Harksen v Lane NO. 16 R v Big Drug Mart Ltd (1985) ISCR 295. HARKSEN v. PESKA. in Harksen v Lane NO & others 1998 (1) SA 300 (CC) when interpreting and applying s 8 of the Interim Constitution, the equality clause. Non-discrimination on the Grounds of Race in South Africa – with Special Reference to the Promotion of Equality and Prevention of Unfair Discrimination Act. It is the most comprehensive, searchable collection of full-text African electronic journals available on one platform. In Harksen v lane&others it was defined as “the compulsory acquisition of rights in property by public authority”, the term compulsory meaning” compelled by law”. Where there is an allegation that a particular legislative rule violates section 9(3) of the Constitution, a two-stage analysis is followed. The land is leased to a cricket club, by the owners, for the purpose of playing cricket. The Constitutional Court termed the first distinction referred to above as “mere differentiation” and held that mere differentiation must be rational to pass constitutional muster (Prinsloo v Van der Linde 1997 3 SA 1012 (CC) para 25). Dr. A.C. Muthiah S/o (Late) M.A. [18] In Harksen v Lane N.O. 1997(11) BCLR 1489 (CC) the court held that: “One of the factors in determining whether discrimination measure has an unfair impact was to determine the nature of the provisions and the purpose sought to be achieved by it”. 3 Harksen v Lane NO and Others [1997] ZACC 12; 1998 (1) SA 300 (CC); 1997 (11) BCLR 1489 (CC). Discrimination must further be distinguished from unequal treatment, as dealt with in s 8(1) of the interim Constitution and s 9(1) of the final Constitution: see Harksen v Lane NO 1997 (11) BCLR 1489 (CC) at par 43; Iain Van der Walt AJ & Botha H "Coming to grips with the new constitutional order: critical comments on Harksen v Lane NO" (1998) 13 SA Public Law 17-41. Others v Powell NO and Others CCT 5/95 Handed down: 6 December 1995 The was an extensive and complex matter that considered referrals made in the course of civil proceedings, which had asked the question whether section 417 of the Companies Act 61 of 1973 was constitutional. Harksen v Lane NO and Others.4 I was informed by Mr Vuza that he could not provide me with a definitive answer, but that the ground relied on would become ‘apparent’ during evidence. Written and curated by real attorneys at Quimbee. View Harksen v Lane 1998 _1_ SA 300 _CC_.pdf from MRL 3701 at University of South Africa. S.A. Harksen v Lane set out that in order to meet the rationality requirement, the differential conduct must serve a “legitimate purpose and there must be a rational connection between the differentiation and its purpose”. Miller v. Jackson [1977] 1 QB 966. 53), the first question to be asked is whether the provision in question differentiates between people or categories of people. Hugo 1997 (6) BCLR 708 (CC); Harksen v Lane NO and Others 1997 (11) BCLR 1489 (CC); National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others 1998 (12) BCLR 1517 If it has been found to have been on a specified ground, then the unfairness will be presumed. For instance in Harksen v Lane NO and Others 1998 (1) SA 300 (CC), the court formulated the now famous Harksen test at 325 – ‘Firstly, does the differentiation amount to “discrimination”? 14 National Coalition for Gay & Lesbian Equality & Another v Minister of Justice & Others (1999) 1 SA 6 (CC). Harksen said the way she was deprived of her estate was discriminatory. There was an outdated view of marriage which worked to the disadvantage of females. Sabinet African Journals - reliable research that offers more than 500 African journals, including the African Journal Archive. As unsatisfactory as such a mystery ground of discrimination may be to the proper conducting of a discrimination Harksen v Lane will not continue to play a role in the adjudication of unfair discrimination disputes. This can be done by It is contended that this fact may be conducive to … This item appears in the following Collection(s) iSalpi [26047] Gene Peska purchased a tract of land in the Black Hills of South Dakota and built a "cabin" thereon. The Constitutional Court commented as follows – ‘What the specified grounds have in common is that they have been used (or misused) in the past (cf Harksen v Lane NO 1998 1 SA 300 (CC) para 46). MILLER, Chief Justice. Standard This is a South African case. If so, it has to be asked whether the differentiation bears a rational connection to a legitimate government purpose. 