INTRODUCTION TO THE LAW OF PERSONS

Sub-sec of private law

Private law = persons “first law” – sphere of law that governs relationships with humans
= concepts & institutions – basic to all other branches of the law

Legal subject:
Centre of legal world – bearer of rights, duties and capacities – persons in the eye of the
law (persona iurus)

The Law of Persons determines:

1. Which entities are legal subjects
2. When legal personality begins & ends
3. What legal status involves
4. What effect certain factors have on a person’s legal status

2 Diff kinds of legal subjects:

Legal personality is bestowed on legal subjects who are determined legal subjects by legal norms of a
particular community

1. Natural person:

Every human being (have rights, duties & capacities – vary depending on factors)

History – slaves were excluded from legal personality – they were legal objects. Monstra
(monsters) – seriously malformed children – not legal subjects – were regarded to be not of
human decent – could be killed.

Modern SA law – ALL beings of human decent = legal subjects!

2. Juristic person:

These are certain associations of natural persons to which legal personality is granted.

Legal existence is independent from its members / natural persons who create it
 Functionaries act on its behalf – juristic person acquires rights, duties and
capacities.

Entities recognised as juristic persons in our law are associations:

a. Incorporated in terms of general enabling legislation (companies / banks / close corporations)

b. Especially created & recognised as juristic persons in separate legislation (universities / public
corporations / semi-state organisations)
c. Comply with following common-law requirements of legal personality of a juristic person:
i. Must continue to exist even if members vary
ii. Must have / be able to have its own rights / duties / capacities
iii. Its objective cannot be for the acquisition of gain

The following are not juristic persons:

1. Trust
2. Partnership

BEGINNING OF LEGAL PERSONALITY

Legal personality begins at birth – foetus not a legal subject.

Legal requirements for the beginning of legal personality:

1. Birth must be fully completed – complete separation between mother & foetus’s body – not a
requirement for umbilical cord to be severed.
2. Child must live after separation – even if for a short period.

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SA law – not yet authoritatively been decided how life must be proved after birth.
For criminal procedures where an accused is charged with the killing of a newborn child – child is
deemed to have been born alive if child proved to
have breathed.
The specific section of the Criminal Procedures Act doesn’t purport to set out material requirements
for determining lift after birth.
Courts thus rely on medical evidence > Although medical doctors usually establish whether
the child has breathed in order to determine if he / she was born alive, this is not the only
test, and any medical evidence that can prove that there was life should be acceptable.
“Viability” = Child must have reached a stage of development so it can exist independently of
mothers body.
 Child must be viable before legal personality is conferred upon it.
o Doubtful if requirement was ever part of RD-L / RL – suggested
that it’s not requirement for commencement of legal personality
in SA law.
o Problem with it: vague concept – could lead to impossible
problems in evidence.

REGISTRATION OF BIRTHS

Births & Deaths Registration Act

Director General of Home Affairs / person transferred powers of duties to must be notified of birth of every
child born alive within 30 days of birth
Parents / person in charge of child / person parents or person in charge of child request to do so’s
duty.

Forename (first name) & surname must be assigned to child.

Legitimate child – notice of birth given under surname of either parent / double-barrel.

Extra-marital child:
Registered under surname of mother
 Unless parents jointly require father’s surname to be used.
o Father must acknowledge paternity in writing in front of person
notice of birth is given & enter his particulars on notice of birth.
o Father who wants to acknowledge paternity and enter his
particulars after birth is registered – may do so with mother’s
consent – if mother withholds consent – father can apply to HC
for declaratory order confirming his paternity & dispensing with
the mother’s consent.
 If child is registered under father’s surname – it can
only be changed with father’s written consent – court
can grant exemption from consent requirement.
 Act doesn’t make provision for extra-marital child
registered under a double-barrel surname.

Case name: J v Director General, Department of Home Affairs

Facts: Woman in same-sex life partnership gave birth to twins conceived by artificial fertilisation (other
woman’s ovum & donor sperm).

Problem: Wanted twins registered as birth mother “mother” and other woman “parent”. Director Gen.
refused to register in this manner – woman applied to court for order directing him to do so.

Attacked constitutionality of Sec 5 of Childrens Status Act – children born by artificial

fertilisation are legitimate if birth mother married – not if partner in same-sex life partnership.

Outcome: Durban HC granted order and CC upheld finding of unconstitutionality. Now children born by
artificial fertilisation of woman partner in same-sex life partnership legitimate & registered
under surname of either partner / double-barrel surname.

If parents marry after birth registered – on application to Dir. Gen. registration will be changed as if were

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legally married at time of birth.
Application can be brought by either parent / child’s guardian (minor) or child itself (major).

In Births & Deaths Registration Act, “Child Born out of Wedlock” excludes a child whose parents married
before conception or thereafter before the birth.

“Marriage” expanded to include Customary marriages

Recognition of Customary Marriages Act recognises customary marriages for all purposes –
child born out of such marriages is registered as legitimate.
And marriages concluded / solemnised according to tenets of any religion
Not yet given full recognition – parents marriage is still invalid, thus cannot have status of
legitimate child for all purposes.

If a person changes forename / child’s surname changes it can be changed on the birth register to reflect the
change. Anyone can apply to Dir. Gen. for authority to assume different surname.

INTERESTS OF THE UNBORN CHILD (NASCITURUS)

Nasciturus = conceived, but unborn child – aka “fetus”

Person’s legal personality begins at birth

 the conceived but unborn foetus is not a legal subject (can’t have rights,
duties and capacities).

Nasciturus Fiction:

If situation arises – law protects potential interests of nasciturus by employing the fiction (imaginary,
presumption, assumption) that the foetus is regarded as having been born at time of conception whenever it
is to her it’s advantage.

If appears nasciturus would’ve had certain claims / rights had it been born already – legal position kept in
abeyance (kept aside) until born & acquires legal personality / or until certain it will not become a legal
subject
If becomes legal subject – receives rights kept in abeyance for it.

Requirements for NF:

1. Nasciturus must have been conceived at the time benefit would’ve accrued to it.
2. Child must subsequently be born alive – if not born alive – considered as never been conceived.

A third person can only benefit from application of NF if benefit is a natural consequence of application of
fiction in favour of nasciturus, but fiction cannot be applied if only a third person will benefit from it’s
application.

Example of situation where application of NF will be to advantage of only third persons:

Unborn child would have been entitled to an inheritance had he or she been norn when the testator died. If
child dies shortly after birth, the NF will not be applied cause only person to benefit from its application would
be child’s intestate heirs and not child him/herself.

Example of situation where application of NF will be to advantage of both third person and nasciturus:
A parent is responsible for maintaining child, provided parent able to do so and child is incapable of
supporting itself. If unborn child is born alive and then inherits an estate large enough to support itself,
parents not liable for maintenance. This way parents will also benefit from it’s application. NF will be applied
since benefit parents get is from application of fiction in favour of nasciturus.

NF cannot be used to prejudice nasciturus – must be to unborn child’s advantage!!!

INTERESTS TAKEN INTO ACCOUNT

NF only had limited use in common law – modern SA law extended from a general principle & protects any
conceivable interests!

NF already been used in following fields:

1. Patrimonial intrests = succession & maintenance

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 2. Personality interests

1. Patrimonial Interests (inheritance)

1.1 Succession

a. Intestate succession

If person dies w/o leaving valid will – estate is handed over in terms of law of intestate succession –
under these terms – person only inherits if alive at time estate “falls open” (delatio) which takes place
moment deceased dies.

NF applied to postpone distribution of estates until certain if live person born or not.

If born alive – inherits as if already born at time person died. If not born alive – does not obtain rights
& not considered when estate is divided.

b. Testate succession

Person dies and leaves valid will – effect given to provisions of will.

If testators intention re unborn child should inherit is clear – intention is carried out. If unclear – rules
of law of succession are applied.

EG where intention is clear:

Leave property specifically to A,B & C while D has been conceived – not yet born – D won’t inherit.
Only beneficiaries specifically in will inherit.
Leaves property to children / grandchildren “born or still to be born” – any children born after will
inherit – whether / not conceived at time of death.

EG where intention is unclear:

Does not appoint beneficiaries by name – but by class. Child in that class conceived at time of death
born after death inherits.

Case name: Ex parte Boedel Steenkamp

Facts:

Testator left residue of estate to daughter & her children “who are alive at the time of my death”. At
time of death daughter and two of her children D & G were alive – she was expecting another child,
P – he was later born alive.

Legal question:

Can P inherit. Do the words “who are alive at the time of my death” invalidate the presumption that
testator wished to benefit children born later?

Judgment:

P could inherit.

Reason for judgment:

The words “are alive” don’t rebut the presumption that the testator intended to include the nasciturus.

Case shows courts unwillingness to act to the prejudice of nasciturus & on other hand shows a
testator who doesn’t want a nasciturus to inherit must express that intention clearly.

Testator may also nominate unborn / unconceived in will & may even leave property to persons who
will be born generations after him = fideicommissum

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 EG: A leaves his farm to his son B, provided that farm must transfer to B’s oldest son, C
after B’s death and after C’s death, the farm must transfer to C’s oldest son, D.
B = fiduciarius (fiduciary)
C & D = fideicommissarii (fideicommissaries)
This way law protects interest of unborn
Fiduciary may not alienate / mortgae farm without consent of HC. If all fideicommissaries
are majors and give consent – no problem. If minor and already born alive – court must give
/ withhold consent in it’s capacity as upper guardian of all minors.

Question of whether court may consent in case of unborn fideicommissary:

Case name: Ex parte Swanepoel

Appellate division (now SCA) ruled that court couldn’t’ give such consent because it is not
the upper guardian of children who don’t yet exist.
Legislator disapproved & enacted Sec 33(1) of General Law Amendment Act 62 of
1955 > empowers court to consent to alienation / mortgage of land in which unborn
may obtain and interest, and puts conceived and unconceived persons on equal
footing.
Court will only give it’s consent if alienation / mortgage will be to advantage
of all beneficiaries, including those still to be born.

Immovable Property (Removal or Modification of Restrictions) Act 94 of 1965:

Court further has power to remove / modify restrictions on immovable property which have
been imposed by a will or another instrument if this is to advantage of unborn / unconceived
person.

NB!! Above legislation that protects unconceived persons is not based on NF cause NF only applies
to persons already conceived.

Administration of Estates Act 66 of 1965:

If an unborn will, after birth, become entitled to money / movable property subject to
somebody else’s usufructuary / fiduciary rights – person must give security to satisfy master
of HC for payment of money / delivery of property to child after it’s birth.

Money / property won’t be paid / delivered to person in whose favour usufructuary / fiduciary
rights operate unless security has been given.

Person can only be exempt from these provisions if will expressly allows this.

Act further provides that master may consent to subdivision of land on behalf of unborn heir
if this is beneficial and fair.

Legal proceedings re property in which unborn might have an interest – curator ad litem looks after
unborn’s interests.

1.2 Maintenance

Case name: Chisholm v East Rand Proprietary Mines Ltd

 Court held: Child whose father is killed before her birth due to another
person’s delict has a dependant’s action for damages for loss of support
against that person.
 First SA case where NF applied in respect of delict – authors believe
shouldn’t have been extended to law of delict and thus criticise it.

Delict = unlawful and culpable deed as a consequence of which another person suffers a
loss.
Damages are calculated for maintenance by putting child in position would bee in if
father was still alive.
Child can also claim damages for loss of support if someone kills mother in unlawful
culpable (guilty) way while pregnant – provided child born alive despite mother’s
death.

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 Case name: Shieds v Shields
< Parents of unborn were getting divorced and agreed father would not have to
provide maintenance after birth of child. Wanted this in divorce order – court held
mother can’t waive unborn’s right to claim maintenance & that the agreement
contradicted good faith & legal convictions of the community.
It was thus never made an order of the court!
Father also can’t waive unborn’s right to claim maintenance from
mother after birth.

When a pregnant woman divorces father of child – court can provide for child’s maintenance in
divorce order – to avoid need for legal proceedings abt maintenance after child is born.
This is NOT A TRUE APPLICATION OF NF – rather it’s merely a common sense approach
based on expediency (something advantages / convenient)
-if it were child would be deemed to have been born at time of her conception and
entitled to maintenance from that date – and equity clause of BOR would be
breached because NF would be entitled to maintenance for longer periodic than a
child whose parents divorce each other on day of her actual birth.
Absurd to award maintenance to child from date of conception as unborn
child gets all sustenance it needs from mother’s body.

2. Personality Interests

When a persons unlawful and culpable act violates the physical integrity of another, the guilty person
commits a delict and the victim has the right to claim damages for his / her injuries on the ground of the delict
commited against him / her.

This principle applies if the victim is an unborn child!!

Case name: Pinchin v Santam Insurance Co Ltd

Facts:

Woman 6m pregnant involved in car accident – thus mother suffered substantial loss of amniotic fluid. Baby
born with cerebral palsy – therefore never be able to take care of himself.

Driver of other vehicle admitted to being negligent.

Father claimed special damages on behalf of child (for infringement on childs personality rights) and
damages for patrimonial loss (medical bills he was liable for) in his own name.

Medical witness for plaintiff argued that the loss of the amniotic fluid caused mother’s uterus to contract and
so placenta contracted and thus child sufferrred from a loss of oxygen (anoxia) – a well known cause for
cerebral palsy.

Medical examiner for defendant argued that foetus could be deprived of 2/3 of it’s blood supply and not suffer
from anoxia & that damage to the placenta couldn’t have been so severe that 2/3 of blood supply to foetus
was shut off for such a long period to cause anoxia.

Legal question:
Does a person have an action i.r.o. injury inflicted on him while he was still in his mother’s womb.

Judgment:
Child did have an action to recover for pre-natal injuries.
However, it was not proved that the brain damage had been caused by the accident & consequently
absolution from the instance ordered.

Reason for judgment:

NF was well known in RL, but the digest texts which discuss it don’t limit it to a specific field of law the rights
of the foetus which can be protected, nor do CL writers like Voet, De Groot, Van der Keessel & Shorer limit it
to a specific area.

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After a thorough analysis of Anglo-American L and European systems – could find no reason why NF should
not be extended to law of delict. Fact that such a claim is difficult to prvoe isn’t ground for denying a plaintiff
his / her claim.

However, it was not proved that the brain damage had been caused by the accident & consequently
absolution from the instance ordered.

Several authors criticise the extension of the NF to claims for pre-natal injuries. Now resolved as a result of
Road Accident Fund v M obo M.

Case name: Road Accident Fund v M obo M – also reported as “Road Accident Fund v Mtati”

Facts:
M, father and natural guardian of Z claimed R1.3 m for Road Accident Fund (RAF).
He alleged that:
A collision took place between a motor vehicle driven by another and his wife (a pedestrian) who sustained
serious bodily injuries and as such Z was born severly mentally retarded as a result of the injuries her mother
sustained.

Claim was instituted in local division of HC.

RAF raised special plea against claim on 2 bases:

1. At time of collision, child was a fetus in utero and not a “person” entitled to compensation
2. A fetus in uterus is not in law regarded as a person and in the circumstances the insured driver cannot
be said to have owed a duty of care to Z.

Court a quo accepted decision of Pinchin case & dismissed special plea.

Case is an appeal against dismissal.

Judgement:
The special plea was correctly dismissed by court a quo & dismissed appeal with costs.

Reason for judgement:

It would be intolerable if our law didn’t grant an action for pre-natal injuries. The minor’s claim is based on
the damage suffered as a living person, not as a fetus. Fact that the wrongful act that caused the damage
happened before the child’s birth is irrelevant. On the ordinary principles of the law of delict, unlawfulness &
damages must not be fused – but that each is a separate element for delictual liability.
Such a child (i.e. an unborn child / pregnant woman) falls within the area of potential danger which the driver
is required to foresee and take reasonable care to avoid.

Note: Pinchin case was decided in Witwatersrand Local Division of then the SC, while this case was
decided in SCA. Therefore, all divisions of HC are bound by this decision. Now onwards, all future
claims for pre-natal injuries will have to be based on the ordinary principles of the law of delict and
not on the NF. NF will still apply to other areas of the law.

GUARDIANSHIP & CUSTODY

= 2 components of parental authority

Gaurdianship > capacity parent has to administer childs estate on childs behalf & assis child in
performance of juristic acts

Custody > controlling child’s daily life

Parental authority doesn’t arise until child is actually born

 pregnant woman can’t have parental authority over part of her own body
 father can’t have parental authority over part of mother’s body & if can’t even have power to stop
mother from having an abortion – can’t can parental authority over foetus

If pregnant woman get’s divorced – court may include an order for guardianship & custoy in the divorce
order
In this case – rule is based on expediency & not NF!!

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 Friedman v Glicksman

Mother can’t enter into contract on behalf of unborn cause legal personality only begins at birth & an agent
can’t into a contract on behalf of non-existent principal.

Application of NF to above would be incorrect because it would require conferring parental authority on
parent before child’s birth. In case of an agency – if unborn considered already born at time of conception
– would still be without capacity to act & thus could not give authority for parent to act as agent – parent
would have to authorise agent on child’s behalf & doesn’t have parental authority to do this!

If parent wanted to negotiate a benefit for unborn – would have to use a contract for the benefit of a third
party.

Parent (A) enters into contract with (B) in terms of which B undertakes to keep open an offer to
contract / make an offer to unborn (C) after birth. C is thus not a party to the contract & does not
matter that C doesn’t exist yet.
C is benefited – given opportunity to enter into a contract with B. After C’s birth, A now has
parental authority to accept / decline B’s offer on C’s behalf. When C accepts B’s offer –
contract exists between B & C.
EG where above is used: Future spouses can agree in antinuptual contract that
children who might be born of their marriage will be entitled to specific property
when they’re born.

NOTE:
Sec 18 of Child Care Act 38 of 2005 (effective 1 Jul 07)
1. Replaces common-l concept of “parental authority” with “parental responsibilitlies and rights”
2. Replaces concept “custody” with “care”.

TERMINATION OF PREGNANCY

NF not used because aborted fetus will never be born alive (one of the requirements for application of NF).

Circumstances in which pregnancy can be terminated:

Termintion of Pregancy Act 92 of 1996 legalised abortion & allows a pregnancy to be terminated upon
request of a pregnant woman during the first 12 weeks of the gestation (conception) period.

From 13th – 20th week:

If medical practitioner after consulting with pregnant woman is of opinion that:
a. Continued pregnancy poses risk of injury to woman’s physical / mental health
b. There’s a substantial risk that that foetus would suffer severe physical / mental abnormality
c. Rape / incest
d. Continued pregnancy would significantly affect woman’s social / economical circumstances

After 20th week

If a medical practitioner, after consulting with another medical practitioner / registered mid-wife is of
the opinion that continued pregnancy would:
a. endanger woman’s life
b. result in severe malformation of the foetus
c. pose risk of injury to the foetus

Before 12 week gestation period – abortion can be performed by a medical practitioner / a registered mid-
wife. After 12th week – ONLY a medical practitioner can perform the abortion.

Consent:
Informed consent of pregnant woman is required – unless she’s incapable of giving such consent.

Minor: A medical practitioner / registered midwife must advise minor to consult with parents / guardians /
family members / friends before term of preg, but term cant be denied if minor prefers not to do so.

If pregnant woman is:

Mentally disabled (completely incapable of understanding & appreciating nature / consequences)

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 or
State of continuous unconsciousness (no reasonable prospect of regaining consciousness in
time to request & consent)
and
gestation period less than 21 weeks
and
grounds for mentally able, conscious woman within 13 – 20 weeks must be present
and
two medical practitioners / one medical practitioner and a registered midwife (completed prescribed
training course) must consent
her pregnancy may be terminated if guardian / spouse consents (if can’t be found – then curator personae).

NOTE:
Certain circumstances – mentally disabled / cont unconscious woman’s preg can be
terminated without consent:

Prior to 21st week of gestation period:

If 2 medical practitioners / medical practitioner & registered midwife (completed prescribed

training course) are of opinion that:
(a) continued preg would pose risk of injury to woman’s physical / mental health
(b) substantial risk foetus would suffer from severe physical / mental abnormality.

From 21st week of gestation period:

If 2 medical practitioners / medical practitioner & registered midwife (completed prescribed

training course) are of opinion that continued preg would:

(a) endanger woman’s life

(b) result in severe malformation of foetus
(c) pose risk of injury to foetus

Refer = Christian Lawyers’ Association v National Minister of Health

Case name: Christian Lawyers’ Association v National Minister of Health

Facts: The plaintiff argued that certain sections of the Choice on Termination of Pregnancy Act 92
of 1996 were unconstitutional because they permitted a woman under the age of 18 years to
choose to have her pregnancy terminated without parental consent or control

Legal Q: Whether or not a minor is in a position to make an informed decision about whether or not to
have an abortion which serves her best interests without the assistance and/or guidance of
her parents, guardians or counsellor.

Judgement: A minor could have her pregnancy terminated as long as she was capable of giving her
informed consent and indeed did so.

Reasons for Judgement: The legislature had not left the termination of a minor’s pregnancy totally
unregulated. Its foundation was the concept “informed consent”.

THE FOETUS’ RIGHT TO LIFE & OTHER CONSITUTIONAL ISSUES SURROUNDING TERMINATION OF
PREGNANCY

Before the introduction of a BOR into our law…

Our courts held that a foetus isn’t a legal subject & doesn’t have a right to life that can be enforced
on it’s behalf
Christian League of SA v Rall
Only upon birth foetus becomes a legal subject – cannot have rights that can be
enforced on its behalf before it is born alive

Van Heerden v Joubert

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 For purposes of Inquest Act – “person” excludes unborn – serious problems might
arise with regard to the law relating to abortion / murder / culpable homicide if legal
personality were to be extended to a foetus.

After the enactment of BOR…

Termination of Pregnancy Act was challenged on constitutional grounds:

Case name: Christian Lawyers Association of SA v The Minister of Health

Facts:
Plaintiffs argued that human life starts at conception & that the Choice on Termination of Pregnancy
Act contravenes Sec 11 of the Constitution of Republic of South Africa 108 of 1996, which
guarantees right to life.

Plaintiff’s sought a declaratory order striking down the Act in it’s entirety.

Defendants excepted to Plaintiffs particulars of claim on grounds that it didn’t disclose a cause of
action because Sec 11 doesn’t confer any right on a foetus & doesn’t prevent term of preg in
circumstances & manner foreseen by the Act & that Constitution protected womans right to choose
to have her preg term in the circumstances and manner contemplated by the Act.

Legal Q:
Does Choice on Term of Preg Act contravene Sec 11 of Constitution?

Judgment:
Choice on Term of Preg Act doesn’t contravene Sec 11 of Const & therefore isn’t unconstitutional.

Reason 4 judgment:
No provision of Const bestows legal personality / protection on the foetus. Requirement for
Nasciturus rule – foetus to be born alive – no provision of Const to protect foetus pending fulfilment
of this requirement.

Also, Const doesn’t qualify a woman’s right to make decisions about reproduction & her right to
security in and control over her body in order to protect the foetus.

NOTE!! It is considered that outcome of case is correct

 Law grants rights & obligations only to legal subjects
o Since there’s no clear provision elevating unborn’s status to that of legal
subject – the Const can’t be said to have conferred any rights on unborn
children.
An allegation that human life begins at conception is not sufficient basis to argue that a foetus has a
right to life, because “life” is not the determinant in respect of legal personality {IE: determinant is –
is unborn child a legal subject – answer is no!}

There’s no conflict btw unborns const rights & those of preg woman – unborn doesn’t have any rights prior to
birth.

Any const challenge by father of the provisions in Choice on Term of Preg Act (which grants woman sole
right to decide on whether / not preg should be terminated by requiring only her consent to term) would fail
because:
Sec 12(2)(b) of Const:
Guarantees every person the right to security in and control over his / her body – including
persons reproductive powers – therefore – woman has final say re abortion

From point of view of dignity, privacy & gender equality – woman has final say re reproduction.

STERILISATION

Sterilisation Act 44 of 1998:

Permits voluntary sterilisation if over 18 years of age & capable of consenting (whether / not person
married)

Requirements (person over 18 years):

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 1. Free & voluntary consent without any inducement (enticement)
2. Before consenting – proposed plan of procedure & consequences, risks & reversible / irreversible
nature was clearly explained & adequately described and person was advised that consent could be
withdrawn anytime before sterilisation takes place
3. If 1 & 2 are done – consent is given on prescribed form.

Under 18 years – only if not being sterilised jeopardised her life / seriously impaired physical health.
Only performed with consent of parent / spouse / guardian / curator
Desirability of sterilisation must be evaluated by a panel of a psychiatrist (or med practitioner if no
psychiatrist available), psychologist / social work AND nurse.

