South African Family Law (PDFDrive)

THE SOUTH AFRICAN
LAW OF PERSONS
FOURTH EDITION
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THE SOUTH AFRICAN
LAW OF PERSONS
JACQUELINE HEATON
BLC LLB (Pret) LLM (Unisa)
Professor of Private Law, University of South Africa
FOURTH EDITION

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© 2012
ISBN 978 0 409 05265 7
First Edition 1999

Reprinted 2000, 2001, 2002, 2003
Second Edition 2003
Reprinted 2004, 2005, 2007
Third Edition 2008
Reprinted 2011
Fourth Edition 2012
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PREFACE
I wish to thank the team at LexisNexis and, in particular, Corné

Human, Mandy Jonck, Elaine Smit and Liz Bisschoff for the
quality of their input, and their co-operation, efficiency and
friendliness. Elaine Smit also deserves special thanks for
preparing the Table of Cases, Table of Statutes and the Index.
This work reflects the law as at 31 May 2012. Decisions up
to the May 2012 law reports were considered for inclusion in
the book.
JACQUELINE HEATON
Pretoria
August 2012

CONTENTS
Preface
1 THE CONCEPT LEGAL SUBJECT
1.1 Definition of the law of persons
1.2 Law and rights
1.3 Legal subject and legal object
1.3.1 Corporeal things
1.3.2 Performance
1.3.3 Personality property
1.3.4 Immaterial property
1.4 Different kinds of legal subjects
1.4.1 The natural person
1.4.2 The juristic person
2 THE BEGINNING AND END OF LEGAL
PERSONALITY
2.1 The beginning of legal personality
2.2 Registration of births
2.3 The interests of the unborn child
2.3.1 The nasciturus fiction
2.3.2 The fields of application of the nasciturus
fiction
2.3.3 Does the protection of the interests of the
nasciturus imply that an unborn child is
sometimes a legal subject?
2.4 The end of legal personality
2.4.1 General
2.4.2 Proof of death
2.5 Presumption of death
2.5.1 Common-law procedure
2.5.2 Statutory procedure
2.5.3 The effect of an order of presumption of
death
2.6 Presumptions regarding sequence of death
2.7 Registration of deaths
2.8 Duty to bury the deceased
3 STATUS
3.1 Introduction
3.2 Legal capacity
3.3 Capacity to act
3.4 Capacity to litigate
3.5 Capacity to be held accountable for crimes and delicts
4 DOMICILE
4.1 Introduction
4.2 Definition of domicile
4.3 Importance of domicile
4.4 General principles governing domicile
4.5 Kinds of domicile
4.5.1 Domicile of origin
4.5.2 Domicile of choice
4.5.3 Domicile by operation of law
5 CHILDREN BORN OF UNMARRIED PARENTS
5.1 Introduction
5.2 Categories of children born of unmarried parents
5.2.1 Introduction
5.2.2 Natural children
5.2.3 Adulterine children
5.2.4 Incestuous children
5.3 Artificial fertilisation
5.3.1 Meaning of “artificial fertilisation”
5.3.2 Status of a child who is born as a result of
artificial fertilisation
5.3.3 Relationship between the child and the birth
mother, and between the child and the person
whose gamete was used for the artificial
fertilisation
5.4 Proof of parentage
5.4.1 Introduction
5.4.2 Presumption of paternity
5.4.3 Corroboration of the mother’s evidence
5.4.4 Factors that may be relevant in proving
paternity or rebutting a presumption of
paternity
5.5 The legal relationship between a child and his or her
unmarried parents
5.5.1 Parental responsibilities and rights in respect
of the child
5.5.2 Succession

5.6 Changing the status of a child born of unmarried
parents
5.6.1 Introduction
5.6.2 A subsequent marriage or civil union
between the child’s parents
5.6.3 Adoption
5.6.4 An order of the authorities
6 MINORITY
6.1 Introduction
6.2 Children’s rights
6.2.1 Constitution of the Republic of South Africa,
1996
6.2.2 Children’s Act 38 of 2005
6.2.3 United Nations Convention on the Rights of
the Child and African Charter on the Rights
and Welfare of the Child
6.3 The legal status of an infans
6.3.1 Capacity to act
6.3.2 Capacity to litigate
6.3.3 Capacity to incur delictual and criminal
liability
6.4 The legal status of a minor
6.4.2 Capacity to hold certain offices and perform
certain functions
liability
6.5 Termination of minority
6.5.1 Attainment of the prescribed age
6.5.2 Marriage or a civil union
6.5.3 Venia aetatis and release from tutelage
6.5.4 Emancipation
7 MENTAL ILLNESS
7.1 Introduction
7.2 Definition
7.3 Proving mental illness
7.4 Legal status of a mentally ill person
7.5 Appointment of a curator
7.6 Mental Health Care Act 17 of 2002
7.6.1 Definition
7.6.2 Rights of mental health care users
7.6.3 Care, treatment and rehabilitation
7.6.4 Place of admission
7.6.5 Mentally ill prisoners and state patients
7.6.6 Care and administration of the property of
mentally ill persons
8 INABILITY TO MANAGE OWN AFFAIRS
8.1 General
8.2 Legal status of a person who is incapable of
administering his or her affairs
9 INFLUENCE OF ALCOHOL AND DRUGS
10 PRODIGALITY
10.1 Introduction
10.2 Legal capacity
10.3 Capacity to act
10.6 Constitutional implications of interdiction as a
prodigal
11 INSOLVENCY
11.1 Introduction
11.2 Legal capacity
11.6 Rehabilitation
BIBLIOGRAPHY
TABLES OF CASES
TABLES OF STATUTES
INDEX

THE CONCEPT LEGAL SUBJECT
1.1 Definition of the law of persons

Loosely defined the law of persons is that part of private law
which determines which entities are legal subjects, when legal
personality begins and ends, what legal status involves, and
what effect various factors (such as being born of unmarried
parents, minority, and mental incapacity) have on a person’s
legal status.
Before the law of persons is discussed in detail a few basic
legal concepts should be explained.
1.2 Law and rights

The law can be viewed from different angles. On the one hand
it is a system of norms of conduct or rules posited by competent
bodies to regulate relations between members of the community
in a peaceful and just manner. In this sense we are concerned
with the law in the objective sense1 (objektiewe reg). Examples
of such norms of law are that one should fulfil one’s contracts
(that is, pacta sunt servanda), that one person should not cause
damage to another, that one should have a driver’s licence if
one drives a motor vehicle on a public road, and so forth.
Viewing the law from another angle, it is not norms of
conduct or rules that are at issue, but rather a network of legal
relationships amongst legal subjects. Here we are concerned
with rights, or law in the subjective sense2 (subjektiewe regte).
For example, if a person owns a motor vehicle, he or she has a
right to that motor vehicle, which all other legal subjects must
respect, and if a person concludes a contract with somebody
else, that person has a right to fulfilment of the contractual
obligations, which the other party to the contract must meet.
Thus in respect of rights we are concerned with a dual
relationship:
(1) The legal relationship between the bearer of the right and
other legal subjects. This is the subject-subject
relationship. The content of this relationship is a right and
a corresponding obligation – the bearer of the right is
entitled to the right as against other legal subjects, who are
obliged to respect it. After all, it makes little sense to speak
of a right if it does not operate against other legal subjects.
(2) The legal relationship between the bearer of the right and
the object of the right. This is the subject-object
relationship. One can speak of a right only if the right
relates to an object. For example, one has a right to one’s
motor vehicle (which operates against all other legal
subjects). It would be meaningless to have a right against
others if that right did not pertain to some object or
another.3
The connection between law and right is that the norms of the
law determine how far the powers of the bearer of a right
extend; in other words, the law determines the content and limit
of every right. The owner of a motor vehicle may, inter alia,
drive the vehicle, but may not do so in a way that causes harm
to another. An owner of land may build on it, lease or mortgage
it, and so forth but may not dig a trench on the boundary to
cause the neighbour’s land to cave in.
1.3 Legal subject and legal object

Legal norms make a basic distinction between legal subjects
(for example, human beings) on the one hand and legal objects
(for example, animals, furniture, motor vehicles, immovable
property and other things) on the other hand.4 The term “legal
subject” (regsubjek, persona iuris) means any entity that can
have rights, duties and capacities. A legal subject therefore is
any entity which the law recognises as such and to which the
law attributes the capacity to have rights, duties and capacities.5
In other words, the law confers legal personality upon the
entity.6 An entity upon which legal personality is conferred is
called a legal subject (or legal person). The ability to have
rights, duties and capacities is called legal capacity.7
The term “legal object” (regsobjek) denotes any object which
has economic value8 and upon which the law has not conferred
the capacity to have rights, duties and capacities and which can
therefore not participate in legal and commercial traffic. A legal
object therefore is anything in respect of which a legal subject
can have rights, duties and capacities but which cannot in itself
have rights, duties and capacities.9
In legal science the difference between human beings (as
examples of legal subjects) on the one hand, and animals or
other material objects (as examples of legal objects) on the
other hand, lies mainly in the fact that human beings can act and
thereby give rise to legal consequences. A legal subject controls
and deals with legal objects and in so doing acquires rights,
duties and capacities against other legal subjects and in relation
to legal objects. Legal subjects participate in commercial and
legal interaction; the matter with which they deal are legal
objects.
The distinction between legal subjects and legal objects is
based on the position of people vis-à-vis other people and things
around them. People created the law to regulate their
relationships with other people and with regard to things. From
this it follows that people are in the first place the subjects of
legal rules and legal relationships, and that the things over
which they have control are legal objects. This is the point of
departure in all developed legal systems.10 Although all
primitive legal systems recognised that people could have
rights, duties and capacities, it requires a certain measure of
abstraction and theorising to conclude that these people are also
legal subjects. Indeed, this inference presupposes the evolution
of the concepts of legal subject and legal object, which
evolution took place very slowly.
The Roman jurists knew the concept persona but did not
know the modern concept of legal subject. In Roman law the
word persona did not correspond to the meaning of our modern
concept of legal subject. It was used in a general sense to
distinguish between people on the one hand and things and
actions on the other hand11 and simply meant a human being.
As human beings were the only legal subjects Roman law
recognised and the differences between human beings and all
other entities were obvious, no theorising or further conceptual
development was necessary.12 In postclassical Roman law too,
no theoretical development of the concept of legal subject
occurred. The word “persona” still simply referred to a human
being.13 During the time of the Republic the Roman jurists
attributed legal personality to other entities apart from people.
However, they never developed concepts such as legal subject,
legal capacity and legal personality.14
In Roman-Dutch law persona was used in the technical sense
of legal subject. Apart from people, juristic persons were also
regarded as legal subjects15 – as is the position in our law.16
Initially the Romans considered only things (that is, res) to be
legal objects. The term legal object initially referred to a
corporeal object which physically and spatially constituted a
separate unit, such as an animal, a tract of land, a piece of
furniture or a tool. Gradually, as their culture developed, they
recognised more things as the objects of rights and duties. For
example, they accepted that a legal subject could have a right to
performance, that is, an act by another legal subject, such as
payment of the purchase price of a thing, or delivery of
something bought. Later it was accepted that legal subjects also
have rights to their body, honour, and reputation. At an even
later stage it was recognised that legal subjects should enjoy
protection in respect of the products of their minds, for
example, the author’s literary creation, the inventor’s devices
and so on.
Today, we distinguish between four – or possibly five, or
perhaps even six – categories of legal objects, namely corporeal
things, performances, personality property and immaterial
objects (also known as intellectual property).17 Personal
immaterial objects and trade secrets, respectively, possibly
constitute the fifth18 and sixth categories.19 Each category
confers a different type of right (subjektiewe reg) on the legal
subject.
1.3.1 Corporeal things
In principle, corporeal things are separate, tangible items which
are susceptible to human control and which are of value to
people. The right to a thing is a real right. For example, the
right of ownership one has in respect of one’s motor vehicle or
house is a real right.
1.3.2 Performance
Performance is a human act by which something is given, done,
or not done. The right to performance is a personal right
(persoonlike reg), or a claim (vorderingsreg). For example, if A
and B agree that A will sell his motor vehicle to B for R100
000, B has a personal right to performance by A (or it can be
said that B has a claim against A), that is, that A must deliver
the motor vehicle to B. Similarly, A has a personal right to
performance by B, that is, that B must pay him R100 000.
1.3.3 Personality property
Personality property relates to aspects of a person’s personality.

The right to personality property is a personality right. A
person’s rights to his or her good name (that is, his or her
reputation), honour, personal identity and physical integrity are
examples of personality rights.
1.3.4 Immaterial property
The right to immaterial property is an immaterial property right.
An artist’s right to his or her painting, an author’s right to his or
her book and an inventor’s right to his or her invention are
examples of immaterial property rights. The first two examples
relate to copyright, while in the case of the invention one is
concerned with a patent right. However, in all these cases the
object of the right is the product of the human intellect; in other
words, the idea contained in the product and not the tangible
painting, book or invented item itself. For this reason the
property in issue is also called intellectual property.
1.4 Different kinds of legal subjects

As was pointed out above, legal personality is bestowed only on
legal subjects. The issue of which entities are recognised as
legal subjects is determined by the legal norms of a particular
community. Thus legal personality is conferred only on such
entities as the law sees fit to recognise as legal subjects. The
legal systems of different countries naturally differ from each
other and therefore entities recognised as legal subjects in one
country are not necessarily regarded as such in another. Usually
the needs of commercial traffic within a country are considered
in order to determine whether or not a specific entity should be
recognised as a legal subject. In addition, both the historical and
cultural background of a specific nation and the views of the
community play a decisive role. This also means that, even
within a given community, the views on which entities should
be recognised as legal subjects are continually subject to
change. As new needs arise, it may become necessary to
recognise new entities as legal subjects; conversely, entities
until now recognised as legal subjects could lose their legal
personality.20
South African law recognises two categories of legal
subjects: natural persons and juristic or artificial persons.
1.4.1 The natural person
In our law all human beings, irrespective of, for example, their
age, mental capacity and intellectual ability, are recognised as
legal subjects. Therefore every human being can have rights,
duties and capacities although the content of these rights, duties
and capacities may vary depending on factors such as the
person’s mental capacity and age.21 To distinguish them from
other personae iuris humans are known as natural persons.
Today human beings are recognised as legal subjects in all
civilised legal systems as a matter of course. However, this was
not always so. The classic example of a human being who was
excluded from legal personality is the slave. In Roman22 and
Germanic law23 slaves were legal objects – like animals or
furniture – and consequently could not have rights, duties or
capacities. Owners could deal with their slaves as with any of
their other possessions – they could sell them, lease them, lend
them or even kill them. A considerable part of South African

law was received from the Netherlands24 and although slavery
disappeared in the Netherlands in about 1300–1400, it was still
permitted in the East and West Indian colonial territories in the
seventeenth century, and thus also extended to the Cape. This
meant that under Dutch rule25 and subsequently under British
rule,26 slaves at the Cape were legal objects and not legal
subjects. This position prevailed until slavery was abolished at
the Cape in 1834.27
In Roman and Roman-Dutch law children who were born
seriously malformed – the so-called monstra – were not
regarded as legal subjects either. These “monsters” had to be so
deformed that they lacked the human form and the human mind.
They were regarded as not of human descent and could be
killed after permission had been granted by a magistrate.28 In
modern South African law all beings of human descent,
irrespective of how deformed or disabled they may be, are
regarded as legal subjects.29
1.4.2 The juristic person
The human being or natural person is not the only legal subject
recognised by South African law. The demands of the legal
order necessitate that legal personality also be bestowed on
certain associations of natural persons. Apart from the
individual human beings who make up such an association,
each one of whom is of course a legal subject, a new legal
subject comes into being, namely the association itself. Such an
association to which legal personality is granted is called a
juristic person.30

The juristic person, as a legal subject, enjoys a legal
existence independent from that of its members or the natural
persons who created it. Naturally the juristic person must
always act through its functionaries. For example, in the case of
a company the directors or officers act on behalf of the juristic
person (namely, the company). However, when the
functionaries act on behalf of the juristic person, it is the juristic
person that acquires rights, duties and capacities and not the
functionaries themselves in their personal capacities. For
example, through its functionaries a company can bind itself by
contract, be the owner, lessor or lessee of things, commit and be
held liable for certain delicts and even certain crimes, sue its
debtors, be sued by its creditors, and so forth.
Our law recognises the following entities as juristic persons:
(1) Associations incorporated in terms of general enabling
legislation, such as companies,31 banks,32 mutual banks,33
close corporations,34 and co-operatives.35
(2) Associations especially created and recognised as juristic
persons in separate legislation, for example, universities,
semi-state organisations (that is, organisations that are
partly owned by the state) and public corporations such as
the SABC.
(3) Associations which comply with the common-law
requirements for the recognition of legal personality of a
juristic person.36 At common-law, such juristic persons are
known as universitates. A universitas must meet the
following requirements to be recognised as a juristic
person:
(a) The association must have a continuous existence
irrespective of the fact that its members may vary.
(b) It must have rights, duties and capacities or be able to
have rights, duties and capacities in its own right,
(that is, distinct from the rights, duties and capacities
of the individual members in their personal
capacities). The fact that the association regards itself
as a juristic person with rights, duties and capacities is
important but not decisive.
(c) Its object must not be the acquisition of gain.37
Measured against these three requirements the courts have held
that inter alia the following associations have legal personality
– a church,38 a political party,39 and a trade union.40
A trust is not a juristic person.41 Nor is a partnership a juristic
person. Thus, for example, the individual partners are
responsible for partnership debts out of their private funds.42
From the above it is clear that the law of persons is a very
extensive field which could well embrace the whole of a
person’s legal activity. Conventionally, however, the law of
persons is confined to the natural person only. Furthermore,
works on the law of persons usually deal virtually exclusively
with the status of natural persons in the field of private law.43
The enactment of the Bill of Rights44 has, however, rendered
inclusion of some aspects which have traditionally been
categorised as public-law issues mandatory. Thus, although the
focus of this book still falls on the natural person’s status in
private law, some constitutional issues are also addressed in it.

1 See further Hosten, Edwards, Bosman and Church ch 1; Van Apeldoorn 36 et
seq, 128; Van der Vyver and Joubert 31 et seq; Van Zyl and Van der Vyver 412
et seq.
2 Van der Vyver and Joubert 1 et seq; Van Zyl and Van der Vyver 355 et seq;
Joubert 1958 THRHR 12 et seq, 98 et seq.
3 See further Joubert 1958 THRHR 12 et seq, 98 et seq.
4 See e.g. Van Zyl and Van der Vyver 371 et seq.
5 See e.g. Hahlo and Kahn South Africa 345.
6 In this book, the term “legal subject”, instead of “juristic person”, is used to
denote any entity to which the law grants the capacity to have rights, duties and
capacities. The reason for this is that the term “juristic person” has a specific
technical meaning in law. It denotes a specific kind of legal subject, i.e. any
entity apart from a human being or natural person, to which the law grants legal
personality, e.g. a company, university or the state. Below in this ch the juristic
person in the narrow sense is again referred to.
7 Van Zyl and Van der Vyver 374 et seq; Robinson 1992 THRHR 337. On legal
capacity, see further ch 3 below.
8 Economic value does not merely refer to monetary market value. Anything that
is scarce and useful, even if it is only for a specific person or within a specific
circle (e.g. a person’s good name or a family portrait), has economic value in
this sense and can therefore be a legal object.
9 Some authors are, however, of the view that animals (and even plants) have
rights and can be both legal subjects and legal objects. On the legal personality
of animals, see further fn 20 below.
10 See also Van Zyl and Van der Vyver 371 et seq.
11 Gaius Inst 1.8.
12 Sohm 161 et seq.
13 Just Inst 1.2.12. But see also Cod Theod 3.17.1; Theophilus Inst Paraphr 3.29.3;
see also Coing 62 et seq.
14 Duff 203; Schnorr von Carolsfeld 206; CP Joubert 18 et seq.
15 CP Joubert 168 et seq.
16 On the different kinds of legal subjects, see further below in this ch.
17 See e.g. Van der Merwe 141 et seq; Van Zyl and Van der Vyver 407.
18 This category was identified by Neethling: see e.g. Neethling, Potgieter and
Visser Personality 17–20; Neethling and Le Roux 1987 Industrial Law Journal
719; Neethling 1987 THRHR 316, 1990 THRHR 101; see also Van der Vyver in
Strauss (ed.) Huldigingsbundel vir WA Joubert 232–233; Reinecke 1988 De
Jure 235. Personal immaterial objects have some of the characteristics or

elements of personality property and immaterial property. Earning capacity and
credit-worthiness are cited as examples of objects falling within this category.
But see Van der Merwe and Olivier 186–187 fn 28 who reject this category.
19 Knobel 2001 THRHR 572 suggests that trade secrets should be recognised as an
independent right; see also Van Heerden and Neethling 224.
20 Animals are not recognised as legal subjects in South African law although they
are protected to some extent by, e.g., legislation prohibiting cruelty to them and
legislation governing animal experimentation. As such legislation inter alia
imposes duties on people not to do certain things to animals, Labuschagne 1984
THRHR 334 and 1990 THRHR 557 and Bilchitz 2009 SAJHR 38 submit that
animals have rights and can therefore be afforded the status of legal subjects or
legal persons. Most authors are, however, of the view that legislation which
protects animals merely protects the sensibilities of the community and does not
afford animals any rights: Boezaart Persons 6; Sinclair in Van Heerden et al
(eds.) Boberg’s Law of Persons and the Family 3–4; Van der Vyver and Joubert
53; Robinson 1985 THRHR 343. See also R v Moato 1947 (1) SA 490 (O) 492
where the court held that the purpose of legislation prohibiting cruelty to
animals is “om te verbied dat een regsgenoot so ongenadig teenoor diere optree
dat hy daardeur die fyner gevoelens en gewaarwordings van sy medemens leed
aandoen” (i.e., to prohibit one legal subject from acting so harshly against
animals that he thereby harms the more delicate feelings and perceptions of his
fellow human beings). As Karstaedt 1982 THRHR 349 363–364 correctly points
out, it is unlikely that our law will confer legal personality on animals in the
foreseeable future “not only because the practical problems inherent in
according rights to animals would probably be too overwhelming for our legal
system to resolve at present, but also because we will probably not fully
appreciate the insufficiency of our legal conceptions concerning animals as long
as our non-legal views about them remain unaltered”. Furthermore, in a society
that sometimes still treats people – especially women and children – like (legal)
objects it seems highly unlikely that animals will be elevated to the status of
legal subjects.
21 On the content of a person’s rights, duties and capacities, see ch 3 below.
22 See Kaser 85; Van Oven 438 et seq.
23 Tacitus pars 24 and 25.
24 Hahlo and Kahn South Africa 10 et seq; Van Zyl Geskiedenis van die Romeins-
Hollandse Reg Inleiding.
25 Wessels History 412.
26 Cory vol III 2 et seq.
27 Cory vol III 42 et seq.
28 See in general Twelve Tables 4 No 1; D 1.5.14; C 6.29.3; Grotius 1.3.5; Voet
1.6.13; Van der Keessel Praelectiones 1.3.5; see also Leyser 9.597.7; Matthaeus
De Criminibus 48.5.1.6; Van der Linden 2.5.2.
29 See e.g. Tjollo Ateljees (Eins) Bpk v Small 1949 (1) SA 856 (A) 865 where it
was stated that “the birth of a monstrum in the Roman sense is a physical
impossibility”.
30 See e.g. Van Zyl and Van der Vyver 388 et seq.
31 In terms of the Companies Act 71 of 2008.
32 In terms of the Banks Act 94 of 1990.
33 In terms of the Mutual Banks Act 124 of 1993.
34 In terms of the Close Corporations Act 69 of 1984.
35 In terms of the Co-operatives Act 14 of 2005.
36 On the common-law juristic person, see Pienaar passim; Wille’s Principles 396–
397.
37 In terms of s 8(3) of the Companies Act, any association of persons carrying on
business for gain must be registered as a company or be formed in terms of
another law in order to get legal personality. In terms of s 8(1) of the Companies
Act, non-profit organisations may be formed and incorporated in terms of the
Act, in which case they fall within the first category mentioned above, i.e.
associations incorporated in terms of general enabling legislation.
38 Louvis v Diconomos 1917 TPD 465; De Vos v Die Ringskommissie van die NGK
1952 (2) SA 83 (O); Malebjoe v Bantu Methodist Church of South Africa 1957
(4) SA 465 (W).
39 Wilken v Brebner 1935 AD 175.
40 Amalgamated Engineering Union v Minister of Labour 1965 (4) SA 94 (W).
41 See e.g. Commissioner for Inland Revenue v Friedman 1993 (1) SA 353 (A);
Land and Agricultural Bank of South Africa v Parker 2005 (2) SA 77 (SCA);
Lupacchini v Minister of Safety and Security [2011] 1 All SA 138 (SCA).
Certain Acts do, however, confer legal personality on trusts for specific
purposes, such as taxation: Income Tax Act 58 of 1962 s 1.
42 The law does, however, recognise some exceptions to the rule that a partnership
is not a separate legal entity. E.g., Rule 14(2) of the Uniform Rules of Court
allows a partnership to sue and be sued in its own name.
43 Capacity to be held accountable for crimes is an example of a public-law topic
authors on the law of persons have traditionally included in their works. The
authors usually refer to this issue at least in the context of the concept “status”,
and in respect of infantes, minors, mentally ill persons and prodigals.
44 The Bill of Rights is contained in ch 2 of the Constitution of the Republic of
South Africa, 1996 (the final Constitution). The interim Constitution, which
applied between 27 Apr 1994 and 4 Feb 1997, also contained a Bill of Rights:
ch 3 of the Constitution of the Republic of South Africa 200 of 1993. For a
detailed analysis of the application of the Bill of Rights to private law see
Cockrell Bill of Rights Compendium ch 3A.

