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Flynn v Farr NO and Others (13967/2007) [2008] ZAWCHC 196 (12 May 2008)

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1. Does the challenged law or conduct differentiate between people or categories of people? If so, does the differentiation bear a rational connection to a legitimate purpose? If it does not, then there is a violation of section 9(1). What this really means is: is there a good reason for treating X differently to Y?

2. Does the differentiation amount to discrimination that can be regarded as unfair? This requires a two-stage analysis:

(a) Does the differentiation amount to discrimination? If the discrimination happens on the basis of a ground listed in section 9{3) it is presumed to be discrimination. If one of the fisted grounds is not so implicated, then whether or not it is discrimination depends on whether objectively viewed, the differentiation is based on attributes and characteristics that have the potential to impair the fundamental human dignity of a person who has been treated differently;

(b) if the differentiation amounts to discrimination, the next question asked is whether or not the discrimination is unfair. If the discrimination occurs on a ground listed in subsection (3), unfairness is presumed. If it occurs on a ground that has not been so listed, unfairness can still be established by examining the impact of the discrimination on the person affected by the law or conduct.

[24] Applicant's invocation of the equality clause can be summarised thus: Current law treats de facto and de lege adopted children differently. Therefore the question must be asked: does the differentiation of the treatment of these children amount to discrimination? Manifestly it cannot be presumed that this differentiation amounts to discrimination, because it is not predicated on a ground listed in subsection (3). Critically the issue is whether the differentiation may be said to unreasonably impair the human dignity of that person affected by this differentiation.

[25] According to Mr Hopkins, the evidence indicated that Flynn suffered adverse feelings that support this particular conclusion, as a clear consequence of the law failing to recognise that Farr was his father. In this connection the following letter of Flynn to his attorney is instructive:

"A few days ago my dad's lawyer (Farr) has informed of the very distressing news - due to my dad's own intestacy, the law dictates that he and mom's combined estate, including our family home and everything in it (all valued around three to four million rand) will automatically be passed on to his nearest surviving relatives - namely his elder brother and younger sister, their offspring, as well as the offspring of his deceased brothers and sisters, of which there are dozens. According to these lawyers who handled various affairs for my dad over the years, as a stepson who was never legally adopted I have no rights or say in the matter whatsoever - something my dad and I were totally unaware of. Had he known this I have no doubt that he would have immediately created a will - however brief it might have been. When my mom died without a will he appointed himself as executor and handled the entire matter himself at the age of 73, opening a can of worms process which took him years to complete - and it took his toll on his health and his wellbeing.

He vowed to me and his lawyers that he would make a will - so that I would be spared having to go through a similar process. Unfortunately

throughout his fife my dad was a great "putter-off" of things - and so it transpired that his ill-health caught up with him and he died rather suddenly -and intestate.

I now find myself in the very painful situation of having to accept that the 50 years he and my mom and I spent together as a very close-knit family have been simply wiped out as though those years and that very specific relationship between us never existed. I am being most sincere when I say that I am not speaking about any money I or my son or my mom's side of the family may have inherited - I would trade ten times that amount just to have them both stilf alive and with us. My outrage and dismay is aimed at the law which decrees that any verbal post-life issues my parents had - and there were several - not only to do with my son and I but with various charities of church and my mom's sister and her family who have been struggling financially for years. These wishes of my parents have now been consigned to the scrap heap by a law which in situations like these should be flexible and open to interpretation - if the facts and history of the family concerned warrant it - as I believe they do".

[26] Even if this kind of evidence is sufficiently supportive of a conclusion that the legal treatment of Flynn impacted upon his dignity, that is not the end of the enquiry. The second question that has to be asked is whether, on the assumption that the differentiation is discrimination, it is fair discrimination that ought to be accepted by this Court, or whether it is unfair discrimination which no court can sanction. Unfair discrimination is clearly unconstitutional and accordingly unlawful. The fairness of the discrimination primarily focuses on the impact that the discrimination may have on the affected person. According to Mr Hopkins, based on the kind of evidence of which I have cited, Flynn was adversely affected by the discrimination in a manner which impacted harshly, onerously and unfairly on him.

