MRL3701

Question: “Critically discuss the case of Harksen v Lane 1998 (1) SA 300 (CC) with reference to the relevant legislation.” Answer: Harksen v Lane 1998 (1) SA 300 (CC); The applicant in these proceedings is, Mrs. Jeanette Harksen, at the time she was 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 third respondent is the Master of the Cape of Good Hope Provincial High Court. The fourth respondent is the Minister of Justice. Facts of the case:  The property of Mrs. Harksen was seen as attached to the statutory vesting of her property in the Mater and trustees.  Her statement of affairs stated that the property has a value of R6 120 352,50. None of it has been released by the trustees to Mrs. Harksen and no request for such release has been made by her.  Mrs. Harkens was summoned, under sections 64 and 65 of the Insolvency Act, to participate in the interrogation at the first meeting with the creditors in the insolvent estate of Mr. Harksen and to provide “All documentation relating to [her] financial affairs and the financial affairs of Jürgen Harksen.” In the meeting.  The magistrate who governed at the meeting of creditors set aside the summons. But on the 9th of December 1996, Farlam J dismissed the ruling of the magistrate and steered Mrs. Harksen to participate in the interrogation and to produce the documents referred to in the summons.  That order brought about the present proceedings challenging the constitutionality of section 21 of the Insolvency act and parts of sections 64 and 65 that provide enquiries into the estate, business, affairs, or property of the spouse of an insolvent person. The Relevant legislation of the (Insolvency) Act: S21: all property of the spouse of a person whose estate has been provisionally sequestrated shall automatically vest in the master and then in the trustee of the insolvent estate. S21 (2): the trustee shall release any of the above such property if it is proven that the property falls within the listed categories (property owned before the marriage; property received under a marriage settlement; property acquired during the marriage but by a title valid against creditors of the insolvent).