IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
in the matter between:
CASE NUMBER: CCT1S/95
ANNETTE BRINK
and
ANDRE KITSHOFF NO
APPLICANT
RESPONDENT
IN RE:
IN THE SUPREME COURT OF SOUTH AFRICA (TRANSVAAL PROVINCIAL DIVISION
in the matter between:
CASE NO: 1 2 1 4 7 / 9 4
ANDRE KITSHOFF NO AND
APPLICANT
ANNETTE BRINK
LIBERTY LIFE ASSOCIATION OF AFRICA LIMITED
THE MASTER OF THE SUPREME COURT OF SOUTH AFRICA (TRANSVAAL
PROVINCIAL DIVISION
FIRST RESPONDENT SECOND RESPONDENT
THIRD RESPONDENT
FILING NOTICE.-
DOCUMENT:
FILED BY:
TO:
AND TO:
AND TO:
COMMENTARY ARGUMENT
ON HEADS OF
BOUWERS ATTORNEYS RESPONDENT'S ATTORNEYS
1153 Park Street Hatfield, Pretoria Ref. HJ venter/ESO298
T H E R E G I S T R A R O F T H E C O N S T I T U T I O N A L C O U R T JOHANNESBURG
SMUTS, UYS & VAN DER SCHYFF C/O PLAN SURVEY
APPLICANT'S ATTORNEY 1239 schoeman Street HATFIELD, PRETORIA
REF: H SMUTS/ALL/BOOO95 Received copy h e r e o f day of November, 1995.
P KRUGER, A BERTELSMANN, S WELSH, Z MAJAVU, P JORDI, P O'DONOVAN, S MILLS, S TUSON, R SOLOMON
WITS LAW CLINIC
University of W i t w a t e r s r a n d
west campus
BRAAMFONTEIN REF: PJ/CSL
Received c o p y h e r e o f t h i s day of November, 1995.
AND TO: THE MASTER OF THE SUPREME COURT
OF SOUTH AFRICA (TRANSVAAL PROVINCIAL DIVISION)
REE: 5488/94
ereof this
COMMENTARY
I have been requested by Bouwers attorneys to comment, on behalf of Masters' Training at Justice College, on the heads of argument in the case between Annette Brink (Applicant) v Andre Kitshoff NO (Respondent), case number CCT 15/95, currently being heard by the Constitutional Court. Since it is common cause that the provisions of section 44 of the Insurance Act, Act 27 of 1943, are prima facie unconstitutional in that they unfairly discriminate against married women, and are therefore in conflict with section 8 of the Constitution, the only question I have been requested to comment on is the order which the Court ought to issue in this specific instance.
INTRODUCTION
1.
I agree that the wording of section 44 of the Insurance Act prima facie discriminates against married women and is therefore in" conflict with section 8 of the Constitution which entrenches the right to equality before the law. However, when the purpose of section 44 as a whole is studied more closely, it is clear that the section has its aim not only a limited protection of the married woman but, and in my view more importantly, also the protection of the creditors of the husband.
2.
The provisions of section 44 are understandable when viewed in the light of the circumstances which prevailed in society at the time when the Act was promulgated. The role and status of women in society today cannot be compared to the circumstances which
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prevailed in society in 1943 and, rightly so, the provision as it it now reads is inconsistent with the modern democratic society in which we now find ourselves.
3.
While it is admirable to take a stand against unfair discrimination based on gender, one must be cautious not to infringe upon the rights of persons who have no quarrel with gender discrimination but who do have a vested pecuniary interest in the main object of this case:
the proceeds of an insurance policy. In my view section 44 of the Insurance Act was an attempt to protect the creditors of an insolvent married man's estate estate without leaving his wife destitute: hence the protection in the amount of R30 000,00. When one looks at the provisions of the proposed new Insurance Bill, it is clear that the legislature has realized that the provisions of the current Act are archaic, and need to be replaced.
4.
While the role of women in society has changed dramatically and rightly demands that they be treated as equals, the role of creditors has not. They still require payment of the debts owing to them, and to deny them relief merely on the basis that an outdated Act discriminates against married women would, in my opinion, amount to an injustice towards creditors. This would especially be the case where creditors have granted credit in the knowledge that they are protected by the provisions of section 44 of the Insurance Act.
RELIEF REQUESTED BY THE APPLICANT 5.
From the Applicant's further submissions in regard to the order which should be granted by
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the Court, it is clear that relief in the form of the scrapping of section 44 from the Insurance Act is prayed for, and that the Court invalidate the section retrospectively as from 27 April 1994, the date on which the Constitution came into operation. Alternatively the applicant has prayed for an order invalidating the section immediately, in which case it is argued that the executor (Respondent) could in any event not lay claim to the proceeds of the policy any longer, since it no longer vests in the estate.
6.
I cannot help but disagree with the submissions made by the Applicant in motivating the orders prayed for:
6.1 To issue an order invalidating section 44 retrospectively "in the interests of justice and good government" would only amount to the protection of the applicant and ignores the rights of creditors. To deny creditors payment of the debts owing to them can hardly be in the interests of justice or good government. On the contrary, it would in my opinion amount to an injustice and bad government if the rights of creditors are to be treated as being inferior to the provisions of an outdated Act merely because the wording of the Act prima facie discriminates against married women. Must the rights of gender equality really be taken that far in circumstances where the provisions of the Act are clearly aimed mainly at protecting the rights of creditors?
6.2 According to the Applicant an order invalidating section 44 retrospectively would bring about certainty in all other estates and would secure ("beveilig") the Applicant's position in all respects. As regards bringing about certainty in all other estates this
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may be true in respect of estates which are reported after judgment has been handed down, but certainly will not be the case in estates which have already been finalised.
