MRL3701 Assignment 2 Semester
1
2022
Critically discuss the case of Harksen v Lane 1998 (1) SA 300 (CC) with reference to the
relevant legislation
In the case of Harksen v Lane, 54. the CC laid down the test. for determining whether or
not a certain act or legislative provision is unconstitutional for want of compliance with
the equality clause. In October 1997, the Court decided on the constitutionality of section
21 of the Insolvency Act 24 of 1936.
In the judgement of the Court in Harksen v Lane 1998 (1) SA 300 (cc) was correct to find
that section 21 of the Insolvency Act did not infringe the constitutional provisions. As
there was a distinction between a deprivation of rights in property as set out by Section
28 (2) and an expropriation and therefore the court ruled that the section did not amount
to expropriation as contended by the applicant.
The section does indeed differentiate between the solvent spouse and other persons who
might have had dealings with the insolvent, but this differentiation is legitimate and does
not infringe the right to equality before the law because the section has a legitimate
purpose and the differentiation has a rational connection to that purpose.
The temporary divestment of the solvent spouse was merely to ensure that the insolvent
estate was not deprived of property it was entitled to. Adequate measures were also
provided in Section 21 that innocent solvent spouses can get their property back.
1
2022
Critically discuss the case of Harksen v Lane 1998 (1) SA 300 (CC) with reference to the
relevant legislation
In the case of Harksen v Lane, 54. the CC laid down the test. for determining whether or
not a certain act or legislative provision is unconstitutional for want of compliance with
the equality clause. In October 1997, the Court decided on the constitutionality of section
21 of the Insolvency Act 24 of 1936.
In the judgement of the Court in Harksen v Lane 1998 (1) SA 300 (cc) was correct to find
that section 21 of the Insolvency Act did not infringe the constitutional provisions. As
there was a distinction between a deprivation of rights in property as set out by Section
28 (2) and an expropriation and therefore the court ruled that the section did not amount
to expropriation as contended by the applicant.
The section does indeed differentiate between the solvent spouse and other persons who
might have had dealings with the insolvent, but this differentiation is legitimate and does
not infringe the right to equality before the law because the section has a legitimate
purpose and the differentiation has a rational connection to that purpose.
The temporary divestment of the solvent spouse was merely to ensure that the insolvent
estate was not deprived of property it was entitled to. Adequate measures were also
provided in Section 21 that innocent solvent spouses can get their property back.