THE BEGINNING AND END OF LEGAL
PERSONALITY
2.1 The beginning of legal personality

A natural person’s legal personality begins at birth. Before birth
the foetus is not a legal subject; it merely forms part of its
mother.1 The requirements for the beginning of legal
personality are the following:
(1) The birth must be fully completed, that is, there must be a
complete separation between the body of the mother and
the child.2 For birth to be completed it is not required that
the umbilical cord be severed.
(2) The child must live after the separation even if only for a
short period.3 A stillborn child or a child who dies during
birth therefore does not acquire legal personality. In our
law it has not yet authoritatively been decided how life
after birth must be proved. Any medical evidence by
which life may be proved should be admissible when the
issue of whether a child was born alive is to be decided for
purposes of determining whether the child obtained legal
personality.4

Some authors maintain that the child must also be viable before
legal personality is conferred upon him or her.5 This means that
the child must have reached such a stage of development that he
or she can exist independently of his or her mother’s body.6
Thus if a child is born but, in light of human experience, has no
chance of remaining alive (for example, because he or she is
born so prematurely, deformed or ill that his or her early death
is inevitable right from the start) the child is not recognised as a
legal subject even if he or she is completely separated from his
or her mother’s body and even if he or she actually lives for a
while. It is doubtful whether viability ever was a requirement in
Roman or Roman-Dutch law7 and it is suggested that it is not a
requirement for the commencement of legal personality in
South African law either.8 The problem with requiring that the
child must be viable is that viability is a vague concept that
gives rise to all sorts of questions. For example, how short must
an ill, deformed or premature child’s life have been for his or
her early death to be considered inevitable right from the start?
And what is the position of a child who stays alive
notwithstanding the fact that he or she was regarded as not
being viable? When does such a child become a legal subject?
2.2 Registration of births

In terms of the Births and Deaths Registration Act 51 of 1992,
the Director-General of Home Affairs (or any person to whom
the Director-General has delegated his or her powers and
duties) must be notified of the birth9 of every child who was
born alive.10 The notice must be given within 30 days of the

child’s birth.11
The duty to give notice rests on the child’s parents. If neither
of them is able to give notice, notice must be given by the
person who has charge of the child or by the person the parents
or person having charge of the child requests to do so.12 In the
case of an abandoned child, notice is given by a social worker
or an authorised officer.13
No birth may be registered unless a forename (that is, a first
name or individual name) and a surname (or family name) have
been assigned to the child.14 Thus, according to South African
law, a child may not be registered as, for example, AB
Khumalo or Malcolm X.
Notice of the birth of a child who was born of parents who
were married to each other at the time of his or her conception
or birth or at any intervening time is given under the surname of
either parent or both parents’ surnames joined together as a
double-barrel surname.15 This applies regardless of whether the
parents entered into a civil, customary or religious marriage.16
The same rule applies if the child’s parents were civil union
partners at the time of his or her conception or birth or at any
intervening time, for the Civil Union Act 17 of 2006 equates
civil unions and civil marriages.17
Prior to the coming into operation of section 40 of the
Children’s Act 38 of 2005, notice of the birth of a child who
was born as a result of the artificial fertilisation of a lesbian
partner in a same-sex life partnership was given under the
surname of either the birth mother or her same-sex life partner
or both life partners’ surnames joined together as a double-
barrel surname. This was the position because of the decision in
J v Director General, Department of Home Affairs.18 In this
case, the Constitutional Court placed a child born as a result of
the artificial fertilisation of a lesbian life partner on the same
footing as a child born as a result of the artificial fertilisation of
a married woman. The Constitutional Court, inter alia, declared
section 5 of the Children’s Status Act 82 of 1987
unconstitutional. Section 5 treated a child born as a result of the
artificial fertilisation of a married birth mother differently from
a child born as a result of the artificial fertilisation of a birth
mother who was a partner in a same-sex life partnership. The
section afforded the child the status of a “legitimate” child (that
is, a child born of married parents) if his or her birth mother
was married, but not if his or her birth mother was a party to a
same-sex life partnership.19 The Constitutional Court held that
this differentiation unjustifiably discriminated unfairly against
same-sex life partners on the ground of their sexual
orientation.20 The court amended section 5 by making a
striking-out and reading-in order which had the effect of
applying the section to a child who was born as a result of the
artificial fertilisation of a same-sex life partner.21 Subsequently,
the Children’s Act repealed the whole of the Children’s Status
Act,22 but section 40 of the Children’s Act re-enacted the
unamended section 5 of the Children’s Status Act. In so far as
same-sex couples who have entered into a civil union are
concerned, this is not a problem, for section 13 of the Civil
Union Act equates a civil union with a civil marriage. Thus, a
child who is born as a result of the artificial fertilisation of a

civil union partner qualifies as a child who is born of married
parents. However, in respect of same-sex couples who are life
partners in a union that falls outside the scope of the Civil
Union Act, section 40 of the Children’s Act may be open to the
same constitutional challenge that led to the declaration of
unconstitutionality in respect of section 5 of the Children’s
Status Act in J v Director General, Department of Home
Affairs. However, in reply it might be argued that because
heterosexual and same-sex life partners now have the option of
entering into a legally recognised civil union, their fundamental
rights and those of a child they have by means of artificial
fertilisation are not infringed by section 40 of the Children’s
Act, or that any infringement there may be is justified by the
couple’s choice not to enter into a civil union.23
In the case of a child who is born of parents who are not
married to each other and are also not each other’s civil union
partners at the time of the child’s conception or birth or at any
intervening time, the birth is registered under the surname of the
child’s mother unless the child’s parents jointly request that the
father’s surname be used.24 The Births and Deaths Registration
Act does not make provision for the child’s birth to be
registered under a double-barrel surname consisting of both
parents’ surnames. If the child’s birth is to be registered under
his or her father’s surname, the father must acknowledge
paternity in writing in the presence of the person to whom the
notice of birth is given and enter his particulars on the notice of
birth.25 A father who wants to acknowledge paternity and enter
his particulars after the child’s birth has been registered may do
so with the consent of the child’s mother.26 If the mother
withholds consent, the father may apply to the High Court for a
declaratory order confirming his paternity and dispensing with
the mother’s consent.27 A gamete donor and the father of a child
who was conceived as a result of rape or incest may not,
however, have the child’s birth registration amended to identify
him as the father.28
If the unmarried parents of a child marry each other or enter
into a civil union with each other after the child’s birth has been
registered, the birth registration will, on application to the
Director-General, be altered and the birth will be registered as if
the parents were legally married to each other or were the
parties to a valid civil union at the time of the child’s birth.29
The application may be made by either of the parents or the
child’s guardian if the child is a minor (that is, a person below
the age of 18 years),30 or by the child personally if he or she is
already a major.31
The surname of a child who was born of parents who were
married to each other or were each other’s civil union partners
may be changed to the child’s mother’s surname if the marriage
or civil union is dissolved by the child’s father’s death.32 The
child’s surname may also be changed to his or her mother’s
surname if his or her parents’ marriage or civil union is
dissolved by divorce and the child’s mother has sole
guardianship or the child’s father consents to the change. The
court may dispense with the father’s consent.33 If the mother
enters into a new marriage or civil union, she may apply to have
the child’s surname changed to the surname she bears.34 In such
event, she needs the written consent of the child’s father as well
as the written consent of her new husband or civil union
partner, unless the court dispenses with consent.35 If the mother
has sole guardianship, she does not need the father’s consent,
but she still needs the consent of her new husband or civil union
partner, unless the court dispenses with consent.36 A widow
who enters into a new marriage or civil union may also apply to
have her child’s surname changed to hers.37 In the latter event
she needs the written consent of her new husband or civil union
partner, unless the court dispenses with consent.38
If an unmarried mother marries someone other than the
child’s father or enters into a civil union with someone who is
not the child’s father, she may apply to have the child’s
surname changed to correspond to hers. She needs the written
consent of her husband or civil union partner.39 If the child
bears his or her father’s surname, the mother also needs the
written consent of the child’s father, unless she has sole
guardianship or the court dispenses with consent.40
Furthermore, the surname of any person may be changed for
good and sufficient reason.41 In the case of a minor, the
application for the change must be made by either of the child’s
parents or by the child’s guardian.42 In the case of an adult, the
person personally makes the application.43 Any person’s
forename may also be changed.44 The Act does not stipulate a
ground on which the application for a change of forename must
be made. In the case of a minor, the application must be made
by either of the child’s parents or by the child’s guardian.45 In
the case of an adult, the person personally makes the
application.46
2.3 The interests of the unborn child

2.3.1 The nasciturus fiction
It was pointed out above that a person’s legal personality begins
at birth. The conceived but unborn child is thus not a legal
subject and cannot have rights, duties and capacities. From very
early times the law has, however, taken into account that in the
normal course of events the unborn child will eventually
become a legal subject, and that situations may arise before the
child’s birth which would have benefited him or her had he or
she already been born (such as qualifying as a beneficiary under
a will). If such a situation arises, the law protects the potential
interests of the nasciturus (that is, the unborn child)47 by
employing the fiction that he or she is regarded as having been
born at the time of his or her conception whenever it is to his or
her advantage. This fiction is expressed in the Latin adage
nasciturus pro iam nato habetur, quotiens de commodo eius
agitur. The nasciturus fiction48 also formed part of Roman-
Dutch law.49
Today, if it appears that a nasciturus would have had certain
claims or rights had he or she already been born, the legal
position is kept in abeyance until he or she is born and acquires
legal personality, or until it is certain that he or she will not
become a legal subject (for example, because his or her mother
has miscarried or terminated the pregnancy, or because the baby
was stillborn).50 If the nasciturus indeed becomes a legal
subject, he or she receives the rights that have been kept in
abeyance for him or her.
For the nasciturus fiction to come into operation the
following requirements must be met:
(1) The nasciturus must have been conceived at the time that
the benefit would have accrued to him or her.51
(2) The child must subsequently be born alive.52 If the child is
not born alive, he or she is considered as never even
having been conceived.
It must be emphasised that application of the fiction must be to
the advantage of the nasciturus.53 A third person may benefit
from the application of the nasciturus fiction if such benefit is a
natural consequence of the application of the fiction in favour
of the nasciturus, but the fiction may not be applied solely to
benefit a third person.54 Take the example of a nasciturus who
would have received a large inheritance had he or she been born
at the time of a particular person’s death. If the child dies
shortly after birth, the nasciturus fiction will not be applied,
because the only persons who will benefit from the application
of the fiction are the child’s intestate heirs and not the child
personally. The position is different if the child stays alive for a
while. Because parents are responsible for their child’s
maintenance if their child needs maintenance and they are able
to provide it, the child would have had a claim for maintenance
against his or her parents were it not for the fact that he or she
received the inheritance and consequently became self-
supporting. The child received the inheritance because the
nasciturus fiction was applied. In this case, applying the fiction
benefits not only the child but also the child’s parents because
they are no longer liable for the child’s maintenance.
2.3.2 The fields of application of the nasciturus
fiction
(a) Introduction
At common law the nasciturus fiction was applied mainly in the
field of succession.55 In modern South African law this is still
the main field in which the fiction should be applied. However,
as appears from the discussion below, the fiction has been
raised, and sometimes applied, in other areas of South African
law too.
(b) Succession
(i) Intestate succession
If a person dies without leaving a valid will, his or her estate
devolves in terms of the law of intestate succession. Under the
rules of intestate succession a person can only inherit if he or
she is alive at the time that the estate “falls open” (that is, when
delatio takes place). Generally, delatio takes place at the
moment the deceased dies. It is clear that if this principle were
to be strictly applied, a conceived but unborn child could not
qualify for an intestate inheritance. The nasciturus fiction is
employed to protect the potential interests of such an unborn
child. With the aid of the fiction, distribution of the deceased
estate is postponed until it is certain whether or not a live
person has been born. If the child is born alive, he or she
inherits as if he or she were already born at the time of the
deceased’s death. If the child is not born alive, he or she does
not obtain rights and is not considered when the estate is
divided.
(ii) Testate succession
If a testator leaves property in a valid will, effect must be given
to the provisions of the will. If the testator’s intention regarding
whether or not an unborn child should inherit is clear, the
testator’s intention is simply carried out. If the testator’s
intention is unclear, it must be established with the aid of the
rules of the law of succession.
If the testator leaves property specifically to A, B and C,
while D has already been conceived at the time of the testator’s
death but has not yet been born, D will not inherit if he or she is
subsequently born alive, even if he or she is the testator’s child.
Only the beneficiaries specifically mentioned in the will will
inherit, as this is clearly what the testator intended.
If the testator leaves his or her property to his or her children
(or grandchildren) who are “born or still to be born”, any such
children (or grandchildren) born after the testator’s death will
inherit, regardless of whether or not they had been conceived at
the time of the testator’s death. Again the intention of the
testator is clear and it is simply carried out.
If a testator does not appoint beneficiaries by name but as
members of a class, a child in that class who was already
conceived at the time of the testator’s death but was born only
after the testator’s death can also inherit.56 Thus if a testator
leaves his or her estate to his or her daughter’s “children” and
the daughter has two children, A and B, and is expecting C at
the time of the testator’s death, C will share in the inheritance if

she is subsequently born alive. In this regard reference should
be made to Ex parte Boedel Steenkamp.57 In this case the
testator left the residue of his estate to his daughter and her
children “wat by datum van dood in die lewe is” (that is, who
are alive at the time of my death). At the time of the testator’s
death, his daughter and two of her children, D and G, were
alive. His daughter was, however, expecting another child, P,
who was later born alive. The question arose as to whether P
could also share in the inheritance. Judge De Villiers said:
Dit is gemene saak dat ’n kind in ventre matris vir die doeleindes van erflating
vermoed word lewendig te wees mits dit later gebore word en mits dit tot die
voordeel van sodanige kind is.58 (That is, it is common cause that a child in its
mother’s womb is presumed to be alive for the purposes of succession, provided
the child is subsequently born and that it is to the advantage of such child.)
Had the testator in this case simply left the residue of his estate
to his daughter and her children, there would have been no
doubt that P could also share in the inheritance, because it
would clearly have been to P’s benefit that he be regarded as
having been born at the date of the testator’s death. The
question, however, was whether the words “wat by datum van
dood in die lewe is” did not rebut the presumption that the
testator also wished to benefit children born later. Judge De
Villiers held that this was not the case and P accordingly
inherited.
A testator may also nominate unborn or even unconceived
persons in a will or trust deed. In fact, a testator may leave
property to persons who will only be born generations later. A
testator may, for example, leave his farm to his son, B, subject
to the proviso that the farm must devolve on B’s eldest son, C,
after B’s death, and after C’s death on his eldest son, D. Such
an institution is known as a fideicommissum. B is known as the
fiduciarius (or fiduciary) and C and D as the fideicommissarii
(or fideicommissaries). In this regard the law protects the
potential interests of an unborn child in several ways. In the
above example, fiduciary B may, in principle, not alienate or
mortgage the farm without the consent of the High Court. If all
the fideicommissaries are majors and give their consent to the
alienation or mortgage, there will be no problem in obtaining
such an order. In the case of a minor fideicommissary who has
already been born alive, the High Court must give or withhold
consent in its capacity as upper guardian of all minors.59 The
question of whether the High Court may also consent in the
case of an unborn fideicommissary was controversial60 until the
Appellate Division (now the Supreme Court of Appeal) ruled in
Ex parte Swanepoel61 that the High Court could not give such
consent because it is not the upper guardian of children who do
not yet exist. This decision is perfectly in line with the common
law, but the legislature did not approve of its outcome and
enacted section 33(1) of the General Law Amendment Act 62
of 1955. The section reads as follows:
Whenever under a will or other instrument any unborn person will be entitled to
any interest in immovable property which is subject to any restriction imposed by
such will or other instrument, any provincial or local division of the Supreme
Court [now the High Court] may grant its consent on behalf of any such unborn
person (whether already conceived or not) to the alienation or mortgage of such
property as if such unborn person were a minor in esse.
This section expressly empowers the court to consent to the
alienation or mortgage of land in which unborn persons may
obtain an interest, and puts conceived and unconceived persons
on an equal footing in this regard.62 The court will only give its
consent if the alienation or mortgage will be to the advantage of
all the beneficiaries, including those still to be born.63 In terms
of the Immovable Property (Removal or Modification of
Restrictions) Act 94 of 1965,64 the legislature further
empowered the court to remove or modify restrictions on
immovable property which have been imposed by a will or
another instrument if this is to the advantage of an unborn or
even an unconceived person.65 Clearly, the protection afforded
to unconceived persons by these legislative provisions is not
based on the nasciturus fiction, as the fiction applies only to
persons who have already been conceived.
The Administration of Estates Act 66 of 1965 also protects
the interests of the nasciturus. It provides that if an unborn child
will, after birth, become entitled to money or movable property
which is subject to somebody else’s usufructuary or fiduciary
rights, that person must give security to the satisfaction of the
Master of the High Court for the payment of the money or
delivery of the property to the child after his or her birth. The
money or property will not be paid or delivered to the person in
whose favour the usufructuary or fiduciary rights operate unless
such security has been given.66 A person can only be exempted
from these statutory provisions if the testator’s will expressly
permits this. The Act further provides that the Master of the
High Court may consent to the subdivision of land on behalf of
an unborn heir if this is expedient and equitable.67
In legal proceedings involving property in which an unborn
person might have an interest a curator ad litem looks after the
unborn child’s interest.68
(c) Maintenance after birth
If a pregnant wife divorces the father of her unborn child, the
court may provide for the child’s maintenance in the divorce
order in order to avoid the need for legal proceedings about
maintenance after the child’s birth.69 The position is the same if
a pregnant civil partner divorces the unborn child’s parent.70
In Shields v Shields71 the divorcing parents of an unborn child
entered into a settlement agreement which provided, inter alia,
that the child’s father would not be responsible for the child’s
maintenance after birth. The parents wanted this agreement
incorporated into their divorce order. The court refused to do
so. It held that a mother cannot waive her unborn child’s right
to claim maintenance, and that the agreement was contra bonos
mores (that is, contrary to good morals, or contrary to the legal
convictions of the community). A father would likewise not be
permitted to waive his unborn child’s right to claim
maintenance from his or her mother after birth.
It is submitted that the regulation of maintenance for an
unborn child of a divorcing couple is not a true application of
the nasciturus fiction. It merely reflects a common-sense
approach to post-divorce child maintenance that is based on
expediency. If the regulation of post-divorce child maintenance
were truly based on the nasciturus fiction, the child would have
to be deemed to have been born at the time of his or her
conception and would therefore be entitled to maintenance as
from that date. As this would entitle the nasciturus to
maintenance for a longer period than a child whose parents
divorced each other on the day of his or her actual birth, the
equality clause in the Bill of Rights72 would be unjustifiably
breached. Moreover, it would be absurd to award maintenance
to a child as from the date of conception (or as from any other
time before his or her actual birth).73
Furthermore, since the coming into operation of section 18(2)
(d) of the Children’s Act, maintenance has been statutorily
included as a parental responsibility and right,74 and no parental
responsibility and right can operate before a child’s actual
birth.75 A pregnant woman clearly cannot have parental
responsibilities and rights over part of her own body. Nor can
the child’s father or the mother’s same-sex civil union partner
have parental responsibilities and rights over part of the
mother’s body. If the father does not have the power to stop the
mother from terminating her pregnancy,76 how could he ever
have parental responsibilities and rights in respect of the foetus?
A pregnant woman’s same-sex civil union partner should also
not be able to stop her from terminating her pregnancy, even if
the woman’s pregnancy resulted from her being implanted with
the artificially fertilised ovum of her same-sex civil union
partner. Thus the same argument applies to marriages and
(lesbian) civil unions. Furthermore, how could parental
responsibilities and rights be exercised in respect of a child who
has not in actual fact been born yet?
Accepting the view that a parent cannot have parental
responsibilities and rights over his or her unborn child does not
affect the application of the nasciturus fiction in the field of
succession.77 In the case of succession the fiction is used to
postpone distribution of a deceased estate until it is clear
whether or not a live person has been born – and this happens
only once the child is actually born or it is clear that he or she
will not be born. Until then, the position is kept in abeyance
with the result that no action by the parent on behalf of the
unborn child is required. It is only once the child has been born
that the inheritance becomes available to the child and it is only
once that has happened that adiation or repudiation (that is,
acceptance or rejection) of the inheritance can occur. At that
time the parent does have parental responsibilities and rights
which empower him or her to adiate or repudiate on behalf of
the child.78
(d) Dependant’s action for loss of support
In Chisholm v East Rand Proprietary Mines Ltd79 it was held
that a child whose father was killed prior to his or her birth as a
result of someone else’s delict has a dependant’s action for
damages for loss of support against the person who committed
the delict. As far as maintenance is concerned, the child is put
in the position in which he or she would have been had his or
her father not been killed. A child may obviously also claim
damages for loss of support from someone who killed his or her
mother in an unlawful and culpable way while she was pregnant
– provided, of course, that the child is born alive despite his or
her mother’s death.
Chisholm was the first South African case in which the
nasciturus fiction was applied in the field of the law of delict.
Several authors have submitted that the fiction should never
have been extended to this field of the law.80 Their criticism,
which has found favour in the Supreme Court of Appeal,81 is set
out under the next heading below.
(e) Pre-natal injury
The issue of whether a child has an action for pre-natal injuries
he or she suffered as a result of the culpable act of a third party
first came before the court in Pinchin v Santam Insurance Co
Ltd.82 The facts of the case were briefly as follows: a pregnant
woman was seriously injured in a motor vehicle accident and
her child was subsequently born with cerebral palsy. As a result
of the cerebral palsy the child would never be able to care for
himself. The child’s father maintained that the child’s brain
injuries had been caused by the negligent conduct of the other
vehicle’s driver. Santam, the statutory insurer of the other
party’s vehicle, admitted that the driver had been negligent. In
his personal capacity, the father claimed damages in respect of
medical expenses regarding the child. On behalf of the child he
also claimed satisfaction for the infringement of the child’s
personality rights.
The legal question was whether a person has an action for
injury that was inflicted on him or her while he or she was still
a foetus in his or her mother’s womb. Judge Hiemstra stated
that the only starting point in our common-law sources for the
protection of the interests of the foetus was to be found in the
nasciturus fiction. He quoted the texts from the Digest83 that
deal with the nasciturus fiction and mentioned that all the
commentators related these texts specifically to the law of
succession and the question of status, although none of them
expressly limited the fiction to these fields of the law. He
concluded that the principles of our law are flexible enough to
extend the nasciturus fiction to the field of delict, and that, in
principle, a child does have an action to recover damages for
pre-natal injuries.84 However, because the facts of the particular
case did not prove that the brain damage had been caused by the
accident, the action was dismissed.
The court’s view that the nasciturus fiction could be applied
in the field of the law of delict proved to be controversial. Most
authors are of the view that it is unnecessary to invoke the
nasciturus fiction in circumstances such as those that arose in
Pinchin.85 They, quite correctly, submit that the question which
arose in Pinchin’s case could have been solved without bringing
the nasciturus fiction into the issue at all, because the ordinary
principles of the law of delict would have given the child an
action for pre-natal injuries anyway.86 They point out that all the
elements of a delict need not be present at the same time and
that it therefore does not matter that the conduct and its
consequences (namely, the damage) do not manifest themselves
at the same time. Thus the requirements of conduct and damage
are met even if the disability from which the child suffers after
birth was caused by the conduct of the driver before the child’s
birth. The fact that the child’s disability only becomes evident
after birth makes no difference: when the action is instituted
after the child’s birth the child is a legal subject who is
suffering from a disability as a result of the conduct of the
driver, and on that basis the child has a delictual claim
(provided of course that the other requirements of a delict87 are
satisfied).
Some authors, however, argue that the nasciturus fiction
must be applied in order to give an action for pre-natal injury.
One argument is that, according to the ordinary principles of
our law, an unborn child does not have legal personality and
therefore has no rights that can be infringed by a delict. In other
words, if the ordinary principles of our law were to be applied,
the unborn child would not have rights which could be
infringed by the commission of a delict if the unlawful conduct
occurred prior to his or her birth, because at that time he or she
was not a legal subject. In order to afford the unborn child an
action, his or her legal personality must accordingly be pre-
dated to before his or her actual birth so that he or she has legal
personality at the time of the conduct causing the injury.88
Another argument is that in the case of pre-natal injury the
conduct and the damage actually do occur at the same time,
namely when the injury is inflicted, because the injury does not
cause harm only once the child is born. The unborn child is
already “irrevocably harmed”89 and thus already starts suffering
damage when the conduct occurs prior to his or her birth; after
birth the child simply continues to suffer damage.90 In other
words, when the child started to suffer damage he or she was
not a legal subject and therefore the nasciturus fiction has to be
applied to give him or her an action for pre-natal injury.
The Supreme Court of Appeal settled the issue in Road
Accident Fund v Mtati91 by holding that it is unnecessary to use
the nasciturus fiction to grant a child an action in respect of pre-
natal injuries. The facts of this case were similar to those of
Pinchin. Here, too, a pregnant woman was injured in a motor
vehicle accident and her child was subsequently born with brain
damage and a mental disability. The child’s father alleged that
the accident had caused the child’s injuries. He instituted a
claim against the Road Accident Fund on the child’s behalf.
The Road Accident Fund raised a special plea against the claim.
The Fund contended, firstly, that an unborn child is not a person
and is therefore not entitled to compensation and, secondly, that
because an unborn child is not a person, a driver does not owe a
duty of care to an unborn child. The court a quo dismissed the
special plea, whereupon the Fund appealed to the Supreme
Court of Appeal. The Supreme Court of Appeal dismissed the
appeal. It held that the ordinary rules of the law of delict should
be used to determine whether the child has a claim. The court
held that the child’s delictual right of action in respect of his or
her pre-natal injuries becomes “complete”92 when the child is
born alive. Thus it is unnecessary and undesirable to employ the
nasciturus fiction in the field of the law of delict.
(f) Guardianship and care
Guardianship and care are two of the components of parental
responsibilities and rights.93 If a woman is pregnant when she
gets divorced, the court may include an order regarding
guardianship and care in the divorce order to obviate the
necessity for further legal proceedings once the child has been
born.94 It is submitted that in these circumstances – as in the
case of maintenance for a child who is born after his or her
parents’ divorce95 – the court is not regulating parental
responsibilities and rights in respect of an unborn child; nor is it
protecting the interests of the unborn child by means of the
nasciturus fiction. The court is merely, as a matter of
convenience, regulating the position that will apply once the
child has been born.
In Friedman v Glicksman96 Judge Goldblatt held that a
mother may not enter into a contract on behalf of her unborn
child, because legal personality only begins at birth and an
agent may not enter into a contract on behalf of a non-existent
principal. It might be argued that the problem of the unborn
child’s being a non-existent principal could be solved by
employing the nasciturus fiction. For example, if a pregnant
woman, acting as her child’s agent, entered into a contract
which benefits the child, the nasciturus fiction might be
invoked so that the unborn child could be considered as having
been born at the time of his or her conception. The child would
therefore be considered as having been in existence when the
contract was concluded. However, it is submitted that this
approach would be incorrect because it would require
conferring parental responsibilities and rights on the parent
prior to the child’s actual birth. In the case of agency the
authority of the agent to represent the principal is essential.
Even if the unborn child were considered as having been born at
the time of his or her conception, he or she would still be
without the capacity to act as principal, for the child would be
in the position of an infans (that is, a child below the age of
seven years). As an infans, the child would have no capacity to
act and could therefore not authorise his or her parent to act as
his or her agent. Because of the child’s lack of capacity to act,
the parent would have to act on the child’s behalf and authorise
the agent to represent the child.97 (In the above example the
agent and the parent are one and the same person.) This the
parent could do only if the parent had parental responsibilities
and rights and, as indicated above, parental responsibilities and
rights do not arise until a child is actually born.
If a parent wants to negotiate benefits for his or her unborn
child, the solution lies in applying the mechanism of a contract
for the benefit of a third party.98 This entails that the parent (A)
enters into a contract with somebody else (B) in terms of which
B undertakes to keep open an offer to contract with the unborn
child (C) after his or her birth, or undertakes to make an offer to
C after his or her birth. C is not a party to the contract; only A
and B are parties to the contract. It accordingly does not matter
that C does not exist yet.99 Thus, for example, future spouses or
civil union partners can agree in their antenuptial contract that
children who may be born of their marriage or civil union will
become entitled to specified property when they are born.100 In
the case of a contract for the benefit of a third party, C is
benefited by being given the opportunity of entering into a
contract with B. After C’s birth, A (who then has parental
responsibilities and rights) can accept or decline B’s offer on
behalf of C. Upon C’s acceptance of the offer a contract comes
into existence between B and C.101
(g) Termination of pregnancy
(i) General
As this is not an instance where the foetus’ interests are
protected on the premise that a child will eventually be born
alive, termination of pregnancy (abortion) is not a topic that
properly falls under a discussion of the nasciturus fiction. Nor
is sterilisation.102 However, these topics have traditionally been
included in expositions relating to the nasciturus fiction, and
that approach is adopted in this book too.
The Choice on Termination of Pregnancy Act 92 of 1996
permits termination of pregnancy103 on demand during the first
12 weeks of the gestation period, and on several grounds
(including socio-economic considerations) after that.104
Regrettably the Act does not provide for compulsory
counselling before or after the termination of pregnancy.105
(ii) Circumstances in which a pregnancy may be terminated
A pregnancy may be terminated at the request of the pregnant
woman during the first 12 weeks of the gestation period.106
From the 13th up to and including the 20th week of the
gestation period a pregnancy may be terminated if a medical
practitioner, after consultation with the pregnant woman, is of
the opinion that any of the following circumstances are present:
(1) The continued pregnancy will pose a risk of injury to the
woman’s physical or mental health.
(2) There is a substantial risk that the foetus will suffer from a
severe physical or mental abnormality.
(3) The pregnancy resulted from rape or incest.
(4) The continued pregnancy will significantly affect the
woman’s social or economic circumstances.107
After the 20th week of the gestation period a pregnancy may be
terminated only if a medical practitioner, after consultation with
another medical practitioner or a registered midwife who has
undergone the prescribed training course,108 is of the opinion
that the continued pregnancy will do any of the following:
(1) Endanger the woman’s life.
(2) Result in a severe malformation of the foetus.
(3) Pose a risk of injury to the foetus.109
Only a medical practitioner may perform a termination after the
12th week of the gestation period. Until that time the
termination may be performed by a medical practitioner, a
registered midwife who has undergone the prescribed training
course or a registered nurse who has undergone the prescribed
training course.110
(iii) Consent
A termination of pregnancy may only take place with the
informed consent of the pregnant woman.111 It must be stressed
that, unless she is incapable of giving consent, no consent other
than that of the pregnant woman is required.112 In the case of a
pregnant minor113 the medical practitioner, midwife or nurse
must, however, advise the minor to consult with her parents,
guardian, family members or friends before the pregnancy is
terminated, but the termination may not be denied if she prefers
not to do so.114 In the case of surrogate motherhood, the
surrogate mother must inform the commissioning parent(s) of
her decision. She must also consult with the commissioning
parent(s) prior to the termination, but the decision on whether to
proceed with the termination is hers alone.115
In Christian Lawyers Association of South Africa v The
Minister of Health (Reproductive Health Alliance as Amicus