Does the Applicant really expect us to believe that re-opening finalised estates would be in the interests of justice and good government? As far as securing the applicant's position in all respects this is true. But then of course the question which must ultimately be asked is whether it is the Applicant's or the creditors' rights which should be secured.
6.3 As regards the time of vesting of the policy in the executor, there is no doubt in my mind that the date of sequestration (in this case as determined by section 34 of the Administration of Estates Act) is the relevant date. If the policy vested in the executor on 7 June 1994 (the date of sequestration in this instance) the executor cannot be denied the proceeds on the basis that the Court has invalidated the section with immediate effect. The relevant date is the date on which the proceeds vests in the executor and not the date of invalidation of the section. If the policy "vests" in him on a certain date it is difficult to understand why he would have no locus standi to collect the proceeds. The mere fact that the proceeds already vests in him on a certain date allows him to collect the proceeds without further ado.
6.4 To the applicant's credit, the disadvantages of invalidating the section with retrospective effect have been clearly set out in paragraph 10 of the Applicant's further submissions in regard to the order to be issued by the Court. The list evidences the prejudice that would be suffered by many different parties, especially creditors. One factor which has not been pointed out, however, is the protracted
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litigation which would have to be entered into by parties wishing to reclaim property or the proceeds of policies previously dealt with in terms of section 44. (In addition it must be pointed out that the averment in paragraph 10.6 is not entirely true. In insolvent deceased estates, where the proceeds of insurance policies and the application of the provisions of section 44 are most often encountered, no contribution is payable by creditors - see regulation 5(2) of the Administration of Estates Act, Act 66 of 1965.)
RELIEF REQUESTED BY THE RESPONDENT 7.
Unfortunately I have not been provided with the Respondent's further submissions in regard to the order to be granted by the Court. However, from the Respondent's heads of argument it is clear that the order prayed for is that the Court request Parliament to amend the section by removing the reference to "man" and including the word "person" in its stead. The Respondent therefore envisages an amendment to the Insurance Act in terms of the provisions of section 98(5) of the Constitution. The effect of this would be that the provisions of section 44 of the Insurance Act would remain valid until such time as Parliament remedies the defect.
In my view this approach is also not the correct one. The reason for this is that the new Insurance Bill, which is already in its third draft, remedies the defects contained in the current Act. Section 63 of the Bill also envisages the protection of creditors but without the discriminatory clauses. Instead of referring to ceded policies, married women and the like,
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section 63 of the Bill appears to have as its point of departure that the person or the spouse of that person whose life is insured, is the basis upon which the protection of both the immediate family and creditors will enjoy protection. In my view the only major differences between the current Act and section 63 of the Bill is that it no longer discriminates on the grounds of gender, and the protection afforded to family members has been increased from R30 000,00 to R50 000,00. Nothing will be achieved by rushing amendments to the present Act through Parliament when the promulgation of the new Insurance Bill will bring about a more permanent and effective solution. If anything, the Court should hasten the passage of the Insurance Bill through Parliament.
CONCLUSIONS / SUBMISSIONS
9.
In my opinion the Court should consider the following when handing down judgment in this case:
Restricted interpretation (section 35(2) of the Constitution)
9.1 In the heads of argument of both the Applicant and the Respondent I have found no mention of the provisions of section 35(2) of the Constitution. For the sake of clarity I quote the sub-section in full:
"(2) No law which limits any of the rights entrenched in this Chapter, shall be constitutionally invalid solely by reason of the fact that the wording used prima facie exceeds the limits imposed in this Chapter, provided such a law is reasonably capable of a more restricted interpretation which does not exceed such limits, in which event such law shall be construed as having a meaning in accordance with the said more restricted interpretation."
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In my view a more restricted interpretation of section 44, as primarily protecting the interests of creditors, falls within the ambit of section 35(2) of the Constitution, notwithstanding the fact that the wording of the provision prima facie exceeds the limits imposed by section 8 of Chapter 3 of the Constitution. In my view the fact that section 44 also affords a married woman a degree of protection, enhances the fact that the section is capable of a more restricted interpretation.
If this submission is accepted as being correct, the section should remain intact until such time as Parliament can be requested to amend or replace the offensive sections of the current Insurance Act, or until such time as the new Insurance Bill is promulgated.
Retrospective invalidation
9.2 If the retrospective order as prayed for by the Applicant is granted, it is submitted that the impact of such an order can be limited. This can be done by ordering that the invalidation is only retrospective in respect of estates that have not yet been confirmed by the Master. Unconfirmed accounts can be amended by the executor or trustee without imposing too great a burden on them. Although certain persons will still be prejudiced by such an order, it is submitted that it would have a less dramatic impact on estate administration than an unlimited retrospective order.
Immediate invalidation
9.3 If the Court should decide to invalidate the section with immediate effect, it would be advisable for the court to simultaneously set out the right of executors and trustees
to claim monies or property not yet paid to them but which vested in them on a date prior to the invalidation. This is so especially in light of the arguments of the Applicant as set out in paragraph 14 et seq of the further submissions in regard to the order to be granted by the Court.
Declaration of invalidity, but in the iterests of justice and good government require Parliament to remedy the defect, the section remaining in force in the meantime (section 98(5))
9.4 In light of the primary aim of section 44, this would in my view probably be the most just order to make. While acknowledging and condemning the discriminatory nature of section 44, the primary purpose of the section {the protection of creditors) will remain intact until such time as it can be replaced by a more equitable provision, thereby fulfilling the interests of justice and good government. This will also afford creditors a measure of certainty and afford them an opportunity of obtaining some kind of security or alternative arrangement for the payment of their claims.
DAVID A BURDETTE MASTERS' TRAINING JUSTICE COLLEGE PRETORIA
22 NOVEMBER 1995
