Harksen v Lane NO and Others is an important decision of the Constitutional Court of South Africa, delivered on 7 October 1997.

Apart from its import in insolvency law, Harksen is significant because of its test for determining whether a legislative provision is unfairly discriminatory.

The court agreed unanimously with the test as proposed by Goldstone, but it nonetheless split five-to-four on the question of whether the Insolvency Act discriminated unfairly against married people.

With the warrant of the Supreme Court of South Africa, the sequestration commenced in October 1995, during which time the Interim Constitution was in operation.

Accordingly, when Harksen's estate was sequestrated, his wife's property (valued at over R6 million) was attached and she was summoned and interrogated at a meeting of her husband's creditors.

In adjudicating this claim, Goldstone derived his approach from the court's limited existing equality jurisprudence, relying particularly on Prinsloo v Van der Linde and President v Hugo.

Yet he held that section 21 of the Insolvency Act, though it may cause "inconvenience, potential prejudice and embarrassment" to solvent spouses, is not arbitrary or irrational.

Again drawing from Hugo, Goldstone also outlined factors which should be considered, among others, in applying the third stage of the test and determining whether the provision in question "has impacted on complainants unfairly".

However, the contention of unfair discrimination failed at the third stage of the test: solvent spouses are not a vulnerable or historically disadvantaged group; the provision serves the worthy purpose of "protecting the rights of the creditors of insolvent estates" in the public interest; and solvent spouses are not seriously impaired as a result, because section 21 also provides that solvent spouses may challenge the attachment of their property and reclaim the property upon providing proof of ownership.

Although the extent of the infringement is not extremely offensive or egregious, it nevertheless constitutes a significant limitation of that right [to equality].