainty as to what extent that common law was still in existence and not to declare any part of the
common law invalid.
That has already occurred by operation of the Constitution itself where there is conflict. Seen in this context it follows that the
words ‘any law’ in art 25(1) (b) and ‘all laws’ in art 140(1) can only refer to statutory enactments and not also the common law because in the first instance such laws, which were in force immediately
before Independence, remain in force until amended, repealed or declared unconstitutional by a competent Court. The Constitution therefore set up different schemes in regard
to the validity or invalidity of the common law when in conflict with its provisions and the statutory law. In the latter instance
the statutory law immediately in force on Independence remains in force amended, repealed or declared unconstitutional.”
[18]
Mr Vaatz, acting on behalf of the first defendant, made much about the fact that a declaration of unconstitutionally
at this stage may have far-reaching consequences. What about the possible floodgates of litigation which may now be opened?; he asked
rhetorically, and invited us to refer the issue to Parliament to be rectified. Such a request cannot be acceded to. Firstly because
Parliament has already spoken. Although the Act is not yet in force, section 16(2) of the Children’s Status Act, No 6 of 2006,
determines that:
“Despite anything to the contrary contained in any statute, common law or customary law, a person born outside marriage must, for purposes
of inheritance, either intestate or by testamentary disposition, be treated in the same manner as a person born inside marriage.”
Secondly, the Namibian Constitution, as authoritively interpreted by Strydom C.J in the Myburgh-case, supra, prohibits us from referring
the matter to Parliament. This is so because the words “any law” in article 25 of the Constitution (in terms of which a referral may take place) is not applicable to common law. Moreover,
if such a referral is made, the common law rule will be deemed to be valid until Parliament has dealt with the issue. What Mr Vaatz is requesting us to do, is to blow new life into a constitutionally dead common law rule as a result of such referral.
Lastly, I am quite unable to subscribe to the “flood-gates” argument. The Constitution is the supreme law. Inevitably, consequences will result upon a declaration of unconstitutionality,
be it in respect of common law rules or legislation. But the concern should not be the consequences. With that, the law must deal
in due course. “Floodgate-litigation-arguments” cannot cause an unconstitutional rule to survive. Sometimes, as in this case, it is indeed necessary to open the floodgates
to give constitutional water to the arid land of prejudice upon which the common law rule has survived for so many years in practice.
[19]
It follows that the plaintiff is entitled to the declaratory order sought.
(i)
it is declared that the common law rule in terms of which illegitimate children could not inherit intestate from their fathers, became
unenforceable on 21 March 1990;
(ii)
the first defendant is ordered to pay the costs of the proceedings in terms of which this issue was decided, such costs to be limited
to disbursements of the plaintiff, but including the cost of employing instructed counsel.
____________________
HEATHCOTE, A.J.
I agree.
_______________________
DAMASEB, J.P.
ON BEHALF OF THE PLAINTIFF:
LEGAL ASSISTANCE CENTRE
INSTRUCTED COUNSEL:
DF SMUTS SC
ON BEHALF OF THE DEFENDANTS:
ANDREAS VAATZ & PARTNERS
RTF format