Brink v Kitshoff NO 1996 (4) SA 197 (CC)

The matter concerned the constitutionality of section 44 of the Insurance Act152 and alleged discrimination against married women by depriving them in certain circumstances of all or some of the benefits of life insurance policies ceded to them or made in favour of them by their husbands.

Mr Brink (the deceased husband of the applicant) ceded a life insurance policy to his wife, the applicant, in 1990. He died in 1994. Kitshoff, the executor of the estate and the respondent in the matter, demanded (in terms of the provisions of the Insurance Act) that the insurer pay into the estate of the deceased all but R30 000 of the proceeds of the life insurance. The assurer refused to do so.

The Insurance Act draws a distinction between married men and married women in that the provisions applied only to transactions in which husbands ceded policies to

149 _{Motala v University of Natal supra at page 383C.} 150

Supra at fn 2.

151 _{Brink v Kitshoff NO 1996 (4) SA 197 (CC).}

wives. It did not apply to similar transactions by wives in favour of husbands. The reason advanced by the respondent for the provision, was to avoid fraud or collusion.

The Court held that equality had a very special place in the South African Constitution. Section 33(1) states that rights entrenched in chapter 3 may be limited only to the extent that it is justifiable in an open and democratic society based on freedom and equality, a recurrent theme in the Interim Constitution. Furthermore, the Interim Constitution required regard to international law to interpret the rights it entrenched.

The Court referred to concepts of equality before the law and discrimination which are widely used in international instruments e.g. Article 7 of the Universal Declaration of Human Rights 1948, Article 26 of the International Covenant on Civil and Political Rights 1966, International Convention on the Elimination of All Forms of Racial Discrimination 1966, the Convention on the Elimination of All Forms of Discrimination Against Women 1980, The Convention Against Discrimination in Education 1960 and the ILO Discrimination Convention 1958. It also referred to the Fourteenth Amendment of The Constitution of the United States of America which protects the right to equality – in fact, a precursor to equality provisions in many constitutions in the world.

The Court considered and explained the fact that the United States of America imposed different levels of scrutiny on different categories of legislative classification, the most stringent level of scrutiny being reserved for classifications based on race or nationality or those that invade fundamental rights. The intermediate level of scrutiny is applicable to gender or socio-economic rights and the third level merely requires a rational relationship to the legislative purpose. It was pointed out too that the Indian constitution protects equality and outlaws discrimination as does the Charter on Rights and Freedoms Article 15 of Canada.

The Court therefore stressed that the prohibition of discrimination is an important goal of governments and the international community. Importantly however, it held that interpretation of national constitutions reflected different approaches to the concepts of equality and non-discrimination. This is because of different textual provisions and different historical circumstances which resulted in different jurisprudential and philosophical understandings of equality.

The Court held that section 8 (of the Interim Constitution) was the product of our own particular history of inequality, stating that “the deep scars of this appalling program are still visible in our society. It is in the light of that history and the enduring legacy that it bequeathed that the equality clause needs to be interpreted.”153 The drafters of section 8 recognised that “systematic patterns of discrimination on grounds other than race have caused and may continue to cause considerable harm. For this reason section 8(2) lists a wide and not exhaustive list of prohibited grounds of discrimination”154 It was thus recognised that discrimination can lead to patterns of group disadvantage and harm, is unfair and builds and entrenches inequality. The drafters thus proscribed such forms of discrimination and permitted positive steps to redress the effects.

The Court held that the Insurance Act disadvantaged married women and not married men. That constituted discrimination based on sex (a specified ground) and marital status (an unspecified ground).

Importantly too, the Court held that since sex was a specified ground, it was unnecessary to consider whether marital status would be a ground. It is submitted that this approach, might lead to there being little point in relying on multiple grounds, especially if any additional grounds are unspecified. The consequence of this, at the stage of the enquiry where fairness is considered would be that circumstances relevant to the overall experience of the applicant might not be taken into account.

153 _{Brink v Kitshoff NO supra at para 40.} 154 _{Brink v Kitshoff NO supra at para 41.}

The undesirable effect of this may well be an impoverished and one-dimensional equality jurisprudence which fails to come to grips with the real experience of victims of discrimination.

Furthermore, it appears from the judgment155 that the Court views discrimination on the grounds of sex and race as more serious than other grounds of discrimination.

The Court held that discrimination based on sex had resulted in deep patterns of disadvantage, particularly acutely in the case of black women. Legal rules which discriminated against women, as they did in casu, were in breach of section 8(2), unless it could be shown that they fell within the terms of section 8(3). It had not been argued that they could be saved on that ground, but the question remained whether the rule could be justified in terms of section 33 (the limitations clause in the Interim Constitution).

Section 33 involved a proportionality exercise in which the purpose and effects of the provisions had to be weighed against the nature and extent of the infringement. In casu it was found that no reasonable basis for the constitutional breach caused existed, the purposes sought to be achieved did not require a distinction to be drawn between married women and married men and it could not be said to be reasonable and justifiable in the light of the purpose of the legislation.

O’Regan J156 stated that: “ … the Constitution is an emphatic renunciation of our past in which inequality was systematically entrenched.” She stressed too157 that: “Section 8 was adopted … in the recognition that discrimination against people who are members of disfavoured groups can lead to patterns of group disadvantage and harm. Such discrimination is unfair: it builds and entrenches inequality amongst different groups in our society.”

155

Brink v Kitshoff NO supra at paras 216J – 217C.

156 _{Brink v Kitshoff NO supra at para 33.} 157 _{Brink v Kitshoff NO supra at para 42.}

O’Regan also commented on the disadvantages suffered by black people in the past, showing that disadvantage did not relate solely to material matters, but may be suffered in relation to education, job opportunities and access to public amenities.

This dictum, it has been said, has been often used to indicate that the reversal of systemic discrimination and patterns of group disadvantage are the central characteristics of substantive equality. It is often invoked to support an argument that the term “unfair” was specifically inserted in the equality clause to provide a means of distinguishing mere discrimination (which may affect both advantaged and disadvantaged applicants) and discrimination against historically disadvantaged groups, which is unfair. Therefore discrimination is unfair when it is perpetrated against persons or groups of persons who have suffered historical or systemic disadvantage.

However, the Hugo158 and Prinsloo159 judgments thereafter, provided a more detailed analysis of the unfairness requirement in which the notion of historical disadvantage was not given such a perceived exclusive or controlling role.

Other commentators have held the view that in Brink160 the Court does appear to accept group based historical disadvantage as the sole criterion relevant to the assessment of discrimination, but that, nothing in the judgment precluded other criteria from being relevant, and that such other criteria do emerge in subsequent cases.

On 3 June 1996 (two weeks after the Brink161 judgment) the Industrial Court handed down the George v Liberty Life Association of Africa Ltd162 judgment.

158 _{President of the Republic of South Africa v Hugo 1997 (4) SA 1 (CC).} 159 _{Prinsloo v Van der Linde supra.}

160

Brink v Kitshoff NO supra.

161 _{Brink v Kitshoff NO supra.}