Sufferer of severe mental disability & is incapable of consenting / incompetent to consent

May only be performed if incapable of:
Making own decision abt contraception / sterilisation;
Developing mentally to sufficient degree to make informed decision abt contraception &
sterilisation;
Fulfilling parental responsibilities associated with giving birth
Only performed with consent of parent / spouse / guardian / curator & if panel of a psychiatrist (or
med practitioner if no psychiatrist available), psychologist / social work AND nurse concur.

NOTE: When panel considers if sterilisation may be performed – ALL relevant facts taken
into account
 IE: Has person reached 18 yrs of age & is there no other safe & effective method of
contraception?

Method holding smallest risk to patient’s health is always used when performing a sterilisation!

IS THE NASCITURUS A LEGAL SUBJECT?

Nasciturus Fiction Nasciturus Rule

Doesn’t protect rights of nasciturus – but rights of If advantage of nasciturus has she already been born
child who will be born later – all rights conferred upon people are also conferred
Interests are kept open until born. upon foetus – foetus is a legal subject from date of
conception whenever its interests are at issue.

Legal personality beings (i.e. when to its advantage)

Legal personality begins at birth at conception.
Deems birth to have taken place at time
conceived when to advantage of nasciturus if already
was born at time. Unborn child is regarded as a legal subject (when its
interests are at issue)
Unborn child not regarded as legal subject

Writers who support fiction? Writers who support rule?

Cronje & Heaton and Jordaan & Davel Van der Merwe and Van der Vyver & Joubert

Thus, per the NF above, nasciturus is not a legal subject!

THE END OF LEGAL PERSONALITY

Legal personality terminated by death.

(Dead people don’t have rights / obligations)

Law protects deceased body & regulates it’s disposal – not because deceased has rights, but because of
community interests.
Deceased former assets also protected – not in its interests – but in interests of its creditors / heirs.

Criteria in determining a person legally dead:

In our law – not clear – courts rely exclusively on medical evidence to determine if someone has died
and the moment of death.
In med field – death is seen as a process sometimes extending over a period of time &
involves the cessation (stopping) of natural heart, lung & brain activity.

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 Death is a juristic fact having legal consequences – medical expert provides evidence about facts –
decision re death in so far as it has any juristic significance if made by the jurist.

PROOF OF DEATH

NB for 2 reasons:
1. Deceased estate can administered & distributed
2. Surviving spouse can remarry (marriage will be dissolved).

Body is found and identified:

Death proved by certificate signed by med practitioner / magistrate
Once death registered – Director-General of Home Affairs issues official death certificate –
this is proof of death

PRESUMPTION OF DEATH

Person disappears & not certain if he / she is alive

Procedures for obtaining presumption of death order:

1. Common-law procedure

Case brought by way of application in terms of common-law

Any interested party applies to HC in whose jurisdiction missing person domiciled.
Applicant must prove on a preponderance of probabilities missing person is dead.

RD-L unclear abt presumption of death

Our law – rules developed via series of court decisions supplemented by legislation.

Used to follow English rule – absence of 7 yrs.

Later superseded – no fixed period of time required.
Length of absence not only factor & not enough to base presumption of death.

Other factors to be taken into account:

Age / trade or occupation (ordinary peaceful or risk danger attached) / bad health / manifested suicidal
inclinations.

Person’s death not presumed lightly – applicant must bring ALL relevant facts to attention of court.

Become firm practice for court, after hearing application, to set a return date for final order to be made.
Applicant ordered to give notice of rule nisi to those interested parties indicated by the court & to publish it in
Government Gazette & newspaper in area where missing person used to live – enables interested parties to
object / bring further facts that could rebut / strengthen presumption of death.

Case name: Re Beaglehole

Facts:
Testator left small amt of money to a beneficiary. Executor paid money to master of HC because beneficiary
couldn’t be traced. Executor applied for order authorising master to pay money to him to distribute among
testators remaining heirs. It was alleged that beneficiary hadn’t been heard for over 15 years and presumed
dead at time money paid to master & such payment was made in error.

Legal Q:
Can beneficiary be presumed dead merely because not heard of for over 15 yrs?

Judgement:
Beneficiary not assumed dead.

Reason for judgement:

Not hard and fast rule of RD-L that court bound to presume death after lapse of any fixed period of years,
even though some CL writers laid down different time periods.
Matter is entirely one for discretion of judge.

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Judge should take into consideration age at date of disappearance, position in life, occupation, whether
exposed to any special risk / danger, etc. and deal with each case upon its merits.
Even though the question was one of evidence and our law of evidence is, by statute, Law of England, our
Evidence Procedure doesn’t cover a case of this kind and therefore not bound to follow English rule (i.e. 7
yrs).
Not sufficient to make order by merely considering the period of time person has been absent.

Case Name: Ex Parte Pieters

Facts:
Applicants father disappeared – applicants mother died and left money to his father & it was deposited to him
in the Guardians Fund.
Applicant applied for order to presume father’s death and alternatively, an order against master of HC to pay
children money, provided they give security for it.
Rule nisi granted – no responses.
At time applicant’s father would have been 73 yrs old.
No other factors indicated he could be dead.

Legal Q:
Can applicant’s father be presumed dead based merely on the passing of time?

Judgment:
No order made to presume father’s death.
But, master authorised to distribute money held in Guardians Fund equally to father’s children without them
having to provide security.

Reason for judgment:

Pointed out general rule of our law that mere prolonged absence won’t persuade court to issue presumption
of death order.
But, there are 2 exceptions to the rule:
1. when the intervening of time has made it extremely unlikely that person in question is still alive
2. when there’s evidence that person probably died as result of accident / suicide / homicide
Mysteries as to whys and wherefores of fathers disappearance cannot serve basis for excluding all
explanations, save that of death.
Money = R6,148.14: amount each gets so small court doesn’t require security.

2. Statutory Procedure

(a) Inquests Act 58 of 1959

Sec 5(2) – if magistrate of opinion someone’s death is not due to natural causes – take necessary steps
to ensure an inquest (investigation) to circumstances and cause of death is held by Judicial Officer in
terms of Sec 6.

If corpse available – district surgeon examines it to determine cause of death.

If body not found / alleged to be destroyed & evidence proves beyond a reasonable doubt person
is dead – Judicial Officer records findings with respect to:
a. deceased identity
b. cause / likely cause of death
c. date of death
d. if death caused by act / omission which involved / amounted to an offence by someone
If Judicial Officer unable to record any such findings, that fact must be recorded!

If regional magistrate / magistrate recorded finding re ID and date of death – must submit record of
inquest with any comments for review to HC having jurisdiction in are inquest was held.
If HC confirms finding, effect is same as if order presuming death was given.

2 aspects of Act:
1. State takes initiative because unnatural death suspected. (Sec 18(3) provides procedure
laid down in Act doesn’t affect courts CL jurisdiction to grant an order presuming death).

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 2. Sec 16(1) – Judicial Officer must be certain beyond reasonable doubt person dead – onus
of proof is more difficult than CL procedure!

(b) Aviation Act 74 of 1962

Sec 12(1) – if aircraft involved in accident in / above Republic / it’s territorial waters / any SA aircraft
involved in accident anywhere:
Minister of Transport can appoint a board of inquiry to investigate accident.

If accident involves loss of life investigated by a board consisting of a judicial officer only, or of which
judicial officer is a member – inquiry may be a joint inquiry by board and inquest under Inquest Act.
Same procedure in respect of Inquest Act is followed.

If investigating board hasn’t been appointed / doesn’t find its proved beyond reasonable doubt
someone’s dead – interested party can at own expense approach court 4 presumption of death
order.

EFFECT OF PRESUMPTION OF DEATH ORDER:

Rebuttable presumption that person is dead – court who pronounced presumption can set aside original
order if due to further evidence clear that missing person isn’t dead.
This can be done on application of any interested party / person herself.

After death official presumed:

Estate can be dealt with as if dead & administered & divided among heirs. Courts have sometimes adopted
cautious attitude & ordered that heirs must give security to restore property if person returns.

Dissolution of Marriages on Presumption of Death Act 23 of 1979 –

Sec 1
A separate application for an order dissolving marriage may be made by surviving spouse –
court can’t grant order on its own initiative.
Court has a discretion – but improbable if presumed death won’t dissolve marriage.

Result: marriage is deemed dissolved by death for all purposes

Personal & patrimonial consequences of termination of marriage same as if dissolved by death of
one spouse.

Sec 2
If inquest was held & finding made in terms of Inquests Act
If regional magistrate / magistrate finding in terms of Inquests Act about missing persons
death confirmed by HC – persons marriage deemed to have been automatically dissolved
from date recorded in courts findings as date person died. NOTE: No special application
need be made for dissolution of marriage.

In certain cases – court may be of opinion that circumstances do not justify granting an order presuming
death, but may order missing person’s property to be divided among heirs – provided they give security &
even may appoint a curator bonis to administer her affairs.

If transpires person is alive – any interested party / person itself can approach court of order that estate not
be divided further & order presuming death be set aside.
Anyone who received benefits must either return benefits / their value – if don’t – could be sued by
means of enrichment action – condictio indebiti.

Only HC of area where missing person domiciled a time disappeared has jurisdiction to pronounce / set
aside order & such order is binding on whole world.

In re Kannemeyer – K had been missing for 28 yrs. Because there was insufficient evidence of death the
court merely ordered a division of his estate subject to the provision of security.

PRESUMPTIONS RE SEQUENCE OF DEATH

If several people die in same disaster:

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 May need to know who died first to determine if one inherited from the other – can only inherit if alive
at time other person died.

RD-L: several rebuttable presumptions operated when members of same family died & it was hard
to establish who died first.
This is not accepted in SA law
General rule: if sequence cannot be proved on balance of probabilities – there is no presumption
either of survival / simultaneous (at same time) death.
Only if there is evidence to the contrary – otherwise courts will find all died simultaneously.
No witnesses = court can’t do anything else!

REGISTRATION OF DEATHS

Births and Deaths Registration Act 51 of 1992

Every death to be reported to Dir-Gen of Home Affairs / duly appointed representative – if death due
to natural / other causes. Notice must also be given of stillbirth.

If someone died of natural causes – anyone present at death / became aware of it / in charge of funeral must
notify Dir-Gen.
Notice given by medical certificate (medical practitioner who attended to deceased / examined
corpse / by means of prescribed notice)

If someone died of unnatural causes – medial certificate may not be issued & matter must be reported to
police. Inquest will then be held.

Stillbirth – medical prac present at stillbirth / examed corpse notify Dir-Gen. If no medical prac present /
examined corpse – duty falls on anyone who was present at stillbirth.

Once death registered – Dir-Gen issues official death certificate.

DUTY TO BURY

No one can be buried / cremated before burial order issued in terms of Births & Deaths Reg Act
Burial order issued once prescribed notice of death given

If deceased left written / verbal instructions on funeral and or burial place – these must be followed as far as
possible & permissible.
Verbal instructions – must be clear proof
If no instructions – heirs have right & duty to make funeral arrangements & determine deceased resting
place.

FACTORS WHICH DETERMINE STATUS

“Status” = a person’s “standing” in the law determined by attributes a person has / condition he finds himself
to which the law attaches legal consequences. Factors:
1. Domicilie
2. Extra-marital birth
3. Youth
4. Physical illness or incapacity
5. Mental illness or incapacity
6. Intoxication
7. Prodigality
8. Insolvency

Status is aggregate of person’s capacities & determines his capacities.

Most NB capacities:
1. Legal capacity (to have rights & duties)
2. Capacity to Act (to valid perform juristic acts by which rights & duties are acquired / disposed of)
3. Capacity to Litigate (to enforce rights & duties in a lawsuit)
4. Capacity to be held accountable for crimes & delicts

1. Legal Capacity

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 All human beings have this capacity irrespective of their personal qualities.
There’s only a difference in their status if one has rights & duties that the other cannot have.

Legal capacity doesn’t extend equally far –

Some legal subjects can’t have rights / duties at all / cannot have certain rights / duties at a
specific moment = limited legal capacity (i.e. children under 7 yrs).
These legal subjects don’t have no legal capacity – but rather they are still capable
of having rights & duties – but their legal capacity is limited in so far as they cannot
have rights and duties.
No legal subject can be entirely without legal capacity!!

2. Capacity to Act

Capacity to perform valid juristic acts – “valid juristic act” = human act to which law attaches some of
the consequences desired by the party / parties performing the act – therefore – can only be brought
about if law attaches consequences to a person’s declaration of intent.

Certain level of intellectual development required:

Some people have no capacity to act (i.e. below 7 yrs / mentally ill) – law, for their own
protection, doesn’t attach any validity to their expression of will.

Minors btw 7-21 yrs = limited capacity (considerations underlying the limitations on capacity to
act may vary) – considered not to have necessary maturity of judgment
& therefore must be protected by law.

NB!!! NOTE: Age of majority was 21 yrs in terms of Age of Majority Act (Sec 1) – new
Children’s Act 38 of 2005 repeals & replaces Age of Majority Act (came into force 1 Jul 07)
– age 18 yrs!!!

3. Capacity to Litigate

Capacity to appear in court as party to a lawsuit.

Close connection btw capacity to act & litigate

Argument by authors:
Everyone has all three above capacities.
Infants & mentally ill do not have capacity to act / litigate on own behalf
Though they can’t perform certain juristic acts at all – there are some acts that can be
performed on their behalf - they actually perform the acts because their parents / curators
act as their functionaries.
What they lack is capacity to personally perform the act.

Similar argument:
Re capacity to litigate – person lacks capacity to personally litigate – but doesn’t altogether lack
capacity to litigate.

These approaches shouldn’t be followed.

4. Capacity to be held accountable for crimes & delicts

Accountability – age / mental condition – fault in the form of either intent / negligence is requirement
for criminal / delictual liability.
Coincides with capacity to act & litigage.

No one can change the capacities arising from his status on his own – he may however, change his status in
certain aspects (i.e. by changing his domicilie).
Only HC competent to give judgments re status.

DOMICILE

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Law which determines person’s private-law status is the law that is in force at the place where that person is
domiciled.

Definition of “domicile” =
Place a person is legally deemed to be constantly present for purpose of exercising rights & fulfilling
obligations – even in event of persons absence.
One element = permanent “residence”
“residence” or to acquire domicile in legal sense person must have intention of settling at
place for an indefinite period.

Importance of domicile:

Domicile affects following aspects of private law:

1. Whether child legitimate / extra-martial is determined by law of child’s domicile of origin

2. Law of succession:
a. Law of intestate succession of country deceased domiciled at time of death determines how
movable property should devolve if dies intestate
b. Domicile of testator at time executed will determines if she has capacity to dispose her
movable property by means of that will
c. To determine if someone has capacity to inherit
d. Determines system of law to which a will is to be interpreted – if testator didn’t indicate
specific system of law – law of place where testator domiciled when will executed prevails.

3. Marriage – domicile of the man dictates what martrimonial property regime of marriage will be (i.e. in
community of property, etc) > this principle is unchangeable and is not influenced by husband’s
change of domicile after the marriage.

4. Law of procedure – determines which division of HC has jurisdiction

a. Plaintiff must sue defendant in court having jurisdiction in area where defendant domiciled.
b. Matters re person’s status heard by court having jurisdiction in area person is domiciled.
c. Factor in determining “international jurisdiction” of foreign court in order to recognise &
enforce order of such a court.

General principles governing domicile:

Domicile Act 3 of 1992 came into operation 1 Aug 1992.

Not retrospective (not made to apply to past as well as future)
It doesn’t affect any right, capacity, obligation or liability acquired / accrued / incurred by
virtue of domicile person had before 1 Aug 92 & doesn’t affect legality of any act performed
before that date.

3 basic principles that govern domicile =

1. Every person must have a domicile at all times

Person’s status largely dependant on domicile.
Law cannot allow person to be without domicile at any time.

2. Changing of person’s domicile is never accepted without proof

Change of domicile must always be proved on a balance of probabilities.

3. No one can have a domicile in more than one place at the same time
Logical if you consider 1 above.

Kinds of domicile

1. Domicile of origin (domicilium originis)

Domicile law assigns at birth.

In past > person’s domicile revived if abandoned domicile of choice without assuming a new one.

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 This was changed by Domicile Act >
S3(1) – no one loses domicile until acquired another one, whether by choice / operation of
the law.
S1 – person’s domicile of origin does not revive, but can have domicile where domicile of
origin was if acquires domicile of choice or if doesn’t have capacity to acquire domicile of
choice – law assigns a domicile (because most closely connected with that place).

Because of Domicile Act – Domicile of origin has lost it’s significance – only function – first domicile
assigned to person – categorised as example of domicile by operation of law.

2. Domicile of Choice (most important kind!!)

Domicile someone who has capacity to act chooses for herself by exercise of own free will.

Domicile Act – Sec 1 – Regardless of sex / marital status:

everyone over 18 yrs and
everyone under 18 yrs who legally has status of major
is competent to acquire a domicile of choice
unless lacks mental capacity to make rational choice.

VERY NB!! In the past:

At common law a wife automatically acquired husband’s domicile at marriage & followed it whenever
he changed it, irrespective of whether she was present at that particular place / had intention of
residing there permanently = domicile of dependence.
Children also had domicile of dependence – domicile of guardian (in old days was the father)

Two further requirements:

A. Factum requirement = person must actually settle at particular place
B. Animus requirement = person must have intention of residing permanently at that place

A & B must at some time exist simultaneously (at same time) but don’t have to come into being at same
time.

A. Factum Requirement

Domicile Act – only lawful presence >

Illegal alien (prohibited immigrant) can’t acquire domicile of choice in SA even if has intention
of living there permanently.
Van Rensburg v Ballinger : court held prohibited immigrant whom authorities permit to
reside in SA could acquire domicile of choice here.

Persons deported from SA lose their domicile even if intend returning – because return would be
unlawful.

If person leaves place of domicile to escape from process of the law (i.e. fugitive of justice) – does
not lose domicile – this is so to prevent fugitive from relying on courts not having jurisdiction to hear
matter, and then escaping consequences of misconduct.
In this instance – fugitive’s residence not been rendered unlawful; he has fled to escape
legal consequences of actions – this case thus differs from illegal alien.

When establishing if person’s residence meets factum requirements:

Situation viewed objectively (not influence by personal feelings & opinions)
If established person was physically present at place where intended to stay &
residence was lawful, duration of physical presence irrelevant.

Courts sometimes consider duration of physical presence to reach from facts / reasoning whether
person intended to remain in specific place.

Once domicile of choice established – person’s continued presence is not required.

B. Animus Requirement

Subjective test applied = intention of person determined.

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Uncertainty about “permanently” as requirement of intention:
Common-law = sometimes intention not to leave particular place & other times, intention of residing
permanently at place.
There was also no unanimity in courts on degree of permanence person had to envisage for
requirement to be met.
Judge of Appeal Williamson = intention of residing permanently when settling at place, in
sense that person didn’t have intention of limiting the stay.
Now = Sec 1(2) Domicile Act > intention of settling there “for an indefinite period”
Person can thus satisfy requirement even if envisages moving at unknown future
time.

Person must be able to carry out intention of settling at place:

 Military staff;
 Diplomats;
 Public servants;
 Employees of foreign governments / businesses;
 Prisoners
Were initially considered incapable of acquiring domicile of choice at place stationed, posted /
imprisoned because their employees / state determined where they are to reside & they therefore
can’t give effect to intention of settling at place.

Domicile Act doesn’t deal with this – no provision excludes person whose presence at place is not by
choice, from acquiring a domicile of choice there.
Argued that:
1. Like anyone over 18yrs who has required the mental capacity – competent to establish a
domicile of choice in terms of Sec 1 of Act.
– Cronje & Heaton support this approach: mere fact someone has been posted to / is
stationed / imprisoned at place should not render her incapable of complying with the
animus requirement.
2. Act doesn’t expressly state that such people can meet animus requirement even though
their employment / imprisonment limits their ability to give effect to their intention, the CL still
applies.
i. CL position is as follows:

1. Military staff:

Used to be = can’t acquire domicile of choice in SA, no matter how much

wanted to settle here permanently.
McMillan v McMillan – reason for this attitude was that person’s residence
here wasn’t voluntary, but prescribed by foreign power.
Baker v Baker, appellate division – new approach – soldiers could
acquire domicile of choice at place where they are NOT stationed –
but declined to answer question of whether soldiers can acquire
domicile of choice where they ARE stationed. Transvaal & Cape
courts interpreted obiter dicta in judgement as being authority for
the view that this is possible.

ii. Diplomats / Public servants / Employees & Officers of foreign governments or

businesses

Used to be = denied a domicile of choice in SA while in service of foreign

government / business.
Naville v Naville – foreign diplomat can acquire domicile of choice in SA while still in
service of foreign country. – Same applies in respect of other people in this category.

iii. Prisoners

Been argued = can’t acquire domicile of choice at place imprisoned because not
there of own free will.
Nefler v Nefler – prisoner imprisoned for life automatically acquired domicile of
choice in prison.

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3. Domicile by operation of law (assigned domicile)

Sec 2(1) Domicile Act = anyone who doesn’t have capacity to acquire domicile of choice (below 18
yrs not yet majors / don’t have mental capacity to make rational choice) is domiciled at place most
closely connected.
Law assigns domicile at place person is most closely connected by operation of law for as
long as person is a minor / mental capacity lasts

(a) Domicile of a child

Sec 2 of Domicile Act = every child domiciled at place most closely connected. Sec 2(2) =
rebuttable presumption that if child normally has home with one / both parents – parental home
is her domicile.
Domicile assigned to minor if she is unmarried / below 18 yrs and not yet has status of a
major.
“Parents” includes adoptive parents & parents not married – law on longer distinguishes btw
children born in & out of wedlock.

(b) Domicile of a mentally incapacitated who can’t make a rational choice

In past: retained domicile they had when became mentally incapacitated.

Some authors were of opinion – more effective if followed domicile of their curator.
Domicile Act = acquire domicile at place they are most closely connected.

EXTRA-MARITAL BIRTH

Legitimate child: born of parents legally married to each other at time child conceived / born / any
time in between.

Extra-marital child: born of parents not legally married to each other at time child conceived / born / any
time in between. (Aka – born out of wedlock / illegitimate).

Categories of extra-marital children

Natural children Adulterine children Incestuous children
Born of parents not married to One / both parents were married Born of parents who could not
each other at time of conception / to someone else at time of child’s have been married to each other
birth / any time in between. conception. at time conceived because they
Parents could validly have married were too closely related.
each other.

Artificial Fertilisation (assisted reproduction / assisted fertilisation):

Conception which occurs in a way other than through sexual intercourse between a man and woman.

Children procreated by artificial fertilisation of a woman with her husband’s semen are legitimate, regardless
of whether / not husband consented to his semen being used.

In the past…
Children procreated with semen of a man other than the husband of woman fertilised were extra-marital.
Children’s Status Act 82 of 1987 changed this!
Sec 5(1)(a): a child born to spouses who consented to use another’s gamete / gametes
(sexual cells) to artificially fertilise the wife, deemed to be couples legitimate
child.

No rights / obligations arise btw child & gamete donor / donor’s blood
relations – unless – donor is woman who gave birth to chid / husband at
time of art fertilisation.

Sec 5 doesn’t apply to art fertilisation of married woman who doesn’t have husband’s consent > nor to
unmarried woman unless she is partner in same-sex life partnership.

Case name: J v Director General, Department of Home Affairs (held in CC)

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Facts:
Two applicants in same-sex life partnership. Second applicant gave birth to twins conceived by fertilisation
of ova from first applicant with donor sperm.
Both applicants wanted to be registered & recognised as twin’s parents.
Twins “birth mother” = second applicant could be registered as twins mother (there was no legal
impediment)
Births & Deaths Registration Act provides for registration of one male and one female parent
only, the first applicant could not be registered as twin’s parent.
Applicants approached Dbn HC. Court ordered Dir-Gen of Home Affairs to issue birth certificate to
applicants for each of the children, and to register their birth reflecting the second applicant as their mother
and first applicant as their parent.
Court also declared first applicant was natural parent & guardian of children.
Court further found sec 5 of Children’s Status Act unconstitutional.
Because Sec 172(2)(a) of Constitution provides than an order of constitutional invalidity had no force unless
confirmed by CC – applicants approached CC for confirmation of decision of HC.

Legal Q:
Is sec 5 of Children’s Status Act unconstitutional

Judgment:
CC confirmed unconstitutionality of Sec 5 and ordered that it be cured by striking out the word “married” and
reading in the phrase “or permanent same-sex life partner” in several places in the section.