[27] Mr Hopkins submitted that, in regard to differentiation, a state operating in a constitutional democracy is expected to act in a rational manner. It should not regulate the lives of its citizens in an arbitrary manner or exhibit manifest "naked preferences" that can serve no legitimate purpose. Such conduct would be inconsistent with the rule of law and the very fundamental premises upon which a constitutional state is predicated. A significant purpose of the equality clause was to ensure that the state was bound to function in a rational manner. Accordingly, it could not be said that mere differentiation infringes the equality clause in the Constitution. But where there was no rational relationship between the differentiation in question and any purpose proclaimed by government to validate the action, such differentiation would unquestionably infringe the protections afforded by the equality clause.

[28] The question which now must be asked and which was critical to this case was the following: is there a rational reason for only allowing de lege adopted children to inherit and not extending the same benefits to de facto adopted children? In this connection Mr Hopkins referred to the decision of the Constitutional Court in Daniels v Campbell N.O. Others 2004(5) SA 331 (CC) which also dealt with section 1 the Act.

[29] In terms of section 1(a) of the Act, where a person dies intestate but is survived by a spouse, such spouse shall inherit the intestate estate. The courts have traditionally regarded "a spouse" to mean someone to whom one is legally married. The law for a long was recognized that marriage is only legally valid if it is a monogamous union. Potentially polygamous unions, such as Muslim marriages and those which may have been conducted under African customary law, because they are potentially polygamous, have not been regarded as legal marriages. For this reason spouses in these "non-recognised" unions were not regarded as spouses for the purpose of intestate succession.

[30] In Daniels, supra, the applicant could not inherit from the estate of her late husband because she married him in terms of Muslim law and was therefore not in law regarded as a spouse. When the matter came before the High Court, it found the provision to be unconstitutional on the basis that it violated section 9 of the Constitution: that is the interpretation of the word "spouse" in this narrow manner. The High Court then made the following order:

"1. The omission in section 1 of the Intestate Succession Act of 1987 of the following definition is declared to be unconstitutional and invalid "spouse shall include a husband or wife married in accordance with the Muslim rights in a de facto monogamous union".

2. Section 1 of the Intestate Succession Act 81 of 1987 is to be read as though it included the following paragraph:

"Spouse shall include a husband or wife married in accordance with Muslim rights in a de facto monogamous union.¹'

That decision was taken on appeal to the Constitutional Court. When the matter was decided, Sachs. J, on behalf of the Court, held that the word "spouse" in its ordinary meaning includes parties to a Muslim marriage. Such a reading is not linguistically strained. On the contrary, Sachs, J held that it corresponded with the way that the word was generally understood and employed. Linguistically it was far more awkward to exclude parties to a Muslim marriage from the word "spouse" than to include them. Both in intent and in impact the restrictive interpretation of the word "spouse" was discriminatory and such discriminatory interpretation was deeply injurious to those who were negatively affected by them.

[31] Judge Sachs then went on to formulate the central question in cases such as Daniels, not as whether the wife was lawfully married to the deceased, but rather whether the protection that the Act intended for wives should be withheld from a relationship such as the one in the case. Expressed differently, Judge Sachs framed the question thus: it is not whether it had been open to the applicant to solemnise a marriage under the Marriage Act, but whether in terms of common sense and justice and the values of the Constitution, the objectives of the legislation would best be furthered by including or excluding her from the protection so provided.

[32] Judge Sachs concluded that it would be correct, in such a case, to include women married in terms of Muslim rights within the definition of "a spouse". Not only would this be a fair and just conclusion but it would accord with the common linguistic interpretation of the word "spouse".

[33] Applied to the present case, Mr Hopkins submitted that this approach meant that it was competent for this Court to adopt a similar approach to the word 'adopted' so as to include not only legally adopted but factually adopted children. No good reason existed in his view for excluding de facto adopted children from the benefits conferred upon other children in terms of the Act. Further, the purpose of section 4(e) of the Act was to ensure that all adopted children inherited from an intestate estate of their deceased parents.

