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Ruling deals blow to centuries-old discrimination

Friday, July 13, 2007
Werner Menges
The Namibian

A LAND MARK judgement striking down a centuries - old inherited discrimination against children born out of wedlock in Namibia, has been given in the High Court.

A battle that the Legal Assistance Centre has fought since late 1999, against the legal rule that, children born to parents who are not married to each other do not have the same rights to inherit from their father, that children born within a marriage have, finally bore fruit with a judgement given by Acting Judge Raymond Heathcote on Wednesday.

In terms of that rule, children who are born to parents who are not married to each other are automatically excluded from inheriting from their father if the father dies intestate - that is, without leaving a will.

The rule has its roots in Roman law, was adopted into Dutch law, and eventually made its way into Namibian law as part of the common law heritage from South Africa that the country inherited in 1920.

That rule, Acting Judge Heathcote decided on Wednesday, in a judgement rich in legal history stretching almost 1 500 years into the past, is unconstitutional and became unenforceable when Namibia became Independent and the country's Constitution came into operation on March 21 1990.

Judge President Petrus Damaseb concurred with the judgement.

Acting Judge Heathcote's judgement was delivered in a case in which a 22-year-old Gobabis resident, Lotta Frans, is suing Gobabis district farm owner Inge Paschke for what Frans claims is his rightful half of the assets that his father, the late Jurgen Eichhorn, left behind when he died on May 30 1991.

Paschke is Eichhorn's sister.

Frans claims that Eichhorn was his father.

Eichhorn and Frans's mother were not married, though.

Eichhorn died as a bachelor at the age of 59.

He also died without leaving a will behind to stipulate how his estate had to be divided amongst his heirs.

As a result, Paschke inherited the entire estate, since she was his only sibling.

The estate included two farms valued at N$789 368 at the time.

In terms of the common law rule excluding socalled illegitimate children from inheriting intestate from their father, Frans and his elder brother, who is also claimed to be a child of Eichhorn, did not receive the inheritance that would have come their way had they been born in wedlock.

The term "illegitimate" in itself is not proper in this context, since no child can in Namibia's current constitutional order be considered "illegitimate" in the sense of being "unlawful" or "improper", Acting Judge Heathcote comments in the judgement.

Starting his judgement with reference to the reign of Roman Emperor Justinian some 1 450 years ago, Acting Judge Heathcote pointed out that the common- law rule diminishing the inheritance rights of children born out of wedlock was conceived as a means of punishment for the fathers, "that they know that children who are the issue of their sinful passion, will inherit nothing".

The rule was also adopted in Dutch law, which regarded "adultery not a less heinous crime than incest," Acting Judge Heathcote related.

"Accordingly, the sins of the fathers who committed adultery were also visited upon their children.

They could also not inherit intestate from their fathers," he noted.

"That common law rule still crucifies illegitimate children for the sins of their 'lustful parents'," Acting Judge Heathcote commented.

The existence of this common law rule is rooted in punishment, and not, as Paschke's legal representative, Andreas Vaatz, suggested, to create certainty for the executor when he finalises the estate, he added.

Acting Judge Heathcote stated further: "Today, loving partners and parents have the right to live together as a family with their children without being married.

But should the father die intestate, his children may not inherit.

The common law rule knows no boundaries.

Whether a child was born from love or 'lust', the rule discriminates, simply based on the status which was forced upon the child by ancient rule."

Namibia's Constitution, which prohibits discrimination on a list of grounds that include social status, changes all of that, he indicated in the judgement.

The differentiation between "illegitimate" and "legitimate" children is in fact based precisely on their social status, and this differentiation amounts to discrimination against "illegitimate" children, he stated.

As such, it is unconstitutional, it was decided.

In terms of the Constitution's article stating that the common law in force in Namibia on the date of Independence remains valid to the extent that it does not con?ict with the Constitution, it further means that the rule became unconstitutional and thus invalid from the date of Independence.

Vaatz asked the court to refer the issue to Parliament to be rectified rather than to strike down the rule as unconstitutional, as the latter, he said, would open possible floodgates of litigation on this issue.

His request cannot be adhered to, Acting Judge Heathcote stated.

He stated that this was firstly because Parliament has already spoken on the issue by adopting the Children's Status Act late last year, in which the rule was abolished.

The Act however has not come into operation yet.

He added: "'Floodgate- litigation arguments' cannot cause an unconstitutional rule to survive.

Sometimes, as in this case, it is indeed necessary to open the floodgates to give constitutional water to the arid land of prejudice upon which the common law rule has survived for so many years in practice."

For Frans, the judgement means that only a first hurdle has been passed in his quest to claim his inheritance.

He is suing Paschke for N$394 684, but that claim still has to finally adjudicate.

Dave Smuts, SC, instructed by the Legal Assistance Centre, represented Frans in the matter.

 

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