Reason for judgment:

Sec 5 discriminates unfairly against same-sex life partners on the ground of their sexual orientation and that
the discrimination cannot be justified in terms of the limitation clause in the Constitution.

As a result, a child born of art fertilisation of woman who is partner in a same-sex life partnership is now also
covered by sec 5 and is deemed to be same-sex partners’ legitimate child.

NOTE: Children’s Act 38 of 2005 contains similar provisions to Children’s Status Act & it replaces &
repeals Children’s Status Act – it commenced 1 July 2007.

Children’s Status Act extends to surrogate motherhood (woman carries & gives birth to child for someone
else, known as commissioning parent, with the express understanding that child will be given to
commissioning parent after birth).
The SA Law Commission recommended that provisions on the status of children born of surrogacy
be included in its draft Children’s Bill.
In terms of the draft Children’s Bill – a child born to a surrogate mother who entered into a
valid surrogate motherhood agreement (must be in writing & confirmed by the court)
becomes the child of the commissioning parent /parents for all purposes from the moment of
birth. The surrogate mother and her husband or life partner and their relatives have no
rights in respect of child although parties may agree they may have access to child.
Child has no right of inheritance / maintenance against surrogate mother, husband / life
partner / their relatives.

If surrogate motherhood agreement terminated before birth – child is child of surrogate mother & her
husband / life partner from date of birth.

If surrogate motherhood agreement terminated after birth – surrogate mother & her husband / life
partner become child’s parents and the commissioning parents lose their rights in respect of the
child.

NOTE: Children’s Act contains provisions similar to the draft Children’s Bill re surrogacy.

PROOF OF PARENTAGE

(a) Married Persons

Presumed woman’s husband, and not some 3rd party, is father.

Presumption expressed in the maxim “pate rest quem nuptiae demonstrant” (the marriage
indicates who the father is).

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 Presumption can be rebutted by evidence –that child was born out of wedlock.
Right to rebut presumption of paternity can be rebutted at any time – any interested party
can rebut the presumption (not only child’s mother / husband).
Paramount consideration = best interests of child.

Courts hesitant to declare child born to married woman of extra-marital birth:

F v L:
Man applied order declaring him to be child’s father – mother was married to another man. Court
rejected application – it would not be in the child’s interests to be declared of extra-marital birth.
Mother’s husband presumed father on two presumptions: 1. the maxim (above) 2. husband
admitted he had sex with mother during period of conception.
Presumption of paternity which follows upon an admission of sex with mother only applies
when mother is UNMARRIED. In this case – mother was married – only presumption of
maxim should have been applied to mother’s husband. Judge was incorrect in holding that
both presumptions operated in respect of mother’s husband.

B v E:
Mother of child born during marriage to respondent applied for appointment of curator ad litem to
investigate child’s legitimacy – she wanted to have child declared extra-marital. Application rejected
– would not be in best interests of child.

Presumption of maxim applies to chid conceived before marriage but born during its existence AND
a child conceived during marriage but born after its dissolution.
If woman remarries shortly after dissolution of her previous marriage & presumption of
maxim applied – both husbands could be considered father of child born during early stages of
second marriage. Voet only refers to cases where first husband deceased – there seems no reason
why rule shouldn’t be applied to all cases where first marriage is dissolved, irrespective of cause of
its dissolution.

(b) Unmarried Persons

Used to be that if mother named particular man as father & he admitted / it was proved he had sex
with her AT ANY TIME – he was presumed to be the father - didn’t matter how long before child’s
birth intercourse took place.

Legislature intervened – Sec 1 Children’s Status Act =

Man presumed father of extra-marital child only if proved by judicial admission / that he has sex with
mother at time WHEN CHILD COULD HAVE BEEN CONCEIVED.
Presumption is rebuttable. > Once presumption operates – onus on man to prove on balance of
probabilities that he can’t possibly be child’s father. (Insufficient to prove he is probably not father).

Corroboration (supporting evidence) of mother’s evidence – NB – MUST KNOW WELL

In the past…
Courts did not accept mother’s evidence without corroboration.

Rule was rejected by appellate division in Mayer v Williams:

Judge held rule is based on a misunderstanding of RD-L and is an anomaly that in such instances there is a
heavier burden of proof in civil cases than criminal matters.
Court stated that in paternity cases, mother’s evidence should be carefully scrutinised by the cautionary rule
which requires court to recognise the inherent danger of relying upon a complainant’s evidence in respect of
sexual offence & to recognise need for some safeguard reducing risk of a wrong conviction in criminal
proceedings. Judge saw no reason why can’t be applied in civil proceedings. Such safeguard may be found
in corroboration, absence of contradictory evidence or untruthfulness of accused as a witness. Plaintiff’s
testimony doesn’t always require corroboration but it may serve as safeguard.

Above decision in respect of application of cautionary rule to women’s testimony in paternity suits will
probably not be followed in future because it has been rejected in respect of women’s evidence regarding
sexual offences.
In S v J SCA abolished the cautionary rule in rape & other sexual assault cases on grounds that it was based
on irrational & outdated perception & unjustly stereotyped complainants in these cases as unreliable.

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Although it indicated that the evidence in a particular case might call for caution to be exercised, the court
rejected the “application of a general cautionary rule”.

Q for lecturer – so in proof of paternity where mother’s proof of sexual intercourse is concerned –
corroboration is not always required – but may serve as safeguard if court feels it necessary?

REBUTTAL OF THE PRESUMPTION (OR AN ALLEGATION) OF PATERNITY

Factors that can be taken into account when proof sought that a particular man is not the father (legitimate &
extra-marital children):

(a) Absence of sexual intercourse

He was impotent / in another country at time child conceived

(b) Gestation period (time btw conception & birth)

RL – child born btw 180 – 300 days after conclusion of marriage was conceived during marriage
– taken over by RD-L writers.

Today – no fixed period. Courts decide on ad hoc basis – sometimes rely on medical evidence
as to when conception could’ve taken place & other times take judicial notice of “normal”
gestation period (270 – 280 days).
Courts disinclined to declare child extra-marital – thus – long periods of gestation have been
accepted.
Williams v Williams: The Court, in absence of medical evidence, wasn’t prepared to hold
that the 11th month was beyond the period of gestation.
Mitchell v Mitchell: gestation period of 320 days was accepted.

Also – has been held period of 206 days impossible – BUT – due to advances in medical
treatment & increased survival rates of very premature babies – courts may revise their view in
future on min period of gestation.

(c) Sterility
If proved a man is sterile

(d) The exceptio plurium concubentium

If man admits he had sex with mother during time child would have been conceived – but alleges
& proves that woman also had sex with another man / other men during that period.

Who will be held liable for child’s maintenance?

Various solutions:

1. All men absolved (freed from obligation) from liability

Based on argument that if woman can’t prove who father is because she allowed several
mean to have sex with her – there are no legal grounds to hold one man liable.
BUT – it lays the blame fully on the woman, is sexist & unfair & shows a view that is
out of keeping with modern day notions of morality. It also isn’t in the best interests
of the child.

2. All men held liable

Unfair & likely to be abused > it benefits woman (and child) to name as many men as
possible > to be assured of getting maintenance from at least one of them.

3. Man named by mother could be held liable unless he can prove he cannot be father
(i.e. sterile)

This solution is more generally accepted.

Therefore, exceptio plurium concubentium not part of our law today – no avail to a
man to prove other men had sex with mother.

Approach does raise problems:

F v L:

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 Woman had sex with two men during period of conception. She married one of them. A few
years later other man applied for an order declaring him to be child’s father.

Court held:
Woman’s selection is “presumably irrevocable” & that man is absolved from liability once
mother has selected another man. I.E. once mother named (A) the father (B) can rest
assured that he can’t later be named child’s father. BUT – must be borne in mind – child’s
best interests have to be paramount. Wouldn’t be in child’s best interests to exclude
possibility of his having claim for maintenance against (B) who might actually be his father
just because mother named (A) his father. It is therefore submitted that child should not be
bound by choice mother made in respect of naming a man as his father.

Law gives the mother right to choose or appoint the father. Here she chose her husband &
other possible father can’t interfere with that choice.

Position may be different if it were in interests of child that other man be allowed to consent
mother’s choice – but in present case – child’s welfare wasn’t an issue. Effect of order may
not only devastate child – but has serious legal consequences since he would be deprived of
existing right of maintenance against his present father AND any paternal grandparent.

Applicant thus had no right to have child declared extra-marital by having himself declared
child’s father.

It’s submitted that view that mother has right to choose father should be reconsidered.
Today sophisticated blood & tissue tests can be used with very high degree of accuracy
whether man is child’s father.

Cronje & Heaton suggest that it would be more satisfactory for all parties if father’s identity
could be established by a more objective test than mother’s choice. Giving mother right to
choose father violates possible father’s rights to equality before the law, equal protection &
benefit of the law. However – best interests of child should always be main concern.

(e) Physical features

How much child resembles those of alleged father doesn’t have much weight – can be
considered – with other factors.

(f) Contraceptives
Evidence of use during sex is not recognised as sufficient proof.

(g) Blood & Tissue tests

Where blood tests done voluntarily:

Case 1: Ranjith v Sheela: mother’s husband alleged he didn’t have sex with wife at time
child conceived. Blood tests were performed on husband, wife & child – accepted
as sufficient proof husband not child’s father.

Case 2: Van der Harst v Viljoen: plaintiff averred that defendant had sex with her, of which
defendant denied. Results of blood tests done on defendant, his parents, plaintiff
& child corroborated her evidence & showed overwhelming probability that
defendant was child’s father. Evidence was accepted.

Developments in field of medical science have rendered these tests accurate enough to indicate
almost with certainty if man is father. In M v R medical doctor stated in affidavit which served as
evidence that statistical probability of man being father could be as high as 99.9%.

For this reason – legislator created presumption in Sec 2 of Children’s Status Act against
person who refuses to submit to taking a blood test in cases where paternity in dispute – it
shall be presumed, until contrary proved that such refusal is aimed at concealing truth re
paternity of child.
It formulated legislation in terms of law of evidence – notwithstanding fact that this
didn’t eliminate uncertainty about courts powers to order persons to submit to
blood tests.

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 Reasoning was to indirectly compel parties to co-operate on own accord to
determine parentage by blood tests. Makes it unnecessary to force court to
issue order for parties to submit to blood tests - while not stopping legal
development re power of court to order blood tests where it is deemed
desirable.
Since Children’s Status Act – increase in litigation on blood tests in paternity disputes & position re ordering
blood & tissue tests more uncertain today than before Act commenced.

UNCERTAINTY WHETHER COURT CAN ORDER A CHILD TO BE SUBMITTED TO SUCH TESTS:

Case May May Not

name
SvL Court doesn’t have power to interfere
with decision of child’s parent not to
submit child to blood tests, even if court
would have come to diff decision.
OvO Court, in it’s capacity as upper guardian of all minors may
authorise tests on minor despite objections by child’s
custodian.
MvR HC as upper guardian of all minors has jurisdiction when
appropriate, to consent to blood tests being performed on
minor & even to order minor be subjected to blood tests against
wishes of parent / guardian, provided such tests are in minor’s
interests. (Made ref to Seetal case – below). Re factors to be
taken into account – court cannot take cognisance only of
child’s immediate circumstances & ignore everything else as
this would ignore other considerations like court should always
endeavour to establish the truth and everyone puts high
premium on his right to privacy. Test must be same as that
applied in custody disputes – interest of child are most NB
factor to consider & all other considerations must be
subordinate & they are not only factors to be taken into
account.
Seetal v Court has power to authorise a blood test on a child in a
Pravitha paternity case despite objection from child’s guardian. Court
emphasises it must act in interests of child. In present case
court pointed out that if blood test were to disprove mother’s
husband’s paternity, child would be of extra-marital birth & lose
his right to claim maintenance from mother’s husband. Court
held it would not be in child’s interests & declined to order a
blood test.
Nell v Undecided
Nell

UNCERTAINTY WHETHER COURT CAN ORDER AN ADULT TO BE SUBMITTED TO SUCH TESTS:

Case May May not

MvR Court held – dealing with conflicting interests –
one hand – pursuit of truth – other hand – right
to privacy. Held that it was within its jurisdiction
to compel mother & she should be ordered to
do so. Following factors played NB role in
courts decision:
1. In child’s interest to establish if applicant is
his father
2. Nowadays, tests are a reliable aid aid in
resolving paternity dispute & results are
admissible as evidence in court of law.
3. Ideal of every court to establish truth as
far as possible.
4. Although taking blood samples infringes
mother’s right to privacy – court felt that –

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 as child’s guardian – mother should act in
child’s interests – even if conflicted with
her own interests.
Nell v Application was based on 2 grounds
Nell 1. Applicant relied on clause in agreement btw him &
wife re parties understood to submit to blood tests to
establish child’s paternity.
Court refused order because papers contained no
details of tests to be done on mother – court thus
didn’t know how much of human body would be
removed & from where it would be removed.

2. Court has power to regulate its own procedures.

Argued that court could order an unwilling adult to
submit to a blood test because court may search for
& collect evidence, which is a procedural matter.
Argument rejected by court – ordering someone to
submit to a blood test is not merely a procedural matter
because order also affects principles of substantive law
because test involves violation of person’s bodily
integrity. Court pointed out that it doesn’t have power to
create substantive law & argued that it could be very
difficult to draw dividing line btw substantive & procedural
law. Where this line couldn’t be clearly drawn – a
remedy was probably not available. Further held that
even if ordering blood test were purely procedural matter
– would still not grant order since would not be in
interests of child.
SvL Applicant shouldn’t have approached HC for order
requiring mother & child to submit to blood tests.
Applicant should instead have proceeded in
maintenance court & adduced proof of mother’s refusal
in that court. If refusal found without adequate reason –
applicant could have relied on truth re paternity of child.
Father would then not have been ordered to pay
maintenance for child. Argument is unsatisfactory.
Although application of presumption in Children’s Status
Act may mean man in whose favour presumption
operates doesn’t have to pay maintenance – still doesn’t
answer question of whether / not he really is child’s
father – which may be issue he actually wanted to
resolve.
Seetal v Undecided – unnecessary for the present case to decide this.
Pravitha
OvO Undecided: – There is no statutory nor common-law power enabling court to order adult to allow a blood
sample to be taken for purpose of establishing paternity. Court didn’t have to decide matter as found that
taking blood tests wouldn’t be in child’s interests.
Dvk Sec 14 of Constitution = every person has right to
privacy
Sec 12(2) Constitution = every person has right to bodily
and psychological integrity, which includes right to
security in & control over ones body
Question is whether a court order compelling someone
to submit to blood & tissue tests unjustifiably infringes
above rights?
An order compelling person to submit to blood
test would infringe the person’s constitutional
right to privacy (based on interim constitution).

Note: Sec 12(2) is a new constitutional feature – courts

may in future be hesitant to order blood / tissue tests in
paternity suits on ground that such violate constitutional
right to privacy AND bodily integrity. But, Sec 28(2) =

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 best interests of child must be of paramount NB in every
matter concerning the child. Therefore – infringement of
rights to privacy & bodily integrity justifiable if in best
interests of child to determine paternity by ordering
someone to submit to the test.

UNCERTAINTY WHETHER COURT CAN TAKE JUDICIAL NOTICE OF TECHNIQUE & RESULTS OF
BLOOD TESTS:

Case May May not

Nell v Nell Court refused an order for blood tests because papers contained no details of tests
to be done & thus did not know how much of human body would be removed &
from where it would be removed.
SvL Judgement in court a quo in S v L – was of view that court could take judicial notice
of blood tests. Full bench doubted whether this approach was correct & expressed
its misgivings as to whether developments in technique of blood testing had
advanced to such degree that judicial notice could be taken of fact that blood tests
could exclude a man as the father with a 99.85% probability of accuracy & that if
he was not excluded, he probably was the father.
Submitted court a quo was justified in taking judicial notice of technique & results of
blood tests since value & accuracy of blood & even tissue tests is widely
recognises these days.
In terms of Sec 21 of Maintenance Act – court may even order state to pay full /
part of costs of scientific tests to determine paternity if both parties agree to submit
to tests but cannot afford it – surely then – courts should be prepared to take
judicial notice of technique & reliability of blood & tissue tests if legislature
considers these tests accurate enough to warrant the state bearing the costs.
Note: Anyone who approaches court for an order compelling someone to submit to blood or tissue tests would be well
advised to submit full details to court of exactly what test entails. In S v L – fact that papers didn’t contain any info re
precise nature of proposed tests was NB factor in courts refusal to grant the order (also in Nell v Nell & D v K).

Case Study: M v R
Applicant (he) & respondent (she) had sex on regular basis. Respondent said she was virgin when they met
– applicant denied this by alleging she had another boyfriend at time – she denied. After some time, she
informed applicant she was pregnant – child (S) was born. Applicant paid maintenance for 8 yrs.
Respondent informed him that she wanted to claim increased amt of maintenance. Applicant applied for
order compelling respondent & child to submit to blood tests to be certain whether he could / couldn’t be
father. Respondent opposed application. 3 yrs after birth – respondent married R – child accepted & loved
mother’s husband as own father. Respondent & husband planned to tell child following year that applicant
was father. Because of this, court held that If it were done this way & it appeared later through some way
that applicant was not father, child would suffer extreme psychological damage which should be avoided at
all costs. Court felt crucial for child’s development & happiness that clarity re applicant’s paternity be
reached & granted order & was prepared to order mother & child to submit blood tests.

Case Study: S v L
Appellant (mother of 10 yr old child, L) alleged respondent was father. Since child’s birth respondent had
from time to time paid maintenance. He alleged that despite these payments – he never admitted paternity,
but admitted he had sex with appellant at time child conceived – but contended he was not the only one.
Appellant applied to maintenance court for an increase in maintenance amount. Application was opposed by
respondent, who requested appellant & child submit themselves to blood test to establish if he was father.
Although appellant previously consented to such tests, she now refused. Respondent applied to HC for
order compelling appellant & child to submit themselves to the tests. Order was granted. Appellant
appealed against this order to the full bench – appeal was allowed.

Legal Q:
Can the court compel a mother and / child to submit to blood tests to establish who the father is in paternity
disputes?

Judgement:
Appeal was allowed – order not granted for appellant (mother) & child to submit to the tests.

Reason for judgement:

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Papers are totally lacking info re precise nature of proposed tests, whether samples of only blood / also other
tissue are required, the quantity of such samples, the method of obtaining such samples, and pain and other
consequences.

Made reference to Seetal v Pravitha & M v R & Nell v Nell case (above).

There’s an absence of any clear & definite authority to follow:

Re mother being compelled:

 Made ref to Children’s Status Act Sec 1 & 2 (above) – legislature wasn’t satisfied that there were legal
means available to compel a party to submit to a blood test, but it doesn’t follow there from that the
Court doesn’t have power to compel the taking of blood tests.

 Fact that appellant refuses to agree to tests will in those proceedings (maintenance court) necessitate
her rebutting the presumption that she is seeking to conceal the truth. Sec 2 doesn’t create a
presumption that man who had placed paternity in issue is not the father of the child. It would appear to
be more in the interests of appellant and child if presumption were avoided by appellant agreeing to
take tests.

 On other hand, Sec 1 – respondent will have to avoid presumption that he is father of L – respondent
here alleges that Lottering is father – but appellant denies having sex with Lottering. Sec 1 provides for
presumption created to operate “in absence of evidence to the contrary” whilst presumption in Sec 2
operates “until contrary proved”.

After considering authorities above: Not satisfied to order mother submit herself to blood test as a
procedural matter nor that Court has power to make such an order.

Re child being compelled against mother’s wishes:

 Referred to Seetal case – court exercises power of upper guardian by supplying its own consent &
may as upper guardian overrule guardian’s objection – but should act purely in interests of child!

 Criminal Procedure Act – court has no statutory power / authority to order blood tests of adults /
minors. Legislator in Children’s Status Act followed recommendation of Law Commission – that
legislation should indirectly (NOT DIRECTLY) seek to compel parties to submit to blood tests. Word
here “compel” not appropriate – presumption that person is concealing the truth can have persuasive
but not compulsive effect.

 Holland court power exercised solely for purpose of appointment of guardians.

 SA courts – acted as upper guardian of minors in disputed issues re custody & not interference with
day to day parental power & control. Courts also assumed power as upper guardian to act in interests
of minor who has no guardian (Coetzee v Meintjies). Court doesn’t have power to interfere with
custodian parent’s decision (Nugent v Nugent) – such a decision in present case is an incident of
custodian parent’s day to day control.

Court does not, in present case, as upper guardian of minors, have power to interfere with decision of
appellant as guardian that child should not undergo blood tests. She gave her reasons for this decision &
even if the court might have come to different decision, Court does not have power to interfere.

Re interests of child > would be more in interests of appellant and child if presumption created in Sec 2 was
avoided by appellant agreeing to take tests. However, even if Court could overrule appellant’s decision on
basis of child’s interests – not satisfied that such order would be in child’s overall interests. (Child knows
she’s illegitimate – at all times recognised respondent as her father – has close connection with respondent
& his son (from present marriage) & other family of his – appellant feels it will create feeling of insecurity if
she subjected to tests – curator ad litem also objected to granting of order sort by respondent.

Not proved by respondent on balance of probabilities that interests of child require Court, as upper guardian
of minors, to order appellant / child to submit to tests sort by respondent, even if Court had power to make
order.
Appeal succeeds.

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TEST TO BE DONE ON CORPSE

Ex parte Emmerson – pregnant woman applied for order authorising performance of DNA test on skin,
blood & muscle samples of man killed in car accident. She alleged that decease was father of unborn child.
Wanted tests to be doen to prove deceased was father so that she can lodge a claim for maintenance
against deceased estate. Order was granted.

Bear in mind: tests were done on deceased person – no longer legal subject – has no rights.
Considerations that exist if request made for order authorising blood / tissue samples to be taken from
corpse are not same as those which arise in case of living person. But – doesn’t mean anyone can now
remove samples from a corpse – this might amount to common-L crime of violation corpse & may violate
community interests & feelings of next-of-kin, which might result in delictual liability.

CONCLUSION:

Therefore – courts reluctant to make order compelling mother to submit herself / her child to scientific tests in
paternity disputes – especially if these prove man who is paying maintenance for child is not father – with
result that child would lose maintenance.
Cronje & Heaton’s view – M v R – correctly rejected this argument – on ground – money which is
wrongly taken from a man who isn’t really child’s father is not a “benefit” that should be taken into
account & protected by court.

STATUS OF THE EXTRA-MARITAL CHILD

1. Parental authority of the mother

Only mother has guardianship & custody.

 If mother unmarried / still a minor – guardianship vests in her (mother’s) guardian – BUT –
she has CUSTODY – unless court directs otherwise.
 If gets status of major by marrying / declaration of majority re Age of Majority Act =
guardianship & custody vest in her – unless court decides otherwise.
 Mother automatically becomes guardian when she becomes a major (i.e. turns 18).
 If mother marries someone who’s not father of child – mother remains guardian

Acts performed by someone under mistaken belief of being natural guardian may be ratified (given
formal approval) by court if performed in child’s interests:
Case study: Yu Kwam v President Insurance Co Ltd
> Father though he was guardian & instituted legal proceedings on child’s behalf – it was
discovered that parent’s marriage was invalid – child was of extra-marital birth. Father
unaware of invalidity of marriage – court ratified institution of legal proceedings.

Registered under mother’s surname – but father may consent to using his surname.
Case study: W v S
> Father of extra-marital child sort order for mother to take steps to change child’s surname
to his. Mother opposed & since father hadn’t placed any evidence that change of surname
would be child’s interests – order was refused.

Child born from a religious marriage not recognised by our law considered legitimate for
registration of birth – registered under surname of either parent / both.

In past…illegitimate children followed mother’s domicile – legitimate followed father’s.

Domicile Act – all children equal – child under 18 yrs is domiciled at place most closely
connected – presumed child’s parental home.

2. Parental authority of the father

(a) General

There is a common allegation that there’s no relationship btw father & extra-marital child, except
that he must maintain child & child has right to claim maintenance from him.

Case study: Van Erk v Holmer

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 Facts:
Applicant (father) & respondent (mother) lived together – child was born of the relationship.
At first – intended marrying, but applicant became less & less enthusiastic re marrying – this
contributed to breakdown of relationship – respondent left application when child was about 2 yrs
– last time application had any contact with child.
After that – respondent refused applicant to visit / see child – appeared to family advocate that
this was due to bitterness because of applicant failing to marry respondent – she was attempting
to punish & didn’t consider if her conduct was in best interests of child.
Applicant applied for order that he be granted reasonable access to child. When matter first
came before the court – it was referred to family advocate – recommended that applicant should
be granted a defined right of access. Parties settled matter – applicant granted a right of
reasonable access to child.

