Abstract
Section 18(b) of the Matrimonial Property Act 88 of 1984 allows for non-patrimonial damages to be claimed by a spouse married in community of property against his/her spouse. In Van der Merwe v Road Accident Fund 2006 4 SA 230 (CC) the court extended this exception to the notional purity of community of property to include patrimonial damages on the basis that section 18(b) discriminated unfairly against spouses married in community of property vis-à-vis spouses married out of community. The implications of this decision on commercial intercourse are discussed in this contribution against the background of prior decisions relating to the insolvency of spouses married in community of property. 
Highlights
The Bill of Rights enshrined in the South African Constitution1 forbids unfair discrimination
Despite the decision in Van der Merwe satisfying one’s immediate sense of justice, it drastically deviates from the common law and legislative prescripts
In this respect the approach of the court is in step with previous decisions: The common law supplements the provisions of the written Constitution but derives its force from it
Summary
The Bill of Rights enshrined in the South African Constitution forbids unfair discrimination. Subsection (2) reads that equality includes the full and equal enjoyment of all rights and freedoms and that the promotion of equality may be achieved by legislative and other measures designed to protect or advance persons or categories of persons disadvantaged by unfair discrimination. If the persons are not equal, their (just) shares will not be equal; but this is the source of quarrels and recriminations, when equals have and are awarded unequal shares or unequal equal shares.3 This contribution will focus on the notion of equality as expounded above in respect of matrimonial property regimes against the background of a recent decision by the Constitutional Court in Van der Merwe v Road Accident Fund (hereafter RAF). In its decision the court pronounced on the constitutional validity of claims for damages of parties against one another where they are married in community of property compared to where they are married out of community of property
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