Supreme Court of South Africa, Cape of Good Hope Provincial Division – Harksen v Lane and Others (16552/96, 25 March 1997, unreported) and
Lane and Another NNO v Magistrate, Wynberg 1997 (2) SA 869 (C)
Sections 21, 64 and 65 of the Insolvency Act, 1936 are consistent with the constitutional right to property. (Unanimous.) They are also consistent with the constitutional right to protection against unfair discrimination. (5:4.)
Decision by
Goldstone J (Chaskalson, Langa, Ackermann and Kriegler concurring)
Dissent
O'Regan J (Madala and Mokgoro concurring)
Dissent
Sachs J
Harksen v Lane NO and Others is an important decision of the Constitutional Court of South Africa, delivered on 7 October 1997. The court dismissed a challenge to the constitutionality of the Insolvency Act, 1936, finding that it was consistent with the right to property and right to equality for the property of a solvent spouse to be attached to the insolvent estate of his or her partner. Justice Richard Goldstone wrote for the majority.
Apart from its import in insolvency law, Harksen is significant because of its test for determining whether a legislative provision is unfairly discriminatory. The court agreed unanimously with the test as proposed by Goldstone, but it nonetheless split five-to-four on the question of whether the Insolvency Act discriminated unfairly against married people.
HarksenvLane NO and Others is an important decision of the Constitutional Court of South Africa, delivered on 7 October 1997. The court dismissed a challenge...
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