Judgement: Agreement was made an order of the court – because of NB of matter – court gave
reasons for accepting family advocate’s recommendation.

Reason for judgement:

Father’s duty to support extra-marital child based on blood relationship from father’s paternity. It
thus can’t be said father is not related to child. If he is not related to child – should not have
rights NOR duties. It is not logical to view that father is not legally related because marriage
impediments (reason it can’t be entered into) apply to blood relations regardless of whether they
are born in or out of wedlock.

Inherent right of access by natural father to his illegitimate child should be recognised based on
the precepts of justice, equity & reasonableness & the demands of public policy. It should be
removed only if access shown contrary to best interests of child.

Respondent didn’t provide that granting access to applicant will not be in child’s best interests –
her denial seems motivated by her personal animosity towards applicant & not taking account of
child’s interests & NB of maintaining a parental relationship which had been there from child’s
birth for a period of 2 yrs. Judge accepted Family Advocate’s recommendation that access
should be granted to applicant.

S v S disagreed with above case = to say that extra-marital child isn’t related to father is a
shorthand way of sketching the crucial point of the law’s approach which is that the legal
consequences of the natural relationship btw him and his father are reduced to a minimum.

(b) Guardianship & Custody

In terms of the common-L court has power to award guardianship / custody of extra-marital child
to father if in child’s best interest.

From more recent judgments – courts become more favourably inclined towards father & that he
sometimes is favoured over strangers because of his genetic relationship with child.

Cases where father awarded guardianship & custody:

Case study: Bethell v Bland

Facts:
Extra-marital child born (boy - Camdon) to Mathew Bland (father) and Donna Bethell (mother) –
when still minors. Mathew became a major but Donna still minor. Couple terminated
relationship. Donna’s father (Mr Bethell – applicant) applied for custoy of child (he was divorced
from Donna’s mother & had remarried). At time of application child and Mathew were staying
with Blands (respondents). Blands brought counter-application for custoy of child. Mathew
intervened & also applied for custody.

Judgment:
Court awarded custody of child to his father (Mathew). Grandparents & mother should have
reasonable access.

Reason for judgment:

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Expert reports from psychologists & family advocate reviewed by court persuaded it that Mathew
has intelligence, character, sense of responsibility & understanding to exercise custody of child
in manner which will be in child’s interests. Although he doesn’t have adequate financial
resources – parents (as grandparents) recognise moral duty to support & can be relied upon –
they have no legal duty – but their conduct & affidavits assure they will provide whatever
assistance child reasonably requires.

RD-L = guardianship & custody of extra-martial child fell to mother – father has no such
authority.

Children’s Status Act = guardianship vested in Donna’s guardian – Sec 3(1)(b) = “unless a
competent Court otherwise directs”.

Made ref to B v S (summary below) = where a parental couple’s access / custody entitlement is
being judicially determined for first time – there is no onus in the sense of evidentiary burden on
either party. – View was supported in A v C which dealt with access – the position changes only
“if Court directs otherwise”. No indication given of principles which court should act.

Approach of court must be same as when asked to vary an existing custody order – S 8(1)
Divorce Act – order re custody may be varied by Court if court finds there is sufficient reason
therefore.
Applicant must prove on balance of probabilities that variation would be in best interests of
child – there is thus only one norm applicable – predominant interests of child.

McCall v McCall = Court must decide, based on certain factors / criteria, which parent is better
able to promote & ensure his physical, moral, emotional & spiritual welfare.
Inappropriate to allow Donna legal right to custody conferred to her because she is mother &
in terms of Children’s status Act. None of critera in McCalls case wuld receive a negative
response if applied to relationship btw child and father – especially re support father wil
derive from his parents.

Re possibility custody should be awarded to grandparents – made further ref to B v S = father of

extramarital child is a “third party” in a special position & obviously the biological relationship &
genetic factors must favour him over other “outsiders”.

Case: Coetzee v Singh – child was in father’s custody for 3 yrs – father could provide better
accommodation and educational facilities – mother had waived right to custody in best interests
of child.

Wicks v Fisher – mother was prohibited from taking child to UK pending institution of an action
for custody by child’s father in SA. Court didn’t make finding on suitability of father as custodian,
but held he had placed sufficient facts before court to show he had a reasonable prospect of
success in proposed action.

Cases where father not awarded guardianship & custody:

W v S – court denied application by father for an order appointing him as joint guardian with
mother – potential for disagreement & conflict too great & nothing indicated that mother unfit.
Only basis father sought joint guardianship was desire to have more meaningful participation in
son’s life – did not constitute proper basis for granting father joint guardianship / any lesser form
of guardianship. Decision seems correct – granting father joint guardianship probably not in best
interests of child.

National Fathers of Children Born out of Wedlock Act:

Court has statutory power to award guardianship and / custody to father. Doesn’t afford father
any automatic rights re child – but provides HC may, on application by father, grant him
guardianship and / custody and / or access if this is in best interests of child – subject to
whatever condition it sees fit – thus it confirms CL position.
When considering this – court takes following circumstances into account:

1. relationship btw father & child’s mother – history of violence / abuse of each other / child
2. child’s relationship with both parents / proposed adoptive parents or any other person

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 3. effect separating child from father, mother, proposed adoptive parents or any other
person likely to have on child
4. child’s attitude re granting application
5. degree of commitment father shown – particular – lying-in expenses mother incurred
with birth & child’s maintenance from date of birth to date maintenance order made &
exstent he complies with order
6. if child was born of marriage concluded under a system of religious law
7. any other facts – opioin of court to be taken into account

Court may grant sole guardianship / custody to either parent if in best interests of chld. May also
order on death of parent – who sole guardianship / custoy is granted – someone other than
surviving parent will be child’s guardian / custodian jointly with / to exclusion of surviving parent.

Sec 3 provides for institution of enquiry by family advocate after father applied for order granting
him guardianship / custody / access / if such an order to be varied / rescinded / suspended.
Court, any party to proceedings / family advocate can initiate enquiry. Aim of enquiry = enable
family advocate to furnish court with report & recommendations on any matter concerning
welfare of child. Court may NOT grant order until considered family advocate’s report &
recommendations.
Court may also cause investigation if deems necessary & may order anyone to appear
before it. May further appoint legal rep to rep child & parties / any of them to pay costs of
investigation / appearance / representation it orders.

SA Law Commission’s draft Children’s Bill envisages replacement of Natural Fathers of Children
Born out of Wedlock Act by new set of rules which automatically confers parental responsibilities
& rights on father if he:
(NOTE: Provisions of Children’s Act differ from above)

SA Law Commission Children’s Act

Lived w chlid’s mother at any time after child’s birth At the time of child’s birth he is living with mother in a
for period of at least 12 months / for periods which permanent life-partnership
together amount to at least 12 months
Cared for child with mother’s informed consent for Regardless of whether he has lived or is living with
period of at least 12 months / for periods which mother, consents to be identified as child’s father,
together amount to at least 12 months and:
1. contributes to / attempted in good faith to
contribute to child’s upbringing for a
reasonable period; and
2. contributes to or has attempted in good faith
to contribute towards child’s maintenance for
a reasonable period.
This section applies regardless of whether child born
before or after commencement of Act (s21). Sec 21
came into effect 1 Jul 07.

Father who falls outside above categories can get parental responsibilities & rights by entering formal
agreement with mother, setting out responsibilities & rights conferred. Agreement takes effect only if
registered with a child and family court registrar / made an order of court on application by parties to it.
Agreement may only be amended / terminated by court order.

Grandparents / parent’s life partner can obtain parental responsibilities & rights only by a court order
assigning full / specific parental responsibilities & rights to them (also available to father). Courts consider
following factors:

1. relationship btw applicant & child & any other relevant person & child;
2. degree of commitment applicant has shown;
3. extent applicant contributed to expenses re child’s birth & maintenance;
4. any other fact – opinion of court – to be taken into account

Assignment of parental resp. to one person doesn’t affect resp. & rights another has re child.

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If one / more persons has parental resp. & rights – each exercise those resp. & rights w/o other person’s
consent – some transactions requires consent of all persons who are co-holders re particular parental resp.
& rights it acquired.
A co-hold of parental resp. & rights may apply to court for order suspending / terminating /
extending / circumscribing any / all of another’s parental resp. & rights. Such application may also be made
by any other person who has sufficient interest in care / protection / well-being / development of child / family
advocate / representative / any interested organ of state. With courts consent – application can even be
made by child / someone acting in child’s interest. Following factors taken into account:

1. relationship btw child & person whose parental resp. & rights are challenged
2. degree of commitment persons has shown towards child;
3. any other fact – in opinion of court – take into account.

(c) Access

Based on authority of two old decisions – Matthews v Haswari & Wilson v Ely – some authors viewed father
has a right of reasonable access to child.

Now days - Most courts have held father doesn’t automatically have right of access to child – not even if he &
mother were living together at time child was born based on the fact that access is a component of parental
authority & father of extra-marital child doesn’t have a right of access because CL provides he doesn’t have
parental authority. Nor does paying maintenance afford father a right of access. This view was approved by
the appellate division – B v S.

In most cases – father of an extra-marital child, like any other 3 rd party, may apply for access and will be
granted this right if he can satisfy the court that access is in the interests of the child.

In some cases – right would not lightly be granted:

Douglas v Mayers = access will not be granted to father unless there’s a very strong ground
compelling court to do so.
F v B = court will only grant father access in exceptional cases in which considerations relating to the
interests of the child compel it to do so.

Above qualifications were rejected:

B v P = accepted finding in F v L – father of extra-marital child doesn’t have an inherent right of

access to child – but – all father needs to do to be granted a right of access is prove on a
preponderance of probabilities that access is in child’s best interest & will not interfere unduly with
mother’s right of custody. Courts decision will depend on the facts – question simply is whether
access is in the best interests of the child. If it is, access will be granted and if it isn’t – it will be
refused.

B v S = appellate div agreed with decision in B v P & further stated re parents’ access / custody that
there is no real onus in the sense of an evidentiary burden on either party. The litigation is more in
the nature of a judicial investigation as to whether access is in the best interests of the child. To
establish this – court can of its own accord call evidence – irrespective of the parties wishes.

Despite full bench decision of Transvaal Provincial Div of HC in B v P:

Van Erk v Holmer (Witwatersrand Local Div) = Courts should recognise an automatic right of access
& access should only be denied if it would violate best interests of child. Argued that old authorities
are silent on this matter & there is no legislation, precedent / custom. Therefore, court has to decide
in accordance with priniciples of reasonableness, justice, equity & the boni mores. Social mores &
attitudes have changed & social realities of modern society are totally different from those of earlier
times. Child’s best interests demand no distinction be drawn btw legitimate & extra-marital children.
Emphasis should be on child’s right to have access to both parents rather than father’s right of
access to child. It is grossly unfair to deny a father who is compelled to pay maintenance for his
child & who is prepared to devote himself to the interests of the child, the right to see / visit child.
Access to a child should not always be regarded as an incident of parental authority – it can be said
in the case of a legitimate child – but – it can’t be said that where access has been granted to a
father of an extra-martial child because it is in the child’s best interests that the court has conferred
parental authority upon father.

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 Above decision was rejected:

S v S (Witwatersrand Local Division) = judge in Van Erk v Holmer should have followed the full
bench decision in B v P because of the stare decisis principle. Court can develop the law to suit
justice when it is bereft of binding legislation, precendent / modern custom. It could not be said that
our law was bereft of precendents. The fact that no old authrotiy gives father of an extra-martical
child right of acess to child is a strong indication that no such right exitst – this accords with position
in European legal systems & Muslim & customary law. Public policy doesn’t demand that an
inherent right of access be granted.

B v S (appellate div) = Judgement was obiter. Court accepted family advocate’s recommendation
that access be granted to father. Parties then settled matter on basis that father be accorded
reasonable access & their agreement was made an order of the court. Court was requested to give
reasons for accepting family advocate’s recommendation. Court agreed – judge reasons really
comprise of an opinion. B v S considered reasons as if they amounted to rationes decidendi &
concluded that, according to CL, father’s right of access depends on parental authority. Father of an
extra-martial child doesn’t have parental authority – he thus doesn’t have an inherent right of access,
although he may be granted access if in the best interests of the child. If this position was
unsatisfactory – it was task of legislator to remedy it as court’s function was to explain in detail, not to
legislate. It is in appropriate to speak of a parent’s right of access because not parental right of
access will have any meaning if its exercise will be detrimental to child’s welfare. Only if access is in
best interests of child can it be granted. Child’s right to have access / be spared access determines
whether contact with non-custodian parent be granted. If one is to speak of an inherent entitlement
at all, it is that of the child, not the parent – thus – there’s no real difference btw positions of father of
legitimate & extra-martial child. Where court has to decide whether / not to grant access – father
would have to inform court of degree of commitment should towards child, degree of attachment btw
him and child & reasons for applying order.

T v M (appellate div) = followed B v S = would normally be accepted that once a natural bond btw
parent & child – whether legitimate / extra-marital – established – would be in child’s interest that
relationship be maintained, unless factors show child’s welfare demands contact with parent in
question be terminated.

Natural Fathers of Children Born out of Wedlock Act:

Enacted shortly after above decisions by appellate div. Act confirms CL position by declaring that the
court may grant the father rights of access and / or custody and / or guardianship if it is in child’s best
interests. If provisions of draft Children’s Bill re father’s parental responsibilities & rights become law
– position would change for the better.
NOTE: Children’s Act is now similar to Children’s Bill & replaced Natural Fathers of Children
Born out of Wedlock Act.

Case study: BvP

Facts:
Appellant was father of extra-martial child. When child was born – appellant & respondent lived together.
After a while – they separated & child lived with mother. Mother permitted appellant to see child & take her
to his home. Then she refused to let him see / speak 2 child. Father applied for order that he was entitled to
reasonable access. Application was dismissed in court a quo.

On appeal to the full bench it was held that father had to prove on a preponderance of probability that access
was in best interests of child & that it wouldn’t unduly interfere with mother’s right of custody. Courts decision
will depend on facts & there was a dispute as to the facts of this case which couldn’t be resolved on the
papers before the court, the matter was referred back for the hearing of oral evidence on whether access
should be granted.

Legal Q:
Does a father of an extra-martial child have an inherent right of access?

Judgment:
There was a dispute as to the facts which couldn’t be resolved on the papers before the court and so the
matter was referred for the hearing of oral evidence.

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Reason for judgment:
Accepted finding in F v L – In certain circumstances, father of an illegitimate child, like other parties, may
approach Court for an order limiting mother’s right of custody by granting him access to his child and, in an
appropriate case, Court may deprive mother of he custody. Father of extra-marital child doesn’t have an
inherent right of access to child – but – all father needs to do to be granted a right of access is prove on a
preponderance of probabilities that access is in child’s best interest & will not interfere unduly with mother’s
right of custody. Courts decision will depend on the facts – question simply is whether access is in the best
interests of the child. If it is, access will be granted and if it isn’t – it will be refused.

Case study: Van Erk v Holmer

Facts: (Refer above)

Judgment: (Refer above)

Reason for judgment:

Courts should recognise an automatic right of access & access should only be denied if it would violate best
interests of child. Argued that old authorities are silent on this matter & there is no legislation, precedent /
custom. Therefore, court has to decide in accordance with principles of reasonableness, justice, equity & the
boni mores. Social mores & attitudes have changed & social realities of modern society are totally different
from those of earlier times. Child’s best interests demand no distinction be drawn btw legitimate & extra-
marital children. Emphasis should be on child’s right to have access to both parents rather than father’s right
of access to child. It is grossly unfair to deny a father who is compelled to pay maintenance for his child &
who is prepared to devote himself to the interests of the child, the right to see / visit child. Access to a child
should not always be regarded as an incident of parental authority – it can be said in the case of a legitimate
child – but – it can’t be said that where access has been granted to a father of an extra-martial child because
it is in the child’s best interests that the court has conferred parental authority upon father.

Case study: BvS

Facts:
Appellant & respondent lived together & when they separated – respondent was pregnant. Son was born.
Months before birth, appellant & respondent again started living together but separated a few months after
child’s birth. Appellant was present at birth, contributed towards hospital expenses, bought various articles
for baby & paid maintenance. When they finally separated – respondent agreed that appellant could have
access. Couple’s relationship soured & respondent refused to allow appellant any access. Appellant
stopped paying maintenance but took out an insurance policy with child as beneficiary. Appellant
approached court for an order granting him access to his son. Application was dismissed in court a quo, but
an appeal against his decision was successful.

Judgment:
Appeal successful. Application referred for the hearing of oral evidence.

Reason for judgement:

Refer all above references to B v S.
SA law doesn’t accord father an inherent right of access to his illegitimate child. It recognisees that child’s
welfare is central & that access is always available to father if that is in child’s best interests. Court a quo
adopted wrong approach in holding that appellant had to discharge an onus & that the matter had to be
disposed of on the admitted facts & allegations made by respondent.

A the law stands – an extra-marital child’s right of access to his / her father is unilateral, which Sec 30(1)(b)
of Constitution (1993) first conferred on the child. This right is presently in Sec 28(1)(b) of 1996 Constitution
– if father obtains a court order in terms of Natural Father of Children Born out of Wedlock Act conferring
access on him – right becomes reciprocal.

SCA view re position of father of extra-marital child is open to constitutional criticism:

B v S = father of an illegitimate child is not unfairly discriminated against – based on argument that
neither party bears an onus of proof in first-time access disputes because litigation is not adversarial
but rather in the nature of a judicial investigations & that the best interest of child must always be
determining factor. If mother of legitimate child refuses father access – father – like father of extra-
martial child who wants access – will have to approach court. In either r case the question will be if
access will be in the best interests of child & “the difference between the respective positions of the
tow fathers is…not one of real substance in practice.

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That child’s interests must always be of paramount NB is indisputable – Sec 28(2) of Const 1996 demands
this. But point is that child’s best interests are not necessarily served by separate rules in respect of parental
authority over legitimate & extra-marital children. Compliance with requirement that child’s best interests
must be paramount dictates that marital status of child’s parents has to be irrelevant. Differentiation btw
child’s parents also amounts to unfair discrimination against extra-martial child on ground of social origin &
birth (which is prohibited by s 9(3) and (4)) – for in the case of an extra-marital child, the law decides in
advance that child is not entitled to a legal relationship with both parents. This infringes provision of
children’s rights clause Sec 28(1)(b) of Const which entitles children to parental – not just maternal – care.
Looking at matter from perspectives of parents – legal position amounts to inequality before the law & unfair
discrimination on grounds of marital status, sex & gender (which infringes Sec 9 of Const).

Most obvious arguments:

1. Present position discriminates against father of extra-marital child on ground of his marital status. It
compels him to approach the court if he wants to have responsibilities & rights attendant on access
(or guardianship / custody), while father of legitimate child automatically has responsibilities & rights
re his child.

2. In respect of mothers – there is also discriminations on ground of marital status as mother of an

extra-martial child has sole parental responsibilities & rights while mother of legitimate child shares
parental authority with the father.

3. Present position discriminates btw sexes & genders. Father = law favours mothers of extra-marital
children over fathers because mothers automatically have parental authority over their extra-martial
children while fathers don’t. Mothers = automatically imposes sole child care responsibilities on
them.

(d) Adoption

Sec 18(4)(d) of Child Care Act used to require only the consent of mother for adoption of extra-martial child.

Case study: Fraser v Children’s Court

Facts:
Second respondent fell pregnant during time she & applicant lived together. She then decided to put unborn
child up for adoption. Applicant disagreed with decision & launched series of unsuccessful applications to
stop proposed adoption and to have child handed to him. In adoption proceedings before children’s court –
applicant again contested the proposed adoption & submitted that matter should be referred to CC. He also
filed a counter-application for adoption & sought ot have his claim decided by oral evidence. Application
rejected by children’s court without evidence being heard. Applicant then applied for review of children’s
court decision by TPD. On review – adoption order was set aside & matter was referred to CC. CC held sec
18(4)(d) of Child Care Act unconstitutional

Judgment:
Declared S 18(4)(d) of Child Care Act inconsistent with Const (1993) & invalid because it dispenses with the
father’s consent for adoption of an “illegitimate” child in all circumstances.
In terms of S 98(5) of Const – Parliament required to correct defect within 2 yrs.
Provision shall remain in force pending its correction / expiry of 2 yrs.

Reason for judgment:

S 18(4)(d) reads:
“A children’s court to which application for an order of adoption is made shall not grant the application unless
it is statisfied…(d) that consent to the adoption has been given by both parents of the child, of, if the child is
illegititmaet, by mother of the child, whether or not such m mother is a minor / married woman and whether /
not she is assisted by her parent, guardian / husband, as the case may be”.

Attacked all words after the word “child” where it appears for the first time because it violates the right to
equality in S 8(1) & right to every person not to be unfairly discriminated against in terms of S (8)(2) of Const.
Discriminates btw rights of a father in certain unions & those in other unions. Unions solemnised in terms of
tenents of religion (i.e. Islamic faith) not recognised because it is “potentially polygamous” & said to be
against pub policy. Thus, father of child born to such a religious union would not have same rights as mother

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in adoptions proceedings – child would not have status of “legitimacy” & consent of father would not be
necessary.

S 27 of Act provides that a “customary union” as defined in S 35 of Black Administration Act is deemed to be
a marriage btw parties for purposes of S4 – consent of both father & mother would be necessary. Thus –
fathers of children born from customary unions have greater rights than fathers of children born from
marriages contracted according to rites of religions – clear breach of equality right in S 8. There is no
justification for this discrimination in terms of S 33. And, customary unions do not preclude polygamy.
Seems no reason why exactly same recognition should not be afforded to marriages in accordance with the
rights of systems whchi potentially allow polygamy. This invasion of S 8 is not reasonable & not “justifiable in
an open & democratic society based on freedon & equality”.

Strong argument = discriminates unfairly against fathers of certain children on basis of their gender (extra-
marital child - mother’s consent always required & fathers never) / marital status (consent of father
necessary in every case where his is / has been married to mother & never in case of fathers who have not
been married) – both prohibited by equality clause in Const.

Terms of S 98(5) – if Court finds any law / any provision inconsisten with Constitution – “it shall declare such
law / provision invalid to extent of its inconsistency”. But gives Court “in the interests of justice & good
government” to require Parliament, within the period specified by the Court, to correct defect “which shall
then remain in force pending corrections / expiry of period specified”.
Proper case to exercise above jurisdiction. Applicant is not only person affected – many others & in
interests of jutice & good government that there should be proper legislation to regulate rights of
parents in relation to adoption of any children born out of a relationship btw them which has not been
formalised by marriage. Regard being had to complexity & variety of statutory & policy alternatives
that may have to be considered by Parliament – such a reasonable period should be 2 yrs.

Summary: CC declared Sec 18(4)(d) of Child Care Act unconstitutional of grounds that it discriminates
unfairly against fathers in some matrimonial unions & infringed the right to equality.

Since the above decision – S 10 of Child Care Amendment Act has repealed S 27 (mentioned above) of
Child Care Act. S 1(d) of Amendment Act further inserted a new definition of “marriage” into Child Care Act.
It includes customary marriages & marriages “concluded in accordance with a system of religious law subject
to specified procedures. For purposes of Child Care Act – children born from such marriages are no longer
extra-marital.

Note!! Decision was based on interim Const (1993)!

Although court left matter of how defect in legislation should be corrected to Parliament – court indicated that
regard should be had to foreign approacheds to the issue and “to any special circumstances appropriate to
our own history and conditions impacting on problem”. Emphasised that Parliament should “be acutely
sensitive to deep disadvantage experienced by single mothers in our society” & that new legislation “should
not worsen that disadvantage”.

CC decision in this case didn’t terminate litigation re this adoption. Matter again came before SCA – rejected
father’s application for adoption order (Naude v Fraser). Father then applied to CC for leave to appeal
against SCA’s decision. CC rejected application – father’s application should be rejected even if it could be
shown that he had reasonable prospects of success on appeal because chid’s best interests were
paramount & continued uncertainty as to his status & placing would not be in his best interests.

Parliament corrected the defect by enacting the Adoption Matters Amendment Act which amended S 18(4)(d)
of Child Care Act t require the consent of both parents if paternity has been acknowledged & father’s identity
& whereabouts are known – if only one parent has consented to the child’s adoption – a notice must be
servied on other parent informing it that consent has been given & giving parent opportunity to:
1. also give / withhold consent;
2. advance reasons why his / her consent should not be done away with;
3. in the case of the father of an extra-martial child – apply for adoption
This notice need not be served if other parent’s whereabouts are unknown, & need only be served on father
of child born out of wedlock if:
1. he has acknowledged paternity in writing & has entered his particulars in child’s birth registration &
has ensure that thos particulars are correct at all times; or
2. child’s mother – at time of consenting to chid’s adoption – confirms in writing that child’s father has
acknowledged paterningy & furnishes particulars re his identity & whereabouts; or

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 3. a social worker, within 60 days of mother’s having consented or at any stage before adoption order
granted – submits report confirming father’s identity & whereabouts. Report must be made to
commissioner who attested the mother’s consent / to children’s court in which adoption application
made.