Curiae)116 the provisions of the Act that allow a minor
independently to consent to the termination of her pregnancy
and merely require that she be advised to consult with her
parents, guardian, family members or friends were
constitutionally challenged. The plaintiff sought a declaratory
order striking down the relevant provisions. The plaintiff inter
alia alleged that a woman who is below 18 years of age is
incapable of giving informed consent, and that she has to have
the assistance of her parent or guardian when she decides
whether or not to terminate her pregnancy. The plaintiff also
alleged that allowing a pregnant minor independently to decide
whether or not to have a termination violates her right to family
or parental care and her right to be protected from maltreatment,
neglect, abuse or degradation, does not render her best interests
of paramount importance, and does not comply with the
guarantee of equality before the law and equal protection and
benefit of the law.117 The defendant raised an exception against
the plaintiff’s particulars of claim on the ground that they did
not disclose a cause of action.
The court pointed out that in the case of an exception to
particulars of claim, the law requires that the allegations in the
particulars of claim must be accepted as the truth.118 Therefore,
the plaintiff’s allegation that a woman who is below the age of
18 years is incapable of giving informed consent must be
accepted as true for purposes of deciding the exception. The
court held that the cornerstone of the regulation of termination
of a pregnancy under the Act is that the pregnant woman’s
informed consent is needed before a termination may be
performed. The implication of the plaintiff’s allegation that a
woman who is below the age of 18 years cannot give informed
consent is that such a woman does not qualify for a termination
under the Act unless she has the assistance of her parent or
guardian. Thus the Act actually does not permit a termination in
the circumstances the plaintiff alleges and the plaintiff’s
particulars of claim therefore do not show a cause of action.
The exception was accordingly upheld.
In obiter dicta the court further stated that the rights to bodily
and psychological integrity (including the right to make
reproductive decisions and the right to security in and control of
one’s body), dignity, privacy, and to have access to
reproductive health care confer a right to termination on every
woman, regardless of her age, since the Constitution of the
Republic of South Africa, 1996 confers these rights on
“everyone”.119 In support of its view that every woman has a
constitutional right to terminate her pregnancy, the court further
referred to the right to equality, the right not to be subject to
unfair discrimination on the grounds of gender, sex and
pregnancy, the right to life, and the right to freedom and
security of the person.120
If a pregnant woman is mentally disabled to such an extent
that she is completely incapable of understanding and
appreciating the nature or consequences of the termination of
her pregnancy, or if she is in a state of continuous
unconsciousness without a reasonable prospect of regaining
consciousness in time to request and consent to the termination,
and the gestation period is less than 21 weeks, her pregnancy
may be terminated if her guardian, spouse or civil union partner
consents.121 In this case the grounds that were listed above in
respect of terminations from the 13th up to and including the
20th week of the gestation period of a mentally able woman122
must be present.123 If the woman’s guardian, spouse or civil
union partner cannot be found, her curator personae (that is, the
curator to her person)124 may consent. In addition, two medical
practitioners or a medical practitioner and a registered midwife
or registered nurse who has completed the prescribed training
course must consent to the termination.
In certain circumstances a mentally disabled or continuously
unconscious woman’s pregnancy may be terminated even
without the consent of her guardian, spouse, civil union partner
or curator personae. In this regard a distinction must be drawn
between termination prior to the 21st week of the gestation
period, and termination from the 21st week. Prior to the 21st
week, the pregnancy may be terminated without the consent of
the woman’s guardian, spouse, civil union partner or curator
personae if two medical practitioners or a medical practitioner
and a registered midwife or registered nurse who has completed
the prescribed training course are of the opinion that either of
the following is present:
(1) The continued pregnancy will pose a risk of injury to the
woman’s physical or mental health.
(2) There is a substantial risk that the foetus will suffer from a
severe physical or mental abnormality.125
From the 21st week of the gestation period the woman’s
pregnancy may be terminated without the consent of her
guardian, spouse, civil union partner or curator personae if two
medical practitioners or a medical practitioner and a registered
midwife or registered nurse who has completed the prescribed
training course are of the opinion that the continued pregnancy
will do any of the following:
(1) Endanger the woman’s life.
(2) Result in a severe malformation of the foetus.
(3) Pose a risk of injury to the foetus.126
(iv) The foetus’ right to life and other constitutional issues
surrounding termination of pregnancy
Before the introduction of a Bill of Rights into our law,127 our
courts consistently held that a foetus is not a legal subject and
does not have a right to life that can be enforced on its behalf.
Thus, in Christian League of Southern Africa v Rall128 an
application for the appointment of a curator ad litem to
represent the interests of an unborn child in all matters
concerning its proposed abortion was dismissed.129 The court
held that an unborn child is not a legal subject. Since it is only
upon birth that a child becomes a legal subject, a child cannot
have rights that can be enforced on his or her behalf before he
or she is born alive.130 Another example is Van Heerden v
Joubert131 where the court held that for purposes of the Inquests
Act 58 of 1959 the word “person” does not include an unborn
child. It was unnecessary for the court to decide whether an
unborn child should be regarded as a legal person or to what
extent life before birth should be protected, but the court
pointed out that serious problems might arise with regard to, for

example, the law relating to termination of pregnancy, murder
and culpable homicide if legal personality were extended to a
foetus.
The view that an unborn child does not have a right to life
was criticised on various grounds, including moral, religious
and legal ones. When the law relating to termination of
pregnancy was liberalised by the Choice on Termination of
Pregnancy Act after the enactment of the Bill of Rights it was
inevitable that the Act would be challenged on constitutional
grounds. This indeed happened in Christian Lawyers
Association of South Africa v The Minister of Health.132 The
plaintiffs contended that human life starts at conception and that
the Choice on Termination of Pregnancy Act contravenes
section 11 of the Constitution, which guarantees the right to
life. They sought a declaratory order striking down the Act in
its entirety. The defendants excepted to the plaintiffs’
particulars of claim inter alia on the ground that it did not
disclose a cause of action because section 11 of the Constitution
does not confer any right on a foetus. Judge McCreath upheld
the exception, holding inter alia that no provision of the
Constitution bestows legal personality or protection on the
foetus,133 and that the Constitution does not qualify a woman’s
right to make decisions about reproduction and her right to
security in and control over her body134 in order to protect the
foetus.
It is submitted that the outcome of the case is correct.135 The
law grants rights and obligations (including constitutional rights
and obligations) only to legal subjects.136 In the absence of a
clear provision elevating the unborn child’s status to that of a
legal subject, the Constitution cannot be said to have conferred
any rights on unborn children.137 An allegation that human life
begins at conception is clearly an insufficient basis on which to
found the argument that a foetus has a right to life, because
“human life” is not the determinant in respect of legal
personality.138
Because the unborn child does not have any rights prior to
birth, the issue of a conflict between the unborn child’s
constitutional rights and those of the pregnant woman does not
arise.139 In the case of a conflict between a pregnant woman and
the father of her unborn child about whether or not the
pregnancy should be terminated, a constitutional challenge by
the father of the provision in the Choice on Termination of
Pregnancy Act which grants the woman the sole right to decide
on the matter by requiring only her consent to the termination140
would in all probability fail. Section 12(2)(b) of the
Constitution entrenches every person’s right to security in and
control over his or her body, which clearly includes the person’s
reproductive powers. It therefore implies that a woman has the
final say about whether or not she will terminate her pregnancy
(or be sterilised or submit to in vitro fertilisation, etc.). Any
limitation there may be of the father’s right to make
reproductive decisions would, in my view, be justifiable. From
the point of view of dignity, privacy, and gender equality, too, it
is submitted that the woman should have the final say in so far
as reproduction is concerned.141 Barring, perhaps, the invocation
of the constitutional right to gender equality, the same
arguments would apply in the case of same-sex relationships.142
(h) Sterilisation
The Sterilisation Act 44 of 1998 permits the voluntary
sterilisation of anyone who has reached the age of 18 years and
is capable of consenting.143 This rule applies regardless of
whether or not the person is married or a party to a civil
union.144 The person who is to be sterilised must give free and
voluntary consent without any inducement. Before consenting,
the person must receive a clear explanation and adequate
description of the proposed plan of the sterilisation procedure
and the consequences, risks and reversible or irreversible nature
of the procedure, and be advised that consent may be withdrawn
any time before the sterilisation takes place. Once this has been
done, consent must be given on a prescribed form.145
A minor may be sterilised only if failure to perform the
sterilisation would jeopardise his or her life or seriously impair
his or her health.146 The sterilisation may only be performed
with the consent of the minor’s parent, guardian or curator.147
Furthermore, an independent medical practitioner must consult
the minor and provide a written report that indicates that the
sterilisation is in the minor’s best interests.148 The desirability of
the sterilisation must also be evaluated by a panel consisting of
a psychiatrist (or a medical practitioner if no psychiatrist is
available), psychologist or social worker, and a nurse.149
The Act also contains specific provisions regarding the
sterilisation of a person who is incapable of consenting or
incompetent to consent. Such a person may be sterilised only if
he or she is mentally disabled150 to such an extent that he or she
is incapable of all of the following:
(1) Making an independent decision about contraception or
sterilisation.
(2) Developing mentally to a sufficient degree to make an
informed decision about contraception or sterilisation.
(3) Fulfilling the parental responsibilities associated with
giving birth.151
If these requirements are met, the consent of the person’s
parent, spouse, civil union partner, guardian or curator must be
obtained152 and a panel consisting of a psychiatrist (or a medical
practitioner if no psychiatrist is available), psychologist or
social worker, and a nurse must concur that the sterilisation may
be performed.153 When considering whether the sterilisation
may be performed the panel must take all relevant facts into
account, including:
(1) The person’s age.
(2) The person’s mental and physical health and well-being.
(3) Whether there are other safe and effective alternatives to
sterilisation.
(4) The potential effect of sterilisation on the person’s mental
and physical health and well-being.
(5) The nature of the sterilisation procedure that is to be
performed.
(6) The likelihood that the person will become capable of
consenting.
(7) Whether the sterilisation is in the person’s best interests.

(8) The benefit the person may derive from the sterilisation.154
Whenever a sterilisation is performed the method holding the
smallest risk to the patient’s health must be used.155
2.3.3 Does the protection of the interests of the
nasciturus imply that an unborn child is
sometimes a legal subject?
At the beginning of this chapter it was explained that a natural
person’s legal personality begins at birth. The protection of the
interests of the nasciturus, however, gives rise to the question
of whether our law recognises an unborn child as a legal subject
in some instances. In other words, does the protection that a
nasciturus enjoys when its interests are at stake mean that our
law recognises an exception to the rule that legal personality
begins at birth? To find an answer to this question one must
distinguish between the so-called nasciturus rule and the
nasciturus fiction.
On the one hand there are jurists156 who maintain that the
protection afforded to the unborn child is based on the
nasciturus rule and not on a fiction. The rule is that whenever a
situation arises where it would have been to the advantage of
the nasciturus had he or she already been born, all rights that
are conferred upon people who have already been born alive are
also conferred on the unborn child. From this it logically
follows that an unborn child is a legal subject as from the date
of his or her conception whenever his or her interests are at
stake. Accordingly, legal personality sometimes begins at birth
and sometimes (namely, when this benefits the nasciturus) it

begins at conception. In other words, live birth is the usual point
at which legal personality is obtained, but in exceptional cases
(namely, when this benefits the nasciturus) legal personality
may be antedated to the time of the nasciturus’ conception.
Other jurists prefer to view the protection of the nasciturus in
terms of a fiction. They either describe it as the nasciturus
fiction, or they say that it is the nasciturus rule which operates
by way of a fiction.157 In terms of the nasciturus fiction, the
nasciturus is regarded as having been born at the time of his or
her conception if a situation arises where it would have been to
his or her advantage had he or she already been born. In terms
of this view, it is not the protection of the “rights” of the
nasciturus that are at issue, but the protection of the rights of
the child who will be born later – hence the qualification that
the nasciturus is regarded as having been born only if a living
child is indeed born. If the child is not born alive, the protection
falls away completely and it is as if there never was a
nasciturus. Thus the interests involved are those of the child yet
to be born, and the only practical way in which these interests
can be protected before birth is to keep them open for the child
until he or she is born. The nasciturus fiction is but an awkward
way in which this interim protection is expressed. Seen in this
light there is no need to regard the nasciturus as a legal subject
in some cases, but not in others. Thus a single rule applies in
respect of the beginning of legal personality and that is that
legal personality begins at birth. The nasciturus fiction simply
deems birth to have taken place at the time of conception when
this is to the advantage of the nasciturus. Those who favour the
version of the nasciturus rule that operates by way of a fiction
achieve the same result by arguing that the nasciturus rule
operates as a fiction that deems the nasciturus to have been
born at the time of his or her conception if a situation arises
where it would have been to the nasciturus’ advantage had he
or she already been born. In other words, this version of the
nasciturus rule is simply the nasciturus fiction by another
name. Unlike the version of the nasciturus rule that was set out
in the previous paragraph, this version of the nasciturus rule
does not antedate legal personality to the time of conception.
I support the nasciturus fiction. It is submitted that, to avoid
confusion, the term “nasciturus rule” should be reserved for the
view that our law recognises an exception to the rule that legal
personality begins at birth, and that the term “nasciturus
fiction” should be reserved for the view that legal personality
always begins at birth and that when the nasciturus’ interests
are protected it is the child’s birth that is fictionally antedated.
2.4 The end of legal personality

2.4.1 General
A person’s legal personality is terminated by death. Dead
people therefore have neither rights nor obligations.
Nevertheless, the law protects the deceased’s body and
regulates its disposal.158 This is done because of community
interests (such as public health, respect for the feelings and
sensibilities of the deceased’s relatives, and respect for the
dead).159 The deceased’s former assets are also protected, but
once again not in the deceased’s own interests but in the
interests of his or her creditors and heirs.
Prior to the coming into operation of section 1 of the National
Health Act 61 of 2003, South Africa lacked a legal definition of
“death”. When the legislature enacted this Act, it adopted the
criterion of brain death as the legal standard in so far as the
provision of health services, donation of corpses or specified
tissue in corpses (such as specific organs), post-mortem
examinations, and the removal of tissue at post-mortem
examinations are concerned.160 Using brain death as the
criterion for determining when a person is legally dead is in
keeping with the prevailing view in modern medical practice on
when death occurs.161 It should, however, be borne in mind that
the definition of “death” in the National Health Act applies only
to the specific matters governed by the Act. Thus the courts are
not bound by the definition in circumstances where the Act
does not apply. In those circumstances they may, as in the past,
rely on any medical evidence to establish whether someone has
died and to determine the moment of death, although the
definition in the Act will probably have persuasive force
because it reflects the predominant medical view.
2.4.2 Proof of death
In private law, proof of death is important for two reasons: once
death has been proved, the deceased’s estate may be
administered and distributed, and the surviving spouse or civil
union partner may enter into a new marriage or civil union.
The usual way to prove a person’s death is by means of
presenting a certificate that has been issued by a medical

practitioner. If the death was due to natural causes, the
certificate indicates the cause of death.162 If the death was due
to, or is suspected to have been due to, unnatural causes, an
inquest is held.163 In such event, the medical practitioner must,
as soon as he or she is satisfied that the corpse is no longer
needed for the inquest, issue a certificate to that effect.164 In this
case, the cause of death is not stated.
Once a death has been reported to the Director-General of
Home Affairs and registered165 the Director-General issues an
official death certificate.166 The death certificate is prima facie
proof of the person’s death.167
2.5 Presumption of death

2.5.1 Common-law procedure
If a person disappears and there is no certainty as to whether he
or she is dead or still alive, a presumption of death can be
pronounced in terms of the common law or, in certain instances,
in terms of statute.
Roman-Dutch law was quite unclear about a presumption of
death, and particularly about the period that the missing person
had to be absent before an order presuming death could be
pronounced.168 There was also no fixed procedure for obtaining
an order presuming death or for an order concerning remarriage
or distribution of the person’s estate. In South African law the
rules regarding presumption of death have been developed via a
series of court decisions that have been supplemented by
legislation dealing with inquests.

