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Based on equality freedom and dignity would tolerate

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based on equality, freedom and dignity would tolerate differential treatment basedon skin colour, particularly where the legislative provisions in question formed partof a broader package of racially discriminatory legislation that systematicallydisadvantaged Africans. Any convenience the provisions might achieve could beaccomplished equally as well by a non-discriminatory provision.86[66]In theBheandShibicases, the constitutional attack was directed at particularprovisions ofsubsection (10)ofsection 23and the regulations. It is quite clearthough that the subsections which constitutesection 23, read with the regulations,together constitute a scheme of intestate succession. The subsections areinterlinked and, in my view, they all stand or fall together. They provide a schemewhereby the legal system that governs intestate succession is determined simplyby reference to skin colour. The choice of law is thus based on racial groundswithout more. In so doing,section 23and its regulations impose a system on allAfricans irrespective of their circumstances and inclinations. What it says toAfricans is that if they wish to extricate themselves from the regime it creates, theymust make a will. Only those with sufficient resources, knowledge, education oropportunity to make an informed choice will be able to benefit from that provision.Moreover, the section provides that some categories of property are incapable ofbeing devised by will but must devolve according to the principles of “Black law andcustom”.87Page 25 – 2005 (1) BCLR 1 (CC)[67]The racist provenance of the provision is illustrated in the reference in theregulations to the distinction drawn between estates that must devolve in terms of“Black law and custom” and those that devolve as though the deceased “had beena European”.88The purported exemption of certain Africans – who qualify – fromthe operation of “Black law and custom” to the status of a “European” is not onlyDownloaded by Viola Nyamundaya ([email protected])lOMoARcPSD|8970258
demeaning, it is overtly racist. This provision is to be found in the regulations, notin the statute itself. It nevertheless provides a contextual indicator of the purposeand intent of the overall scheme contemplated bysection 23and the regulations.[68]I conclude, then, that construed in the light of its history and context,section 23ofthe Act and its regulations are manifestly discriminatory and in breach ofsection9(3)of our Constitution. The discrimination they perpetuate touches a raw nerve inmost South Africans. It is a relic of our racist and painful past. This court has, on anumber of occasions, expressed the need to purge the statute book of suchharmful and hurtful provisions.89The only question that remains to be consideredis whether the discrimination occasioned bysection 23and its regulations iscapable of justification in terms ofsection 36of our Constitution.

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Term
Fall
Professor
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Tags
Law, Common Law, Viola Nyamundaya

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