T v C = because of serious consequences of adoption – an adoption applicant and a parent who consents
must “observe the utmost good faith in placing material facts before the court”. This includes providing info
re father’s identity and whereabouts – if these are known. If father’s details are not available – court must
ascertain what steps have been taken to establish them. Social work who submits report re adoption must
“demonstrate utmost professional integrity in making every reasonable effort to obtain such details as well”.

Sec 19 of Child Care Act lays down circumstances in which consent to adoption may be dispensed with:
1. father failed to acknowledge paternity;
2. child conceived as a result of incest;
3. father was convicted of rape / assault of child’s mother;
4. father, after an enquiry by children’s court following an allegation by child’s mother, found on balance
of probabilities raped / assaulted mother;
5. father failed to respond to notice in terms of S 19A of Child Care Act.

Also, consent of either parent of extra-marital child can be dispensed with if without good cause, he / she
failed to discharge parental duties re child.

Provisions of draft Children’s Bill similar to above – both parents must consent to child’s adoption –
regardless of whether / not child was born in / out of wedlock, and permits dispensing with a parent’s consent
in certain circumstances – grounds for dispensing with consent of father correspond largely to those above
(i.e. failing to acknowledge paternity & child’s having been conceived through incest / rape). Draft Bill
provides for ways a man can acknowledge paternity:
1. give written acknowledgement of paternity to child’s mother / child & family court registrar before
child 6 months old;
2. voluntarily paying maintenance for child;
3. paying damages in terms of customary law;
4. cause his particulars to be entered in child’s birth registration in terms of Birth & Deaths Reg Act
(above).
Failure to respond to notice of proposed adoption & failure to discharge parental responsibilities are also
grounds for disposing with consent, but in terms of draft Bill these grounds apply to anyone who has parental
responsibilities – not just parents of child born out of wedlock.

NOTE: Children’s Act 38 of 2005 (eff. 1 Jul 07) contains similar provisions to draft Children’s Bill.

Maintenance

Both parents have duty to support extra-marital child. Duty is apportioned btw them according to their
respective means.

In terms of CL:
Extra-martial child must support his mother and her relations – position of father & his family is not clear.
Some authors = father & his relations may not have right to claim maintenance from extra-marital child –
view is not supported – but based on a fallacious argument that father of extra-marital child is unrelated to
his child. What father ACTUALLY lacks is parental authority – not relationship to child. This is illustrated by
fact that he is treated same as afther of legitimate child for purposes of determining degrees of relationship.
Not allowing father & his blood relatives to claim maintenance would constitute unacccpetalbe inequality
before the law & unequal protection & benefit of the law & be unconstitutional.

If either parent dies – estate is responsible for extra-marital child’s maintenance. If neither parent / parents
estate can support – duty passes to chid’s MATERNAL grandparents – but as per Motan v Joosub (below) –
not to child’s PATERNAL grandparents. This is unfair & unaccpetalbe rule – in conflice with our CL & public
policy. Distinction btw durty of support re legitimate & extra-marital child violates extra-martial chi’ds
constitutional right to equality before the law & equal protection & benefit of the law – unfair discrimination on
ground of birth & conflicts with provision of children’s rights clause which makes child’s best interests
paramount in all matters re child. It is submitted that the violation of child’s const rights is unreasonable &
unjusitifiable.

Case study: Motan v Joosub

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 Facts:
Appellant married repsondent’s son by Muslim rites. She & respondent’s son had 4 children who were
minors at time action came before court. As union btw appellant & respondent’s son didn’t constitute a valid
marriage – children were extra-marital. Appellant claimed maintenance from respondent for children. She
averred that respondent (paternal grandfather of children) was liable to support his son’ts extra-marital
children. Respondent deined any liability. Appellant excepted to this plea – exception was dismissed & it
was held that paternal grandfather of extra-martial children was under no duty to support them. Appellant
appealed against this decision.

Judgment:
Appeal dismissed.

Reason for judgment:

RL considered by Glűck in Commentary on Digest proved that it was never part of civil law that paternal
grandfather was obliged to support illegitimate children of his son – almost all modern commentators agree.

RL compelled mother of illegitimate child & also mother’s father to provide for it. Only obligation of
maintenance is btw illegitimate children on one part & mother & mother’s ascendants on other part. No text
in Corpus Juris which lays any obligation on parental grandfather to support illegitimate children of his son.

Per Glűck – Canon law placed on obligation for maintenances on grandparents. Only mentions parents of
illegitimate child. It placed all illegitimate children on same footing as natural extra-marital children & Civil
law was accepted in Holland & many parts of Europe. RD-L didn’t place any liability on paternal grandfather
to maintain illegitimate children of his son.

Addressed argument that we ought not draw a distinction btw maternal & parternal grandfather: Father of
mother of illegitimate child knows full well that it is his daughters child & if called upon to pay for support –
proof is at hand. If paternal grandfather Is called upon to pay – hey may be certain where woman is the
concubine of his son and they live together as man & widfe – but in no other case can he be certain. He
must either accept the word of the mother / truest the worldly wisdom of his sone. He is called upon to prove
a negative wher he has no real means of repelling the claim. To hold that paternal grandfather is liabel to
maintain every illegitimate child of his sonw would be to cast upon him a burden which it may be difficult for
him to remove by proof.

No such liability lies upon the paternal grandfather.

Note: After his analysis on RD-L, Van den Heever concludes that there is indeed CL authority for holding
paternal grandparents of extra-marital child laible for child’s support. He submits that the decision in Motan’s
case “is so patently wrong that it should be reconsidered”.

If issue of duty of support by paternal grandparents of extra-martial child come before the court in future –
court would have to reject rule in Motan case – it is unconstitutional.
S 9 of Const (1996) guarantees right to equality before the law & equal protection & benefit of the
law & prohibits unfair discrimination on ground of birth. Denying extra-martial children right to claim
maintenance from paternal grandpartens violates both const rights & infringes children’ts rights clause which
prescribes that chi’ds best interests must be paramount concern in all matters re child (s 28(2)). Clearly not
in best interest of child to deny him / her right to maintenance aginas his / her paternal grandparents because
he / she is extra-marital. Limitation clause (s36) will not save rule in Motan case – not reasonable &
justifiable in open & democratic society.

The Right to Inherit

Intestate succession Testate succession

No distinction made btw legitimate & extra-martial Mother & father may benefit their extra-marital children
in a will (may even exclude their legitimate children)
S 1(2) Intestate Succession Act: extra-marital birth
doesn’t affect capacity of one blood relation to inherit Incestuous children less clear –
the intestate estate of another. Argument = incest is a crime & incestuous children
incompetent to inherit from parents.
Extra-martial children can inherit intestate from both Submitted = children shouldn’t be punished for crimes
parents (& more distant blood relatives) of their parents!

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Both parents (& more distant blood relatives) can
inherit intestate from extra-marital children. In the past…
If intention of testator unclear – ref made in mother’s
will to “my children” included extra-martial children – but
same didn’t apply in father’s will!
Position altered – S 2D(1)(b) Wills Act – extra-marital
children “shall be ignored” when determining a person’s
relationship to testator / any other person.

Extra-marital birth & the Constitution

Appellate Division’s (now SCA) view re position of father of extra-marital child is open to
constitutional criticism:
B v S = father of an illegitimate child is not unfairly discriminated against – based on argument that
neither party bears an onus of proof in first-time access disputes because litigation is not adversarial
but rather in the nature of a judicial investigations & that the best interest of child must always be
determining factor. If mother of legitimate child refuses father access – father – like father of extra-
martial child who wants access – will have to approach court. In either r case the question will be if
access will be in the best interests of child & “the difference between the respective positions of the
tow fathers is…not one of real substance in practice.
T v M = Adptoped same view as B v S.

Natural Fathers of Children Born out of Wedlock Act came into operation shortly after the above decisions –
but – it didn’t really change the law – it’s starting point is much like the CL – father of an extra-martial child
doesn’t have parental authority but he may approach court for order granting him rights if this is in the best
interests of the child.

That child’s interests must always be of paramount NB is indisputable – Sec 28(2) of Const 1996 demands
this. But point is that child’s best interests are not necessarily served by separate rules in respect of parental
authority over legitimate & extra-marital children. Compliance with requirement that child’s best interests
must be paramount dictates that marital status of child’s parents has to be irrelevant. Differentiation btw
child’s parents also amounts to unfair discrimination against extra-martial child on ground of social origin &
birth (which is prohibited by s 9(3) and (4)) – for in the case of an extra-marital child, the law decides in
advance that child is not entitled to a legal relationship with both parents. This infringes provision of
children’s rights clause Sec 28(1)(b) of Const which entitles children to parental – not just maternal – care.
Looking at matter from perspectives of parents – legal position amounts to inequality before the law & unfair
discrimination on grounds of marital status, sex & gender (which infringes Sec 9 of Const).

Most obvious arguments:

1. Present position discriminates against father of extra-marital child on ground of his marital status.
It compels him to approach the court if he wants to have responsibilities & rights attendant on access
(or guardianship / custody), while father of legitimate child automatically has responsibilities & rights
re his child.

2. In respect of mothers – there is also discriminations on ground of marital status as mother of an

extra-martial child has sole parental responsibilities & rights while mother of legitimate child shares
parental authority with the father.

3. Present position discriminates btw sexes & genders. Father = law favours mothers of extra-
marital children over fathers because mothers automatically have parental authority over their extra-
martial children while fathers don’t. Mothers = automatically imposes sole child care responsibilities
on them.

Those who oppose inherent responsibilities & rights for fathers of extra-marital children point out:
Mothers are still primary caretakers of extra-martial children & their primary responsibility for child care
justifies exclusion of fathers from automatic rights re children as this conforms to notion of substantive / real
equality (i.e. maternal preference rule).

Problem with above opposition (maternal preference rule):

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  It reinforces message that law (& society at large) still sends – child care is mother’s duty &
fathers shouldn’t concern themselves with child care because it simply is not their job and/or
because they are incapable of or unsuited to it.
 Doesn’t give proper effect to child’s const right to parental care & is not in best interests of
child.

Draft Children’s Bill – automatic parental responsibilities & rights on certain categories of fathers of extra-
martial children – this at least recognises parents common responsibility for child care.
 It is submitted that from a sex & gender-equality perspective – sharing of parental responsibilities
should be the starting point regardless of whether child is extra-martial / legitimate.
 Focus must be on child’s rights & parent’s responsibilities towards child.
 Law should clearly send message that a child is entitled to be cared for by both parents & that
having a child entails responsibilities for both parents & these responsibilities should not be confined
to duty of support (as present case is with father of an extra-marital child).
 Law should comply with S 28(1)(b) – affords all children right to parental care.
 Compelling both parents’ responsibilities of parenthood is also what substantive sex & gender
equality actually demands.

Conferring parental responsibilities on father of extra-marital child would also conform to:
 Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)
 Convention on the Rights of the Child
Both with SA has ratified.

Both require recognition of common responsibilities of parents for the upbringing & development of their
children. CEDAW further requires countries that are parties to the Convention to take measures to ensure
that men and women have same rights & responsibilities as parents, irrespective of their marital status.

The problems with constitutionality of current position will – to a great extent – be rectified by Children’s Act
38 of 2005.

The Legitimation of Extra-marital Children

1. By marriage of child’s parents to each other

S4 Children’s Status Act = child born out of wedlock is legitimated in all respects if parents marry
each other at any time after birth – even if parents couldn’t have legally married each other at time of
conception / birth.

Question of whether incestuous child is legitimated by marriage of parents will not arise often –
persons who commit incest are related within the prohibited degrees of relationship for purposes of
marriage. BUT – provisions re forbidden degrees of relationship sometimes change.
In 1961 – person couldn’t marry their deceased / divorced spouses collateral relatives because
the Political Ordinance of 1580 laid down same principles applied to relationship by affinity in
collateral line & blood relationship.
Marriage Act changed this – no prohibitation exists against a marriage btw a person & his /
her relations by affinity in collateral line – i.e. child conceived by sexual intercourse btw
woman & her brother-in-law before enactment of Act = incestuous – after enactment =
legitimated by marriage of her parents.

Children also legitimated if union btw parents is putative (thought to exist).

In past…controversial whether children legitimated by marriage of parents acquired status as

legitimate child from date of marriage / retrospectively from date of birth.
S4 of Children’s Status Act = legitimation is not retroactive to date of birth – child legitimated
from date of parent’s marriage. This provision conflicts w S 11(1) of Births & Deaths Registration
Act – registration of birth of child legitimated by parents’ marriage “as if such child’s parents were
legally married to each other at time of birth”.

Note: Legitimation by an order of the authorities:

CL – child could be legitimated by order of Sovereign. Order was normally given as a special favour
– esp in cases where one of parents died – so marriage of parents couldn’t take place.

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 Potgieter v Bellingan = this method of legitimation unknown in SA & had become obsolete.
Court advocated re-introduction of this method. Considered Directorate of Home Affairs should be
competent to deal with such matters.
Court is not vested general power to declare extra-martial children legitimate. Does have power
to make declaratory order re legitimacy of child born of putative marriage – then it simply confirms an
existing fact – since children born of putative marriage are in any event legitimate!!

2. Legitimation by adoption

Child becomes legitimate child of adoptive parent – whether / not parent is married.

MINORITY

NB: PREVIOUSLY – AGE OF MAJORITY = 21 YRS (S 1 AGE OF MAJORITY ACT).

NEW CHILDREN’S ACT 38 OF 2005 – REPEALS & REPLACES AGE OF MAJORITY ACT (CAME
INTO FORCE 1 JUL 07) = AGE OF MAJORITY WAS LOWERED TO 18 YEARS FOR ALL
CHILIDREN IN SA.

Purpose of limitation = protection of youth:

Legal view – because people’s juristic acts are dependent on their expression of will, only persons who have
a reasonable understanding and judgment should have capacity to act. Law confers capacity to enter into
juristic acts only on persons who can understand nature, meaning & consequences of their acts – since such
acts may have far-reaching consequences. Youth has a major influence on a person’s powers of judgment.
Law protects young people by limiting their capacity to participate in legal interaction. From a legal point of
view – a young person has neither the intellectual ability nor experience to participate independently in legal
& commercial dealings before 18 years of age (used to be 21 yrs before Children’s Act).

Because object of restrictions on minor’s capacity is to protect them – those protections don’t violate the
constitutional right to equality. Nor do they amount to unfair discrimination on ground of age.

Children’s Rights

Children below 18 yrs afforded special protection by S28 (commonly known as “children’s rights clause” of
Const = purpose – to protect children, not their parents. It affords rights to children – not their parents.

S 28(1) gives every child the right to:

1. a name & nationality from birth;
2. family / paternal care / appropriate alternative care when removed from the family environment;
3. basic nutrition, shelter, health care & social services;
4. be protected from maltreatment, neglect, abuse & degradation;
5. be protected from exploitative labour practices;
6. not be required / permitted to perform work / provide services that are inappropriate for someone of
their age / place their well-being, education, physical / mental health / spiritual, moral or social
development at risk;
7. not be detained (kept in confinement) except as a measure of last resort. If detained – child has all
the rights S12 & 35 of Const afford all detainees & child may only be detained for shortest possible
period & has right to be kept separately from detained persons over the age of 18 yrs, and treated in
manner & kept in conditions that take account of their age;
8. have a legal practitioner assigned by the state in civil proceedings, at state expense, if substantial
injustice would otherwise result;
9. not be used directly in armed conflict & to be protected in times of armed conflict.

S 28(2) of Const prescribes that a child’s best interests are of paramount importance in very matter
concerning the child.

In past…application of criterion of best interests of child was limited to family-law proceedings. The wording
of S28(2) indicates that criterion must be applied in all fields of law. It further entails that the child’s best
interests must outweigh other Const rights unless the infringement on the child’s best interests can be
justified in terms of general limitation clause in Const.

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Minister of Welfare and Population Development v Fitzpatrick = CC held that S28(2) creates an
independent right which goes beyond scope of rights enumerated in S28(1).

Fraser v Naude – biological father of an adopted child sought leave to appeal against adoption order made
re child. CC held that father’s application should be rejected even if it could be shown he had reasonable
prospects of success on appeal, because child’s interests were paramount & continued uncertainty as to
child’s status & placing would not be in child’s best interests.

Du Toit v Minister of Welfare and Population Development = provisions of Child Care Act 74 of 1993
which prevented same-sex partners from jointly adopting children declared unconst on ground that they
“deprive children of the possibility of a loving & stable family life as required by S 28(1)(b) of Const” & conflict
with S 28(2) of Const because they “fail to accord paramountcy to the best interests of children”.

Most reported cases on S 28(1) dealt with rights in subsections (b) and (c). CC’s attitude re these rights is
that duty they impose rests primarily on parents & family members. It passes to the stat only if a child’s
parents / family members fail / are unable to provide care to the child. State is however obliged “to create
the necessary environment” for parents & family members to provide children with proper care. This it must
do by providing the legal & administrative infrastructure necessary to ensure children are accorded the
protection contemplated by S 28 & affording families access to land, housing, health care, food, water &
social security on a programmatic and co-ordinated basis, subject to available resources.

Case Study: Government of the Republic of South Africa v Grootboom

Facts:
Mrs Grootboom & other respondents (510 were children) lived in desperate circumstances in a squatter
settlement. They then began moving out and putting up shacks on vacant land privately owned and
earmarked for low-cost housing. When they were evicted from this property – they applied to Cape HC for
order requiring government to provide adequate basic shelter / housing until they got permanent
accommodation. They relied on S 26 of Const – everyone has right of access to adequate housing. S 26(2)
imposes obligation on state to take reasonable legislative & other measures to ensure progressive realisation
fo this right within it’s available resources. Also relied on S 28(1)(c) of Const which provides that children
have right to shelter. Cape HC ordered appellants to provide respondents who were children as well as their
parents with shelter. Appellants appealed against this decision to CC.

Judgment:
Appeal is allowed in part. Order of Cape HC set aside and following is substituted for it:
(a) S 26(2) of Const requires state to devise & implement within its reasonable resources a
comprehensive & coordinated programme progressively to realise right of access to
adequate housing;
(b) Programme must include reasonable measures to provide relief for people who have no
access to land, no roof over their heads & living in intolerable conditions / crisis situations.
(c) As at date of launch of this application, state housing programme in Cape Metropoliatin
Council are fell short of compliance with requirements in paragraph (b), because it failed to
make reasonable provision within its reasonable resources for people in Cape Metropolitan
area with no access to land, no roof over their heads & who are lving in intolerable
conditions / crisis situations.

Reason for Judgment:

Judgment of HC reasoning that parents with their children have 2 distinct rights: the right of access to
adequate housing in terms of S 26 as well as a right to claim shelter on demand in terms of S28(1)(c) would
mean that people who have children have a direct and enforceable right to housing under S 28(1)(c), while
others who don’t have children / children are adults are not entitled to housing under that section, no matter
how old, disabled / otherwise deserving they may be. CC warned that the carefully constructed constitutional
scheme for progressive realisation of socio-economic rights would make little sense if it could be trumped in
every case y rights of children to get shelter from State on demand and that children could become stepping
stones to housing for their parents instead of being valued for who they are.

CC further held child’s rights in terms of S28(1)(c) must be ascertained in context of socio-economic rights in
s 25(5), 26 and 27 of Const. S 25(5) obliges state to take reasonable legislative & other measures to foster
conditions which enable citizens to gain access to land on an equitable basis, while S 26 & 27 oblige state to
take reasonable legislative & other measure to achieve progressive realisation of right to adequate housing &
right to health services, food & water & social security – all within its available resources = there is thus an
overlap btw rights in these sections & child’s rights in terms of S 28(1)(c). Because of this overlap – CC

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concluded that S 28(1)(c) doesn’t create separate & independent rights for children and their parents &
doesn’t entitle them to shelter on demand.

CC decided S 28(1)(b) and 28(1)(c) must be read together. They ensure that children a properly cared for by
their parents or families and they receive appropriate alternative care in the absence of parental / family care.
S 28(1)(b) defines those responsible for giving care, while S 28(1)(c) lists various aspects of the care
entitlement. Content of child’s right to receive care is thus determined partly by the socio-economic rights in
S 28(1)(c), but rights in that subsection aren’t exhaustive of what is encompassed n child’s right to care –
EG: intangible elements (can’t touch / see it) like love / attention & affection = “care”. Limiting the scope of
“care” wouldn’t comply with const requirement of affording paramountcy to child’s best interests.
Through legislation & CL – obligation to provide shelter in S(1)(c) is imposed primarily on parents /
family & ONLY alternatively on state & therefore does not create any primary state obligation to
provide shelter on demand to parents & their children if children are being cared for by their parents /
family.

S 25 & 27 require state to provide access on a programmatic & coordinated basis, subject to available
resources – one way is through a social welfare programme providing maintenance grants & other material
assistance to families in need in defined circumstances. S 26 olbiges state to devise & implement a
coherent, co-ordinated programmed. Programme adoptoed in Cape Metro at time fell short of obligations
imposed upon state by s 26(2) in that it failed to rpvide for any form of relief to those desperately in need of
access to housing.

NOTE: CC has held that child’s right to care operates more primarily (more importantly) against her
parents / family.

Case study: Jooste v Botha

Facts:
Plaintiff born out of wedlock – since birth – his natural father (defendant) refused and / or neglected to admit
that plaintiff was his son & to communicate with him, love & cherish him / show any interest in him. Relying
mainily on provision fo Const, plaintiff alleged that his father had a legal duty to give him love & recognition.
Futher alleded that he had suffered damage in form of emotional stress & loss of amenities of life because hif
father had not complied with his duty. He sued father for damages of R450,000. Father exepted against his
claim as revealing no cause of action.

Judgment:
Exception upheld. Boys claim rejected as having no legal foundation.

Reasons for judgment:

TPD held that father had no greater duty to his natural offspring than to provide for this material welfare if he
was not married to mother.

Despite recent statutory developments (i.e. Natural Fathers of Children Born out of Wedlock Act & B v S)
which have materially improved rights of a natural father re his illgeimtate child, neither our CL nor statues
recongise right of child to be loved, cherised, comforted or attended to by a non-custodian parent as creating
a legal obligations. A bond of love is not a lega bond. Insofar as plaintiff’s claim is based on CL, it must fail.
Constitution does not state parents are obliged to love & cherish children / give them their attention and
interest.

Law will not enforce the impossible – it cannot create love & affection where there are non. Not btw
legitimate children & their parents & even less btw illegitimate children & their fathers. Leads to conclusing
that drafters of Const coud not have intended that result. To grant action for damages will not heal any rift
nor love sprout nor is public policy, duly honed on the oilstone of S28, requires such a moral. Contemplation
of proposed legal duty opens interesting vistas of children claiming delictual dmages from parents who paid
more attention to their carerrs than to the emotional needs ot their children.

Prov in S 28(2) that child’s best interes are of paramount NB in very matter re child does not lead to different
conclusiong – prov is inteneded as general guidline & not a rule of law of horizontal application.

Held that reference to “parental care” in S 28(1)(b) envisages a child in care of somebody who has custody
over him / her and that the word “parental” must be read as pertaining to a custodian parent. A legitimate
child’s non-custodian parent & biological father of an extra-marital child fall outside the scope of the section,
and a child is not entitled to parental care by such parents.

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Submitted that interpretation in Jooste v Botha is incorrect. Courts should not reject notion that child
has a legally recognised right to parental love, attention & affection. Mere fact that some components of
child’s const right to parental care may be unenforceable due to the highly personl relationshiop they relate
to does not mean that they should not be recognised. It is vital to recognise them because just as the
intangible rights encompassed in (e.g. living together, being faithful to one another, affording each other
loyalty and sympahtitic care and affection, conern) are fundamental to the marriage relationshiop, so
intangible aspects of parental care are fundamental to the relationship btw parent & child. Every child should
be entitled to these and all other aspects of parental care. Nothing in the wording of S28(1)(b) suggests the
limitation that biological father of extra-martial child falls outside scope of the section.

Allsop v McCann – Cape Prov Div held right to parental care applies to a non-custodian parent too.