In South Africa the position is that any interested party – for
example, a creditor of the absent person, or the person’s heirs or
surviving spouse or civil union partner – may approach the
High Court in whose jurisdiction the missing person was
domiciled to grant an application for an order presuming the
person’s death.169 The case is brought by way of an
application.170 The applicant must prove on a preponderance of
probabilities that the missing person is dead.171
Initially our law followed the English rule according to which
an order presuming a person’s death is granted after an absence
of seven years.172 This was later superseded by the rule that no
fixed period of time is required.173 Naturally the length of a
person’s absence is a factor that is taken into account by the
court and it can even be decisive, but it is not the only factor.
As the court indicated in Ex parte Estate Russell,174 other
factors are also relevant:
[B]efore coming to any conclusion the Court must take into consideration certain
factors – the age of the person presumed to be dead, the length of his absence from
home, the trade or occupation of such person, whether he followed an ordinary
peaceful occupation or whether he was engaged in a business or trade to which
ordinarily risk or danger was attached . . . but in the absence of any evidence to
indicate that the person presumed to be dead was engaged in an occupation that
endangered life, the mere fact of his not having been heard of for any number of
years is not sufficient to authorise the Court to come to the conclusion that his
death must be presumed.
On occasion, even an absence of 30 years was considered
insufficient reason for pronouncing a presumption of death.175
In contrast, the presumption can be pronounced after a short
absence if the probability of death is very strong.176
The fact that the missing person would have reached an
advanced age at the time of the application can be important,177
as can the fact that the person was in bad health at the time of
his or her disappearance178 or that he or she manifested suicidal
inclinations.179
A person’s death is not presumed lightly and it is thus
required that the applicant bring all the relevant facts and
circumstances to the attention of the court.180
It has apparently become firm practice for the court, after
hearing the application, to set a return date on which the final
order will be made. The applicant is then ordered to give notice
of the rule nisi to those interested parties indicated by the court,
and to publish the rule nisi in the Government Gazette and a
newspaper in circulation in the area where the missing person
used to live. This enables other interested parties to object to the
granting of the final order or to bring further facts to the notice
of the court that could either rebut the presumption of death or
strengthen it.181
The above procedure applies to the power the court has to
pronounce a presumption of death in terms of the common law.
In some instances an alternative procedure, which has been laid
down in legislation, may be followed.
2.5.2 Statutory procedure
(a) Inquests Act 58 of 1959
Section 5(2) of the Inquests Act stipulates that if a magistrate is
of the opinion that a person’s death was not due to natural
causes, he or she must take the necessary steps to ensure that an
inquest as to the circumstances and cause of the death is held by
a judicial officer in terms of section 6.182 If the person’s corpse
is available, the district surgeon or another medical practitioner
examines it in order to determine the cause of death.183 If it
appears at the inquest that the person’s body has not been
found, or has allegedly been destroyed, and the evidence proves
beyond reasonable doubt that the person is dead, the judicial
officer must record his or her findings in respect of:
(1) The deceased’s identity.
(2) The cause or likely cause of death.
(3) The date of death.
(4) Whether the death was caused by any act or omission
which prima facie involved or amounted to an offence by
anyone.184
If the judicial officer is unable to record such a finding, this fact
must be recorded.185 If a finding regarding the deceased’s
identity and date of death has been recorded, the record of the
inquest, together with any comment the judicial officer wishes
to make, is submitted for review to the High Court that has
jurisdiction in the area where the inquest was held.186 If the
finding is confirmed, the effect is the same as if the High Court
had made an order presuming the person’s death.187
Two aspects of the Inquests Act must be emphasised. First, it
is clear that the state takes the initiative because an unnatural
death is suspected. Therefore it is not necessary for a private
person to approach the court for a presumption of death.
However, section 18(3) provides that the procedure laid down
in the Act does not affect the court’s common-law jurisdiction

to grant an order presuming the death of any person. Secondly,
section 16(1) provides that the judicial officer must be certain
beyond reasonable doubt that the person is dead before he or
she may record a finding that the person is presumably dead.
This differs from the common-law procedure where an order
may be granted if it is proved on a balance of probabilities that
the person is dead. There is thus a big difference in the onus of
proof and it would obviously be easier to obtain an order
presuming death in terms of the common-law procedure.
2.5.3 The effect of an order of presumption of
death
If the court pronounces a presumption of death, this obviously
does not mean that the person is dead.188 There is only a
rebuttable presumption that the person is dead. As the
presumption is rebuttable, the court that pronounced the
presumption may set aside the original order if, on the basis of
further evidence, it becomes clear that the missing person is in
fact not dead.189 This may be done on the application of any
interested person or the missing person personally.
After a death has been officially presumed, the person’s
estate may, in principle, be dealt with as if he or she were dead.
Thus his or her estate can be administered and divided among
his or her heirs. The courts have, however, on occasion adopted
a cautious attitude and have ordered that while the estate may
be divided, the heirs must furnish security for the restoration of
the property, or its value, should the missing person return.190 It
should further be noted that, even if the court decides that the

circumstances of a particular case do not justify granting an
order presuming death, it may none the less order that the
missing person’s property be divided among his or her heirs
provided that they furnish sufficient security for the return of
the property or its value, should the missing person reappear.191
The court may also appoint a curator bonis to administer the
missing person’s affairs without pronouncing a presumption of
death.192
Because an order presuming someone’s death does not
automatically terminate his or her marriage, great uncertainty
existed in the past concerning the surviving spouse’s
remarriage.193 At present the Dissolution of Marriages on
Presumption of Death Act 23 of 1979 regulates the position.194
This Act applies to the dissolution of civil unions too.195 Section
1 of the Act reads as follows:
Any provincial or local division of the Supreme Court of South Africa [now the
High Court] making an order that the death of any married person shall be
presumed, may, when making that order or at any time thereafter, on the
application of such person’s spouse, make an order that the marriage in question
shall be deemed to have been dissolved by death as from a date determined by the
court, whereupon that marriage shall for all purposes be deemed to have been
dissolved by death as from the date so determined.
The court that pronounces a presumption of death is thus
empowered to make an order dissolving the person’s marriage
or civil union at the same time that the presumption of death is
made, or at any time thereafter. In other words, a separate
application for an order dissolving the marriage or civil union
may be made. The court may not grant the order on its own
initiative. It may only do so on the application of the surviving
spouse or civil union partner. The court is not bound to grant
the application. It has a discretion in the matter, but it is
improbable that a court would be prepared to issue a
presumption of death but refuse to dissolve the missing person’s
marriage or civil union.
The result of the order is that the marriage or civil union is
deemed to have been dissolved by death for all purposes. In
other words, the personal and patrimonial consequences of the
dissolution are exactly the same as if the marriage or civil union
were dissolved by the death of one of the parties.
Section 2 of the Act further regulates the position where an
inquest was held and a finding was made in terms of the
Inquests Act.196 If the High Court confirms the finding, the
person’s marriage or civil union is deemed to have been
automatically dissolved as from the date recorded in the court’s
finding as the date on which the person died. In this case –
unlike under the common-law procedure – no special
application for the dissolution of the marriage or civil union
need be made.
If a person has been presumed dead and it transpires later that
he or she is still alive, he or she or any interested party may
approach the court for an order that the person’s estate not be
further divided and that the order presuming his or her death be
set aside. Anyone who has received benefits must return either
the benefits or their value. Should they fail to do so, they can be
sued by means of an enrichment action, namely the condictio
indebiti.197
Finally, it must be mentioned that only the High Court of the
area where the missing person was domiciled at the time of his
or her disappearance has jurisdiction to make or set aside an
order presuming his or her death, and that such an order is
binding on the whole world.198
2.6 Presumptions regarding sequence of death

If several people die in the same disaster, it may be important to
establish which of the commorientes (that is, persons who die
together) died first in order to determine whether one inherited
from the other. This is so because one person can only inherit
from another if he or she is alive at the time of the other
person’s death.
In Roman-Dutch law several rebuttable presumptions
operated when members of the same family died in
circumstances where it was difficult to establish who died
first.199 These presumptions could apparently be rebutted very
easily, for example, by the evidence of a single witness.200
The Roman-Dutch presumptions do not apply in modern
South African law. The general rule today is that if the
sequence in which people died cannot be proved on a balance of
probabilities, there is no presumption either of survival or
simultaneous death.201 However, unless there is evidence to the
contrary, the courts will find that commorientes died
simultaneously.202 After all, if there are no witnesses to testify
that one person died before the other, the court can hardly do
anything else but find that they died simultaneously.
2.7 Registration of deaths

The Births and Deaths Registration Act requires every death to
be reported to the Director-General of Home Affairs (or the
Director-General’s duly appointed representative). This applies
irrespective of whether the death was due to natural or
unnatural causes.203 Notice must also be given of a stillbirth.204
If someone died of natural causes, anyone who was present at
the death, became aware of it, or is in charge of the person’s
funeral must notify the Director-General.205 If it is suspected
that the deceased died of unnatural causes, the Director-
General, or the medical practitioner who attended the deceased
before his or her death or examined the corpse must report the
matter to the police.206 An inquest will then be held in terms of
the Inquests Act.207
In the case of a stillbirth, the medical practitioner who was
present at the stillbirth or examined the stillborn child’s corpse
must notify the Director-General.208 If no medical practitioner
was present or examined the child’s corpse, the duty falls on
anyone who was present at the stillbirth.209
2.8 Duty to bury the deceased