[34] The facts, as gleaned from the affidavits deposed in this case, indicated that Flynn was a person who was intended to be covered by these provisions. The law had unfairly discriminated against him because it did not allow him the same benefits as would have been the case had he been legally adopted.

Respondents case

[35] Both Mr Kirkpatrick on behalf of the first and second respondents, and Ms Bawa who appeared together with Ms Mavosi for the fourth respondent, contended that the legislature's purpose in so differentiating between biologically adopted children on the one hand and stepchildren on the other is neither arbitrary nor irrational. In short, their argument was that, while Flynn may well have been a stepchild, he was not an adopted child and that the distinction which was maintained in the law could not be set aside on the grounds of caprice, arbitrariness or irrationality. In their view, the purpose of the differentiation which was attacked by Mr Hopkins was directed at bringing certainty and predictability to the law of intestate succession.

[36] By limiting the definition of a child in the Act, multiple difficulties which may have given rise to uncertainty were avoided such as:

1. What would the minimum length of time be during which the person concerned would have acted as a step-parent.

2. Would all the stepchildren have rights upon intestacy of the step-parent.

3. What wouid the position be where a child's natural parents had multiple marriages.

4. Would a stepchild retain entitlement to claim under the intestacy of his nature substitute parent. If so this would then allow for multiple rights of inheritance known as "double dipping" with clearly unsatisfactory consequences.

Within the context of these problems, the Supreme Court of British Columbia in McCrea v Barrett et al (2004) BCLR (4^th) 103 rejected a similar challenge. In justifying its conclusion, the Court said the following:

"Can it be said that failure of the Act to recognise de facto adoptees violates a central human dignity and freedom through the imposition of disadvantaged, stereotyping or political or social prejudice? Does the Act, in purpose or effect, threaten s15(1)s purpose of ensuring laws which conform to a society in which all person enjoy equal recognition as human beings or as members of Canadian society, equally capable and equally deserving of concern, respect of consideration? Does the law in purpose or effect perpetuate the view that de facto adoptees are Jess capable or iess worthy of recognition or value as human beings or as members of Canadian society?

It is clear that the Child Welfare Act does not stereotype, devalue or oppress de facto adoptees in purpose or effect in a manner which conflicts with the fundamental purpose of s15{1).

There is nothing pejorative about such terms as adopted or chosen or de facto in common parlance. Certainly not in the sense of requiring constitutional protection against historical or current disadvantage, stereotyping, political or social prejudice. As indicated above, there may have been in the past a stigma or disadvantage respecting people born out of wedlock or children of divorce, but any such still present finds little public acceptance. Indeed, education and laws such as those heretofore referred have eradicated or reduced the status for its adverse effects in most instances.

But even if one can postulate a theory of disadvantage for persons not adopted, can the disadvantage be attributed to the failure of the Child Welfare Act to treat de facto adoptees in the same way as de iure adoptees?

Indeed, if the respondent has suffered a disadvantage by virtue of being a non-adopted person, surely the cause lies not with the Child Welfare Act but with the failure of Julia Gregory to adopt the respondent by availing herself of the provisions of the legislation.

It is not necessary in order to find conflict between the impugned legislation and the purpose of the s15(1) for there to exist daily, endemic or palpable discrimination; or that there must be a large class of individuals affected before a breach is legitimate. Here, however, there is difficulty finding any conflict between the Act and the dignity concerns of non-adoptees as required in Law v Canada's...statement of the purpose of s15{1). It follows that the respondent fails part two of the tripartite test in Law v Canada (supra) for establishing protection under analogous ground. Not only do de facto adoptees not suffer the kind of societal prejudice or differential treatment contemplated by such phrases as "stereotypical application of a presumed group or personal characteristics" or "the view that the individual is less capable or less worthy of recognition or value as a human beings" but it is noted that the very purpose of the Child Welfare Act in its deeming provisions is ameliorative", (at paras 53-57)