Heystek v Heystek – TPD without referring to Jooste v Botha / analysing issue of whom “parental care”
relates to – simply stated that right to parental care is not confined to natural parents but extends to
stepparents, adoptive parents & foster parents. This statement includes custodian as well as non-custodian
natural parents.

Du Toit v Minister for Welfare and Population – CC decided that child’s right to “family care” includes care
by extended family – it is improbable that a restrictive interpretation of “parental” care would find favour in
future.

View that S 28(1) is primarily of vertical application & that primarly, S 28(1)(b) is amied at preservation of a
healthery parent-child relationship in the family environment against unwarranted executive, administrative
and legislative casts is alo out of keeping with the CC’s approach. CC’s attitude is that s 28(1)(b) and (c)
primarily impose a duty on parents and family members (Government of RSA v Grootboom – duty passes to
state only if child’s parents / family members fail / unable to care for child).

Don’t agree w view that S 28(2) of Const is merely a gen guidline and not a rele of horizontal application.
Judge argued the interests of child would override all other legitimate interestsf of parents, siblings and third
parties and wold prevent conscription / imprisonment / transfer / dismissal by employer of parent hwere that
is not in chi’ds interest. Judge lost sight of fact that S 36 (limitation clause) permits limitation of const rights
(inlcl S 28(2). Also, in Minister of Welfare and Populationi Development v Fitzpatrick – CC held S 28(2)
creates an independent right which goes beyond scope of rights enumerated in S 28(1).

Courts have held that child’s right to parental / family care must be taken into account in all matters that
impact on the child, including sentencing a convicted parent & detaining a parent pending deportation from
the country.

SA has ratified the United Nations Convention on the Rights of the Child – it must comply with the obligations
it imposes on state parties. Many of the clauses in the draft Children’s bill embody those obligations. Like
the children’s rights clause in the Const, the Conventions confers special protection only on children below
age of 18 yrs. Convention stipulates that the best interests of the child must be a primary consideration in all
actions concerning the child & that children who are capable of forming their own views must be given the
right to express these freely in all matters that affect them, and their views must be given due weight, taking
their age & maturity into account. It also obliges stat parties to recognise the common responsibilities of
parents for the upbringing & development of their children.

CHILDREN’S STATUS ACT 38 OF 2005

Comprehensive chidren’s statute – passed in Jun 06. Whn it comes into operation – it will repeal & replace
several statues dealing w children. 1 Jul 07 = certain sections of Act came into force.

Certain sections had not yet come into operation at time of SC. However, expected to study the following
provisions even though they may not yet be in operations:

Subject Sec No Came into Details

effect 1 Jul
07? Yes /
No?
General Act contains NB provisions re protection of rights & interests of
Principles children. Requires all proceedings, actions or decisions re
child must:

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 1. Respect, protect, promote and fulfil child’s const rights,
best interests of child standard (set out in S7) and
rights & principles in Act (subject to any lawful
limitation)
2. Respect child’s inherent dignity
3. Treat him / her fairly & equitably
4. Protect him / her from unfair discrimination on any
ground, including his / her own health status / disability
/ that of a family member.
5. Recognise child’s need for development & to engage
in play and other recreational activities appropriate to
chid’s age
6. Recognise child’s disability
7. Create an enabling environment to respond to special
needs that child has (S6(2) – came into operation 1 Jul
07)
Child 6 Yes If in child’s best interest – family must be given opportunity of
Participation expressing views in any matter re child (S 6(3)).

10 Yes If child is of age, maturity and stage of development to be able

to participate in any matter concerning him / her, child has right
to participate in an appropriate way & views expressed by child
must be given due consideration.
Chidren with S 11(1) Yes Consideration must be given to providing child with parental,
Disabilty family or special care as and when appropriate, making it
possible for child to particpale in social, cultural, relgious and
educational activities, provind child with conditions that ensure
dignity, promote self-reliance & facilitate ative participation in
community, and provind gchld and child’s care-giver with
necessary support services.
Children with S 11(2) Yes Consideration must be given to providing child with parental,
Chronic Illness family / special care, providing chld whith conditions that
ensure dignity, ppromote self-reliance and facilitate active
particplation in community, and providing child with necessary
support services.
Children with S 11 (3) Yes Children with disability / chronic illness have right not to be
both the above subjected to medical, social, cultural or religious practices that
are detrimental to thei health, well-being or dignity.
Social, cultural S 12 Not yet Children have right not to be subjected to social, cultural and
& religious religious practices detrimental to well-being (s 12 (1)).
practices
Children below minimum legal age for marriage have right not
to be given out in marriage / engagement, and once they reach
mimum age – may not be given out in marriage / engagement
w/o their consent (s 12(2)).

Female genital mutilation & circumcision prohibited (s 12(3)).

Virginity testing of children under age of 16 prohibited (s12 (4).

Virginity testing of children older than 16 may only be

performed if child has given consent to testing after proper
counselling (s 12(5)).

Results of virginity test may not be disclosed w/o consent of

child (s 12(6)),

Body of a child who has undergone virginity testing may not be

marked (S 12(7)).

Circumcision of male under 16 prohibited, except when

performed for religious purposes in accordance with practices
of religion concerned / for medical reasons on

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 recommendation of medical practictioner (s 12(8)).

Circumcision of male older than 16 may only be performed if

child has given consent after proper counselling (S 12(9)).

Taking into consideration chid’s age / maturilty & stage of

development – every male chjld has right to refuse
circumcision (S 12(19)).
Information on S 13 Yes Every child has right to access to info on health promotion &
Health Care prevention & treatment of ill-health & disease, as well as right
to info on sexuality & reproduction, his / her health status
(including causes & treatment), and right to confidentiality re
his / her health status & health status of his / her parent, care-
giver & family member, unless such confidentiality not in child’s
best interests.
Access to S 14 Yes Right to bring a matter to court, and to be assisted in bringing
Court the matter to court.
Responsibliites S 16 Yes Every child has responsibilies appropriate to his / her age &
of Childrent ability towards his / her family, community & the state.
Best interests S7 Yes In all matters re care, protection & well-being of child –
of Child standard that child’s best interests is of paramount NB must be
Standard applied. Law Reform Commission compiled list of factors to be
considered in determining best interests of a child:

1. nature of personal relationship btw child and parents /

specific parent / any other care-giver / relevant person;
2. attitude of parents / specific parent towards child &
execise of parental responsibilities / rights re child;
3. capacity of parents / specific parent / other care-giver /
person to provide for child’s needs – incl chld’s
emotional & intellectual needs;
4. effect any change in child’s circumstances would have
on child – incl likely effect of chid’s separation from
both / either parents / sibling / another child / any other
care-giver / person chld has been living;
5. practical difficulty & expense of child having contact
with parents / specific parent & whether that difficulty /
expense will substantially affect child’s right to
maintain personal relations & direct contact w parent
on regular basis;
6. child’s need to remain in care of parent, family and
extended family and to maintain and connection with
his / her family, extended family, culture or tradition;
7. child’s age, maturity, stage of development, gender,
background & any other relative characteristic;
8. chidl’s physica & emotional security, and intellectual,
emotional, social & cultural development;
9. disability;
10. chronic illness;
11. need to be brought up within a stable family
environment & where this cannot be achived – an
environment resembling a caring family environment
as closely as possible;
12. need to protect dhild from any physica / psychological
harm that may be caused by subjecting him / her to
maltreatment, abuse, neglect, exploitation /
degradation / exposing dchld to maltreatment, abuse,
degradation, ill-treatment, violence / harmful behaviour
towards another person;
13. any family violence involving child / a famiy member of
child;
14. which action / decision would avoid / minimise further
legal / administrative proceedings re child.

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Definition of Further Yes Act defines “family member” as:
“family provisio 1. parent of child;
member” n 2. any other person who has parental repsonsbilities &
rights re child;
3. grandparent / borther / sister / uncle / aunt / cousin of
child;
4. any other person with whom chld has developed
significant relationship, based on psychological /
emotional attachment, which resembles a family
relationship.

Refer to “Fundantal Concepts” definitions on Pg 76 of SG.

DEFINTION: INFANS & MINOR

Infans = under 7 yrs

Minor = under 18 yrs

(Note (supra) – age of majority was lowered to 18 yrs by new Children’s Act – used to be 21 yrs)

NB: For exams / assignments = minor is to be defined as “someone under the age of majority”.

LEGAL STATUS OF AN INFANS

Capacity to Act

An infans has absolutely NO capacity to act & cannot conclude any juristic act whatsoever.

He / she cannot even enter into a contract that confers only rights & does not impose any duties.

Nor can she act as somebody’s agent – law attaches absolutely no consequences to her expression of will.

Infans act may constitute a juristic fact – giving rise to legal consequences
IE: destroys someones property – juristic fact is that owner’s right of ownership to that property
ceases – but still doesn’t change infans’ act into a juiristic act.

Infans can’t conclude a juritic act even with assistance of his / guardian – guardian has to act for him / her on
his / her behalf.

Infans cannot even accept a donation – this has to be done on his / her behalf by the court who is the master
of his / her guardian.
Even if donor is infans’ parent / guardian – parent / guardian has to accept donation on infans’ behalf
– it has to be made clear that the donation is being accepted on her behalf.

Once guardian has entered into a contract on infans’ behalf – it is on the infans that rights are conferred &
duties imposed & not on guardian – because infans has legal capacity & can have rights / duties / capacities.
Certain transactions cannot be concluded by guardian on behalf of infans at all – i.e. engagement / insurance
contract on infans’ life.

Capacity to Litigate

Does not have capacity to litigate and can’t be a party to a lawsuit even if assisted by guardian – guardian
must always ligitage for her on her behalf.

Delictual & Criminal Liability

Delict = wrongful (in conflict with legal norms), culpable act causing damage to another.
Crime = an act prohibited by law (whether by statute or CL).

Requirement of both the above that perpetrator must be at faul, that he / she msut have acted intentionally /
negligently. Capacity to be at fault is known as accountability. Person can be accountable only if he / she
can ifferntiate btw right & wrong & act accordingly. Since infans doesn’t have this ability – cannot be
accountable.

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Completey unaccountable in law – can never be criminally / delictually liable where liability is based on fault.

May however be liable for delicts not based on fault.

LEGAL STATUS OF A MINOR – GENERAL PRINCIPLES

Minors btw 7 – 18 yrs have limited capacity to act.

Minor’s Capacity to Enter into Certain Juristic Acts:

Minor’s Contractual Capacity (subcategory of the capacity to act)

(a) General principles

Incur contractual liability only if assisted by guardian when contract is made.

Can enter into contract without assistance if contract improves his / her position without imposing any duties
on him / her =
Guardians consent is thus unnecessary if minor enters into contract where only other party incurs
duties – while minor acquires rights only. (E.g. accept a donation / agreement releasing him / her
from debt).

If minor enters into agreement w/o guardians consent & agreement imposes duties upon her =
Not liable in contract.
Contract is partially valid:
Contract creates a natural obligation only = obligation is unenforceable (contract
can’t be enforced against minor / guardian. Agreement is not void – as the other
party must honour his part of agreement – his obligation is a civil one – it is
enforceable against him > although minor isn’t contractually liable to perform minor’s
part of contract – other party is.

Because minor’s unassisted contract is not invalid, but creates a natural obligation = it can be ratified
(confirmed) by guardian / minor when she attains majority >ratification converts minor’s natural obligation
into civil one – result = it becomes fully enforceable on part of both parties.
Up to guardian / minor when reaches majority to decide whether minor should repudiate / honour the
contract.
Other party has no option but to abide by guardian’s decision > other party cannot rely on
minor’s minority to avoid his own contractual obligations – neither can he avoid his contractual
obligations by invoking the exceptio non adimpleti contractus (entails that one party to a contract
which provides for reciprocal performance cannot sue other party for performance, w/o also
performing or offering to perform > can only be used by party to a reciprocal contract). Because
contract is founded on principle of reciprocity – it can’t be used against someone who is not
contractually bound to perform at all – i.e. an unassisted minor. Because minor’s unassisted
contract is not enforceable against the minor – the other party to the contract cannot use the
exceptio non adimpleti contractus against the minor.

Normally – in practice – minor raises her minority as defence when sued on the contract. Nothing
prevents minor from applying for an order declaring her not to be contractually liable. Minor can’t
sue other party for performance in terms of the contract while withholding her own performance
because she would need her guardian’s consent to the litigation & if guardian consents to litigation –
he will obviously be taken to have ratified (confirmed) the minor’s contract.

If minor has performed in terms of contract concluded w/o guardian’s assistance & contract is repudiated
(denied) – minor can recover whatever she has performed:
Property (other than money) recovered by rei vindication & money by condictio. Value of minor’s
performance if reduced by amt she was unduly enriched by other party’s performance.

Because minor’s unassisted contract cannot be enforced against her – she doesn’t have to apply for
restitutio un integrum (return to previous position) in order to recoever perofmrance. Restitutio un integrum
applies if minor, with required assistance, entered into a contract which was to her harm and has peformed in
terms of that contract.

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Minor’s natural obligation may serve as an object of a suretyship & can be novated & ceded.

(b) Assistance by the Guardian

Reason for rule is to protect minor against immaturity of judgment – this consideration falls away where
minor acts WITH guardian’s assistance – minor is then liable ex contractu as if she was a major (effect of
such assistance).

Ways parent / guardian can assist a minor:

1. Act on minor’s behalf
2. Minor can enter into contract herself with guardian’s consent
3. Guardian can ratify the agreement after it has been concluded

Consent may be given:

1. Expressly
2. Tacitly (implied) – i.e. if knows of an agreement minor concluded & raises no objection / as above – if
he allows minor to sue other party for performance in terms of the contract.

Consent may apply to a single transaction or several (i.e. parent allows child to conduct her own business –
minor can enter into all transactions re business).
Consent depends on circumstances of each particular case & guardian must be aware of contract’s
nature & essential terms.
Consent obtained through fraud / undue influence is worthless!

Guardian is obliged to assist minor in entering into legal transactions which benfit minor / to conclude such
transactions on minor’s behalf.
If guardian is unable / unwilling to do so – court may:
1. order guardian to do so;
2. itself give required consent;

Court will also intervene if:

1. Guardians own interests in transaction conflict with his duty to further minor’s interest;
2. Guardian’s consent is insufficient (i.e. alienating / mortgaging minor’s immovable property

Some contracts a guardian can’t conclude on minor’s behalf:

1. Agreements of closely personal nature (i.e. antenuptial contract);
2. If it comes into operation after minor has attained majority

Guardian who has consented to a transaction may withdraw consent prior to transaction being concluded.

Liability of Guardian:

Does not incur personal liability re minor’s contract, regardless of whether assisted minor / acted on it’s
behalf.
Other party can’t claim performance of minor’s obligations from guardian.

Guardian only liable on the contract if:

1. Minor acted as his agent;
2. He guaranteed minor’s performance / bound himself as surety for minor’s performance – in this
situation – guardian’s liability arises only if minor doesn’t perform in terms of the contract.

Negotiorum gestio = if he is child’s parent – parents have duty to maintain their children – if third pary fufills
parental duty of support on behalf of parent by supplying minor with necessaries – parent may be liable on
basis of negotiorum gestio = guardian’s liability doesn’t arrive contractually, but quasi-contractually.

(c) Ratification

Validates the contract with retroactive effect (made to apply to past & future).

Guardian cannot ratify a contract he didn’t initially have power to conclude on behalf of minor.

Minor may also – when attains majority – ratify a contract initially concluded w/o guardian’s assistance. This
can take place expressly / tacitly.

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 Difficult to determine tacitly – court considers minor’s acts & conducts & deduces from all the
circumstances whether / not minor had intention of ratifying the contract.

Unclear whether minor who is unaware of her rights can ratify a contract after attaining majority (i.e. she may
not know that she is not liable under the contract & is entitled to repudiate it.

On one hand – can rely on maxim that ignorance of the law is no excuse (ignorantia iuris haud excusat).
The former minor’s ratification is assumed & she is liable on the contract.

Since appellate division’s decision in S v De Blom = maxim no longer applies without qualification –
inference (reaching an opinion) of ratification can be rebutted (disproved) if former minor’s ignorance is
reasonable & excusable.

Case study: Edelstein v Edelstein

Facts:
Appellants parents were divorced when she was 6 & custody was awarded to her mother. At age of 20 –
married with consent of both her parents. Before their marriage – parties entered into antenuptial
contract in which community of property, profit & loss and the marital power was excluded. Bridegroom
promised certain gifts to bride & some were fulfilled. Appellant was assisted in execution of contract by
mother – but not her father. All persons concerned were under impression that since custody had been
awarded to mother – only her assistance was required to enable appellant to enter into valid antenuptial
contract.

Appellants husband died & left a will in which appellant was one of beneficiaries. Executors of his estate
framed the liquidation & distribution account on basis that marriage had been out of community of
property & appellant in good faith believed that she had been so married – accepted benefits under will.
On being advised that antenuptial contract was invalid – she applied to court for order declaring that she
had been married in community of property & directing executors to amend liquidation & distribution
account by awarding her one half of net value of joint estate.

Only opposing party was Commissioner of Inland Revenue – sole interest in proceedings was that
amount of death duties payable would be less if request was granted.

Application failed in court a quo – but appeal against decision was successful.

Judgment:
Appeal allowed.

Reason for judgment:

Very NB: The antenuptual contract of an unassisted minor is void and cannot be ratifed by minor or his /
her guardian after marriage entered into as this would amount ot an impermissible change of the
matrimonial property system which operates in the marriage. It is the once exception to the rule that the
minor, upon becoming a major (or within a reasonable period thereafter), or his / her guardian, can ratify
a contract which the minor entered into w/o the necessary assistance, with the result that the contract
then becomes fully enforceable.

This is still the position if the minor marries with consent but colncludes an antinuptual contract w/o
consent. If marriage itself is entered into w/o consent – Matrimonial Property Act 88 of 1984 regulates
the patrimonial consequences.

NOTE: Court held that spouses’ matrimonial property regime may not be altered. S 21 (1) of
Matrimonial Property Act 88 of 1984 changed the CL position. With regard to the statement that a wife
upon marriage passes “out of the guardianship of her father into that of her husband” – marital power
has been abolished (s11 Matrimonial Property Act).

Father is no longer only natural guardian of a legitimate child.

(d) Statutory Exceptions Regarding a Minor’s Capacity to Act

Various Acts create exceptions to rule that minor cannot incur contractual liability w/o guardian’s
assistance:

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 1. Minor who has attained age of 18 yrs may – w/o guardian’s consent – enter into, vary, or deal with a
life insurance policy and pay the premiums due under the policy. Any money that becomes payable
under the policy must be paid to the minor – who may deal with it as she thinks fit.

2. Unless the articles of the mutual bank provide otherwise, a minor over the age of 16 yrs may be a
member of or depositor with any mutual bank. She may w/o her guardian’s consent / assistance
execute all necessary documents, give all necessary acquittances and cede, pledge, borrow against
and generally deal with her share / deposit as she thinks fit. She has all the privileges & obligations
of a member / depositor except that she cannot hold office in the bank

3. Deposits in the Postbank and national savings certificates n the name of a minor or any age may be
repaid to her.

AN ADULT WHO HAS ENTERED INTO A CONTRACT WITH AN UNASSISTED MINOR CAN RELY ON
CERTAIN REMEDIES:

1. DELICTUAL CLAIM ON GROUND OF MINOR’S MISREPRESENTATION.

2. UNDUE ENRICHMENT
3. NEGOTIORUM GESTIO – where?? Ask lecturer!!

Misrepresentation by the Minor

General:

General view is that the minor should be held liable in the following circumstances:
If he has falsely misrepresented himself as:
1. an adult
2. being emancipated
3. being a married person
or if he has falsely claimed that he has necessary permission to contract
BUT – there is no agreement on what the basis for this liability should be.

There are 2 possibilities minor can be held liable:

1. Contractually liable (liable on basis that contract he concluded is enforceable)

2. Delictually liable (liable on basis of delict (wrongful act) committed – namely misrepresentation.

1. Contract as possible basis for liability:

First point of view supporting this approach:

RD writers denied fraudulent minor remedy of restitution in integrum (a return to the previous
condition). Therefore this minor could not claim back performance he has already rendered in
terms of the contract.

Restitutio in integrum is actually applicable to contract which minor concluded with assistance
(and which are therefore valid & enforceable), but which are prejudicial to the minor.

Some legal writers argue that the mere fact that the restitiutio is at all at issue implies there is an
underlying binding contract in cases of misrepresentation.
This view point cannot be accepted for the following reasons:
1. In RD practice – restiutio was also used where minor had contracted w/o necessary
consent > it is thus clear that there need not to have always been a binding contract
when restitutio in integrum was at issue.
2. Contract concluded by a minor w/o necessary assistance is unenforceable. It is
therefore unnecessary for minor to recover performance by means of restitutio. He
can recover it by the rei vindication / condictio (refer above).

The fact that the minor is denied restitutio doesn’t mean the contract is valid & enforceable. It
only means that he is denied the possibility of a remedy that he does not require anyway.

Second point of view supporting this approach:

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 The fraudulent minor is bound to the contract by the rules of estoppel.
Estoppel – minor is bound by his pretence that he was an adult. Minor is not permitted to
rely on the true state of affairs – namely – that he is not contractually liable. Minor can’t
avoid contractual liability by raising minority as a defence and must fulfil the provisions of the
contract.
Minor is held liable on contract as if he was a major when contract was concluded. Other
party can sue minor on contract & by means of estoppel – frustrate any reliance by minor on
his minority.

This argument is not supported – invoking estoppel to hold minor to false impression created
& enforcing contract against minor is undesirable. (See below as to why minor should not
be held liable on contract at all).

Case study: Louw v MJ & H Trust

Facts:
When appellant was 20 he bough a motor cycle from respondent. Appellant reclaimed money which he paid
to respondent on ground that payment was made in pursuance of a contract of sale which could not be
enforced against him because he was a minor at time contract concluded.

Respondent disputed liability for repayment on ground that appellant had induces the respondent to enter
agreement by misrepresenting that, although he was only 20, he was an orphan and self-supporting and that
he was therefore tacitly emancipated.

Respondent filed a counterclaim for payment of 2 instalments which were in arrears. & value of some parts
stolen off motor cycle. Alleged theft of parts was due to appellant’s failure to observe the obligation imposed
by the contract to keep the motor cycle in good order, repair & condition / alternatively that theft was due to
appellant’s negligence.

Court a quo found appellant had misrepresented himself to be emancipated & that he was therefore bound
by the contract. Further held that theft of motor cycle parts was due to appellants’ lack of care & that he was
liable for value of parts. In addition appellant was ordered to pay respondent the 2 arrear instalments.

On appeal it was argued on behalf of appellant that – in light of his knowledge – appellant was a minor, and
respondent should not have accepted the appellant’s representation that he was emancipated w/o an
extensive enquiry as to the truth. Alternatively, it was argued that a minor’s contract cannot be enforced
against him even if it was induced by misrepresentation & that the minor was entitled to restitutio in integrum.

Appeal court dismissed argument re verification by the respondent on info given to him by minor. Held that
minor was not liable on contract, but dismissed claim for restitutio in integrum. Further dismissed
counterclaim for payment of 2 instalments which were in arrears as well as payment of value of stolen parts.

Judgment:
Appeal allowed (i.e. appellant didn’t have to pay for 2 instalments & stolen parts).

Reason 4 judgment:
There was nothing to engender any doubt in the mind of the respondent’s manager that the appellant was in
fact emancipated.

Made ref to following cases:

J.C. Vogel & Co. v Greentley:

There can be no doubt that under RD-L the minor misrepresents himself to be of age and by virtue of the
representation enters into a contract, he is generally bound by that representation – otherwise – this would
give scope for fraud of a very serious description. Court enforced a contract against a minor who had
fraudulently represented himself to be a major. No authorities were quoted in support of the conclusion
reached.

Vogel case was followed in Pleats case – a minor’s contract was enforced because of his fraudulent
representation that he was of age. Certain authorities were relied upon = passage of doubtful validity from
Voet.

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Cohen v Sytner
When a minor incurs a debt by representing that he is of full age he is bound. No authority seems to have
been quoted in support of this.

Auret v Hind
In obiter – Court seems to have assumed that minor is bound by a contract entered into by him whre he
deceives the other party into believing that he was a major. Reliance was placed in English authority.

There is no other authority, apart from above, which says a minor’s contract is valid in circumstances under
discussion.

Above cases are incorrect – true view is that minor’s contract is void even if he misrepresented his
contractual capacity either by holding himesefl out as being of age / pretending he had become
emancipated. Respondent was not entitled to claim enforcement of the contract as it did in its counterclaim
& the magistrate should not have entered into judgment in favour of respondent re the 2 unpaid instalments.