No one may be buried or cremated before a burial order has
been issued in terms of the Births and Deaths Registration Act.
A burial order is issued only once the prescribed notice of death
or stillbirth has been given.210
If the deceased left written, or even verbal, instructions
regarding his or her funeral and/or burial place or cremation,
those instructions must be complied with as far as possible and
permissible.211 In the case of verbal instructions there must be
clear proof of those instructions – especially if they contradict
written instructions the deceased gave at a different time.212 If
the deceased did not give any instructions, his or her heirs have
the right and duty to make the funeral or cremation
arrangements and to determine the deceased’s last resting
place.213 It has been held that if there are multiple heirs with
conflicting wishes, the surviving spouse has a “paramount
right” to decide on the funeral or cremation arrangements and
the deceased’s last resting place,214 but this approach has not
been followed consistently. For example, in the South Eastern
Cape Local Division (now the Eastern Cape High Court, Port
Elizabeth) it has been held that the court should have regard to
various factors, including the deceased’s family relationships,
the wishes of the surviving spouse, the wishes of the deceased’s
children, the wishes of the deceased’s broader family, and
practical considerations.215 In the former Transvaal the outcome
of the dispute has been determined by fairness and propriety.216
1 D 25.4.1.1, 35.2.9.1. The interests of the unborn child are dealt with below in
this ch.
2 D 25.4.1.1, 35.2.9.1; C 6.29.3; Voet 1.5.5.
3 D 50.16.129; C 6.29.3. For a critical evaluation of the rule that the child must be
born alive, and the judiciary’s unquestioning acceptance of this rule, see Pillay
2010 Stell LR 230.
4 See also Boezaart Persons 12; Kruger and Skelton (eds.) Persons 22; Van der
Vyver and Joubert 59. On the forensic pathological methods which can be used
to determine whether a child was born alive, see Carstens and Du Plessis in
Boezaart (ed.) Child Law in South Africa 589.
5 Boberg 8; Van Zyl and Van der Vyver 385.
6 According to S v Mshumpa 2008 (1) SACR 126 (E), medical science generally
considers a foetus viable by the 25th week of the gestation period. On the
forensic pathological methods that are used to determine viability, see Carstens
and Du Plessis in Boezaart (ed.) Child Law in South Africa 590.
7 Asser Het Nederlandsch Burgerlijk Wetboek 16; Fockema Andreae Oud-
Nederlandsch Burgerlijk Recht vol I 128; Lee Commentary on De Groot 6; Von
Savigny System vol II 10–11 Beylage 3, 385 et seq. But see Dernburg 110–111;
Windscheid 233.
8 See also Boezaart Persons 12; Cronjé LAWSA vol 20 part 1 Persons par 440;
Kruger and Skelton (eds.) Persons 23; Van der Vyver and Joubert 61.
9 In terms of s 1(1) of the Births and Deaths Registration Act, “birth” refers only
to the birth of a child who was born alive. The Act does not indicate how the
fact that the child was born alive is to be proved. It also does not expressly
require that the child must be separated from his or her mother. For this reason
Slabbert 1997 TSAR 239 submits that the Act ascribes a different meaning to
“birth” than the common law does; in other words, the position differs from the
common law because for purposes of the Act a child’s birth will have taken
place even if it has not been fully completed because there has not been a
complete separation between the child’s body and that of his or her mother.
Keightley in Van Heerden et al (eds.) Boberg’s Law of Persons and the Family
28–29 fn 2 criticises this view. She points out that the definition in the Act is
circular (“birth” means “the birth of a child born alive"; Keightley’s emphasis),
and argues that the definition leaves the meaning of “birth” and “born” open,
with the result that the legislature cannot be said to have intended to ascribe a
meaning to “birth” that deviates from its common-law meaning. In view of the
principle of interpretation of statutes which dictates that legal terms in a statute
must be interpreted in accordance with their common-law meaning unless the
context indicates the contrary, Keightley’s view is preferred.
10 Ss 4 and 9(1). Although only the birth of a live child qualifies as a “birth” in
terms of the Act, notice must also be given of a stillbirth. S 18 of the Births and
Deaths Registration Act governs notices of stillbirth. S 18 is discussed in more
detail below in this ch. Concealing the birth of a stillborn child or a child who
died during or after birth is a crime (General Law Amendment Act 46 of 1935 s
113), as is failing “without reasonable cause” to notify the Director-General of a
birth or stillbirth (Births and Deaths Registration Act s 31(1)(a)).
11 S 9(1).
12 Ibid. When s 4(b) of the Births and Deaths Registration Amendment Act 18 of
2010 comes into operation, s 9(1) of the Births and Deaths Registration Act will
be amended to restrict the persons who may give notice of a child’s birth to
either of the child’s parents. If both parents are deceased, a person who falls
within the list of persons prescribed by the regulations under the Act may give
notice. S 4(b) of the Amendment Act further inserts s 9(1A) into the Births and
Deaths Registration Act. The new section provides that the Director-General
may require that biometrics of the person whose notice of birth is being given
and of the person’s parents be taken in the manner prescribed by the regulations.
13 S 12. Section 6 of the Births and Deaths Registration Amendment Act inserts a
new s 12(2) into the Act, which regulates notice of the birth of an orphaned
child. This provision is not yet in operation.
14 S 9(6). In terms of s 28(1)(a) of the Constitution of the Republic of South
Africa, 1996 every child has the right to a name. On a child’s constitutional
rights, see ch 6 below and Heaton Family Law ch 22.
15 S 9(2) read with s 1(1). On the distinction between children who are born of
married parents and those who are born of unmarried parents, see ch 5 below.
For a summary of the South African provisions and a comparative survey of the
rules regarding a child’s surname, see Labuschagne and Bakker 1999 THRHR
190–195. These authors also set out the need for a socio-juridical identity and
explain changes in respect of naming in the context of anthropo-legal processes
and human rights. See also Sonnekus 1993 TSAR 608; Boonzaaier, Bekker and
Labuschagne 2003 De Jure 397.
16 Births and Deaths Registration Act s 1(2)(a); see also s 2(1) and (2) of the
Recognition of Customary Marriages Act 120 of 1998 which affords full
recognition to customary marriages. On customary, Muslim and Hindu
marriages, see Heaton Family Law ch 17–19. When s 1 of the Births and Deaths
Registration Amendment Act comes into operation, children born of parents
who have entered into a religious marriage will no longer qualify as children
born from married parents, because the section inserts a new definition of
“marriage” in s 1(1) of the Births and Deaths Registration Act and deletes s 1(2)
of the Act. The new definition does not refer to religious marriages. Coupled
with the deletion of s 1(2), the omission of religious marriages from the
definition of “marriage” will have the unfortunate consequence that a child born
of parents who have entered into a religious marriage cannot be registered as
having been born of married parents. This consequence was probably
unintended, for it seems illogical – if not downright absurd – for the legislature
to confer joint parental responsibilities and rights on the parents of a child born
of a religious marriage on the basis that the child is born of married parents (ss
19 and 20 read with the definition of “marriage” in s 1(1) of the Children’s Act)
but to deny these parents the right to have the birth of their child registered as
the birth of a child born of married parents: Heaton 2010 Annual Survey of
South African Law 991.
17 Civil Union Act s 13.
18 2003 (5) BCLR 463 (CC).
19 On the status of children born as a result of artificial fertilisation, see ch 5
below.
20 S 9(3) of the Constitution provides that no person may be unfairly discriminated
against, inter alia, on the ground of his or her sexual orientation.
21 The court inter alia struck out the word “married” and read in the phrase “or
permanent same-sex life partner” in several places in s 5.
22 Children’s Act s 313 read with Schedule 4.
23 See also Kruger and Skelton (eds.) Persons 41, 88; Louw 2007 Obiter 327. The
argument relating to choice would be in keeping with the decision of the
Constitutional Court in Volks v Robinson 2005 5 BCLR 446 (CC). In this case,
the majority of the judges held that in limiting the statutory right to claim
maintenance from a deceased estate to the deceased’s spouse, the Maintenance
of Surviving Spouses Act 27 of 1990 neither unfairly discriminated against the
deceased’s heterosexual surviving life partner, nor violated her right to dignity,
because persons who choose not to marry despite being legally permitted to do
so opt out of the responsibilities and rights that are attached to marriage. Since
same-sex and heterosexual life partners now have the option of entering into a
civil union, it seems logical that the approach in Volks should be extended to life
partners who fail to conclude a civil union. It should, however, be noted that the
majority decision in Volks has been stridently criticised: see e.g. De Vos in
Sloth-Nielsen and Du Toit (eds.) Trials and Tribulations 131–134; Cooke 2005
SALJ 542; Lind 2005 Acta Juridica 108; Schäfer 2006 SALJ 640–644; Albertyn
2007 SAJHR 266–268.
24 Births and Deaths Registration Act s 10(1).
25 S 10(1)(b).
26 Births and Deaths Registration Act s 11(4); see also s 26(1) of the Children’s
Act. When s 5(c) of the Births and Deaths Registration Amendment Act comes
into operation, a man who wants to have a child’s birth registration changed to
reflect his paternity in circumstances where another man has already been
registered as the child’s father, will only be allowed to have the father’s
particulars amended if the amendment is supported by the prescribed conclusive
proof that he (i.e. the “new” father) is actually the child’s father: s 11(4A). This
provision is aimed mainly at parents who register their child under one man’s
surname and subsequently want to have another man registered as the child’s
father to enable the “new” father to obtain a South African immigration permit:
“South Africa: Govt targets fraudulent birth, deaths registrations”, available at
http://allafrica.com/stories/201009170892.html, accessed 29 May 2012; Slide 18
of “Department of Home Affairs on the South African Citizenship Amendment
Bill, Births & Deaths Registration Amendment Bill presentation”, available as a
link at http://www.pmg.org.za/report/20100803-department-home-affairs-south-
african-citizenship-amendment-bill-b17-, accessed 29 May 2012.
28 Children’s Act s 26(2).
29 Births and Deaths Registration Act s 11(1) read with s 13(2) of the Civil Union
Act; see also Children’s Act s 38(1).
30 Children’s Act s 17.
31 Births and Deaths Registration Act s 11(1). S 5(a) of the Births and Deaths
Registration Amendment Act amends s 11(1) of the Births and Deaths
Registration Act to provide that the only persons who may make the application
are one of the child’s parents or the child once he or she has attained majority.
This provision is not yet in operation.
32 Births and Deaths Registration Act s 25(1)(b).
33 S 25(1)(b) and (1A).
34 S 25(1)(b).
35 S 25(1).
36 S 25(1A).
37 S 25(1)(b).
38 S 25(1).
39 Ibid.
40 S 25(1)(c) and (1A).
41 Ss 25(2) and 26(2). As a rule, no one may assume or pass under a surname other
than that under which he or she has been included in the population register. S
26(1) of the Births and Deaths Registration Act (read with s 13(2) of the Civil
Union Act), however, exempts a woman who, on entering into a marriage
(including, for the time being, a religious marriage: see fn 16 above on the
envisaged exclusion of religious marriages from the definition of “marriage”) or
a civil union, assumes the surname of her husband or civil union partner. The
exemption also applies if, after having assumed the surname of her husband or
civil union partner, the woman resumes a surname she bore at any prior time, or
adds the surname she acquired after entering into the marriage or civil union to
any surname she bore at any prior time. It further applies to a divorced or
widowed woman who resumes using a surname she bore at a previous time. On
this exemption, see further Heaton Family Law ch 5. How the exemption would
operate in a same-sex civil union is unclear. The obvious solution is to extend
the exemption to both parties to a civil union and also to extend it to both parties
to a marriage, thus enabling either party to adopt the other’s surname or to form
a double-barrel surname. This solution would be in line with the gender equality
provisions of the Constitution (e.g. s 9).
42 Births and Deaths Registration Act s 25(2). For the purpose of this section,
“guardian” includes anyone who has legal or factual custody (i.e. care) or
control of the minor: s 25(3).
43 S 26(2).
44 S 24(1).
45 Ibid. For the purpose of this section, “parent” means one parent or any guardian
who is in charge of the minor. It also includes any person who has legal or
factual custody or control of the minor: s 24(2).
46 S 26(2).
47 D 1.5.7, 1.5.26, 5.4.3, 50.16.231; Grotius 1.3.4; Voet 1.5.5, 39.5.12; Van der
Keessel Theses Selectae 45.
48 The terms “nasciturus fiction” and “nasciturus rule” are sometimes used as
synonyms. On the difference between the rule and the fiction, see below in this
ch.
49 Grotius 1.3.3, 1.3.4; Van der Keessel Praelectiones 1.3.4.
50 Pinchin v Santam Insurance Co Ltd 1963 (2) SA 254 (W); Christian League of
Southern Africa v Rall 1981 (2) SA 821 (O).
51 Van der Keessel Praelectiones 1.3.4. Lupton 1997 TSAR 755–756 submits that
in the case of in vitro fertilisation only embryos that have already been
implanted in a womb (be it a human or an artificial womb) should qualify for
protection by means of the nasciturus fiction, as it would cause too much
disruption if the legal position were held in abeyance until all the embryos have
been implanted or donated or the suggested maximum preservation time of four
years has expired.
52 D 5.4.3, 50.16.231; Voet 1.5.5.
53 Van der Keessel Praelectiones 1.3.4; Grotius 1.3.4. See further D 1.5.7, 1.9.7.1;
Inst 1.4 pr; Voet 1.5.5; Van der Keessel Theses Selectae 45.
54 Van der Keessel Praelectiones 1.3.4; Voet 1.5.5.
55 D 1.5.26, 5.4.3; Inst 3.1.8; Voet 1.5.5; Van der Keessel Theses Selectae 45. The
fiction was also applied in matters relating to the child’s status as a slave or a
free person: D 1.5.26, 1.9.7.1; Inst 1.4 pr; Voet 1.5.5.
56 Wills Act 7 of 1953 s 2D(1)(c); Estate Lewis v Estate Jackson (1905) 22 SC 73;
Hopkins v Estate Smith 1920 CPD 558; Botha v Thompson 1936 CPD 1.
57 1962 (3) SA 954 (O), Heaton Casebook on the Law of Persons case [1].
58 956BC.
59 Ex parte Odendaal 1928 OPD 218; Ex parte Visagie 1940 CPD 42; Ex parte
Swanepoel 1953 (1) SA 280 (A); Ex parte De Winnaar 1959 (1) SA 837 (N).
60 See e.g. Ex parte Visagie 1940 CPD 42; Ex parte Strauss 1949 (3) SA 929 (O);
Ex parte Jacobs 1950 (1) SA 129 (T); Ex parte De Jager 1950 (4) SA 583 (E).
61 1953 (1) SA 280 (A).
62 Since the coming into operation of s 33(1), several applications for the
alienation or mortgaging of fideicommissary property in which unborn persons
had an interest have been granted: see e.g. Ex parte De Winnaar 1959 (1) SA
837 (N); Ex parte Marais 1960 (2) SA 197 (GW). Lupton 1997 TSAR 757
submits that frozen embryos should be excluded from the ambit of s 33(1). His
view is difficult to understand as it seems illogical not to consider a frozen
embryo under legislation which expressly extends even to children that are yet
to be conceived.
63 Ex parte Visagie 1940 CPD 42; Ex parte De Winnaar 1959 (1) SA 837 (N); Ex
parte Blieden 1965 (1) SA 474 (W); Rogers v Erasmus 1975 (2) SA 59 (T); Ex
parte Kruger 1976 (1) SA 609 (O).
64 S 2(1).
65 Ex parte Barclays National Bank Ltd 1972 (4) SA 667 (N).
66 S 44.
67 S 94.
68 See e.g. Ex parte Louw 1972 (1) SA 551 (O).
69 Shields v Shields 1946 CPD 242; Pretorius v Pretorius 1967 (2) PH B17 (O).
70 S 13 of the Civil Union Act equates a civil union and a civil marriage. On the
status of same-sex parents who have a child as a result of the artificial
fertilisation of one of them, see the discussion of J v Director General,
Department of Home Affairs 2003 (5) BCLR 463 (CC) above in this ch and see
further ch 5 below.
71 1946 CPD 242.
72 Constitution s 9.
73 See also Kruger and Skelton (eds.) Persons 25. Boezaart Persons 15 fn 36 (also
Boezaart in Boezaart (ed.) Child Law in South Africa 8 fn 27) criticises the
categorisation of the regulation of child maintenance in a divorce order as an
application of the nasciturus fiction on a different ground. She argues that a
child would in any event have a maintenance claim against his or her mother’s
ex-husband on the ground of the presumption of pater est quem nuptiae
demonstrant and that it is therefore unnecessary to invoke the fiction. On the
pater est quem nuptiae demonstrant presumption, see ch 5 below.
74 On the meaning and content of “parental responsibilities and rights”, see ch 5
below.
75 But see Bosman and Van Zyl in Robinson (ed.) Law of Children and Young
Persons 51.
76 On this issue, see below in this ch.
77 The position of the nasciturus in respect of succession is discussed above in this
ch.
78 In the case of repudiation the court’s consent is needed too.
79 1909 TH 297.
80 Most of these authors raise their objections in the context of Pinchin v Santam
Insurance Co Ltd 1963 (2) SA 254 (W), which is discussed under the next
heading below.
81 Road Accident Fund v Mtati 2005 (6) SA 215 (SCA) (also reported as Road
Accident Fund v M obo M [2005] 3 All SA 340 (SCA)).
82 1963 (2) SA 254 (W).
83 1.5.7, 1.5.26, 50.16.231.
84 Hiemstra J stated: “The point remains whether the fiction having its origins in D
1.5.7 and 26 must with any good reason be limited to the law of property. Why
should an unborn infant be regarded as a person for the purposes of property but
not for life and limb? I see no reason for limiting the fiction in this way, and the
old authorities did not expressly limit it. It is probably because the state of
medical knowledge at the time did not make it possible to prove a causal link
between pre-natal injury and a post-natal condition, that it did not occur to them
to deal with this situation . . . I hold that a child does have an action to recover
damages for pre-natal injuries. This view is based on the rule of the Roman law,
received into our law, that an unborn child, if subsequently born alive, is
deemed to have all the rights of a born child, whenever this is to its advantage.
There is apparently no reason to limit this rule to the law of property and to
exclude it from the law of delict” (259D–260B). In Friedman v Glicksman 1996
(1) SA 1134 (W) 1141 Goldblatt J, in an obiter dictum, supported Hiemstra J’s
arguments on the recognition of an action in respect of pre-natal injuries.
85 See e.g. Boezaart Persons 20; Joubert 1963 THRHR 295; Lind 1992 SALJ 441–
443; Mukheibir 2006 Obiter 188; Neethling 2006 THRHR 511; Knobel and
Kruger 2006 THRHR 517; Scott 2006 TSAR 617.
86 See also Christian League of Southern Africa v Rall 1981 (2) SA 821 (O) and
Friedman v Glicksman 1996 (1) SA 1134 (W). In Christian League Steyn J in
an obiter dictum indicated his agreement with the view that the ordinary
principles of the law of delict could have been relied on in Pinchin’s case. In
Friedman’s case Goldblatt J indicated that the nasciturus fiction (the judge
referred to the nasciturus rule) would not be the basis for an action for wrongful
life because the child’s action arises, not when the pregnancy is not terminated,
but when the child is born. (See also Stewart v Botha [2007] 3 All SA 440 (C),
2007 (9) BCLR 1012 (C), 2007 (6) SA 247 (C).) In a wrongful life action a
child who is born with abnormalities sues the medical practitioner his or her
mother consulted during pregnancy for having failed to disclose the risk of his
or her being born with those abnormalities. The action is based on the fact that,
had the child’s mother known that there was a risk that the child would be born
with those abnormalities, she would have chosen to terminate the pregnancy. On
wrongful life actions, see e.g. Keightley in Van Heerden et al (eds.) Boberg’s
Law of Persons and the Family 39, 40–41 fn 19; Van der Vyver and Joubert 71–
73; Boberg 1964 SALJ 498; Brownlie 1985 Responsa Meridiana 18; Louw 1987
TSAR 199; Blackbeard 1991 THRHR 199; Cleaver 1991 SALJ 47; Meintjes-Van
der Walt 1991 De Rebus 745; Lind 1992 SALJ 428; Blackbeard 1996 THRHR
711; Pearson 1997 SALJ 91; Mukheiber 2008 Obiter 515; Chürr 2009 THRHR
168; Giesen 2009 THRHR 257; Sithole 2009 South African Journal of Bioethics
and Law 41; Human and Mills 2010 Stell LR 67. On the difference between the
nasciturus fiction and the nasciturus rule, see below in this ch.
87 The five elements of a delict are conduct, wrongfulness, fault, causation and
damage.
88 Van der Vyver and Joubert 65; Mankga 2007 (2) Codicillus 52.
89 Boberg 16 fn 11.
90 Boberg 16–17 fn 11. Keightley reiterates this opinion in the second edition of
Boberg’s work (Van Heerden et al (eds.) Boberg’s Law of Persons and the
Family 36 fn 15) and expresses the view that Boberg’s “reasons remain cogent
today”.
91 2005 (6) SA 215 (SCA) (also reported as Road Accident Fund v M obo M
[2005] 3 All SA 340 (SCA)), Heaton Casebook on the Law of Persons case [2].
92 Par [39].
93 On the meaning and content of “parental responsibilities and rights”, see ch 5
below.
94 Shields v Shields 1946 CPD 242; Pretorius v Pretorius 1967 (2) PH B17 (O).
95 See above in this ch.
96 1996 (1) SA 1134 (W).
97 A child’s capacity to act is discussed in detail in ch 6 below.
98 On contracts for the benefit of a third person, see e.g. Christie 270–279; Kerr
85–97; Wille’s Principles 815–816.
99 See e.g. Natal Land and Colonization Co Ltd v Pauline Colliery and
Development Syndicate Ltd 1904 AC 120; Christie 272.
100 See e.g. Ex parte Basillie et Uxor 1928 CPD 218.
101 See e.g. Crookes v Watson 1956 (1) SA 277 (A). In Friedman’s case the
contract in issue was not one for the benefit of a third party, because the child
“could only accept the benefit, if it be one, at a time when the alleged benefit,
i.e. termination of pregnancy, was no longer possible” because the child had
already been born (1140H).
102 In the case of termination of a pregnancy the child will not be born and thus
cannot meet one of the requirements for the application of the nasciturus fiction,
namely that the child must eventually be born alive. In the case of sterilisation
the foetus will never even be conceived (if the sterilisation is successful, that is).
For other reasons why termination of pregnancy falls outside the scope of the
law of persons in the strict sense, see Cockrell Bill of Rights Compendium par
3E4.
103 Termination of pregnancy refers to the separation and expulsion of the contents
of the uterus of a pregnant woman by medical or surgical means: s 1. The
termination of ectopic and extra-uterine pregnancies is thus not covered by the
Act. Van Oosten 1999 SALJ 67 attributes this lacuna to oversight on the part of
the legislature. On the legislature’s choice of the phrase “termination of
pregnancy” rather than “abortion”, see Keightley in Van Heerden et al (eds.)
Boberg’s Law of Persons and the Family 44 fn 28; Van Oosten 1999 SALJ 60.
Both terms are used in the regulations under the Act although “termination of
pregnancy” preponderates (GN R168 GG 17746 of 31 Jan 1997; reg 8(1)(e)
refers to post-abortion care).
104 For an evaluation of the operational success of the Act, see Ngwena 2000
Journal for Juridical Science 19.
105 S 4 merely obliges the state to “promote the provision of non-mandatory and
non-directive counselling, before and after the termination of a pregnancy”, and
reg 9(d) provides that a woman who seeks a termination must be informed that
“counselling contemplated in section 4 of the Act shall be available”. If
counselling is provided, it must at least include sufficient information to assist
the woman in making an informed choice regarding the termination of her
pregnancy. She must be informed of the available alternatives to termination,
and the procedure and associated risks of the termination. She further has to be
informed of contraceptive measures she can take in future: reg 7.
106 S 2(1)(a).
107 S 2(1)(b).
108 The training course is prescribed by the regulations under the Choice on
Termination of Pregnancy Act.
109 S 2(1)(c). McQuoid-Mason 2006 Journal for Juridical Science 121 argues that
the restrictive provisions regarding termination of a pregnancy after the 20th
week place an undue burden on rape and incest survivors. He submits that the
exclusion of rape and incest as grounds for terminating a pregnancy after the
20th week is unconstitutional.
110 S 2(2). Any other person who performs a termination is guilty of an offence: s
10(1)(a) and (b). Anyone who prevents the lawful termination of a pregnancy or
obstructs access to a facility that provides terminations also commits an offence:
s 10(1)(c). On these offences, see Keightley in Van Heerden et al (eds.)
Boberg’s Law of Persons and the Family 45–46 fn 35; Van Oosten 1999 SALJ
72–76; McQuoid-Mason 2011 South African Journal of Bioethics and Law 6.
On constitutional grounds, a health worker who has conscientious objections to
terminating pregnancies may not be forced to participate in performing a
termination: Ngwena 2000 Journal for Juridical Science 37–39, 2003 Journal
for Juridical Science 1.
The Choice on Termination of Pregnancy Amendment Act 38 of 2004 originally
gave registered nurses who completed the prescribed training course the same
powers as registered midwives. In Doctors for Life International v Speaker of
the National Assembly 2006 (12) BCLR 1399 (CC), 2006 (6) SA 416 (CC) the
Constitutional Court declared this Amendment Act invalid on the ground that
the legislature had failed to comply with its constitutional obligation to facilitate
public involvement in the enactment of the Amendment Act. The court
suspended the order of invalidity for 18 months (i.e. until 16 Feb 2008) to give
the legislature an opportunity to engage in the required process and to enact the
Amendment Act afresh in accordance with the Constitution. The same
provisions are now contained in the Choice on Termination of Pregnancy
Amendment Act 1 of 2008, which came into operation on 18 Feb 2008.
111 S 5(1). On the meaning of “informed consent” (incorrectly translated as oorwoë
toestemming in the Afrikaans text of the Act) in the context of the Act, see Van
Oosten 1999 SALJ 71–72.
112 S 5(2).
113 I.e. any female person under the age of 18 years: s 1.
114 S 5(3). See further Van Oosten 1999 SALJ 66–67.
115 Children’s Act s 300(2). If the termination takes place for medical reasons, the
surrogate mother incurs no liability to the commissioning parent(s): s 300(3). If
it takes place for other reasons, she has to refund payments made in respect of
expenses that relate directly to her artificial fertilisation and pregnancy and the
confirmation of the surrogate motherhood agreement, her loss of earnings as a
result of the surrogate motherhood agreement, and her pregnancy-related death
and disability insurance: s 301(2). She also has to reimburse the commissioning
parent(s) for payments for bona fide professional legal or medical services with
a view to the confirmation of the surrogate motherhood agreement or in the
execution of the agreement: s 301(3). On surrogate motherhood, see further ch 5
below.
116 2005 (1) SA 509 (T) (also reported as Christian Lawyers’ Association v Minister
of Health [2004] 4 All SA 31 (T), 2004 (10) BCLR 1086 (T)), Heaton Casebook
on the Law of Persons case [4].
117 Constitution ss 28(1)(b), 28(1)(d), 28(2) and 9(1).
118 See e.g. Natal Fresh Produce Growers Association v Agroserve (Pty) Ltd 1990
(4) SA 749 (N); Van Zyl v Bolton 1994 (4) SA 648 (C).
119 Constitution ss 12(2), 10, 14 and 27(1)(a).
120 Constitution ss 9(1), 9(3), 11 and 12(1).
121 Choice on Termination of Pregnancy Act s 5(4) read with s 13(2) of the Civil
Union Act.
122 I.e. the grounds listed in s 2(1)(b) of the Choice on Termination of Pregnancy
Act.
123 S 5(4).
124 On the appointment of a curator personae, see chs 7 and 8 below.
125 S 5(5)(a).
126 S 5(5)(b).
127 Ch 3 of the Constitution of the Republic of South Africa 200 of 1993 contained
the first Bill of Rights, which came into operation on 27 Apr 1994. It was
replaced when the Constitution of the Republic of South Africa, 1996 came into
operation on 4 Feb 1997.
128 1981 (2) SA 821 (O).
129 But see G v Superintendent, Groote Schuur Hospital 1993 (2) SA 255 (C) in
which Seligson AJ said in an obiter dictum that “there is much to be said for
recognising that an unborn child has a legal right to representation, or an interest
capable of protection, in circumstances where its very existence is threatened”
(259D).
130 830A. On the issue of whether a nasciturus is a legal subject, see further below
in this ch.
131 1994 (4) SA 793 (A).
132 1998 (11) BCLR 1434 (T), 1998 (4) SA 1113 (T), Heaton Casebook on the Law
of Persons case [3].
133 The court found it unnecessary to “make any firm decision” on whether an
unborn child has legal personality in terms of the common law. See also S v
Mshumpa 2008 (1) SACR 126 (E).
134 These rights are enshrined in s 12(2) of the Constitution.
135 McCreath J’s approach and reasoning may, however, not have been correct in
all respects: see e.g. Naudé 1999 SAJHR 541.
136 See ch 1 where the distinction between legal subjects and legal objects is set out.
137 See also Sinclair assisted by Heaton 96 who made the point in relation to the
interim Constitution (Constitution of the Republic of South Africa 200 of 1993).
It applies equally to the final Constitution (Constitution of the Republic of South
Africa, 1996). For the same reason it could, e.g., not be argued that any
constitutional provision confers a right on an unborn child to compel his or her
mother to stop smoking or abusing drugs while pregnant, or to submit to
medical treatment or an operation which, if refused, would be to the unborn
child’s detriment. (After birth the child might have a claim for any injuries his or
her mother’s smoking or drug use or failure to submit to medical treatment or an
operation inflicted on him or her: see the discussion of pre-natal injury of a
nasciturus above in this ch.)
138 That pre-natal human life may be worthy of protection is a different issue
altogether. In this regard, state and community interests may be considered
constitutionally justifiable limitations on the pregnant woman’s rights. E.g., the
limitations the Choice on Termination of Pregnancy Act imposes on termination
of pregnancy after the 12th week of the gestation period are probably justifiable
on the ground of state and community interests in protecting human life once
that life has developed beyond a certain stage. On the various stages of pre-natal
development at which human life could be said truly to begin (e.g. brain birth
and viability), see Sarkin 1996 SA Criminal Justice 128–136. See also Jordaan
2005 SALJ 237, who deals with the position of pre-embryos (i.e. embryos that
have not yet become buried in the lining of the uterus). On the protection the
unborn enjoy in universal and regional human rights instruments, see Du Plessis
and De Ville in Van Wyk et al (eds.) Rights and Constitutionalism 229–231;
Nöthling-Slabbert 1999 CILSA 336; De Freitas and Myburgh 2010 (1) Journal
for Juridical Science 93, 2011 (5) Potchefstroom Electronic Law Journal 9.
139 There may be a conflict between the woman’s right to reproductive autonomy
and state and community interests: see the preceding fn.
140 S 5(2).
141 Ss 10 and 14 of the Constitution respectively entrench the right to dignity and
privacy. Gender equality is protected inter alia by the equality clause (s 9; see
also the prohibition on sex and gender discrimination in the Promotion of
Equality and Prevention of Unfair Discrimination Act 4 of 2000, s 6 read with
the “prohibited grounds” in s 1(1), and s 8). Several other constitutional
provisions could also be relied on in appropriate circumstances, such as freedom
of conscience, religion, thought, belief and opinion (s 15(1)), the right to have
access to reproductive health care services (s 27(1)(a)), and the right to
participate in the cultural life of one’s choice (s 30). See also Christian Lawyers
Association of South Africa v The Minister of Health (Reproductive Health
Alliance as Amicus Curiae) 2005 (1) SA 509 (T) (also reported as Christian
Lawyers’ Association v Minister of Health [2004] 4 All SA 31 (T), 2004 (10)
BCLR 1086 (T)). In this case, the court stated, in obiter dicta, that a woman has
a constitutional right to terminate her pregnancy. The court relied on the right to
freedom and security of the person (s 12(1)), the right to bodily and
psychological integrity (s 12(2)), the right to equality (s 9), the right to be free
from unfair discrimination on the ground of gender, sex and pregnancy (s 9(3)),
the right to dignity (s 10), the right to life (s 11), the right to privacy (s 14), and
the right to have access to reproductive health care (s 27(1)(a)). The court,
however, also indicated that a woman’s right to terminate her pregnancy is not
absolute. The state may legitimately regulate and limit the woman’s right in
order to protect pre-natal life, but such regulation and limitation may not amount
to denying women the right to terminate their pregnancies. On the constitutional
issues regarding termination of pregnancy, see further Cockrell Bill of Rights
Compendium par 3E4; Devenish Commentary on the Bill of Rights 103–110; Du
Plessis and De Ville in Van Wyk et al (eds.) Rights and Constitutionalism 212
(esp 229–232 and 238–239); Heaton Bill of Rights Compendium par 3C18.1;
Keightley in Van Heerden et al (eds.) Boberg’s Law of Persons and the Family
42–43 fn 24, 45 fn 32; Kruger and Robinson in Robinson (ed.) Law of Children
and Young Persons 10–11; Kruger and Skelton (eds.) Persons 39; Maré Bill of
Rights Compendium par 2A3.6; Milton 12–17; Sinclair assisted by Heaton 93–
110; Sinclair in Van Wyk et al (eds.) Rights and Constitutionalism 524–533;
Leyshon 1991 Medicine and the Law 155 and 219; Hansson and Russell 1993
SAJHR 500; Sarkin-Hughes 1993 THRHR 83; Labuschagne 1994 TSAR 567;
Van Marle 1995 SA Public Law 167; Sarkin 1996 SA Criminal Justice 125;
Birenbaum 1996 SAJHR 485; Meyerson 1999 SALJ 50; Naudé 1999 SAJHR
541; Slabbert 2000 (2) Codicillus 22; Burridge Scott and Robinson 2000 (2)
Codicillus 30; Ngwena 2000 Journal for Juridical Science 19. See further
Henderson 1995 De Rebus 137; Sarkin 1995 SAJHR 582.
142 It might be argued that because the parties to a same-sex civil union belong to
the same sex, gender equality issues cannot arise. It must, however, be borne in
mind that sex and gender are different matters. “Sex” refers to the biological fact
of being a man or a woman, while “gender” refers to the roles and differences
ascribed to men and women through socialisation. E.g. a woman’s sex entails
that only she can fall pregnant, while her gender entails that it is expected of her
(rather than her male partner) to fulfil (the major part of) child-care
responsibilities. In a same-sex relationship the same gender stereotypes can
arise. Thus it can, e.g., be expected of a stay-at-home partner or the partner who
is not the main breadwinner to meet the expectations that society usually has in
respect of women. It is quite possible that applying those stereotypes and
expectations in a same-sex union will result in the same disadvantage,
discrimination and inequality that operate in many heterosexual relationships. In
such event, the gender equality argument could be invoked in same-sex
relationships too.
143 S 2(1).
144 In the case of a conflict between a couple as to whether one of them will be
sterilised, a constitutional challenge of the provision that requires only the
consent of the party who is to be sterilised would, it is submitted, fail for reasons
similar to those that are advanced above in respect of termination of pregnancy.
See also Lupton in Clark (ed.) Family Law Service par J32.
145 S 4. The form is contained in Annexure A to the regulations under the Act (GN
R872 GG 20285 of 16 July 1999).
146 S 2(3)(a).
147 Sterilisation Act s 2(3)(b) read with ss 2(3)(c)(i) and 3(1)(a). On a minor’s
capacity to consent to medical treatment and operations, see further ch 6 below.
148 S 2(3)(c)(ii).
149 S 2(3)(b) read with s 3(2).
150 S 3(7) defines “mental disability” as “a range of functioning extending from
partial self-maintenance under close supervision, together with limited self-
protection skills in a controlled environment through limited self care and
requiring constant aid and supervision, to restrained sensory and motor
functioning and requiring nursing care”.
151 S 3(1)(c).
152 S 3(1)(a) of the Sterilisation Act read with s 13(2) of the Civil Union Act.
153 Sterilisation Act s 3(1)(b) and (2).
154 S 3(1)(b).
155 S 3(5).
156 Van der Vyver and Joubert 65–66; Van der Merwe 1963 THRHR 293–295; Van
der Vyver 1981 THRHR 306 et seq; Du Plessis 1990 TSAR 49–50.
157 See e.g. Boezaart Persons 13; Keightley in Van Heerden et al (eds.) Boberg’s
Law of Persons and the Family 30 fn 6, 37–38 fn 15; Kruger and Robinson in
Robinson (ed.) Law of Children and Young Persons 3, 4; Kruger and Skelton
(eds.) Persons 23; Schäfer Child Law 32; Schäfer in Clark (ed.) Family Law
Service par E6; Spiro Parent and Child 37; Davel 1981 De Jure 362. See also
Hahlo 1974 SALJ 75. In Christian League of Southern Africa v Rall 1981 (2) SA
821 (O) the court expressed the view that the protection of a foetus is founded
on a fiction (829G–830B). This view is correct. However, as Bedil 1981 SALJ
464 correctly points out, either approach would have yielded the same results in
the South African cases in which the nasciturus’ interests have been at issue.
Even in Rall ’s case it would not have made any difference had the court based
the protection of the foetus on the nasciturus rule instead of the nasciturus
fiction, because the rule – like the fiction – cannot operate in the case of
termination of a pregnancy because the rule is predicated upon subsequent live
birth; see also Pinchin v Santam Insurance Co Ltd 1963 (2) SA 254 (W). In
Road Accident Fund v Mtati 2005 (6) SA 215 (SCA) (also reported as Road
Accident Fund v M obo M [2005] 3 All SA 340 (SCA)) the Supreme Court of
Appeal referred to the nasciturus rule as a fiction. On the distinction between
the nasciturus fiction and rule, see further Keightley in Van Heerden et al (eds.)
Boberg’s Law of Persons and the Family 37 fn 15; Nöthling-Slabbert 1997 (1)
Codicillus 56–57; Knobel and Kruger 2006 THRHR 521.
In its investigation into the Review of the Child Care Act Project 110 the South
African Law Commission considered it unnecessary to express an opinion on
whether an unborn child has legal personality, but the Children’s Bill it drafted
applies only to children once they have been born alive (Report par 4.3). The
same applies to the Children’s Act, for s 1(1) of the Act defines a “child” as “a
person under the age of 18 years” (emphasis added). (The Law Commission was
renamed in 2003 and is now called the South African Law Reform
Commission.)
158 Having sexual intercourse with a corpse is a crime in terms of s 14 of the
Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of
2007. Violating a grave and violating a corpse are common-law crimes: see e.g.
Milton ch 16; Labuschagne 1991 De Jure 141, 2001 De Jure 354; Hoctor and
Knoetze 2001 Obiter 171; Christison and Hoctor 2007 Obiter 23.
159 See e.g. R v Sephuma 1984 (3) SA 982 (T); Keightley in Van Heerden et al
(eds.) Boberg’s Law of Persons and the Family 52; Labuschagne 2001 De Jure
354.
160 See the definition of “death” in s 1 of the Act, read with ss 7(1)(e), 62, 66 and
67.
161 On the medical theories as to when death occurs, see Boezaart Persons 155–
156; Keightley in Van Heerden et al (eds.) Boberg’s Law of Persons and the
Family 50 fn 59; Kruger and Skelton (eds.) Persons 43–44; Hunt 1968 SALJ
200; Le Roux-Kemp 2008 Obiter 260.
162 Births and Deaths Registration Act s 15(1) and (2). The certificate must be in the
form and substantially contain the information set out in parts A, D, F and G of
Annexure 4 of the regulations under the Act: reg 18 GN R2139 GG 14182 of 9
Sept 1992.
163 On inquests, see further below in this ch.
164 S 17(2).
165 Ss 14, 15 and 17. On the registration of a death, see further below in this ch.
166 Births and Deaths Registration Act s 22; Identification Act 68 of 1997 s 13(1).
The certificate must be in the form and substantially contain the information set
out in Annexure 9 or 10 of the regulations under the Births and Deaths
Registration Act: reg 18.
167 Births and Deaths Registration Act s 28(2); Identification Act s 13(1).
168 See e.g. D 24.2.6; Novellae 22.7, 22.14; Grotius 1.10.5; Van Leeuwen Rooms-
Hollands-Regt 1.15.4, Censura Forensis 1.15.12; Voet 10.2.18, 10.2.20; Van
der Keessel Theses Selectae 163.
169 Ex parte Maclean 1968 (2) SA 644 (C).
170 But see Kakuva v Minister van Polisie 1983 (2) SA 684 (SWA) where the court
was unable to decide the case on the papers before it. It referred the matter for
trial so that oral evidence could be heard.
171 Ex parte Rungasamy 1958 (4) SA 688 (D); Ex parte Rookminia: In re Sardha
1964 (4) SA 163 (D).
172 In re Booysen 1880 Foord 187.
173 Re Beaglehole 1908 TS 49, Heaton Casebook on the Law of Persons case [5].
174 1926 WLD 118 120. See also In re Cuthbert 1932 NPD 615; Ex parte Heard
1947 (1) SA 236 (C); Ex parte Pieters 1993 (3) SA 379 (D), Heaton Casebook
on the Law of Persons case [6]; Ex parte Govender 1993 (3) SA 721 (D); Ex
parte Stoter 1996 (4) SA 1299 (E), Heaton Casebook on the Law of Persons
case [7].
175 Ex parte Verster 1956 (1) SA 409 (C).
176 Ex parte Dorward 1933 NPD 17; Ex parte Heard 1947 (1) SA 236 (C); In re
Labistour 1908 NLR 227; Ex parte Alexander 1956 (2) SA 608 (A); Ex parte
James 1947 (2) SA 1125 (T); Dempers and Van Ryneveld v SA Mutual Co
(1908) 25 SC 162; Ex parte Engelbrecht 1956 (1) SA 408 (E); Ex parte
Thesen’s Steamship Co Ltd 1944 CPD 165.
177 Ex parte Panaar 1908 CTR 544; Ex parte Rungasamy 1958 (4) SA 688 (D).
178 In re Kirby (1899) 16 SC 245.
179 Ex parte Gerdener 1933 CPD 29; Ex parte Govender 1993 (3) SA 721 (D).
180 Ex parte Parker 1947 (3) SA 285 (C).
181 Ex parte Parker 1947 (3) SA 285 (C); Ex parte Rungasamy 1958 (4) SA 688
(D); Ex parte Pieters 1993 (3) SA 379 (D).
182 As far as the procedure is concerned, it was held in Marais v Tiley 1990 (2) SA
899 (A) that a public inquest with oral evidence is the general rule. See also s
10. In terms of the Inquests Act, an inquest may only be held into the death of a
“person”. For purposes of the Act the word “person” does not include an unborn
child: Van Heerden v Joubert 1994 (4) SA 793 (A). Thus an inquest cannot be
held into the death of a stillborn child.
183 S 3(2).
184 S 16; see also Van Heerden v Joubert 1994 (4) SA 793 (A); Padi v Botha 1996
(3) SA 732 (W).
185 S 16(3).
186 S 18(1).
187 S 18(2) and 18(2A).
188 Van der Vyver and Joubert 426 correctly submit that the courts are sometimes
too hesitant to grant an order presuming death. They ascribe this hesitancy to the
fact that the courts do not distinguish between a declaration and a presumption
of death. E.g., in In re Kannemeyer: Ex parte Kannemeyer (1899) 16 SC 407
408, Heaton Casebook on the Law of Persons case [8] it was said that it “is in
the highest degree probable” that the person concerned was dead “but there is no
legal presumption to that effect. The Court cannot, therefore, declare him to be
dead”. The authors point out that a court cannot declare a person to be dead; it
can only pronounce a presumption of death and this it can do if it is convinced
on a preponderance of probabilities that the person is dead. See also Boezaart
Persons 164; Kruger and Skelton (eds.) Persons 47, 51.
189 Berger v Aiken 1964 (2) SA 396 (W). In this case it was said that a court “has
jurisdiction to alter an order presuming death, because it is of a provisional
nature” (400H).
190 Ex parte Estate Russell 1926 WLD 118; Ex parte Davids 1948 (1) SA 1018
(W).
191 In re Kannemeyer: Ex parte Kannemeyer (1899) 16 SC 407; Re Nicolson 1908
TS 870; Ex parte Halbert 1912 CPD 706; In re Cuthbert 1932 NPD 615; Ex
parte Davids 1948 (1) SA 1018 (W). See further Ex parte Pieters 1993 (3) SA
379 (D) where the amount to be distributed was so small that the court
dispensed with security.
192 In re Widdicombe (1929) 50 NLR 311. On the appointment of a curator bonis,
see further ch 8 below.
193 In re Booysen 1880 Foord 187; Ex parte Ziedler 1897 HCG 136; Ex parte
Halbert 1912 EDL 167; Ex parte Kerkhof 1924 TPD 711.
194 On the Act, see further Nathan 1979 SALJ 439; Stoop 1979 Codicillus 12; Pauw
1980 THRHR 71.
195 Civil Union Act s 13(2).
196 On the Inquests Act, see above in this ch.
197 Berger v Aiken 1964 (2) SA 396 (W).
198 Ex parte Welsh: In re Estate Keegan 1943 WLD 147.
199 Voet 34.5.3, 36.1.16.
200 Voet 34.5.3 in fine.
201 See in general Nepgen v Van Dyk 1940 EDL 123; Ex parte Martienssen 1944
CPD 139; Ex parte Chodos 1948 (4) SA 221 (N); Ex parte Graham 1963 (4) SA
145 (D), Heaton Casebook on the Law of Persons case [9]. See also Greyling v
Greyling 1978 (2) SA 114 (T).
202 See the cases referred to in the previous fn and Hahlo and Kahn South Africa
348.
203 Ss 14, 15 and 17.
204 S 18. See also above in this ch.
205 S 14(1). The notice may be given orally or in writing: reg 11. The insertion of s
22A into the Births and Deaths Registration Act by s 8 of the Births and Deaths
Registration Amendment Act – which is not yet in operation – empowers
registered funeral undertakers to deal with matters relating to the registration of
deaths.
206 Ss 14(3), 14(4) and 15(3).
207 Births and Deaths Registration Act s 16; Inquests Act s 2(1). The Inquests Act is
discussed above in this ch.
208 Births and Deaths Registration Act s 18(1). The notice must be in the form and
contain substantially the information set out in Annexure 5 of the regulations
under the Act: reg 14(2).
209 Births and Deaths Registration Act s 18(2). The notice must be in the form and
contain substantially the information set out in Annexure 7 of the regulations
under the Act: reg 14(3).
210 S 20(1).
211 See e.g. Saiid v Schatz 1972 (1) SA 491 (T); Sekeleni v Sekeleni 1986 (2) SA
176 (Tk); Mankahla v Matiwane 1989 (2) SA 920 (C); Mnyama v Gxalaba 1990
(1) SA 650 (C); Mabula v Thys 1993 (4) SA 701 (SEC). But see also Human v
Human 1975 (2) SA 251 (E); Tseola v Maqutu 1976 (2) SA 418 (Tk); Mbanjwa
v Mona 1977 (4) SA 403 (Tk) and Gonsalves v Gonsalves 1985 (3) SA 507 (T)
where, invoking the rule of evidence in terms of which hearsay evidence is
inadmissible, verbal instructions were ignored. Generally on the duty to bury the
deceased, see Boezaart Persons 169–170; Keightley in Van Heerden et al (eds.)
Boberg’s Law of Persons and the Family 53 fn 61; Kruger and Skelton (eds.)
Persons 53–54; Boberg 1975 Businessman’s Law 222; Mqeke 1987 Transkei LJ
255; Cassim 1993 De Rebus 533; Labuschagne 2001 De Jure 354–357;
Mokotong 2001 THRHR 297; Bekker, Labuschagne and Boonzaaier 2004 De
Jure 215–217; Mokotong 2008 De Jure 616. On the conflict between the
customary and common-law principles on burial rights, see Prinsloo 1991 TSAR
665; Bekker, Labuschagne and Boonzaaier 2004 De Jure 203.
212 See e.g. Mabula v Thys 1993 (4) SA 701 (SEC); Gabavana v Mbete [2000] 3
All SA 561 (Tk) and the three unreported decisions Mokotong 2001 THRHR
297 refers to at 300.
213 See Voet 11.7.7; Human v Human 1975 (2) SA 251 (E); Sekeleni v Sekeleni
1986 (2) SA 176 (Tk); Mankahla v Matiwane 1989 (2) SA 920 (C); Mabula v
Thys 1993 (4) SA 701 (SEC); Gabavana v Mbete [2000] 3 All SA 561 (Tk).
214 Tseola v Maqutu 1976 (2) SA 418 (Tk).
215 Mahala v Nkombombini 2006 (5) SA 524 (SEC).
216 Gonsalves v Gonsalves 1985 (3) SA 507 (T); Finlay v Kutoane 1993 (4) SA 675
(W); Trollip v Du Plessis 2002 (2) SA 242 (W).

