Women and Justice: Keywords

Domestic Case Law

Paschke v. Frans Supreme Court of Namibia (2015)

Gender discrimination, Property and inheritance rights

The respondent in this appeal is the biological daughter of the deceased. The respondent’s mother was not married to the deceased, and thus, the respondent was considered an “illegitimate child” under Namibian law. The appellant is the sister of the deceased and the respondent’s aunt. The deceased died intestate on May 30, 1991, and his estate was administered per Namibian law on intestate succession. Because the respondent was classified as an illegitimate child, she was not entitled to inherit from her father’s estate. The respondent challenged the constitutionality of this common-law rule, which the High Court had declared unconstitutional in July 2007. The Supreme Court confirmed the High Court’s finding.

Dlamini v. The Quadro Trust & 8 Others Supreme Court (2016)

Gender discrimination, Property and inheritance rights

The appellant sought to set aside a lower court’s decision and remove his deceased paternal grandmother’s estate executors. The lower court found that the appellant had no locus standi to bring forth the application as he was not the lawful beneficiary of his grandmother’s estate—he was born out of wedlock and his father predeceased his now deceased paternal grandmother. Therefore, the appellant had no right of inheritance intestate. The Supreme Court found that Section 31 of the Constitution (the abolition of the common law status of illegitimacy of a person born out of wedlock) abolishes the principle that children cannot inherit from their father. The Court upheld the appeal and found that the applicant had locus standi to institute or defend legal proceedings relating the deceased estate.

Stapley v. Dobson High Court (2008)

Gender discrimination

This is a child custody case involving a father (the applicant) seeking custody of his minor child because the child’s biological mother, the respondent, sought to take the child to Sri Lanka without the applicant’s permission. The applicant and respondent were never legally married and the respondent had custody of the child. The Court found that Section 31 of the Constitution abolishes the status of illegitimacy of children but that Section 31 is silent on the status of the father of a child born out of wedlock. The Court held that until Parliament enacts the necessary laws under Section 29(7) of the Constitution (which specifically provides for the enactment of laws by Parliament to ensure children’s rights) the legal effects flowing from the fact that the child was born out of wedlock apply and the Court cannot grant guardianship of the minor child to the applicant. Section 31 of the Constitution relates, in part to the rights of children born out of wedlock to inherit from their father. The Court was satisfied that the mother showed careful preparation in her decision to move to Sri Lanka for better career opportunities. The application failed.