If one were to consider his contract valid if induced by his fraud – it places it in power of minor to bind himself
effectively by his contract. To permit this will frustrate the motivation of the rule rendering a minor’s contract
invalid and is inconsistent with rationale expounded in Edelstein’s case (supra).

Appellant’s claim should have failed because in consequence of his fraud, he is not entitled to resitutio.
Large no of authorities enunciate principle that in circumstances such as those found by magistrate – minor
is not entitled to claim resitutory relief. This is also the effect in Fouche case judgment – to which this court
agreed to.

The fact the minor could not rely on restitutio in integrum doesn’t mean that contract is valid and enforceable.
The misrepresentation therefore doesn’t make the contract valid & enforceable. A contract concluded by a
minor w/o assistance is unenforceable.

Court decided that minor could not recover by means of restitutio in integrum the purchase price he had
already paid.

NOTE:
Critism on above judgement:
It was correct to hold that denying restitutio to an unassisted minor doesn’t mean that minor’s
contract is enforceable & that minor is contractually bound.

BUT = court should have permitted minor to recover with a conditio that part of the purchase
price he had already paid. Since he was not bound by the contract, he should have been
allowed to recover the money he had paid!!!

Result of decision is that minor was held bound because he wasn’t allowed to recover pmts he
had already made & not bound because he was not complelled to pay balance of purahc price.
This is unacceptable – either minor is liable on contract (he cannot recoever what he has
performed & is bound to carry out his remaining obligations) or he is not liable (minor may
recoever what he has pefromed & is not bound to render further performance.

Minors claim for recovery of pmts already made should have been upheld & major’s
counterclaim should have been dismissed – this would not have left major w/o remedy – he
could still have sued in delict / based his claim on undue enrichment.

Two principles of law came into conflict in this case:

1. Minor should be protected against his immaturity of judgment
2. Innocent party should not be allowed to suffer because of a fraudulent misrepresentation by another.

THEREFORE…
Contractual liability as basis of minor’s liability if UNACCEPTABLE!

It is incorrect to hold a fraudulent minor liable on ground of the contract. Such liability would
mean that a minor who enters into a contract, w/o assistance of guardian, is permitted to
supplement his limited capacity to act by misrepresentation.

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 This would be unacceptable – minor’s capacity to act is limited to protect him against his own
lack of judgement – this limitation is laid down by the law in the minor’s best interests!!

2. Delict as possible basis for liability

Should be the only basis fraudulent minor is held liable.

Minor only liable if:

o Made a fraudulent misrepresentation re the capacity to enter into contract;
o Misrepresentation induced other party to enter into contract;
o Other party suffered damage as a result of the misrepresentation;
o For minor to be liable – must be old enough to be reasonably mistaken for a major –
Party who enters into contract with minor doesn’t have to enquire into truth of
minor’s statement that he is a major. Other party may accept assertion unless he
has good cause for believing that he’s dealing with a minor – then other party
is not entitled to merely accept statement re majority & minor isn’t delictually
liable on ground of misrepresentation – in such situation – other party is thus
not induced to enter into contract by misrepresentation.

Minor who makes a misrepresentation commits delict and can be held delictually liable.
The prejudiced party has a claim for damages against the person committing the delict.

By making delict basis of liability – cases in which minor was held liable for contract price are not
explained. In these cases – no discussion of ground on which minor was held liable – therefore it is
doubtful whether they can serve as authority to substantiate the basis of minor’s liability as being
contractual in nature.

Tacit (implied, but not expressed) misrepresentation: if a minor openly claims to be a major – there’s no
doubt that he misrepresented himself.
Issue is whether minors conduct amounts to a misrepresentation & this depends on the
circumstance of each case.

o If minor knows that other party thinks he’s a major and does nothing to remove that belief, he
commits misrepresentation.

Once established minor misrepresented his age:

 Onus rests on him to prove other party was not misled by this, unless other party is a blood
relation.

One consequence of delictual liability is that the duty rests on the person committing the delict to
compensate the prejudiced party for the damage he suffered due to the delict.
Delict is a wrongful act (contrary to norms of the law), culpable act which causes damage to
another.

Delictual liability of minors exists independently of contractual liability.

Its application doesn’t allow minor to extend his capacity to act by means of misrepresentation.

Circumstances fraudulent minor will be delictually liable (requirements for delicual iablity):

Undue Enrichment

Person may not be unduly enriched at expense of another.

Person is unduly enriched at expense of another if he gains a patrimonial benefit (i.e. increases
value of his estate) at expense of another without there being a recognised legal ground
justifying transfer of the enrichment.

In such case – law obliges recipient (person who receives benefit) to return to prejudiced party the amt his
estate has been & remains enlarged. Prejudiced party thus has claim agains receipient on ground of “undue
enrichment”.

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The above can be applied where minor enters into contract with adult w/o necessary permission. If adult has
already performed in terms of contract & minor refuses to perform – minor is thus enriched at expense of
adult by the already delivered performance from adult. Adult can hold minor liable on ground of undue
enrichment for repayment of amt by which minor enriched.

“The Benefit Theory” = no longer part of our law…

In Nel v Divine Hall & Co = court decided that once contract, taken in it’s entirety, is to minor’s benefit –
minor is contractually liable. (IE: minor who entered into a contract w/o necessary assistance would be
bound by that contract if it was beneficial to minor. Mere fact that unassisted minor could obtain some
benefit from contract would make it enforceable against the minor)

Following this decision – our courts applied the benefit theory consistently – but incorrectly!

The correct position is that the minor is not contractually liable, regardless of whether / not contract benefits
him / her. BUT – minor can be ex lege (by force of law) liable for amt he / she has been unduly enriched.
(Refer to example on Pg 100 of SG).

The Appellate Division (now SCA) rejected benefit theory in Edelstein v Edelstein (supra).
Court decided that contract of a minor who acted w/o assistance can never be valid because it is
to his / her benefit. Rather – minor is liable for extent to which he / she has been unduly
enriched.
Held that an unassisted minor cannot incur contractual liability in terms of a contract which burdens the
minor, but that minor can be held liable on basis of undue enrichment.

How the Minor’s Enrichment is Calculated:

Use 5 principles:

1. Moment calculation is based = when other party institutes his / her claim;

2. Amt minor’s estate increased owing to performance of other party must be calculated. Here look at
actual value of performance AND NOT contract price;

3. Amt estate of other party decreased as a result of performance rendered must be calculated. Again
– look only at actual value of performance AND NOT contract price;

4. Determine the 2 amts in 2 & 3. Minor is liable for less of the 2;

5. If minor has lost performance received / its value has decrease / minor sold it: following rules apply:

a. If minor lost performance = other party is not entitled to ANYTHING

b. If value of performance decreased = minor liable for decrease value only
c. If minor sold pefomrance before action instituted – minor remains liable for purchase price
received, dpending on how minor applied proceeds thereof:
i. If proceeds are still in minor’s possession on date of institution of action = minor is
liable for as much of it as still remains at time of institution of action
ii. If minor used proceeds for:
1. Necessaries (food / clothing / accommodation & medical treatment): minor
still liable for purahcase price of necessaries – even if nothing remains of
them. Reason for minor’s liability in this case is that minor would have had
to purchase the necessary items out of minors own estate in any case - thus
– by saving on these expenses – minor is unduly enriched at expense of
other party!
a. It must be established whether minor’s estate is larger than it would
have been had minor not received performance of other party –
refer to example on pg 101 of SG.
2. Luxury items = minor is liable for value of whatever remains. (Refer to
example on pg 101 of SG).

It can make a big difference to minor whterh she is liabel in contract / on gournd of undue enrichment.

Contractual liability = liable for contract price – irrespective of hwnen action instituted.

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Sued on basis of undue enrichment = only liabe for value of asset at moment action instituted.

Amt for which minor laibel on basis of undue enrichment can therefore be much less thant the contract price!

REMEDY TO MINOR TO ESCAPE LIABILITY IF CONTRACTED WITH ASSISTANCE OF GUARDIAN /

GUARDIAN CONTRACTED ON HIS BEHALF

Restitutio in Integrum:

May escape contractual liability by relying on restitutio in integrum = extraordinary remedy & only available
where contract was prejudicial to minor when it was made. (Prejudice arising at some later stage is
irrelevant).

Purpose of restitution is to restore the status quo ante (complete restitution from both sides must take place,
placing both parties in position they would have been in had they never entered into the contract – each
party must return everything received under the contract & the proceeds / any advantage derived from the
contract – and each must also compensate the other for any loss suffered as result of contract).

Only necessary if minor is contractually liable. If minor didn’t have guardian’s assistance when entered into
contract – minor is not liable under it and need not seek restitution.
If doubt exists whether / not minor is liable – minor could apply for restitutio in integrum – but it must
be remembered that minor would have to prove that contract was to his detriment when it was made.

Restitution available even if court consented to minor’s contract – because court might have erred / been
misled!

Resitution is not available to minor in case of contracts only – may apply for it whenever minor has suffered
prejudice.
Landers v Estate Landers = restitution was granted to minor who had lost his inheritance through
his guardeian’s failure to protect his interests.

Restitution can not be relied upon to set aside a marriage / escape delictual / criminal liability.

Minor who misrepresented himself as a major / in some other fraudulent way persuaded other party to enter
into contract with him may not rely on restitution.

Whether an emancipated minor may seek restitution is controversial – submitted that restitutio in integrum
should be available to such a minor as it is illogical to deny him the remedy because guardian has consented
to entereting into all transactions within a particular period instead of just one particular transaction.
BUT = minor who has been declared a major in terms of Age of Majority Act cannot obtain
restitution as S 7 provides that such person “shall for all purposes be deemed to have attained
age of majority”.

If after attaining majority, minor ratifies (confirms / agrees to) contract – minor is barred from obtaining
restitution.

With assistance of guardian, minor may apply for restitution before she attains majority OR guardian may
apply on her behalf.
If minor’s guardian fails to assist her – a curator ad litem may be appointed to assist minor in litigation.
Alternativey – minor may wait till gained majority and then institute an action on own – but has to consider
possibility of prescdriptoin of her claim (maximum of 3 yrs after date became a major – but cannot occur
within first yr after minor became a major).

Restitution only affords a cause of action but may also be raised as a defence if minor is sued for
performance in terms of a prejudical contract.

Restitution accorded to a minor differs from other cases of restitution – it does not release someone who has
bound himself as surety for the minor from his obligations – i.e. a minor’s parent who has stood surety for
minor’s obligations would still have to meet those obligations!

Case study: Wood v Davies

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Facts:
While plaintiff was a major he inherited money – the will provided that the money would remain in trust and
that the plaintiff would only be entited to interest on the capital. During plaintiff’s minority – his father
(plaintiff’s natural guardian) purchased a house on plaintiff’s behalf. There was no money at hand to pay
purchase price & parties agreed that purchase price would be payable in instalments. Until the plaintiff’s
majority, the instalments were paid out of the interest in on the money inherited. During his minority –
plaintiff lived on property with his parents. When reached majority – considerable protino of purchase price
still unpaid. Instalments would absorb most of interest payable to him – he claimed cancellation of contract &
repayment of amts he had paid in terms of contract. He alleged that he contract was prejudicial to him.

Judgment:
Plaintiff’s claim was granted. Defendant however is to receive credit from the plaintiff for the use and
occupation of the property.

Reason for judgment:

Father – in his capacity as natural guardian:
1. could not validly contract on behalf of minor to buy property beyond funds actually in hand
2. had not authority to make a contract which was to endure beyond majority & was to impose on the
minor – on becoming a major – heavy and substantial liabilities.
Father thus exceeded his authority as natural guardian in entering into the contract.

Referred to Van der Byl and Co v Solomon: minors will be relieved by means of restitutio against contracts
made to their prejudice either by themselves together with their guardians / by their guardians alone.

Analysed evidence re value of property and concluded that purchase price was somewhat more than the
actual value of the property – minor was therefore prejudiced – that was a serious and substantial prejudice
to him. Result of purchase is that he is now saddled with a property which he can’t sell and has depreciated
in value.

Another ground of serious prejudice – contract contemplated and imposed liabilities on him after he attained
majority and so hampered him in the free administration of his income after attainment of his majority.

NOTE:
When Judge found father exceeded his authority as natural guardian in entering into the contract - he should
have set aside the contract for the reason that the father did not act within the limits of his authority & allowed
minor to reclaim his payments with a condictio.
There was a more onerous burden of proof if he applied for restitutio that if he merely recovered
his performance with condictio.
In Du Toit v Lotriet – court also unnecessarily ordered restitutio – minor’s guardian entered into a lease which
would never have commenced after minor reached majority. Court held that contract was invalid since a
contract which binds minor only after majority falls outside scope of guardian’s authority. Court ordered
restitutio but was unnecessary as contract could simply have been set aside on ground of guardian’s lack of
authority.

A change of circumstances which occurs after the contract has been entered into does not entitle minor to
resitutio = Skead v Colonial Banking & Trust Co Ltd = authorities are clear that accident is not a ground for
restitution – unadvised heedlessness (w/o paying careful attention) favours restitution.

MINOR’S CAPACITY TO MAKE AGREEMENTS OTHER THAN CONTRACTS

A minor can enter into a valid agreement with someone else – by which the minor’s debt to that person is
extinguished –
But – unless he has his guardian’s consent – he cannot validly enter into an agreement which
that person’s debt to him is extinguished.

If other party to contract does render performance – that party is still not released from his obligation to
perform.
Minor may incur liability to other party on ground of undue enrichment.

If minor performs without his guardian’s assistance - the performance is invalid & he can recover whatever
he has performed = reason = although performance entails an advantage for minor (i.e. he indebtedness is
terminated by it) – it also entails a DISAVANTAGE = minor loses his right to ownership to whatever his
performance consists of:

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 A real agreement by which a right is transferred to a minor is valid even though a minor acts w/o
assistance of guardian – but – a real agreement by which minor attempts to transfer a real right
(e.g. ownership) to another person w/o guardian’s assistance is invalid.

If minor entered contract with guardian’s assistance – but performed under contract w/o assistance – minor
may not recover performance – because – minor’s guardian consented to contract – therefore – guardian is
taken to have also consented to minor’s fulfilling contract by rendering performance!

MINOR’S CAPACITY TO MAKE A WILL & WITNESS A WILL

16 yrs / older = may make own will & in it dispose of his / her property as he / she pleases
A witness to a will must be AT LEAST 14 yrs old!

MINOR’S CAPACITY TO MARRY

Usually require parents’ consent:

Legitimate Minor Extra-marital Child Orphan

If parents both alive: Only mother’s consent required – If guardian has been appointed –
unless father has guardianship by must obtain guardian’s consent.
Both must consent – unless court a court order.
orders otherwise / sole
guardianship granted to one
parent.

Even if parents are divorced =

both must consent.

If one parent is deceased =

surviving parent must consent.

Some instances – minor must in addition to parental consent – obtain consent of Minister of Home Affairs:

Needed when boy is btw 14 - 18 yrs & girl btw 12- 15 yrs.
NOTE: Children below age of puberty (i.e. boys below 14 and girls below 12 CANNOT
marry at all)

Consent may be granted by commissioner of child welfare if:

One / both parents are absent / in any other way incompetent to consent
Commissioner must determine whether it is in minor’s interests to enter into an antenuptial
contract.
If it is – commissioner must ensure that an antenuptial contract is entered into before
consenting to marriage & must assist minor in it’s execution.

Minor may approach HC for consent if:

If commissioner refuses to consent

If one / both parents / guardian withholds consent

Court may grant such consent if it is of the opinion that parent / guardian’s refusal is w/o adequate reason &
contrary to interests of minor.
If court grants consent = may also order a particular matrimonial property system must apply to
marriage. If antenuptial contract must apply – court can appoint a curator to assist minor.

NOTE: a minor who has been married before / been declared a major in terms of Age of Majority Act
(repealed by Children’s Act on 1 Jul 07) requires no consent to marry.

Effect of absence of consent to marry:

If consent of Minister of Home Affairs was needed – but not obtained = minor’s marriage is null & void!
Minister may – in certain circumstances – make an ex post facto (seen in retro respect)
declaration that marriage is valid!

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If minor needs consent of parents / guardian / commissioner of child welfare and fails to obtain that consent –
marriage is VOIDABLE.
Marriage ay be set aside by court on application by:
(1) the parents / guardian before minor attains majority & within 6 weeks from date they become
aware of existence of marriage; or
(2) minor before attaining majority / within 3 months thereafter

Patrimonial consequences of marriage minor enters w/o consent are governed by S 24 of Matrimonial
Property Act.
S 24(1) = if marriage is dissolved due to lack of consent – court may make any order re division
of matrimonial property it deems just.

S 24(2) = regulates patrimonial consequences if marriage is not dissolved – in this event –

patrimonial consequences of marriage are same as if minor were of age when marriage entered
into & any antenuptial contract in terms of which the accrual system is included & which was
executed with a view to marriage – is deemed to be valid.

MINOR’S CAPACITY TO CONSENT TO MEDICAL TREATMENT & OPERATIONS

Medical Treatment of self or his/her child Operations for self or his/her child
14 yrs 18 yrs (incl. sterilisation)

Minor girl of ANY age may consent to termination of

preg.
Children’s Act 38 of 2005
12 yrs > 12 yrs

Provided minor is of sufficient maturity & Provided minor has sufficient maturity &
Has mental capacity to understand benefits / risks / Has mental capacity to understand benefits / risks /
social & other implications of treatment. social & other implications of operation &
Child is duly assisted by his / her parent / guardian –
although parent / guardian’s consent is not required.

Child’s parent / guardian’s consent is only required if child Is under 12 yrs / over that age – but is of
insufficient maturity / is unable to understand benefits / risks & social implications of treatment / operations
At time of SG – provisions re consent to medical treatment & operations in Children’s Act not yet come into
force!!!

MINOR’S CAPACITY TO HOLD CERTAIN OFFICES & PERFORM CERTAIN FUNCTIONS

 Cannot be a director of a company or mutual bank

 Cannot be trustee in an insolvent estate
 Cannot be appointed as someone else’s guardian (although a married person under 18 yrs is natural
guardian of his/her child)
 Submitted that cannot be executor of deceased estate (not yet finally decided)

Can act a someone’s agent w/o consent of guardian because an agent does not bind itself but it’s principal!

Emancipation does not terminate minority (emancipated minor cannot hold these positions)

Minor declared a major under Age of Majority Act (repealed & replaced by Children’s Act) / attained majority
status through marriage can hold these positions.

MINOR’S CAPACITY TO LITIGATE (locus standi in iudicio)

Limited capacity in most private-law lawsuits.

Minor can sue / be sued with guardian’s assistance / guardian can take up case on minor’s behalf.

If minor doesn’t have guardian – minor must be assisted by a curator ad litem who is appointed on
application by the court.

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 Anyone interested in appointment / a friend / creditor of minor may make such an application.
Minor can make application if old enough to be able to understand the procedure.
Vista University, Bloemfontein Campus v Student Representative Council, Vista University =
court relied on its powers as upper guardian of all minors & itself assisted minors in
particular litigation.

In certain exceptions – minor has full capacity:

If HC – as upper guardian of all minors – grants a minor “venia agendi” (permission to conduct a
suit) – minor does not require assistance at the proceedings.
Venia agendi granted ONLY if minor has reached relatively advanced level of intellectual
development.

NOTE: Above applies ONLY to private-law proceedings.

In civil cases:
Minor requires assistance of guardian.
Minor may be charged criminally w/o assistance of guardian – BUT – parent / guardian must
be present at court proceedings if child is under 18.

MINOR’S CAPACITY TO INCUR DELICTUAL AND CRIMINAL LIABILITY

Delict = wrongful (in conflict with legal norms), culpable act causing damage to another
Crime = act prohibited by the law (statue / common law)

Requirement of both = perpetrator must be at fault, acted intentionally / negligently.

Capacity to be at fault = accountability.
Person can be accountable only if has mental capacities to:
a. differentiate btw right & wrong
b. act accordingly

Diff btw capacity to act & accountability:

Capacity to Act Accountability
Capacity to enter into juristic acts. Person must be Capacity to distinguish btw right & wrong and act
able to understand nature, exetent & consequences accordingly..
of acts.

Therefore – minor can be accountable even if does not have capacity to act.

In terms of CL = rebuttably presumed minors btw 7 and 14 are not accountable for their crimes & delicts.
Evidence may be presented to show that child is accountable.
Minors btw 14 and 21 (now 18) rebuttably presumed to be accountable for their crimes & delicts.
They are considered accountable until contrary is proven.

TERMINATION OF MINORITY

Mondige = person already has full capacity to act – not always of age
Onmondige = person under 18 who does not yet have full capacity to act – they are always under age.

Majority is therefore only of of the ways in which onmondigheid can be terminated.

Attainment of prescribed age Was 21 in terms of Age of Majority Act

Now 18 in terms of Children’s Act which replaced & repealed

above (eff 1 Jul 07).

Ensues at beginning of day of person’s 18th b-day.

Marriage Enter into marriage before 18 becomes a major for all purposes.

If marriage dissolved by death / divorce before reaching 18 yrs –

minority doesn’t revive.

Void marriage does not terminate minority.

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 The annulment of a voidable marriage restores a minor’s limited
capacity with retrospective respect (apply to past, present &
future).
Venia aetatis and release from At CL the sovereign (head of state) could grant a minor a
tutelage concession to act as a major = venia aetatis. Effect = make minor
a major in eyes of the law (legally mondig) with exception that
Venia aetatis = minor could not alienate (transfer ownership to somebody)
concession to act as a major, granted immovable property / burden it with a mortgage unless this
to a minor in the CL, by the sovereign. capacity was expressly conferred.

Release from tutelage = In SA law – venia aetatis as granted in Free State where it was
authority courts had, to confer full governed by statute and granted by State President by
capacity to act, on a minor. proclamation in the Government Gazette after SC considered
desirability of granting it.
NB: Distinction btw the two lies in
the authority which granted the Act of Majority Act (now replaced by Children’s Act) repealed FS
concession! provision – but didn’t expressly revoke venia aetatis itself.

Venia aetatis – granted by executive Whether venia aetatis is obsolete has not been expressly decided
authority (sovereign) by our courts. It’s clear though that no administrative machinery
has existed for dealing with it for some time (i.e. venia aetatis has
Release from tutelage – granted by fallen into disuse).
the judiciary (courts).
In Cape – courts decided that they had power to grant orders
releasing minors from tutelage (guardianship). Even though these
orders had more / less same effect as venia aetatis – it was held
that – court was actually merely emancipating (freeing from
restraint) the minor in its capacity as upper guardian of all minors.

Question whether courts have power to release a minor from

tutelage:

No:

Coertze – court does not have power – release from tutelage as a

legal concept was never part of RD-L & that concept had already
fallen into disuse by end of 18th cent & release from tutelage was
granted by administrative organs – not by courts.

Yes:

Spiro & Van Heerden et al = as supreme guardian – courts power

can extend to emancipating a minor.

Ex parte Van den Hever – judge Kannemeyer pointed out – when

a court is asked to grant a minor release from tutelage – court
emancipates minor in its capacity as supreme guardian.

Our law is not clear on question whether Age of Majority Act (now
replaced by Children’s Act) has replaced venia aetatis and release
from tutelage.

Age of Majority Act does not expressly abolish venia aetatis &
release from tutelage. (Now replaced by Children’s Act).

Some authors (i.e. Van Aswegan) argue that courts can confer
release from tutelage while others hold that these 2 legal concepts
were replaced by Act (e.g. Van Heerden et al).

TERMINATION OF MINORITY THROUGH EMANCIPATION BY A PARENT / GUARDIAN

Definition of emancipation =

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 Minor is emancipated if her guardian grants her freedom independently to enter into contracts –
the guardian consents to a RANGE of juristic acts falling within a particular SPHERE. Whenever
such consent is given – minor incurs liability like a major.

In terms of the CL – distinction was made btw these two types:

Express emancipation Tacit emancipation
Declaration before the court by they parent / A minor who lived apart from her parents managed
guardian that he had emancipated his child from her own undertaking (responsibilities).
parental authority.

This form of emancipation was later replaced by

venia aetatis.

Who must agree to the emancipation of the minor?

At CL = father had to consent.

Mother could grant if:
1. Child was born out of wedlock
2. She had sole guardianship
3. Natural guardianship passed to her after father’s death.

Where mother had custody & father had guardianship – father still had to consent.

Guardianship Act doesn’t expressly provide that a mother now has capacity to emancipate her legitimate
child – BUT – s 1(1) provides that a woman is the guardian of her legitimate child & that such guardianship is
“equal to that which a father has under CL re his minor children” – therefore – it SEEMS she may now
emancipate her legitimate child too!