STATUS
3.1 Introduction
In chapter 1 it was indicated that the law of persons is that part
of private law which inter alia determines the legal status of a
legal subject. For a proper grasp of the law of persons it is
therefore very important that the meaning of the concept
“status” be understood.
The word “status” is derived from the Latin verb stare (that
is, to stand) which in itself is a good indication of what is meant
by “status”. Here we are concerned with a person’s “standing”
in the law. This “standing” is determined by all those attributes
a person has, or the condition in which he or she finds himself
or herself to which the law attaches consequences.1 In private
law the most important attributes or factors which determine a
person’s status are domicile, birth outside marriage, youth,
physical illness or incapacity, mental illness or incapacity,
intoxication, prodigality and insolvency. These factors will be
discussed in more detail in the chapters that follow.
To properly grasp the concept “status” and its implications,
one has to understand what capacities a legal subject can have.

These capacities flow directly from the law in the objective
sense (objektiewe reg) and are sometimes referred to as
kompetensies or competences. These capacities do not arise as a
result of a person’s rights in respect of legal objects
(subjektiewe regte) and must be distinguished from the powers
that the holder of a right has in respect of the object of the right
(that is, the so-called bevoegdhede or inhoudsbevoegdhede of
the person who holds the right, such as that the owner is entitled
to use, enjoy, and dispose of his or her property).2
The most important capacities that are traditionally
distinguished are legal capacity, capacity to act and capacity to
litigate (that is, locus standi in iudicio). In broad outline these
capacities refer to the capacity, firstly, to have rights and duties
(that is, legal capacity); secondly, to perform juristic acts by
which rights and duties are acquired or disposed of (that is,
capacity to act); and thirdly, to enforce rights and duties in a
lawsuit (that is, capacity to litigate or locus standi in iudicio). A
fourth capacity, namely the capacity to be held accountable for
crimes and delicts, has been added. These capacities will now
be discussed in more detail.
3.2 Legal capacity

Legal capacity (regsbevoegdheid) is the capacity to have rights
and duties.3 All human beings have this capacity irrespective of
their personal qualities. Thus a newborn baby, a mentally ill
person and an insolvent person all have legal capacity.
A clear distinction must be drawn between the capacity to
have rights and duties, and the particular rights and duties that a
specific person has at a specific time. There is no difference in
the status of two persons merely because one has a large estate
and consequently has more rights than the other. There will be a
difference in their status only if the one can have rights that the
other cannot. Children below the age of seven (that is, infantes),
for example, cannot marry and therefore cannot have the rights
that arise from a marriage. They have limited legal capacity and
thus not only their legal capacity but also their status differs
from that of persons who may marry.
Therefore, although all legal subjects have legal capacity,
their legal capacity does not extend equally far. Certain legal
subjects cannot have certain rights or duties at all, or cannot
have certain rights or duties at a specific moment. This means
that the legal capacity of those legal subjects is limited to some
extent because there are certain rights that they cannot have. It
does not, however, mean that they have no legal capacity
whatsoever. They are still capable of having rights and duties
although their legal capacity is limited in so far as they cannot
have certain rights and duties. No legal subject can be entirely
without legal capacity. It is precisely this fact that characterises
a legal subject. Something that can never have rights and duties
is not a legal subject but may be a legal object.4
3.3 Capacity to act

Capacity to act (handelingsbevoegdheid) refers to the capacity
to perform valid juristic acts.5 A juristic act is a human act to
which the law attaches at least some of the consequences
desired by the party or parties performing the act. A valid
juristic act can therefore be brought about only if the law
attaches consequences to a person’s declaration of intent.
It is clear that entering into legal transactions can have
serious implications for the persons concerned and therefore a
person must have achieved a certain level of intellectual
development before the law confers capacity to act on him or
her. Children below the age of seven years and mentally ill
persons, for example, have no capacity to act in South African
law. This does not mean that, legally speaking, these people
have no will or cannot give expression to it. It simply means
that the law, for their own protection, does not attach any
validity to their expression of will.
In certain cases the law attaches consequences to some
expressions of will by certain persons while no consequences
are attached to other expressions of will by the same persons.
Such people, for example, minors between the ages of seven
and 18 years, have limited capacity to act. The considerations
underlying the limitations on their capacity to act may vary.
People below 18 years of age, for example, are considered not
to have the necessary maturity of judgement and must therefore
be protected by the law.

Capacity to litigate (that is, locus standi in iudicio or
verskyningsbevoegdheid) is the capacity to appear in court as a
party to a lawsuit. There usually is a close correlation between
capacity to act and capacity to litigate.
Some authors6 maintain that everyone has all three of the
above-mentioned capacities. They argue that even infantes and
mentally ill persons have capacity to act and litigate although
they do not have capacity to act or litigate on their own behalf.
Though they cannot perform certain juristic acts at all (for
example, marrying or executing a will), there are other acts that
can be performed on their behalf (for example, entering into an
ordinary commercial contract). In the case of the latter acts the
infantes and mentally ill persons themselves perform the acts
because their guardians or curators merely act as their
functionaries. What these people actually lack is not capacity to
act or handelingsbevoegdheid but selfhandelingsbevoegdheid,
that is, the capacity to perform the act personally. A similar
argument is advanced regarding capacity to litigate; in other
words, the person lacks the capacity to litigate personally
(selfverskyningsbevoegdheid), but does not altogether lack
capacity to litigate.7 It is submitted that this approach should not
be followed.8
3.5 Capacity to be held accountable for crimes

and delicts
The three capacities discussed above do not include a person’s
capacity to be held accountable for crimes and delicts he or she
commits. A fourth capacity should therefore be added to the
traditional ones, namely accountability, or the capacity to be
held accountable for crimes and delicts.9 This capacity is to a
large extent influenced by a person’s age and mental condition
because fault in the form of either intent (that is, dolus) or
negligence (that is, culpa) is, generally speaking, a requirement

for criminal and delictual liability. In other words, the person
must be doli capax or culpae capax (toerekeningsvatbaar).
Consequently, if someone cannot have fault, for example,
because he or she is too young or is mentally ill, he or she
cannot be held accountable for his or her delicts and crimes.
Accountability often coincides with capacity to act and capacity
to litigate.
To summarise, one can say that a person’s status is the
aggregate of his or her capacities, and also determines his or her
capacities (that is, his or her legal capacity, capacity to act,
capacity to litigate and capacity to be held accountable for
crimes and delicts). A person’s status, in turn, is dependent
upon all his or her attributes or the condition in which the
person finds himself or herself and to which the law attaches
consequences.
No one can change the capacities arising from his or her
status on his or her own. A person may, however, change his or
her status in certain respects, for example, by changing his or
her domicile.
1 Fockema Andreae Rechstsgeleerd Handwoordenboek sv “status” defines status

as the “[t]oestand, hoedanigheid waaraan bepaalde rechtsgevolgen verbonden
zijn” (i.e., condition, quality to which certain legal consequences are attached).
2 WA Joubert 119. On the distinction between kompetensies and bevoegdhede,
see further Heaton in Van Heerden et al (eds.) Boberg’s Law of Persons and the
Family 67 fn 10, 69 fn 14. On the distinction between law in the objective sense
(law) and law in the subjective sense (rights), see ch 1 above.
3 Some authors call this “passive legal capacity”: see e.g. Boberg’s Law of
Persons and the Family 66, 74; Wille’s Principles 146; see also Schäfer Child
Law 199, who refers to passive capacity to acquire rights and duties. However,

“legal capacity” is the term used by most South African authors on the law of
persons.
4 On the distinction between a legal subject and a legal object, see ch 1 above.
5 Although some authors (see Boberg’s Law of Persons and the Family 66, 73–
74; Wille’s Principles 146) refer to the capacity to perform an act which affects
one’s rights and duties as “active legal capacity”, “capacity to act” is used by
most South African authors on the law of persons.
6 Van der Vyver and Joubert 54–55; Van Zyl and Van der Vyver 378–381; Van
der Vyver 1973 THRHR 271–272, 1979 THRHR 129.
7 Van der Vyver and Joubert 54–55; Van der Vyver 1973 THRHR 271–272, 1979
THRHR 129. Kruger and Robinson in Robinson (ed.) Law of Children and
Young Persons 14, 15 approve of the terms selfhandelingsonbevoeg and
selfverskyningsonbevoeg. They translate these terms as “personal capacity to
act” and “personal capacity to litigate”.
8 Van Rensburg’s criticism of the approach (1974 THRHR 94 et seq) is correct.
See also Cronjé LAWSA vol 20 part 1 Persons par 449 fn 16; Heaton in Van
Heerden et al (eds.) Boberg’s Law of Persons and the Family 72–73; Heaton
and Pretorius 2007 SALJ 120.
9 See e.g. Van der Vyver and Joubert 7; Van der Vyver in Strauss (ed.)
Huldigingsbundel vir WA Joubert 201, 210; Wille’s Principles 146. But see Van
Zyl and Van der Vyver 381 who do not consider toerekeningsvatbaarheid to be
a capacity.

DOMICILE
4.1 Introduction
As legal systems differ, it is of the utmost importance to
establish which legal system determines a person’s status.
Contrary to most continental legal systems where a person’s
private-law status is determined by the law of the country of
which he or she is a citizen,1 a person’s status in South African
law is generally determined by the law of the place where the
person is domiciled (that is, the person’s lex loci domicilii, lex
domicilii or domiciliary law).2 Thus, for example, if a
Zimbabwean woman visits South Africa and wants to enter into
a marriage in South Africa, her capacity to marry is determined
in accordance with Zimbabwean law if she is domiciled in
Zimbabwe. Domicile and citizenship (that is, nationality) may
coincide, but this is not necessarily the case. If the Zimbabwean
woman in the above example remained a Zimbabwean citizen
but acquired a domicile in South Africa, a South African court
would determine her capacity to marry in accordance with
South African law.
Unfortunately, in the past, uncertainty prevailed on various
aspects of the South African law of domicile. For this reason
the South African Law Commission (which is now called the
South African Law Reform Commission) investigated domicile
with a view to reforming this branch of the law.3 Its
investigation and recommendations culminated in the Domicile
Act 3 of 1992, which came into operation on 1 August 1992.
This Act solved many of the problems with regard to the law of
domicile. It should, however, be noted that the Act is not
retrospective. It accordingly does not affect any right, capacity,
obligation or liability which was acquired, accrued or incurred
by virtue of the domicile a person had at any time prior to 1
August 1992. Nor does it affect the legality of any act
performed before that date.4
4.2 Definition of domicile

Domicile is the place where a person is legally deemed to be
constantly present for the purpose of exercising his or her rights
and fulfilling his or her obligations, even in the event of his or
her factual absence.
Although one of the elements of domicile is that normally it
is also the permanent residence of the person concerned,
residence in the ordinary sense of the word as the place where
one eats and sleeps is not necessarily the same as domicile in
the legal sense. To acquire a domicile in the legal sense the
person must have the intention of settling at the particular place
for an indefinite period.
4.3 Importance of domicile

A person’s lex domicilii plays a significant role in many fields
of private law.5 As was pointed out in the introductory
paragraph of this chapter, a person’s private-law status is
determined by the law of the place where he or she is
domiciled. Thus, for example, the question of whether a person
is a minor and whether or not he or she has the capacity to
marry or to enter into a contract is determined in accordance
with the law of the place where he or she is domiciled when
entering into the particular juristic act. However, in the case of
contracts, considerations of commercial convenience sometimes
play a role with the result that the rule regarding the person’s
lex domicilii is not consistently applied.6
A person’s lex domicilii is also important in the law of
succession. It is, for instance, the law of intestate succession of
the country in which the deceased was domiciled at the time of
his or her death that determines how his or her movable
property devolves if he or she dies intestate.7 Further, it is the
lex domicilii of the testator at the time of executing a will that
determines whether he or she has the capacity to dispose of his
or her movable property by means of that will.8 Domicile is also
relevant when it has to be determined whether someone has the
capacity to inherit.9 Domicile further determines the system of
law according to which a will is to be interpreted: if the testator
has not indicated a specific system of law, the law of the place
where the testator was domiciled when the will was executed
prevails.10
The lex domicilii of a husband at the time of his marriage
dictates what the spouses’ matrimonial property system will
be.11 This principle is immutable and is not influenced by the
husband’s subsequent change of domicile.12 Take the example
of a man domiciled in South Africa who marries a German
woman, in Germany, while studying there. The patrimonial
consequences of the marriage (that is, the matrimonial property
system) are determined by South African law. This means that
the marriage is in community of property unless the parties
concluded an antenuptial contract before entering into the
marriage.13 The rule regarding the husband’s lex domicilii as the
determining factor in respect of the matrimonial property
system applies to heterosexual civil unions too.14 The rule,
however, fails to cater for same-sex civil union partners, for in
their case there are either two men or two women and not “a
husband” whose lex domicilii can be used.15 It is submitted that
this failure unjustifiably limits the right to equality. It, inter
alia, unfairly discriminates against same-sex civil union
partners on the ground of their sexual orientation, by leaving the
proprietary consequences of their civil union uncertain.16 Even
in the case of heterosexual spouses and civil union partners the
rule unjustifiably limits the equality clause, for in their case the
rule constitutes unjustifiable unfair discrimination on the
ground of sex.17 The rule should therefore be declared
unconstitutional. Unfortunately, South African private
international law does not currently have a ready replacement
for the rule.18 It is submitted that the legislature should step in
as a matter of urgency to enact a suitable and constitutionally
acceptable rule.19
The question of whether a child qualifies as a child born of
married parents (or a legitimate child as such a child was
previously known) is determined by the law of the child’s
domicile of origin.20
The concept of domicile also plays a role in respect of
jurisdiction. Generally speaking the plaintiff must sue the
defendant in the court having jurisdiction in the area where the
defendant is domiciled or resident. Matters regarding a person’s
status must, as a rule, be heard by the court having jurisdiction
in the area where that person is domiciled.21 Domicile is also a
factor in determining the international jurisdiction of a foreign
court in order to recognise and enforce an order of such a
court.22
4.4 General principles governing domicile