[37] The similar argument that was put up by respondents was the fact that the Act did not grant a stepchild a right to inherit upon intestacy of a step-parent and was thus neither unreasonable nor unjustifiable. In addition, a person always had the option of adopting the step-child should he or she so desire. Section 17(d) of the Child Care Act specifically provides that a child may be adopted "by a married person whose spouse is the parent of the child". Section 231{1}(c) of the 1960 Childrens Act provided that a child may be adopted "by a married person whose spouse is the parent of a child or by a person whose permanent life partner is the parent of a child".

[38] Furthermore, the legislation specifically provided that the consent of the other biological parent to the adoption which would ordinarily be required could be dispensed with under certain circumstances. Section 19(b)(iv) of the Child Care Act provided that such consent may be dispensed with from any parent "who is withholding his consent unreasonably". Furthermore, the step-parent was able to bestow benefits upon a stepchild by making a suitable will.

[39] The approach articulated by the respondents finds analogous support in the approach adopted by the majority of the Constitutional Court in Volks NO. v Robinson & Others 2005(5) BCLR 446 (CC). Because this case is important in the present dispute, the facts require some description. The proceedings had been initiated by Mrs Robinson who had been a partner in a permanent life partnership with Mr Shandling from 1985 until his death in 2001. The couple had not been married, although there was no legat obstacle to their marriage. Following the death of Shandling, Robinson submitted a claim for maintenance against the deceased estate. The executor of the estate, Volks, rejected her claim because she was not "a survivor¹' as contemplated by the Act.

[40] Robinson applied to the Court for an order declaring that she was entitled to lodge a claim for maintenance in the estate, alternatively declaring that the Act was unconstitutional and invalid and this unconstitutionality should be cured by a directive that section 1 thereof be read as if certain provisions and definitions were included in it. In particular, she contended its provisions needed to be read as though "survivor" were intended to include 'the surviving partner of the life partnership", that "spouse" for the purpose of the Act should be read to include a person in a permanent life partnership, that "marriage" for the purpose of the Act should be read to include a permanent life partnership and that the omission of the necessary words in the definition of these particular words should be declared unconstitutional and invalid.

[41] Of relevance to the present dispute is the majority finding of Skweviva, J who upheld the appeal and thus found the existing provisions to be constitutional. In this connection the learned Judge said thus at paras 55-56: "Mrs Robinson never married the late Mr Shandling. There is a fundamental difference between her position and spouses or survivors who were predeceased by their husbands. Her relationship with Mr Shandling is one in which each is free to continue or not and from which each is free to withdraw at will without obligation and without legal or other formalities.

There are a wide range of legal privileges and obligations that are triggered by the contract of marriage. In a marriage, the spouse's rights are largely fixed by law and not by agreement, unlike in the case of parties who cohabit without being married. The distinction between married and unmarried people cannot be said to be unfair when considered in the larger context of the rights and obligations uniquely attached to marriage. While there is a reciprocal duty of support between married persons, no duty of support arises by operation of law in the case of unmarried cohabitants. The maintenance benefit of section 2(1) of the Act falls within the scope of the maintenance support obligation attached to marriage. The Act applies to persons in respect of whom the deceased person (spouse) would have remained legally liable for maintenance by operation of law had he or she not died".

Turning to the argument that Mrs Robinson's dignity had been infringed by the allegation of differentiation and hence that discrimination was present, Skweviva, J concluded:

"I do not agree that the right to dignity has been infringed. Mrs Robinson has not been told that her dignity is worth less than that of someone who is married. She is simply told that there is a fundamental difference between her relationship and a marriage relationship in relation to maintenance. It is that people in a marriage are obliged to maintain each other by operation of law and without further agreement or formalities. People in the class of relationships to which she belongs are not in that position. In the circumstances, it is not appropriate that an obligation that did not exist before death be posthumously imposed", (para 62)