Whether one parent can consent while other refuses is unclear.

If a minor has no parents – legal guardian must consent.

NB: Emancipation can only be effected by express / implied consent.

Mere carelessness on part of parent doesn’t result in minor’s emancipation.

Circumstances court can take into consideration when having to decide whether a minor is
emancipated in a particular instance:

This is a question of fact – court must decide upon after considering all the circumstances of case.

If minor lives on her own and manages her business are factual details which together with the following held
to establish whether emancipation has taken place:
Her age
Relationship btw minor and her guardian
Nature of her occupation and length of time its been carried on

If minor lives with her parents – stronger evidence is required!

Effect of emancipation on minor’s capacity to act:

Not authoritatively decided.

Issue is whether emancipation applies only to transactions in connection with minor’s trade / occupation /
business OR whether minor can act beyond the scope of that trade / occupation / business.

Some cases = view that emancipation gives minor capacity to act in respect of all contracts, except that she
cannot alien / encumber immovable property / marry w/o guardians consent.

Other cases = minor is emancipated only in respect of contracts in connection with her particular business.

Therefore – seems courts have confused 2 distinct institutions:

1. Tacit emancipation – which terminated parental power & irrevocably (cannot be withdrawn) conferred
full majority status;

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 2. General authority – Advance consent to enter into transactions of a certain kind – had no effect on
parental power and could be revoked (withdrawn) at will.

Nevertheless – it is submitted that as far as modern practice is concerned – degree of legal independence a
minor has acquired is a question of fact that depends on all the circumstance of the case. Emancipation is
only a type of general consent which enables the minor to enter into legal transactions
If minor’s parents have given minor complete freedom of action re his mode of living and
earnings – minor is emancipated to all intents and purposes.
Minor’s capacity to act is restricted to matters connected with her business if parent ahs noly
emancipated her for the purpose of that particular business w/o relinquishing reins of parternal
power.

Case study: Dickens v Daley

Facts:
Respondent (minor) entered into contract of lease with appellant. Respondent drew a cheque in favour of
appellant in pursuance of the contract, but cheque was dishonoured on presentation as payment had been
stopped by respondent. Appellant sued respondent for payment in MC. In a special plea the respondent
admitted to drawing the cheque but averred that he was a minor and, as such, had no locus standi in iudictio
(capacity to litigate) or capacity to enter into a contract and that the appellant’s claim was unenforceable.
The appellant contended that responded was emancipated and was liable on the cheque. He riled on the
fact that respondent had been living with his mother and stepfather for past 12 yrs, he had contributed to his
board and lodging, he had been working as a clerk for 4 yrs, his father had not exercise any control over him
(except for daring up an affidavit which minor required to get a passport) and he had administered his own
bank account. Magistrate ordered absolution from the instance. Appellant appealed.

Judgment:
Magistrate erred in granting absolution form the instance. Appeal was allowed.

Reason for judgment:

It depended on the facts and circumstances of the case whether the minor was emancipated re all contracts,
or only to conclude contracts dealing with his occupation or business. If minor’s parent / guardian has given
him / her “complete freedom of action re his mode of living and earning his livelihood” – he is emancipated
for all intents and purposes.

Case study: Watson v Koen

Facts:
Respondent sued appellant in MC in terms of an agreement of sale btw them re course material. Appellant
averred that he could not validly enter into an agreement because he was a minor. Respondent maintained
that appellant was emancipated. Magistrate found in favour of respondent. Minor appealed against MC
decision.

Judgment:
Appeal was successful

Reason for judgment:

Extent of emancipation is a question of fact depending on circumstances of each case. Factors which may
be taken into account are the fact that the minor lives on his own, his age, relationship btw minor and his
parent / guardian, etc. The court accepted that a general emancipation can exist with ref to all contracts (not
only contracts connected to the minor’s occupation / business), but that is should en be clearly proved. What
has to be proved on a balance of probabilities is a clear, certain and firmly established situation – from which
it appears absolutely clearly that there was indeed a tacit granting of complete discharge from parental
authority.

Does emancipation terminate onmondigheid completely?

At CL – tacit emancipation was a means of terminating minority.

In modern law – only consequence of emancipation is that minor can enter into contracts
independently – therefore answer is NO.

Can an emancipated minor claim restitutio in integrum?

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Since it is available to a minor who concluded a prejudicial contract with guardian’s consent – no reason why
it should not also be available to an emancipated minor.

Does an emancipated minor have the capacity to litigate?

Courts seem to assume they do.

This is viewed to be incorrect though – a guardian who consents to a minor entering a specific individual
transaction doesn’t automatically also consent to the minor engaging in litigation re that transaction. It
seems inaccurate to assume minor who has been emancipated automatically has capacity to litigate in
respect of matters falling within the sphere of transactions to which her emancipation relates.

Can a guardian revoke emancipation?

Although obiter dicta in Cohen v Sytner & Landmann v Mienie support the view that emancipation is
irrevocable (cannot be withdrawn) – the better view is that the guardian is entitled to revoke the
emancipation.

Has the Age of Majority Act abolished tacit emancipation? (REMEMBER: Children’s Act has
repealed this Act)

This question was left open in Grand Prix Motors WP (Pty) Ltd v Swart
Because emancipation doesn’t confer full majority status – it is suggested that this institution was not
repealed by the Act.

Who the onus of proving tacit emancipation rests:

The person who alleges that emancipation has taken place.

DIVERSE FACTORS WHICH AFFECT STATUS

How mental illness affects a person’s status:

Fact person has been declared mentally ill / is detained in an institution doesn’t directly affect his status.
If person is mentally ill for purposes of private law = he has NO capacity to act or litigate at all!

Mental illness affects a person’s status because the law attaches no consequences whatsoever to the
expressions of will of a mentally ill person.

Consequences of mental illness on a person’s legal status:

Mentally ill person cannot enter into legal transactions / litigate even with assistance of his curator
Curator must conclude transactions and sue for him on his behalf.
Therefore – mentally ill person cannot enter into transactions even if he acquires only rights and other party
incurs only duties.

Any transaction mentally ill person enters into is VOID and cannot be ratified. Transaction remains void even
if person dealing with mentally ill person was unaware of mental illness.
 A bona fide 3rd party can thus not insist on the agreement being carried out but may have an action
based on undue enrichment because enrichment liability is not based on contract and capacity to
act.
 A mentally ill person can also be liable on the basis of negotiorum gestio ((ask lecturer – how does
this work???)

A judicial declaration that person is mentally ill (certification) and appointment of a curator to that person do
no affect person’s liability and capacity to act.

Legal position is determined by whether / not person was mentally ill AT A SPECIFIC MOMENT.
A juristic act a mentally ill person performs during a lucid (sane) interval is valid and enforceable!

Certification:

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Someone certified Someone not certified
Capacity to act if he is not mentally ill at time juristic No capacity to act if he is mentally ill when juristic act
act performed performed

Onus of proof is on party alleging that person was Onus of proof is on party alleging person was
sane at time transaction concluded because it is mentally ill at time transaction concluded because it
rebuttably presumed a certified person is mentally ill is ordinarily presumed everyone is sane.

Marriage:

Not dissolved automatically by mental illness – Divorce Act = mental illness for which there is no reasonable
prospect of a cure is a ground for divorce.

In community of property Out of community of property, profit & loss subject to

the accrual system
Court may suspend mentally ill spouse power to deal
with joint estate for a definite / indefinite period if
essential to protect other spouse’s interests in joint Sane spouse can request court to make order for
estate. immediate div of accrual.

Matrimonial Property Act = immediate div of joint Order will be made if applicant satisfies court that her
estate will be ordered if sane spouse satisfied court right to share in accrual of mentally ill spouse’s
that her interest in joint estate is being / will probably estate at dissolution of marriage is being / will
be seriously prejudiced by conduct / proposed probably be seriously prejudiced by his conduct /
conduct of other spouse and that no other person will proposed conduct and that no other person will be
be prejudiced by order. prejudiced by the order.

(At CL mental illness was not sufficient reason for

immediate div of estate)

Parental Authority:

Parent’s mental illness doesn’t automatically terminate parental authority.

Courts, exercising it’s CL authority as upper guardian / its various statutory powers may make an
appropriate order re guardianship & custody of person’s children / interfere in the exercise of
parental authority if this is in the children’s best interests.

Holding of offices:
Numerous offices mentally ill person cannot hold!

Criminal / Civil Liability:

Fault in the form of intention / negligence is a requirement – since a mentally ill person is doli and culpae
incapax, he is not responsible for his crimes and delicts.

Statutory measures re mental health care & certification & administration of a mentally ill person’s estate
must be clearly distinguished from the legal principles governing the person’s legal status. A mentally ill
person’s status is determined by CL principles as interpreted and extended by the courts.

Procedure followed to declare a person mentally ill in terms of the Mental Health Act and the Mental
Health Care Act:

According to SCA in Pheasant v Warne and in Lange v Lange = person is mentally ill for purposes of private
law if either:

1. he cannot understand nature & consequences of transaction he is entering into; or

2. he does understand the nature & consequences of transaction – BUT – is motivated / influenced by
delusions cause by a mental illness.

Proving mental illness:

The absence / presence of mental illness is a question of fact that is usually determined in the light of
medical evidence presented to the court.

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Mental Health Acts

The statutory measures regulate the provision of mental health care and confer a statutory power on the
court to appoint a curator.
Mental Health Act of 1973 governs these matters. When the Mental Health Care Act of 2002
comes into operations it will repeal and replace virtually the whole of the 1973 Act.
The replacements is necessary because it is widely considered to be outdated and, in part,
unconstitutional.

Mental Health Act 18 of 973 Mental Health Care Act 17 of 2002

Not yet come into effect

“Patient” = person who is mentally ill to such a Instead of using “patient” this act refers to “mental
degree that it is necessary that he be detained, health care user”. A mental health care user is a
supervised, controlled and treated, and includes a person receiving care, treatment and rehabilitation
person who is suspected of being / is alleged to be services / using a health service at a health
mentally ill to such a degree. establishment aimed at enhancing the person’s
mental health status.

In terms of the Act a person may be treated & Like 1973 act – this Act distinguishes btw diff
admitted to an institution voluntarily / as a result of a categories of persons requiring mental health care
reception orders. on the ground of whether / not they submit to mental
health care & admission voluntarily.

If someone suspects that a person is mentally ill, he Involuntary care, treatment and rehabilitation
may submit a written statement to a magistrate in services may be provided only if head of a health
which he indicates the reasons for the application establishment approves a written application for the
and his relationship to the person. provision of such services.

In very urgent cases – the application may be made The head of the health establishment must have the
to the superintendent of a mental health institution. person examined by 2 mental health care
practitioners, and may only grant the application if
The magistrate / superintendent will then consider both practitioners agree that involuntary services are
the application and appoint 2 medical doctors to needed.
examine the patient. The person is then referred for a 72 hr assessment
period. After the assessment, the person must
The magistrate may also order that the person be immediately be discharged unless the head of the
placed in an institution for a period of not more than establishment is of the opinion that his mental health
42 days. This order doesn’t affect a person’s status, status warrants involuntary commitment. If the head
but only his freedom of movement. is satisfied that involuntary commitment should
occur, he must submit a written request to the Mental
The superintendent of the institution patient is Health Review Board.
admitted must examine patient & report to the official IF the Mental Health Review Board grants the
curator ad litem concerned, who has to forward the request – matter must be referred to the HC.
report to a judge of the HC. If Mental Health Review Board denies the request –
person must be discharged.
The judge considers this report. He may then make
an order either for further detention / for the After considering all the info, the HC may either order
discharge of the patient, or he may refer the matter immediate discharge / further hospitalisation.
for trial. A curator bonis may be appointed for the
patient. If necessary, an administrator (similar to the curator
bonis) may be appointed to care for and administer
person’s financial affairs.

Mental Health Act of 1973 was often criticized for failing to protect the rights of mentally ill persons.
Mental Health Care Act of 2002 places a great deal of emphasis on the rights of mental health care users.

Rights of mental health care users in terms of Mental Health Care Act of 2002:

Objects of this Act are the regulation of:

1. regulation of mental health care;

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 2. treatment & rehabilitation services
3. manner in which the property of mentally ill persons and persons with severe or profound intellectual
disability may be dealt with;
4. the clarification of the rights and duties of mental health care users and providers.

Act’s emphasis is on the rights of mental health care users is a welcome departure form the Mental Health
Act.
It contains a separate chapter setting out specific rights & duties re mental health care users.
These rights & duties operate in addition to the rights other laws confer on mental health care
users. Whenever these rights / duties are exercised / performed regard must be given to the
best interests of the mental health care user.

Rights include rights to:

1. representation (including legal representation);
2. confidentiality;
3. having their person, human dignity and privacy respected;
4. being provided with care, treatment and rehabilitation services that improve their mental capacity to
develop to full potential & facilitate their integration into community life;
5. Care, treatment and rehabilitation services may not be used a punishment for the convenience of
others, must be proportionate to the mental health care user’s mental health status and may intrude
only as “little as possible to give effect to the appropriate services;
6. except in urgent cases, the mental health care user must be informed of his rights prior to the
administration of any care, treatment and rehabilitation services.

Act also prohibits unfair discrimination on ground of person’s mental health status and provides that any
determination concerning a person’s mental health status must be based solely on factors that are
relevant to his mental health status and not socio-political / economic status / cultural or religious
background / affinity.
A determination of a person’s mental health status may be made only for purposes that are directly
relevant to his mental health status.

Every person, body, organisation or health establishment which provides care, treatment and
rehabilitation services must take steps to ensure that mental health care users are protected from
exploitation, abuse, degrading treatment and forced labour.

The Act requires all state organs to determine and co-ordinate the implementation of their policies and
measures in a manner that promotes the rights and interests of mental health care users.

Appointment of a curator:

Curator bonis Curator ad litem Curator personae

In terms of CL – HC can appoint Represents a mentally ill person’s Cares for the mentally ill person’s
one to look after mentally ill interests in legal proceedings – person (body) – either generally or
person’s estate and supplement this is because the law denies for a specific purpose
his / her capacity to act capacity to litigate to someone
who his unable to understand
NOTE: such proceedings.

Mere fact a person has been Director of Public Prosecutions is If a patient who has been certified
declared mentally ill & a curator the official curator ad litem for in terms of the Mental Health Act
has been appointed to administer patients falling within the ambit of is incapable of managing his
his estate doesn’t mean that he the Mental Health Act of 1973. affairs, but is capable of managing
loses all capacity to act. himself and is not a danger to
In Pienaar v Pienaar’s Curator – Director of Public Prosecutions is himself or others – a curator
states: this does not deprive him also the official curator ad litem in personae need not be appointed
of the right of administering his terms of the Mental Health Care although a curator bonis will be
own property & entering into Act of 2002, but under this Act the appointed to administer his estate.
contracts & other legal official curator ad litem’s powers
dispositions to the extent to which regulate only to state patients. As the appointment of a curator
he may be capable, mentally and personae involves a serious
physically, of doing so. Such curtailment of a person’s rights
mental / physical capacity may and freedoms – it is not done
vary from day to day, but at all lightly!

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times it remains a question of fact.
Object of appointing a curator is
merely to assist person in
question in performing legal acts
to the extent to which such
assistance if from day to day, in
varying degrees, necessary.
Thus, even a person who has
been declared insane and to
whose estate a curator has been
appointed can dispose of his
property & enter into contracts
whenever he is mentally capable
of doing so.

Acts considered of too personal a

nature cannot be performed by a
curator (i.e. action of divorce /
make a will / exercise parental
authority)

How a person’s inability to manage his affairs affects his capacity to act:

Court can appoint a curator bonis for ANYONE who is not capable of managing his own affairs due to some /
other physical / mental disability / incapacity (i.e. deaf and mute, blind, senile, paralysed or seriously ill).

Fact that a curator has been appointed for such a person doesn’t result in person losing his / her capacity to
act altogether.

The circumstances have to be considered to decide whether person was truly capable of managing his own
affairs when he / she performed a certain juristic act.
If at given moment person is physically & mentally capable of managing his own affairs – he can
enter into a valid juristic act.
Curator need only assist a person in so far as such assistance is necessary, if the person, while performing
the juristic act isn’t capable of managing his own affairs.

How intoxication affects a person’s capacity to act:

Intoxication refers to the effect of intoxicating liquor AND the effect of any drug.

If a person has been influenced to the extent that he doesn’t know what he is doing / what the consequences
of his juristic acts are, then those acts are void (NOT VOIDABLE).

It is not sufficient that a person be influenced in such a way that it is merely easier to persuade this person to
conclude the contract / that this person is more willing – the person must be influenced to such an extent that
he does not have event the faintest notion of concluding a contract / of the terms of the contract > the
contract will then be VOID.

Person who alleges someone is intoxicated must prove it.

Intoxication affects a person’s capacity to act only for as long as the intoxication lasts!

PRODIGALITY:

Definition of a “prodigal”:
A person who has normal mental ability but isn’t capable of managing his own affairs – because he
squanders his assets in an irresponsible & reckless way as a result of some defect in his power of judgment /
character.

From the decision of the courts =

Seems prodigality normally goes hand in hand with alcoholism and / or gambling.

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To protect such people & their families against prodigal tendencies – their status can be restricted by an
order of the court.

Any interested party – including prodigal himself – may apply to court for an order declaring a person a
prodigal and requesting a curator bonis to administer his assets.

Effect of prodigality on a person’s status:

Legal capacity:

Limitations on an interdicted prodigal’s legal capacity relate to his participation in commercial dealings &
handling finances.

I.E. = he can’t be a director of a company or a trustee of an insolvent estate.

Capacity to act:

Mere declaration that someone is a prodigal – not enough to depriver him of capacity to act = it must be
coupled with an order restraining him from administering his estate.

Effect of an order declaring a person a prodigal & interdicting him from administering his estate is that his
legal position becomes analogous (similar in certain aspects) to that of a minor, rather than a mentally ill
person =
he has limited capacity to act and
may not independently enter into juristic acts by which duties are imposed upon him; and
he can either enter into transactions assisted by his curator or
the curator can act on his behalf.

Diff btw effect of a mentally ill person’s incapacity to act & a prodigal’s capacity to act:
Mentally ill Prodigal
Result of his mental illness & not of the court order Restricted by the court order and not by a mental
declaring him to be mentally ill defect

Phil Morkel Bpk v Niemand = a prodigal’s capacity to act is curtailed because the person lacks the necessary
judgment to know which obligations he should be party to and not because he cannot take part normally in
the creation of an obligation.

In the case of prodigals & mentally ill persons – the purpose of the restriction on their capacity to act is the
PROTECTION, even though the reason for their protection is different.
In the case of a prodigal – like a minor – the reason is the persons LACK OF JUDGMENT
(onoordeelkundighied).

The curator must honor transactions prodigal validly concluded before being interdicted because up till then
the prodigal ahd full capacity to act.

If an interdicted prodigal enters into a legal transaction with a 3 rd party in disregard of the court order – he
may be prosecuted for contempt of court.
Position is the same as a minor – the transaction is voidable at the instance of the curator – who
may ratify / repudiate it.
If ratified = it is binding. If repudiated = prodigal may recover from the other party whatever has
been delivered / paid to that party.
Other party may hold the prodigal liable on the basis of undue enrichment.

If an interdicted prodigal misrepresents himself as a person having full capacity to act / having curator’s
consent – question = can he be held contractually liable on the ground of that misrepresentation?
Holding him liable on the contract would defeat the object of the interdict and is thus not
supported.

There is controversy among RD- writers on whether an interdicted prodigal may become engaged w/o
curator’s consent:

Voet = curator’s consent is required as marriage might negatively affect prodigal’s estate.

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Brouwer = curator’s consent is not required because the prodigal can marry w/o curator’s assistance and if
he may marry w/o curator’s consent – it is self-evident that he may get engaged w/o consent.
It is suggested that Bouwer’s view is the BETTER one.

Modern SA writer’s are in agreement that a prodigal may enter into a valid marriage w/o his curator’s
consent.

Curator cannot make a will on behalf of prodigal, nor can he assist the prodigal in making one.

Whether prodigal has capacity personally to make a will is unclear.

CL position seems to be that a prodigal can execute a valid will provided it benefits his
descendants / otherwise deals with his property equitably.
BUT – as the interdict deprives the prodigal of the power to make any disposition of his
property – it is considered safer to obtain permission form the state to make a will.
To what state body applications must be made is not indicated – it seems that there is none in
SA which given necessary consent.

Ex parte F = SC (now the HC) doesn’t have power to consent to a prodigal’s making a will.

Enactment of Wills Act didn’t solve problem – doesn’t clearly indicate if a prodigal has
capacity to make a will. S 4 permits every person above the age of 16 to make a will, unless
at the time of making the will, that person is mentally incapable of appreciating the nature &
effect of his act – it seems s 4 gives the capacity to make a will in which he – like any other
person who has capacity to make a will can dispose of her property as he likes.

On the other hand – it may be argued that S4 has to be interpreted in the light of the CL
provisions requiring the prodigal’s will to benefit her descendants / otherwise deal equitably
with her property.

Solution = lies in enacting legislation which deprives an interdicted prodigal of the capacity to
make a will w/o the consent of the court / master and at the same time authorises the court /
master to give such consent OR legislation which provides that a prodigal’s estate has to
devolve according to the rules of intestate succession.
However – such legislation would be premised on the notion that placing limitations
on a prodigal is constitutionally justified – this is EXTREMELY doubtful.

If arguments in Phil Morkel Bpk v Niemand are applied consistently – a will the prodigal
executed before being declared a prodigal remain valid as she had capacity to act when the
will was executed.

A prodigal retains parental authority over her children – she can consent to their marriage w/o curator’s
consent – and inharmoniously – remains control of her children’s estates!

Capacity to Litigate

May on embark on litigation w/o curator’s consent because, through such litigation, he could incur liability for
costs which would lead to a disposition of his estate & would thus be in breach of the interdict prohibiting him
from administering his estate.

He may sue unassisted for a divorce & for an order to have his curator dismissed / curatorship set aside.

Capacity to be held accountable for crimes & delicts

Prodigality & an order interdicting a prodigal from administering his estate DOES NOT AFFECT this.

Constitutional implications of interdiction as a prodigal

Submitted = limitations placed on interdicted prodigals are unconstitutional.

Interdict preventing prodigal from administering his estate infringes his rights to dignity & privacy.
May be argued that the infringement is reasonable & justifiable if he has dependents to support,
because society is justified in requiring a person who has dependents to conform to socially acceptable
spending patterns for fear that his dependents become a charge upon society through is profligacy.

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BUT = distinguishing btw prodigals with dependants & those without falls foul of the guarantee of equality
before the law.

It is submitted that the duty of support is an insufficient justification for the infringement of the prodigal’s const
rights & that the limitations placed on all prodigals are unconstitutional.

INSOLVENCY:

Definition: A person is insolvent if his liabilities exceed his assets (when person has more debts than
assets).
If person’s estate is sequestrated (secluded / kept apart) as a result of the above – the
sequestration affects his status.

Legal capacity:

Influenced by sequestration of estate as there are certain offices he can’t hold (i.e. director of a company /
mutual bank or a trustee).

Capacity to act:

When someone is declared insolvent – his estate is sequestrated, he is divested (stripped of) his estate,
which then vests in the master of the HC until a trustee is appointed.

When trustee is appointed – insolvent estate vests in the trustee = even though trustee administers insolvent
estate – doesn’t mean insolvent loses all capacity to act.

May still enter into contracts – provided doesn’t purport to dispose of any property of the insolvent estate.

Insolvent needs written consent of trustee:

a) to enter into a contract which adversely affects the insolvent estate / is likely to affect it adversely;
b) to carry on, be employed in or have any interest in the business of a trader who is a general dealer /
manufacturer.

If insolvent enters into contract in breach of above provisions = contract is valid if:
a) property insolvent disposed of was acquired AFTER sequestration;
b) disposition was for valuable consideration; and
c) person with whom insolvent transacted was unaware and had no reason to suspect estate was
under sequestration.

Other contracts in breach of the limitations are voidable at the instance of the trustee.

Capacity to litigate:

Insolvent doesn’t lose all capacity to litigate when estate is sequestrated –

All civil proceedings by / against insolvent are stayed (suspended) until the appointment of a
trustee to act on his behalf.

For the rest = insolvent retains capacity to litigate.

Capacity to be held accountable for crimes & delicts:

Does not affect this.

BUT = if insolvent commits a delict after sequestration – compensation must be paid out of those assets the
insolvent acquired after sequestration that fall outside the insolvent estate.

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