Every person must have a domicile at all times.23 In other
words, no one can ever be without a domicile. The Domicile
Act furthermore provides that no one loses his or her domicile
until he or she has acquired another domicile.24
A change of domicile is never merely accepted. It must
always be proved.25 Whether a person has acquired or lost a
domicile is determined on a balance of probabilities.26
Whether someone can have more than one domicile at the
same time has not been finally settled in our law. For example,
can a person who lives in Pretoria for six months of the year
and in Cape Town the other six months have two domiciles?
According to our common-law authors the answer would be
“yes”.27 However, obiter dicta in some of the decisions of our
courts indicate that a person cannot have more than one
domicile at a particular time.28 In Eilon v Eilon29 the Appellate
Division (now the Supreme Court of Appeal) referred to the
issue but did not have to decide it. The Law Commission did
not deal with this matter in its Report on Domicile. Because the
Domicile Act was based on the recommendations contained in
the Law Commission’s report, it too is silent in this regard.
Most modern South African authors, however, submit that a
person cannot have more than one domicile at the same time.30
4.5 Kinds of domicile

Our law distinguishes between the following kinds of domicile:
4.5.1 Domicile of origin
A person’s domicile of origin (also called the person’s original
domicile or domicilium originis) is the domicile the law confers
on the person at birth. In the past, a person’s domicile of origin
revived if he or she abandoned his or her domicile of choice
without assuming a new domicile. In such event the person’s
status was determined by the law of his or her domicile of
origin until such time as he or she assumed a new domicile of
choice.31 Thus the person’s domicile was neither based on the
place where he or she physically resided nor was it connected
with his or her intention – it was simply a domicile that was
assigned to him or her by operation of law for reasons of
efficacy.32
The Domicile Act changed the position. The Act provides
that no one loses his or her domicile until he or she has acquired
another domicile, whether by choice or operation of law.33 The
Act further specifically provides that a person’s domicile of

origin does not revive,34 although a person can have a domicile
where his or her domicile of origin was if he or she acquires a
domicile of choice there35 or if he or she does not have the
capacity to acquire a domicile of choice and the law assigns a
domicile to him or her36 at the place where his or her domicile
of origin was because he or she is most closely connected with
that place. Thus, for example, a child who is born in South
Africa and lives with his or her parents in this country acquires
a domicile here. If the child moved permanently with his or her
parents to Egypt, he or she would acquire an assigned domicile
in Egypt. If, as an adult, he or she left Egypt with the intention
of never returning to that country and lawfully returned to
South Africa with the intention of indefinitely living here, he or
she would once again obtain a South African domicile.
However, his or her South African domicile would be a
domicile of choice; it would not be his or her domicile of origin
that revived.
Because of the provisions of the Domicile Act the domicile
of origin has lost most of its significance. A person’s domicile
of origin is still relevant in so far as it determines whether the
person qualifies as a child born of married parents. However, as
a person’s domicile of origin is purely the first domicile
assigned to him or her, it might just as well be categorised
simply as an example of a domicile by operation of law.37
4.5.2 Domicile of choice
(a) General
A domicile of choice is the domicile a person who has capacity

to act has chosen for himself or herself by exercise of his or her
free will. It is by far the most important kind of domicile in our
law.
Section 1(1) of the Domicile Act provides that, regardless of
sex or marital status, everyone who is of or over the age of 18
years and everyone under the age of 18 years who legally has
the status of a major, is competent to acquire a domicile of
choice, unless he or she lacks the mental capacity to make a
rational choice.
The provision in respect of sex and marital status is a
significant improvement on the common-law position. At
common law a wife automatically acquired her husband’s
domicile at marriage and followed it whenever he changed his
domicile, irrespective of whether she was present at that
particular place or whether she had the intention of residing
there permanently.38 For example, in the case of spouses who
were living apart, the wife still followed her husband’s
domicile, even if it was in a different country. The wife’s
domicile was called a domicile of dependence. A minor also
had a domicile of dependence, which was the domicile of his or
her guardian. Now, as is explained below in this chapter, a
minor has an assigned domicile which is not necessarily his or
her guardian’s domicile.
(b) Requirements for acquiring a domicile of choice
Section 1(1) of the Domicile Act clearly indicates that the first
requirement for acquiring a domicile of choice is that the person
who wants to acquire such a domicile must be a major or have
the status of a major. In other words, a minor (that is, a person
who is below the age of 18 years)39 can acquire a domicile of
choice only if he or she has the status of a major. A minor can
acquire the status of a major by entering into a marriage,40 but
since a minor may not enter into a civil union41 he or she cannot
acquire the status of a major by concluding a civil union. The
second requirement section 1(1) sets is that the person must
have the mental capacity to make a rational choice.
Section 1(2) of the Act sets further requirements for the
acquisition of a domicile of choice. It provides that a domicile
of choice is “acquired by a person when he is lawfully present
at a particular place and has the intention to settle there for an
indefinite period”. Section 1(2) thus requires, firstly, that the
person must actually settle at the particular place where he or
she wants to acquire a domicile of choice and, secondly, that his
or her presence there must be lawful. At common law this
requirement was called the factum requirement. Furthermore,
section 1(2) requires that the person must have the intention of
settling at that place for an indefinite period. At common law
this was called the animus requirement. The factum and animus
requirements must at some time or another exist simultaneously
but they need not come into being simultaneously.42 A person
may therefore first settle at a place and only later form the
intention of residing there indefinitely.
Let us consider the factum and animus requirements in more
detail:
(i) Factum requirement
The Domicile Act recognises only lawful presence for purposes
of acquiring a domicile of choice.43 An illegal alien (also called
a prohibited immigrant) can therefore not acquire a domicile of
choice in South Africa despite having the intention of settling
here permanently.44 However, in Van Rensburg v Ballinger45 the
court held that a prohibited immigrant whom the authorities had
openly permitted to reside in South Africa could acquire a
domicile of choice here.
Persons who are deported from South Africa lose their
domicile in this country even if they intend returning, because
their return would be unlawful.46
It has been held that a person who has acquired a domicile at
a particular place and who subsequently leaves that place in
order to escape from the process of the law (in other words,
someone who becomes a fugitive from justice) does not lose his
or her domicile at the place from which he or she has fled.47 The
object of this rule is to preclude the fugitive from relying on the
court’s not having jurisdiction to hear the matter, thereby
escaping the consequences of his or her misconduct. It must be
borne in mind that in this instance the fugitive’s residence has
not been rendered unlawful; he or she has fled in order to
escape the legal consequences of his or her actions. This case
therefore differs from that of the illegal alien.
In order to establish whether a person’s residence meets the
factum requirement the situation is viewed objectively.48 A
specific period of physical residence is not required but the
person must not simply be visiting the place.49 If it is
established that the person was indeed physically present at a
specific place where he or she intended to stay, and that his or
her residence was lawful, the duration of his or her residence
there is irrelevant. However, the courts sometimes take the
duration of the physical presence into consideration to infer
whether the person had the intention of remaining at that
specific place (that is, whether the person had the animus
manendi).50
Once a domicile of choice has been established at a particular
place, the person does not have to be continuously present at
that place.51
(ii) Animus requirement52
Section 1(2) of the Domicile Act provides that a person
acquires a domicile of choice at a particular place if he or she
has the intention of settling there “for an indefinite period”.53
Thus a person can satisfy the animus requirement even if he or
she envisages moving at an unknown future time.54 To establish
whether the person complies with the animus requirement a
subjective test is applied.55 In other words, the intention of the
particular person is determined.
To satisfy the animus requirement the person must be able to
carry out his or her intention of settling at the particular place.56
Military staff, diplomats, public servants, employees of foreign
governments or businesses, and prisoners were initially
considered incapable of acquiring a domicile of choice at the
place where they were stationed, posted or imprisoned on the
ground that their employers or the state determine where they
are to reside and that they therefore cannot give effect to their
intention of settling at a particular place. The Domicile Act does
not expressly deal with the acquisition of a domicile of choice
by someone who is not free to decide where he or she wants to
reside. No provision expressly excludes a person whose
presence at a particular place is not by choice, from acquiring a
domicile of choice there. It could therefore be argued that, like
any other person over the age of 18 years who has the required
mental capacity, such a person should be competent to establish
a domicile of choice in terms of section 1 of the Act.57
Consequently, the mere fact that someone has been posted to, or
is stationed or imprisoned at, a specific place should not render
him or her incapable of complying with the animus
requirement. I prefer this view.58 In contrast, it could be argued
that because the Act does not expressly state that people like
military staff, diplomats, public servants, employees and
officers of foreign governments or businesses, and prisoners can
meet the animus requirement even though their employment or
imprisonment limits their ability to give effect to their intention,
the common law still applies in this respect.
As it is unclear which argument will be preferred by the
courts, the common-law position is briefly summarised below:
Military staff
It used to be generally accepted that foreign military staff could
not acquire a domicile of choice in South Africa, however much
they wished to settle here permanently. In McMillan v
McMillan59 the reason given for this attitude was that the
person’s residence here was not voluntary but was prescribed
by a foreign power. In 1945 the Appellate Division in Baker v
Baker60 opened the door to a new approach. It held that soldiers
can acquire a domicile of choice at a place where they are not
stationed. Although the court declined to answer the question of
whether soldiers can acquire a domicile of choice where they
are stationed, the erstwhile Transvaal61 and Cape courts62
subsequently interpreted obiter dicta in the judgment as being
authority for the view that this is possible.
Diplomats, public servants, and employees and officers of
foreign governments or businesses
Originally, foreign diplomats, police officials, public servants,
and employees and officers of foreign businesses were also
denied a domicile of choice in South Africa while they were in
the service of the foreign government or business.63 In Naville v
Naville64 the Cape court decided, however, that a foreign
diplomat could acquire a domicile of choice in South Africa
while still in the service of a foreign country. The same should
apply in respect of public servants and employees and officers
of foreign governments and businesses.
Prisoners
It has been argued that a prisoner cannot acquire a domicile of
choice at the place where he or she is imprisoned since he or
she is not there of his or her own free will.65 In Nefler v Nefler66
it was, however, held that a prisoner who had been imprisoned
for life automatically acquired a domicile of choice in prison.
4.5.3 Domicile by operation of law
Section 2(1) of the Domicile Act provides that anyone who
does not have the capacity to acquire a domicile of choice is
domiciled at the place with which he or she is most closely
connected. Minors and people who do not have the mental
capacity to make a rational choice cannot acquire a domicile of
choice.67 To them the law assigns a domicile by operation of
law for as long as their minority or mental incapacity lasts, and
that domicile is the place with which the particular person is
most closely connected. This type of domicile is called a
domicile by operation of law (or an assigned domicile).
(a) Domicile of a minor
By virtue of the provisions of section 2 of the Domicile Act a
minor is domiciled at the place with which he or she is most
closely connected. Section 2(2) contains the rebuttable
presumption that if a minor normally has his or her home with
one or both of his or her parents, the parental home is the
minor’s domicile. The Act expressly provides that the term
“parents” includes a child’s adoptive parents and parents who
are not married to each other.68
A domicile is assigned to a minor only if he or she is
unmarried.69 When the minor attains majority or if he or she
acquires the status of a major by getting married, he or she
retains the domicile he or she had by operation of law until he
or she establishes a domicile of choice.70
(b) Domicile of a mentally incapacitated person
Formerly the courts adopted the view that mentally
incapacitated persons retained the domicile they had when they
became mentally incapacitated.71 In contrast, some authors were
of the opinion that it would be better if mentally incapacitated
persons followed the domicile of their curator.72 The issue has
been resolved by the Domicile Act, which provides that persons
who do not “have the mental capacity to make a rational

choice” cannot acquire a domicile of choice73 and accordingly
acquire a domicile at the place with which they are most closely
connected.74
1 Citizenship is very important as far as a person’s status at public law is

concerned but because it does not play a major role in private law it is not
discussed in this book.
2 See e.g. Boezaart Persons 33; Eiselen in Robinson (ed.) Law of Children and
Young Persons 210; Wille’s Principles 153; Schoeman 1999 THRHR 272.
3 Project 60 Domicile.
4 S 8(2).
5 For a detailed analysis of domicile as a connecting factor in respect of choice of
law in matters regarding the law of persons, see Schoeman 1 et seq.
6 See e.g. the case law Forsyth cites at 313, 337–341.
7 Estate Baker v Estate Baker (1908) 25 SC 234.
Young Persons 214–215; Forsyth 401–402; Kruger and Skelton (eds.) Persons
71.
Young Persons 215; Forsyth 402–403; Kruger and Skelton (eds.) Persons 71;
Van der Vyver and Joubert 88.
10 Boezaart Persons 35; Forsyth 405–406; Kruger and Skelton (eds.) Persons 71;
11 Frankel’s Estate v The Master 1950 (1) SA 220 (A). On the various matrimonial
property systems, see Heaton Family Law chs 6 and 7.
12 Frankel’s Estate v The Master 1950 (1) SA 220 (A); Sperling v Sperling 1975
(3) SA 707 (A); Bell v Bell 1991 (4) SA 195 (W).
13 Edelstein v Edelstein 1952 (3) SA 1 (A).
14 Civil Union Act 17 of 2006 s 13(2).
15 See also Farlam JA’s minority judgment in Fourie v Minister of Home Affairs
2005 (3) BCLR 241 (SCA), 2005 (3) SA 429 (SCA) pars [124]–[125] and AS v
CS 2011 (2) SA 360 (WCC) par [55].
16 S 9 of the Constitution of the Republic of South Africa, 1996 contains the right
to equality. S 9(3) and (4) deals with unfair discrimination.
17 For criticism of the rule, esp in the light of the equality clause in the
Constitution, see Forsyth 296, 300–301; Kruger and Skelton (eds.) Persons 70;

Neels 1992 TSAR 336; Heaton and Schoeman 2000 THRHR 146; Schoeman
2004 TSAR 117–118, 140; Neels and Wethmar-Lemmer 2008 TSAR 587–588.
18 On alternative rules which might be used, see Forsyth 302–303; Stoll and Visser
1989 De Jure 335; Schoeman 2004 TSAR 132–140; Neels and Wethmar-
Lemmer 2008 TSAR 587.
19 See also Forsyth 303; Schoeman 2004 TSAR 140.
20 Seedat’s Executors v The Master (Natal) 1917 AD 302; Schoeman 1999 SALJ
288. On the rules regarding when a child qualifies as a child born of married
parents, see ch 5 below.
21 See e.g. Ex parte Kaiser 1902 TH 165; Ex parte Oxton 1948 (1) SA 1011 (C).
For an exception to the rule, see s 2(1)(b) of the Divorce Act 70 of 1979.
22 See e.g. Divorce Act s 13.
23 Boezaart Persons 32; Clark in Van Heerden et al (eds.) Boberg’s Law of
Persons and the Family 104; Eiselen in Robinson (ed.) Law of Children and
Young Persons 205; Forsyth 132; Van der Vyver and Joubert 84; Wille’s
Principles 152.
24 S 3(1).
25 Mason v Mason (1885) 4 EDC 330; Smith v Smith 1952 (4) SA 750 (O).
26 S 5.
27 Voet 5.1.92; Van Leeuwen Rooms-Hollands-Regt 5.6.1; Van Bynkershoek II
1371; Van der Keessel Praelectiones 1.2.27.
28 Leviny v Leviny (1908) 25 SC 173; Ex parte Donelly 1915 WLD 29; Webber v
Webber 1915 AD 239; Sukovs v Van der Walt [1998] 3 All SA 664 (O).
29 1965 (1) SA 703 (A), Heaton Casebook on the Law of Persons case [13].
30 Boezaart Persons 32; Clark in Van Heerden et al (eds.) Boberg’s Law of
Persons and the Family 104; Eiselen in Robinson (ed.) Law of Children and
Young Persons 205; Forsyth 133; Kahn 14–17; Van der Vyver and Joubert 84;
Wille’s Principles 152. But cf Spiro 1962 Acta Juridica 66–69.
31 Ex parte Donelly 1915 WLD 29; Hutchison’s Executor v The Master (Natal)
1919 AD 71; Grindal v Grindal 1997 (4) SA 137 (C), Heaton Casebook on the
Law of Persons case [10]; Kahn 19 et seq.
32 The doctrine of the revival of a person’s domicile of origin was derived from
English law and was initially applied in our law because the court considered it
expedient not to deviate from the law that was applied in the rest of the British
Empire: Ex parte Donelly 1915 WLD 29. Although the doctrine was severely
criticised by South African authors (see e.g. Spiro Conflict 75; Van der Vyver
and Joubert 110–111) it was nevertheless accepted by our courts: Mason v
Mason (1885) 4 EDC 330; Lauchlin v Lauchlin (1903) 24 NLR 230; Forster v
Forster & Wheeling (1905) 26 NLR 124; Gunn v Gunn 1910 TS 423; Ex parte
Sandberg 1912 TPD 805; Hutchison’s Executor v The Master (Natal) 1919 AD
71; Massey v Massey 1968 (2) SA 199 (T).
33 S 3(1).
34 S 3(2).
35 In terms of s 1 of the Act. See also Grindal v Grindal 1997 (4) SA 137 (C).
36 In terms of s 2 of the Act.
37 Davel 1993 De Jure 405.
38 Schoeman 1995 THRHR 488.
39 Children’s Act 38 of 2005 s 17.
40 On a minor’s capacity to marry, see ch 5 below. As an emancipated minor does
not acquire majority status, he or she cannot acquire a domicile of choice. On
the age of majority and the ways of terminating minority, see ch 6 below.
41 Civil Union Act s 1. On a minor’s inability to enter into a civil union, see further
ch 6 below.
42 Grindal v Grindal 1997 (4) SA 137 (C).
43 S 1(2). But see Toumbis v Antoniou 1999 (1) SA 636 (W) where Cloete J, in an
obiter dictum, held the incorrect view that a person can have a domicile of
choice at a place where his or her presence has been rendered unlawful because
the authorities have decided that he or she must be removed from that place.
44 Smith v Smith 1962 (3) SA 930 (FC), Heaton Casebook on the Law of Persons
case [12].
45 1950 (4) SA 427 (T).
46 Ex parte Macleod 1946 CPD 312; Drakensbergpers Bpk v Sharpe 1963 (4) SA
615 (N).
47 Chinatex Oriental Trading Co v Erskine 1998 (4) SA 1087 (C). Chetty J simply
cited the Rhodesian (i.e. Zimbabwean) case of Steinberg v Cosmopolitan
National Bank of Chicago 1973 (4) SA 564 (RA) and Kahn’s discussion in 1973
Annual Survey 436–437 as authority for this view. It is doubtful whether
Steinberg’s case was correctly decided (see Forsyth 421 fn 27 and 436–437;
Forsyth considers the decision to be so wrong on so many points that “it would
be foolhardy to rely upon it for any proposition!”). The correctness of this point
of the decision in Chinatex Oriental Trading Co v Erskine may therefore also be
suspect. The judgment in Chinatex Oriental Trading Co v Erskine was reversed
in Erskine v Chinatex Oriental Trading Co 2001 (1) SA 817 (C) on the ground
that it was not proved that the appellant had ever obtained a domicile in
England, as the court a quo had found. The appeal court therefore found it
unnecessary to deal with the court a quo’s finding that the appellant had not lost
his domicile in England because he had fled that country as a fugitive from
justice.
48 Chinatex Oriental Trading Co v Erskine 1998 (4) SA 1087 (C).
49 Ibid.
50 Cook v Cook 1939 CPD 314, Heaton Casebook on the Law of Persons case [11];
Smith v Smith 1952 (4) SA 750 (O); Webber v Webber 1915 AD 239; Chinatex
Oriental Trading Co v Erskine 1998 (4) SA 1087 (C); Erskine v Chinatex
Oriental Trading Co 2001 (1) SA 817 (C).
52 For a historical overview of the animus requirement, see the second edition of
this work (i.e. Cronjé and Heaton The South African Law of Persons) 42;
Boezaart Persons Sourcebook 127–130; Forsyth 141–146; Schoeman 1999
THRHR 273–284.
53 Despite the enactment of the Domicile Act, Wright J in Sukovs v Van der Walt
[1998] 3 All SA 664 (O) based his decision on the strict common-law test for
animus, namely that the person must have a fixed and deliberate intention to
abandon his or her previous domicile and to settle permanently at his or her new
place of residence, without entertaining any doubt as to whether or not he or she
would remain there, and without contemplating any certain or foreseeable future
event which would cause him or her to leave (see Eilon v Eilon 1965 (1) SA 703
(A)). Although Sukovs does not contain a single reference to the Domicile Act
and it is abundantly clear from the judgment that Wright J was unaware of the
Act, his conclusion that the respondent had acquired a domicile of choice in
New Zealand would have been no different had he applied the provisions of the
Act.
54 For a detailed analysis of when a person can be said to have intended to settle
for an “indefinite” period as envisaged by the Domicile Act, see Schoeman 1999
THRHR 272, 325, esp 329–334.
56 Ex parte Quintrell 1922 TPD 14.
57 Boezaart Persons 44, 45; Forsyth 146; South African Law Commission Report
on Domicile par 3.76; Davel 1993 De Jure 403. See also Forsyth 147, 149;
Kahn 53.
58 See also Kruger and Skelton (eds.) Persons 76.
59 1943 TPD 345.
60 1945 AD 708.
61 Moore v Moore 1945 TPD 407; Ex parte Glass et Uxor 1948 (4) SA 379 (W).
62 Nicol v Nicol 1948 (2) SA 613 (C); Ex parte Readings 1958 (4) SA 432 (C).
63 Bothma v Bothma 1940 (1) PH B9 (O); Carvalho v Carvalho 1936 SR 219.
64 1957 (1) SA 280 (C), Heaton Casebook on the Law of Persons case [14]. See
also the obiter dicta in Ex parte Quintrell 1922 TPD 14 16; Fozard v Fozard
1923 CPD 62 63 and McMillan v McMillan 1943 TPD 345 349–350 which
suggest that they can acquire a domicile of choice since such employees are
normally not transferred as often as soldiers.
65 Kahn 53.
66 1906 ORC 7.
67 Ss 1(1) and 2.
68 S 2(3).
69 Above in this ch it is explained that marriage is the only means by which a
minor can acquire majority status.
70 S 3(1).
71 Henning’s Executor v The Master (1885) 3 SC 235; Rifkin v Rifkin 1936 WLD
69.
72 Boberg 68; Kahn 98–99; Van der Vyver and Joubert 100.
73 S 1(1).
74 S 2(1).

