Moseneke and Others v Master of the High Court (CCT51/00) [2000] ZACC 27; 2001 (2) BCLR 103; 2001 (2) SA 18 (6 December 2000)

Moseneke and Others v Master of the High Court (CCT51/00) [2000] ZACC 27; 2001 (2) BCLR 103; 2001 (2) SA 18 (6 December 2000)

Section 23(7)(a) of the Black Administration Act and regulation 3(1) unlawfully differentiate on the basis of race, imposing discriminatory procedures for the administration of intestate estates of black people. This discrimination is unfair, violates the right to equality and dignity, and cannot be justified in a democratic society. The provisions are therefore inconsistent with the Constitution and invalid. However, immediate invalidation would cause administrative chaos, as the Master’s offices are not equipped to handle all intestate estates. To avoid undue hardship and confusion, the Court declared section 23(7)(a) invalid with immediate effect, empowering the Master to administer...

Citation
[2000] ZACC 27
Parties
Applicant: DIKGANG ERNEST MOSENEKE; Applicant: KARABO MABEL MOSENEKE; Applicant: MALATSI VINCENT MOSENEKE; Applicant: KABELO DUNSTAN MOSENEKE; Applicant: TIEGO MOSENEKE; Respondent: THE MASTER OF THE HIGH COURT; Respondent: MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT
Court
Constitutional Court
Jurisdiction
South Africa
Judgment Date
6 December 2000
Case Number
CCT51/00
Procedural Posture
Constitutional Application / Appeal and Direct Access to Constitutional Court
Outcome
Section 23(7)(a) of the Black Administration Act declared unconstitutional and invalid with immediate effect; regulation 3(1) declared invalid but suspension of invalidity for two years; families given choice of administration; Minister joined as respondent and appeal upheld in part; no order as to costs.
Judges
Sachs, Chaskalson, Langa, Ackermann, Goldstone, Kriegler, Mokgoro, Ngcobo, O'Regan, Yacoob, Madlanga
Legal Topics
Unfair Discrimination, Administration of Deceased Estates, Bill of Rights Limitation, Direct Access, Suspension of Invalidity
Constitutional Law Civil Procedure Unfair Discrimination Administration of Deceased Estates Bill of Rights Limitation Direct Access Suspension of Invalidity

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Parties

DIKGANG ERNEST MOSENEKE

Applicant

KARABO MABEL MOSENEKE

Applicant

MALATSI VINCENT MOSENEKE

Applicant

KABELO DUNSTAN MOSENEKE

Applicant

TIEGO MOSENEKE

Applicant

THE MASTER OF THE HIGH COURT

Respondent

MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT

Respondent

Procedural Posture

Constitutional Application / Appeal and Direct Access to Constitutional Court

Legal Issues

  1. 1 Does section 23(7)(a) of the Black Administration Act and regulation 3(1) unlawfully discriminate on the basis of race in the administration of intestate estates?
  2. 2 Are these provisions inconsistent with the Constitution and therefore invalid?
  3. 3 What is the just and equitable remedy to address the administrative impasse caused by invalidation of these provisions?

Ratio Decidendi

Section 23(7)(a) of the Black Administration Act and regulation 3(1) unlawfully differentiate on the basis of race, imposing discriminatory procedures for the administration of intestate estates of black people. This discrimination is unfair, violates the right to equality and dignity, and cannot be justified in a democratic society. The provisions are therefore inconsistent with the Constitution and invalid. However, immediate invalidation would cause administrative chaos, as the Master’s offices are not equipped to handle all intestate estates. To avoid undue hardship and confusion, the Court declared section 23(7)(a) invalid with immediate effect, empowering the Master to administer...

Court Disposition

Section 23(7)(a) of the Black Administration Act declared unconstitutional and invalid with immediate effect; regulation 3(1) declared invalid but suspension of invalidity for two years; families given choice of administration; Minister joined as respondent and appeal upheld in part; no order as to costs.

Orders

  • Direct access to the Constitutional Court by the applicants is granted.
  • Section 23(7)(a) of the Black Administration Act 38 of 1927 is declared inconsistent with the Constitution and invalid with effect from the date of this order.