[42] In Daniels, on which judgment Mr Hopkins so heavily relied, the central question was whether the applicant who married her now deceased husband by Muslim rights, should be treated as a "spouse" for the purposes of the Intestate Succession Act. Sachs, J expressed the problem as follows:

"The central question is not whether the applicant was lawfully married to the deceased but whether the protection which the Act intended widows to enjoy should be withheld from relationships such as hers. Put another way, it is not whether it had been open to the applicant to solemnise her marriage under the Marriage Act, but whether in terms of 'common sense and justice' and the values of our Constitution, the objectives of the Act would best be furthered by including or excluding her from the protection provided. The answer, as in Amod, must be in favour of the interpretation which is consistent with the ordinary meaning of the word 'spouse' aligns itself with the spirit of the Constitution and furthers the objectives of the Act.

It is important to underline the limited effect of such an inclusive interpretation. As in Amod it eliminates a discriminatory application of particular statutes without implying a general recognition of the consequences of Muslim marriages for other purposes. Accordingly, the recognition which it accords to the dignity and status of Muslim marriages for a particular statutory purpose does not have any implications for the wider question of what legislative processes must be followed before aspects of the shariah may be recognised as an enforceable source under South African law'¹, (paras 25-26)

[43] In Daniels, the parties were "married in terms of the legal system". The failure to employ the ordinary meaning of spouse emanated from a linguistically strained use of the word flowing from a culturally and racially hegemonic appropriation the need (see Daniels at para 19). This present a significant distinction from the case of Flynn, who was a stepchild of Farr but where the latter could, but did not, institute Eegai proceedings to adopt him. In this sense, the underlying premises of the majority judgment in Robinson are far closer to this dispute than is the factual matrix set out by Sachs. J in Daniels, supra..

[44] Mr Hopkins, in his well researched argument, referred to a case which had been heard in the High Court of American Samoa Estate of Tuinanau Fuinaono (deceased) which was heard on 10 November 19992. The headnote to the report of this case reads:

"An equitable virtual or de facto adoption for inheritance purposes exists when a descendant performs parental duties towards a child in his household and that child performs filial obligations in return exactly equivalent to a formally adopted child.

The facts of the case here. Ato was the deceased's de facto son. The deceased never legally adopted him. The deceased was married to Ato's biological mother. Ato was 46 years old. From his early childhood until the death of the deceased, he was nurtured, reared by and lived with both mother and the deceased. They constituted a coherent family unit. Ato was the deceased's de facto son and the deceased publicly acknowledged Ato as his child. There were legal documents which gave recognition to this fact, including those where the deceased exercised parental power in respect of Ato. There were also other indications that gave recognition to the practical day to day "father and son" relationship that existed between the two.

The High Court of American Samoa found that an equitable adoption exists when a child has 'stood from an age of tender years in the position exactly equivalent to a formally adopted child'. The Court went on to find, from the evidence as set out, that, in its view, there was more than sufficient evidence to infer that the deceased intended Ato to become his son. The fact that he never actually went as far as to legally adopt Ato was of no consequence to the inheritance by Ato of the estate from his late father by way of intestacy.

[45] Mr Hopkins submitted that the significance of this decision was obvious. Not only were the facts similar to that of the present case, but the approach adopted by the Court was premised on the logic that had been postulated by applicant in this case. In his view, if ever there was a case which demanded of a Court that it consider foreign faw within the enquiry mandated by section 39(1 )(c) of the Constitution, this was such a case. This is, of course, a related argument: should a court interpret the equality guarantee in the light of this foreign law. That in turn compels an examination of the evidence and the concomitant need for such an approach.

Evaluation

[46] I accept that Flynn regarded Farr as his father. As he concluded, in a lengthy letter to his attorney, on 18 May 2007:

"If all that I said does not bear testimony to the fact that Edward was my father and that he regarded Ryan and I as his heirs, then nothing ever will".

However, the question remains as to whether the alleged differentiation has a rational purpose.