3 See Prinsloo v Van der Linde and Another 1997 (6) BCLR 759 (CC) pars 23ff. Harksen v Lane case in a nutshell: Some are equal than others Posted by Ntebo Lauretta Morudu April 18, 2020 Posted in Education and Training , Law Tags: Constitution , Estate Late , Harksen v Lane , Interim Constitution , Right to Equality , Right to Property , Section 25 , Section 9 Leave a comment on Harksen v Lane case in a nutshell: Unfair discrimination is determined by three main factors as set out in President of the Republic of South Africa v Hugo: summary (taken from Harksen v Lane NO 1997 (1) SA 300 (CC), para. Get Lane v. Lane, 202 S.W.3d 577 (Ky. 2006), Supreme Court of Kentucky, case facts, key issues, and holdings and reasonings online today. Estate Wege v Strauss 1932 AD 76 . A neighboring property owner, John Harksen, later brought suit to enforce restrictive covenants that limited the number of buildings that could be built on the land. Van der Walt, A. J. and H. Botha. [¶ 1.] Her husband died and her property was sequestered. 288 inequalities between groups and individuals be considered. Her right to privacy and property were violated. This two-stage enquiry was set out in Harksen v Lane NO & Other which provides for the following: “(i) Firstly, does the differentiation amount to ‘discrimination’? 17 Chaskalson op cit 4 at ch 14. Ex parte Minister of Safety and Security: In re S v Walters 2002 4 SA 613 (CC) Harksen v Lane 1998 1 SA 300 (CC) Hattingh v Juta 2013 3 SA 275 (CC) Langemaat v The Minister of Safety and Secuirty 1998 4 BCLR 444 (T) Minister of Finance v … CONSTITUTIONAL COURT OF SOUTH AFRICA Case CCT 9/97 JEANETTE HARKSEN (BORN TZSCHUCKE) Applicant versus MICHAEL Harksen v Lane case in a nutshell: Some are equal than others Posted by Ntebo Lauretta Morudu April 18, 2020 Posted in Education and Training , Law Tags: Constitution , Estate Late , Harksen v Lane , Interim Constitution , Right to Equality , Right to Property , Section 25 , Section 9 Leave a comment on Harksen v Lane case in a nutshell: Van der Walt AJ "The limits of constitutional property" (1997) 12 SA Public Law 275-330. STATEMENT OF MATERIAL FACTS. In NUMSA & Others v Gabriels (PTY) Ltd [2002] 12 BLLR 1210 (LC) the Court held that the ground relied on must be clearly identified, and it must be shown that it is based on the factors as set out in Harksen v Lane … Posted on March 22, 2016 by Calers. If it is on a specified ground, then discrimination will have been established. The 1997 formulation of the test in Harksen by Constitutional Court seemed to settle the constitutional standards in respect of equality and unfair discrimination. JAFTA J 6 (ii) If the differentiation amounts to ‘discrimination’, does it amount to ‘unfair discrimination’? In Harksen v Lane NO and Others {1997} ZACC 12; 1998 (1) SA 300(CC); 1997 (11) BCLR 1489(CC) (Harksen) at para 48. (10) A good illustration of the application of the Harksen v Lane enquiry is the onstitutional ourt’s recent decision in Hassam v Jacobs. If it Harksen v Lane NO. 2.2 Discuss the Constitutional Court’s recent decision in Hassam v Jacobs specifically with regard to the application of the equality test as laid down in Harksen v Lane. SA Public Law 13(1): 17-41. Vogt, G. S. 2001. 15 Ibid at para 132. If it is on a specified ground, then discrimination will have been established. The study commences with a brief overview of the history of marriage and specifically of marriage in community of property with reference to marital power. ), Lord Justices Geoffrey Lane and Cumming-Bruce. In explaining how a remedial or restitutionary measure may as a factor have In Prinsloo v Van der Linde and Harksen v Lane the Court explained the test for s 9(1) as follows: A law may differentiate between classes of persons if the differentiation is rationally linked to the achievement of a legitimate government purpose. In this article this test is scrutinised closely with a view to clarify the different aspects of the right protected in s 9. 36 In Harksen v Lane 37 Goldstone J laid out the process to be followed when undertaking this analysis. The Supreme Court of Kenya Advisory opinion number 2 of 2012. An examination of three sample decisions of religious unfair discrimination shows, it is contended, the absence of any formal or universal test. Court of Appeal – three Lords Justice, Lord Justice Denning as Master of the Rolls (M.R. Legislation : Insolvency Act 24 of 1936 s. 21(1): Constitution of the Republic of South Africa Act 200 of 1993 s. 28(3) Subject : Insolvency: Legal positivism: Personal property: Harksen v Lane NO. 1998. “Coming to Grips with the New Constitutional Order: Critical Comments on Harksen v Lane NO.
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