In her affidavit, Ms Maria Mebetoa, the chief director of the National Department of Social Development ("DSD") provides a number of compelling reasons for the insistence upon a process of legal adoption:

[A] System of factual adoptions is not reconcilable with keeping track of all adoptions, and secondly by its very nature there would be no record or information in the public domain of such adoptions and it would not be conducive to a system of information recordal which, should a child wish in later life to find out who they are and where they came from, the DSD would not be able to assist... Of primary concern to the DSD is the lack of regulation of the category of "de facto" adopted children in circumstances, where rights and obligations flow from such a relationship in a manner sought by Applicant.

The DSD is alive to the reality that in the South African context, the HIV-Aids pandemic has resulted in an increase of the number of children being raised outside the traditional family nucleus and who are in the care of family members, or even concerned community members without any forma! legal adoption process having been followed. This has been exacerbated by increasing drug use among parents, teen pregnancy, divorce, the rapid rise of single parent households, mental and physical illnesses, crime, child abuse and neglect and incarceration being but a few of the most common explanations.

In some contexts there is an intention to adopt the children but no steps are taken to actually do so. In others, children are absorbed into households simply because they need care and protection and there is no intention that they be adopted. In customary law circumstances there may well be instances where a family may take in a child with not intention to adopt, e.g. if a brother passes away and leaves behind children, those children often are take in to a surviving brother's household without him ever intending that they become his children through official adoption. In addition, an increasing number of grandparents raising their young grandchildren because the children's parents are ill, disabled, imprisoned or otherwise unable to care for them".

[47] Ms Mabetoa points to other factors which justifies the present legal dispensation. For example, inter-country adoptions, both inward and outward, require to be monitored. There would be "increasing difficult in ensuring that children are protected, especially from drug and child trafficking, were his to be extended to categories of factually adopted children across the border whereas the legal adoption within the statutory framework provides certainty to the child and provides proof that the child is indeed yours on adoption.

She then continues:

"Another consequence of adoption is the determination of a reciprocal relationship between the child and biological parent's rights and obligations. The Children's Act also contemplates 'open adoptions' and the biological parent may still have some contact with the child through an access agreement hereby encouraging legal adoptions to take place with due regard to any relationship with a biological parent. To do so in the absence of a legal adoption would place the adoptive parents in a precarious legal position and may result in them being discouraged from adopting a child in the first instance. It would also not result in the termination of the legal relationship between parent and child when it comes to matters where consent is required by a parent".

[48] On the evidence, there is no sustainable legal basis by which to conclude that Mrs Robinson's dignity, in that case, was offended any less than that of Flynn. Therefore, the central holding of Robinson, supra, must be applicable to the present dispute. Regarding the point of the relationship between a biological parent and adoptive parent where the child is factually adopted, the papers in the present case do reveal some, even if it is rare, contact between Flynn and his biological father.

[49] In my view, on the papers which form the basis of the application, particularly the DSD affidavit to which I have made copious reference, there is justification for the present legal dispensation which is manifestly rational and connected to a legitimate purpose. If this conclusion then leads to a residual enquiry as to whether form discrimination can still be found, the rationality of the measure notwithstanding, one is forced to examine the implications of the Robinson case.

[50] I am not insensitive to the sadness of this particular case. Unquestionably, the three central parties in this dispute lived happily together but hard cases make bad law and that must surely be the case in a constitutional dispute where, as in the present case, the implications go further than simply an individual dispute based upon the present legal dispensation.

[51] Mr Hopkins was able to find the case of the High Court of American Samoa to content that there is some precedent in favour of his line of argument, but there is also the compelling precedent from British Columbia which goes the other way. Even were one inclined, therefore, to take more seriousiy the American Samoa case, for reasons which were never advanced cogently, the evidence as put up to justify any differentiation that is shown to exist, is sufficient to justify the conclusion that section 9 of the Constitution cannot be applied in this case. Once the Iega( question is determined against the applicant, there is no necessity to examine the factual questions.

[52] I do not consider that in this case, any costs order would be appropriate Accordingly the application is dismissed with no award as to costs.

DAVIS, J