CHILDREN BORN OF UNMARRIED
PARENTS
5.1 Introduction
In the past, our law categorised children as either legitimate or
illegitimate. Illegitimate children were also known as children
born out of wedlock or extra-marital children. With the coming
into operation of the first batch of sections of the Children’s Act
38 of 2005 on 1 July 2007, the law shifted its emphasis from
labelling children to labelling the marital status of their parents.
Thus the Children’s Act refers to a married or an unmarried
father, a married or an unmarried mother, a married or an
unmarried person, and married parents.1 For this reason, the
terms “child born of married parents” and “child born of
unmarried parents” are used in this book.
A child born of married parents is a child who is born of
parents who are legally married to each other at the time of the
child’s conception or birth or at any intervening time.2 The
Children’s Act defines marriage in broad terms that include
civil, customary and religious marriages.3 Furthermore, in terms
of the Civil Union Act 17 of 2006,4 civil unions are also

covered by the term “marriage” (except in so far as the
Marriage Act 25 of 1961 and the Recognition of Customary
Marriages Act 120 of 1998 are concerned). Thus a child who is
born of civil union partners is also a child born of married
parents. If a child’s parents are not the parties to a marriage or
civil union with each other at the time of the child’s conception
or birth or at any intervening time, the child is a child born of
unmarried parents.
Originally, “illegitimate” children suffered from a number of
legal disabilities, and the rules relating to their parents’
responsibilities and rights differed markedly from those that
applied to the responsibilities and rights of parents of
“legitimate” children. Gradually the law began to reduce the
legal differences between the two categories of children and
also between their parents. As appears from the discussion
below in this chapter, the law still does not treat unmarried and
married parents in exactly the same way. Now, however, the
law no longer uses pejorative terms like “illegitimate child” and
it grants the same parental responsibilities and rights to certain
unmarried fathers that it grants to married parents and
unmarried mothers.
5.2 Categories of children born of unmarried

parents
5.2.1 Introduction
Traditionally three different categories of children born of
unmarried parents were distinguished. The differences between
these categories are of little importance in modern law. Their
only relevance is that an incestuous child will usually not be
able to acquire the status of a child born of married parents by
way of his or her parents’ subsequent marriage or civil union,
because the child’s parents will usually not be able to enter into
a marriage or civil union with each other.
5.2.2 Natural children
Natural children are born of parents who, though not married to
each other at the time of the child’s conception or birth or at any
intervening time, could validly have married each other. The
same applies if the child’s parents were not civil union partners
at the time of the child’s conception or birth or at any
intervening time, but could have entered into a valid civil union
with each other.
5.2.3 Adulterine children
In the case of an adulterine child one or both of the child’s
parents were married to someone else or were parties to a civil
union with somebody else at the time of the child’s conception.
5.2.4 Incestuous children
Incestuous children are born of parents who could not have
married each other or could not have entered into a civil union
with each other at the time of the child’s conception because
they were too closely related.
At common law, adulterine and incestuous children were
sometimes called overwonnen kinderen or overwonnen
bastaarden.5 Adulterine children were also known as adulterini,
incestuous children as incestuosi, and natural children as spurii

or liberi naturales.
5.3 Artificial fertilisation

5.3.1 Meaning of “artificial fertilisation”
Artificial fertilisation refers to the introduction, by artificial
means (in other words, not by way of sex), of a male gamete
into the internal reproductive organs of a woman for the
purpose of human reproduction. (A gamete is “either of the two
generative cells essential for human reproduction”, that is, a
sperm and an ovum.)6 Artificial fertilisation also includes the
joining of a male and female gamete outside the human body
with a view to placing the product in a woman’s womb as well
as the actual placing of such product in a woman’s womb (that
is, in vitro fertilisation).7
The definition of artificial fertilisation is wide enough to
cover surrogate motherhood (surrogacy). Surrogate motherhood
refers to the situation where the surrogate mother undertakes to
be artificially fertilised for the purpose of bearing a child for the
commissioning parent(s) and handing that child over to the
commissioning parent(s) upon the child’s birth or within a
reasonable time thereafter so that the child will become the
commissioning parent(s)’ child as if he or she were born of the
commissioning parent(s).8 A commissioning parent is the
person who enters into a surrogate motherhood agreement with
the surrogate mother with the objective that the surrogate
mother will be artificially fertilised and will bear a child for him
or her.9

Nowadays artificial fertilisation is often called assisted
fertilisation or assisted reproduction because it assists
somebody who would not otherwise be able to reproduce to do
so.
5.3.2 Status of a child who is born as a result of
If a child is born as a result of the artificial fertilisation of a
single woman (that is, a woman who is not a party to a marriage
or a civil union), he or she is a child born of unmarried parents.
A child who is born as a result of the artificial fertilisation of
a woman with the semen of her husband or male civil union
partner is a child born of married parents. This is the position
regardless of whether or not the man consented to his semen
being used.10 In terms of section 40(1) of the Children’s Act, a
child who is born as a result of the artificial fertilisation of a
spouse or civil union partner with sperm and/or an ovum that
was donated by a third party is also a child born of married
parents, provided that both spouses or civil union partners
consented to the artificial fertilisation.11 Because consent is
presumed to have been given,12 anyone who alleges that it was
absent bears the onus of proof.
Prior to the coming into operation of section 40 of the
Children’s Act, the decision of the Constitutional Court in J v
Director General, Department of Home Affairs13 placed a child
who was born as a result of the artificial fertilisation of a same-
sex life partner in exactly the same position as a child born as a
result of the artificial fertilisation of a married woman.

However, as explained in chapter 2 above, section 40 of the
Children’s Act subsequently re-enacted the law as it was before
J was decided. Consequently, a child who is born to same-sex
life partners who fall outside the ambit of the Civil Union Act
as a result of the artificial fertilisation of one of them now is a
child born of unmarried parents.
5.3.3 Relationship between the child and the birth
mother, and between the child and the
person whose gamete was used for the
(a) Artificial fertilisation without surrogate motherhood
The woman who gives birth to a child who was conceived as a
result of artificial fertilisation is for all purposes regarded as the
child’s mother, unless she is the child’s surrogate mother in
terms of a valid surrogate motherhood agreement.14 This rule
applies regardless of whether the birth mother is married,
unmarried, a party to a civil union, or a party to a life
partnership that does not qualify as a civil union. The position
that applies in the case of surrogate motherhood is discussed
under the next heading below. The present discussion focuses
on the position in the absence of surrogate motherhood.
The starting point in respect of the relationship between a
child who is born as a result of artificial fertilisation and the
person whose gamete was used for the artificial fertilisation is
that no rights, responsibilities, duties or obligations arise
between them or between the child and the person’s blood
relations.15 This rule is subject to an exception, namely that it

does not apply if the person whose gamete was used is the
child’s birth mother or her spouse or civil union partner.16 If the
exception applies, the ordinary rules of the law govern the
relationship between the child and the person and between the
child and the person’s blood relations. This means, for example,
that if the sperm of the birth mother’s husband was used, she
and her husband have all the rights, responsibilities, duties and
obligations in respect of the child that married parents have in
respect of their child. However, if the birth mother is neither
married nor a civil union partner, she has all the rights,
responsibilities, duties and obligations that a mother has, while
the male gamete donor has no rights, responsibilities, duties and
obligations unless he qualifies as an unmarried father who has
parental responsibilities and rights.17
Although the general rule in respect of the relationship
between a child who is born as a result of artificial fertilisation
and the person whose gamete was used is that no rights,
responsibilities, duties or obligations arise between them,
section 41(1) of the Children’s Act entitles the child or his or
her guardian to access to medical information concerning the
child’s genetic parents.18 Once the child has turned 18 years, he
or she or his or her guardian may obtain any other information
concerning the child’s genetic parents.19 The information may,
however, not reveal the identity of the person(s) whose
gamete(s) were used for the artificial fertilisation.20 The Act
does not define the term “genetic parents”. In its ordinary sense,
the term refers to the man and the woman whose genetic
contributions (ovum and sperm) merged to form the foetus from
which the child developed.
(b) Artificial fertilisation of a surrogate mother21
(i) Introduction
The Children’s Act sets requirements for and regulates the
consequences of surrogate motherhood and governs the
termination of a surrogate motherhood agreement. As the
present chapter focuses on the status of a child who is born of
unmarried parents, the requirements for surrogate motherhood
fall outside the scope of the chapter. Some of the most
important requirements are, nevertheless, mentioned below to
facilitate a better understanding of legally recognised surrogate
motherhood:
(1) Surrogate motherhood may not take place for commercial
reasons or as a source of income for the surrogate
mother.22 In other words, it may only take place for
altruistic reasons.
(2) The surrogate mother must have a documented history of
at least one pregnancy and viable delivery and she must
have at least one living child of her own.23
(3) Spouses, civil union partners, same-sex or heterosexual
life/permanent partners, or a single person may be
commissioning parent(s), provided that they are, or he or
she is, permanently and irreversibly unable to give birth.24
(4) The parties must conclude and sign a valid surrogate
motherhood agreement. The agreement must be entered
into in South Africa while the commissioning parent(s) or
at least one of them as well as the surrogate mother and her

spouse, civil union partner or partner in a permanent
relationship are domiciled in South Africa. If the
commissioning parent is a single person, he or she must be
domiciled in South Africa. If a commissioning parent or
the surrogate mother is a party to a marriage, civil union or
permanent relationship, his or her spouse, civil union
partner or partner in the permanent relationship must give
written consent and must become a party to the agreement.
The agreement must be confirmed by the High Court
within whose area of jurisdiction the commissioning
parent(s) are domiciled or habitually resident.25
(5) The surrogate mother may not be artificially fertilised until
the agreement has been confirmed. The procreation of the
child must be effected by the artificial fertilisation of the
surrogate mother within 18 months after the
confirmation.26
(6) The gametes of both commissioning parents must be used
for the artificial fertilisation or, if that is not possible due
to biological, medical or other valid reasons, the gamete of
at least one of them must be used. If the commissioning
parent is a single person, his or her gamete must be used.27
(ii) Relationship between the child and the birth mother, and
between the child and the commissioning parent(s)
If the parties concluded a valid surrogate motherhood
agreement, it is enforceable and the surrogate mother must hand
the child over to the commissioning parent(s) as soon as is
reasonably possible after the child’s birth. The child is deemed
to be the child of the commissioning parent(s) for all purposes
as from the moment of his or her birth.28 No rights,
responsibilities, duties or obligations arise between the
surrogate mother and the child even if the ovum of the surrogate
mother was used for her artificial fertilisation. The Act
expressly stipulates that the surrogate mother, her husband (or
civil union partner), her partner in a permanent relationship and
her relations have no “rights of parenthood or care” in respect
of the child and that the child does not have any claim for
maintenance or succession against them.29 The surrogate
mother, her husband, civil union partner or partner in a
permanent relationship and her relations may, however, have
contact with the child if the surrogate motherhood agreement
permits this.30 Furthermore, the child or his or her guardian may
have access to medical information concerning the child’s
genetic parents.31 Once the child has turned 18 years, he or she
or his or her guardian may also obtain other information
concerning the genetic parents.32 The information may,
however, not reveal the identity of the surrogate mother or the
person(s) whose gamete(s) were used for the surrogate mother’s
artificial fertilisation.33
If the surrogate motherhood agreement is invalid, the
surrogate mother is for all purposes deemed to be the child’s
mother and the child has no relationship with the
commissioning parent(s), regardless of whether either or both of
them donated gametes for the artificial fertilisation of the
surrogate mother.34
(iii) Termination of the surrogate motherhood agreement
A surrogate mother who is the child’s genetic mother (that is, a
surrogate mother whose ovum was used for her artificial
fertilisation) may terminate a valid surrogate motherhood
agreement by filing a written notice with the court within 60
days after the child’s birth.35 In other words, in the case of
partial surrogate motherhood,36 the surrogate motherhood
agreement may be terminated at the instance of the surrogate
mother up until 60 days after the child’s birth. The court must
notify the parties to the agreement that a notice of termination
has been filed and must hold a hearing.37 If, at the hearing, the
court finds that the surrogate mother’s termination of the
agreement is voluntary and that she understands the effects of
the termination, it must terminate its confirmation of the
agreement. The agreement then comes to an end and the
commissioning parent(s) lose all responsibilities and rights in
respect of the child. The court may, however, make any
appropriate order that is required by the child’s best interests.38
If the termination occurs before the child’s birth, the
surrogate mother and her spouse, civil union partner or partner
in a permanent relationship become the child’s parents from the
moment of the child’s birth. If the surrogate mother does not
have a spouse, civil union partner or partner in a permanent
relationship, she and the commissioning father become the
child’s parents from the moment of the child’s birth.39 If the
agreement is terminated after the child’s birth, the surrogate
mother and her spouse, civil union partner or partner in a
permanent relationship become the child’s parents from the date
of the termination of the agreement. If the surrogate mother
does not have a spouse, civil union partner or partner in a
permanent relationship, she and the commissioning father
become the child’s parents from the date of the termination of
the agreement.40 Regardless of whether the agreement is
terminated before or after the child’s birth, the surrogate mother
and her spouse, civil union partner or partner in a permanent
relationship, or the surrogate mother and the commissioning
father (if the surrogate mother does not have a spouse, civil
union partner or partner in a permanent relationship) are obliged
to accept parenthood.41 In other words, the termination cannot
result in the child being left parentless.
A surrogate mother may also terminate a surrogate
motherhood agreement by terminating her pregnancy in terms
of the Choice on Termination of Pregnancy Act 92 of 1996.42
Such termination obviously does not affect the child’s
relationship with either the surrogate mother or the
commissioning parent(s), for the child is never born and thus
never acquires a relationship with anybody.
5.4 Proof of parentage

5.4.1 Introduction
The issue of who a child’s parent is arises most often in the
context of a dispute about paternity. Most reported cases
therefore deal with matters relating to proving whether a
particular man is the father of a child, and not whether a
particular woman is the mother of the child. However, the
question of who the child’s mother is may arise, for example, in
respect of a foundling, if babies are switched in a maternity
ward,43 if a child has been abducted, and in some cases of
assisted reproduction.
Because paternity is in dispute more often than maternity,
two presumptions of paternity have been created: one applies in
respect of the child of a woman who is a party to a marriage or
a civil union and the other applies in respect of the child of a
woman who is not a party to a marriage or a civil union. These
presumptions are discussed under the next heading below.
Although parentage is usually based on the biological fact of
being genetically related to the child, section 1(1) of the
Children’s Act expressly excludes three categories of persons
from legally qualifying as a child’s “parent”. They are:
(1) The biological father of a child who was conceived
through the rape of the child’s mother or incest with her.
(2) Any person who is biologically related to a child by reason
only of being a gamete donor for purposes of artificial
fertilisation.44
(3) A parent whose parental responsibilities and rights in
respect of the child have been terminated.
Thus, for example, a man whose child was conceived as a result
of him raping the child’s mother does not qualify as the child’s
father for the purposes of the acquisition of parental
responsibilities and rights in terms of the Act. In M v V (born
N)45 a mother alleged, more than nine years after her child was
born, that the child’s father had raped her and that the child had
been conceived as a result of the rape. This allegation was first
made after the mother became involved with another man
whom she eventually married. Although the alleged rapist had

been registered as the child’s father shortly after the child’s
birth, had contributed to the child’s maintenance since his birth,
had had contact with the child by agreement with the child’s
mother since the child’s birth, had been involved in major
decisions regarding the child’s upbringing until the breakdown
of the parents’ relationship many years after the child’s birth,
and had been involved in consulting professionals regarding the
child’s needs for almost a decade, the mother now wanted him
to be excluded as the child’s father by virtue of the definition of
“parent” in section 1(1). The court held that, instead of making
a blanket finding about the exclusion of all alleged rapists, it
had to decide whether it is in the best interests of the particular
child for his father to be recognised as a biological father who
has parental responsibilities and rights in terms of the Act. The
court based its decision on section 39(2) of the Constitution of
the Republic of South Africa, 1996, which dictates that the
court must promote the spirit, purport and objects of the Bill of
Rights when it interprets legislation. In this case, the child’s
constitutional rights to parental care, to have paramountcy
afforded to his or her best interests, and his or her right to
dignity also had to be taken into consideration.46 The court
further referred to section 6(2)(a) of the Children’s Act, which
inter alia provides that, subject to lawful limitation, the court
must in all proceedings concerning a child respect, protect,
promote and fulfil the child’s rights set out in the Bill of Rights,
the best interests of the child standard, and the rights and
principles set out in the Act.47 In view of the facts of the case
and, in particular, the mother’s acceptance of the man as the

child’s father for almost ten years, the man’s de facto exercising
of parental responsibilities and rights during that period, and,
most importantly, the child’s recognition of the man as his
father for the whole duration of his life, the court concluded that
it was not in the child’s best interests to exclude the alleged
rapist from having parental responsibilities and rights. The court
did, however, specifically state that in another case another
court might arrive at a different conclusion on different facts.
5.4.2 Presumption of paternity
(a) A child born of a woman who is a party to a marriage
or a civil union
The common law (read with section 13 of the Civil Union Act)
provides that if a child is born of a married woman or a woman
who is a party to a civil union, it is presumed that the child is
born of the spouses or civil union partners. In other words, if a
woman is legally married or is a party to a valid heterosexual
civil union at the time of the child’s conception or birth or at
any intervening time, it is presumed that the woman’s husband
or male civil union partner, and not some third party, is the
child’s father. This presumption is expressed in the maxim
pater est quem nuptiae demonstrant (that is, the marriage
indicates who the father is).48
As section 20 of the Children’s Act, which confers parental
responsibilities and rights on married biological fathers,
expressly refers only to “biological” fathers, and not to all
married fathers, it might be argued that the section qualifies, or
might even have replaced, the pater est quem nuptiae

demonstrant presumption by conferring parental responsibilities
and rights only on those married fathers who have proved their
biological paternity.49 In my view, it is unlikely that the courts
would interpret the reference to biological fathers in section 20
in this manner, for the logical corollary of such interpretation
would be that all mothers would also have to prove their
maternity before they could acquire parental responsibilities and
rights in terms of section 19 of the Act, because section 19
confers parental responsibilities and rights only on a child’s
“biological” mother and artificial fertilisation and surrogacy
mean that the child’s birth mother might not be the child’s
biological mother. Consequently, the child could be left without
having any holder of parental responsibilities and rights at the
time of his or her birth and even for some time afterwards,
which is clearly not in the child’s best interests. It is therefore
submitted that the use of the word “biological” in section 20
should be reconciled with the pater est quem nuptiae
demonstrant presumption by reading the reference to “father”
(pater) in the presumption as referring to “biological father”.
Thus the husband or male civil union partner of the child’s
mother is presumed to be the biological father of the child.50
The pater est quem nuptiae demonstrant presumption can be
rebutted by evidence that the man is, in fact, not the child’s
father; in other words, by evidence that the child was born of
unmarried parents. The child’s mother and/or her husband or
male civil union partner can, for example, rebut the
presumption by proving that they did not have sex with each
other during the period when the child was conceived.51 That
the husband or male civil union partner is not the child’s father
must be proved on a balance of probabilities.52 The right to
rebut the presumption does not lapse in the course of time. It
can be rebutted at any time.
Any interested person can rebut the presumption and not only
the child’s mother or her husband or civil union partner.53 Thus,
for example, the child might want to rebut the presumption if
this would enable him or her to inherit.
In the past, our courts have been hesitant to declare a child
who was born of a married woman to be “illegitimate”. For
example, in F v L54 a man applied for an order declaring him to
be a child’s father while the child’s mother was married to
another man. The court rejected the application because it found
that it would not be in the child’s interests to be declared
“illegitimate”. Judge Harms held that the mother’s husband was
presumed to be the child’s father by virtue of two presumptions.
Firstly, the presumption pater est quem nuptiae demonstrant
applied and he was thus presumed to be the child’s father.
Secondly, the husband also admitted that he had had sex with
the child’s mother during the period of conception. Thus the
presumption of paternity following upon an admission of sex
also applied to him. It should, however, be noted that the
presumption of paternity which follows upon an admission of
sex with the child’s mother actually only applies when the
mother is not a party to a marriage or a civil union.55 In this
case, where the mother was married, only the pater est quem
nuptiae demonstrant presumption should have been applied.
Judge Harms was therefore incorrect in holding that both
presumptions operated in respect of the mother’s husband.56
The court’s conservative approach is also evident from the
decision in B v E.57 In this case, the mother of a child who was
born during her marriage to the respondent, applied for the
appointment of a curator ad litem to investigate whether the
child was born of married or unmarried parents. The mother
wanted to have the child declared to have been born of
unmarried parents. Again the application was rejected because
the court found that it would not be in the best interests of the
child to be declared to have been born of unmarried parents.
The pater est quem nuptiae demonstrant presumption applies
to children conceived before a marriage or civil union but born
during its existence, and to children conceived during the
marriage or civil union but born after its dissolution. Thus if a
woman remarries or enters into another civil union shortly after
the dissolution of her previous marriage or civil union and the
presumption is consistently applied, both men could be
considered the father of a child born during the early stages of
the new marriage or civil union. In such event it is rebuttably
presumed that the new husband or civil union partner is the
child’s father.58 Although Voet59 only refers to cases where the
previous husband had died there seems to be no reason why this
rule should not be applied to all cases where the previous
marriage or civil union is dissolved, irrespective of the cause of
its dissolution.
In terms of section 13(1) of the Civil Union Act, the legal
consequences of a civil marriage apply to a civil union “with
such changes as may be required by the context”. Whether this
means that an adapted version of the pater est quem nuptiae
demonstrant presumption must be applied in respect of same-
sex civil unions is unclear. The presumption specifically refers
to a father, while there are two male or two female parties (that
is, two “fathers” or two “mothers”) in a same-sex civil union.
Furthermore, in the case of a same-sex civil union procreation
involves artificial fertilisation, and in the case of a male couple
it involves surrogate motherhood too (unless, of course, the
child is conceived through an adulterous relationship with a
third party of the opposite sex). The rules regarding artificial
fertilisation and surrogate motherhood thus usually determine
who the child’s parents are. Therefore, application of an
adapted version of the presumption in respect of same-sex civil
unions is probably neither viable nor necessary.
(b) A child who is born of a woman who is not a party to a
marriage or a civil union
In terms of section 36 of the Children’s Act, a man is presumed
to be the biological father of a child who is born of a woman
who is not a party to a marriage or a civil union only if it is
proved that he had sex with the child’s mother at a time when
the child could have been conceived.60 Like the pater est quem
nuptiae demonstrant presumption, this presumption is
rebuttable. The presumption operates in the absence of evidence
to the contrary which raises a reasonable doubt. Normally the
onus of proof or rebuttal in civil matters is proof or rebuttal on a
balance of probabilities.61 Requiring evidence to the contrary
“which raises a reasonable doubt”, as section 36 does, is a
departure from the ordinary rule.62 It also creates a discrepancy
when compared to the onus that applies in respect of rebutting
the pater est quem nuptiae demonstrant presumption, for the
latter presumption may be rebutted on a balance of
probabilities.63 It is submitted that this discrepancy amounts to
an infringement of the right to equality before the law and equal
protection and benefit of the law because an unmarried man
must discharge a heavier burden of proof than a married man
has to. A child who was born to a woman who is not a party to a
marriage or a civil union and who wanted to attack the
discrepancy on constitutional grounds could also rely on his or
her right not to be subject to unfair discrimination on the ground
of birth, while an alleged father who wanted to attack the
discrepancy could also rely on his right not to be subject to
unfair discrimination on the ground of marital status.64 There
does not seem to be any justification for any of these limitations
of the right to equality.65
Any acceptable evidence suffices to rebut the presumption,
regardless of whether it is direct or circumstantial,66 provided,
of course, that it is sufficient to raise a reasonable doubt.
5.4.3 Corroboration of the mother’s evidence
As far as proof of sex is concerned, the courts formerly did not
accept the mother’s evidence without corroboration.67 This rule
was rejected by the then Appellate Division (now the Supreme
Court of Appeal) in Mayer v Williams.68 The court pointed out,
inter alia, that the rule is based on a misunderstanding of
Roman-Dutch law and that it is an anomaly that in such
instances there is a heavier burden of proof in civil cases than

criminal matters. The court, however, stated that in paternity
cases the mother’s evidence should be very carefully
scrutinised. In this regard, the judge referred to the cautionary
rule in criminal proceedings concerning sexual offences.69 He
could see no reason why the same rule should not also be
applied in civil proceedings. The cautionary rule requires the
court to recognise the inherent danger of relying on a
complainant’s evidence in respect of a sexual offence and also
to recognise the need for some safeguard reducing the risk of a
wrong conviction. Such a safeguard may be found in
corroboration, the absence of contradictory evidence, or the
untruthfulness of the accused as a witness. Therefore, the
plaintiff’s testimony does not always require corroboration but
corroboration may serve as a safeguard. The decision in Mayer
v Williams in respect of application of the cautionary rule to
women’s testimony in paternity suits will most probably not be
followed in future because the cautionary rule has been
abolished in respect of sexual offences.70 Section 60 of the
Criminal Law (Sexual Offences and Related Matters)
Amendment Act 32 of 2007 provides that a court may not treat
the evidence of a complainant in respect of a sexual offence
with caution because the evidence relates to an offence of a
sexual nature.
5.4.4 Factors that may be relevant in proving
paternity or rebutting a presumption of
paternity
(a) Absence of sex

If it can be proved that the man who is presumed to be the
child’s father did not have sex with the child’s mother at any
time when the child could have been conceived (for example,
because he is impotent or was elsewhere at the time), the
presumption of paternity is rebutted.71
(b) The gestation period
To establish who a child’s father is, it is often necessary to
determine the period of gestation. In Roman law it was accepted
that a child born between 180 and 300 days after conclusion of
the marriage was conceived during the marriage.72 This
presumption was taken over by the Roman-Dutch writers.
In our law today there is no fixed gestation period. The courts
make a decision on an ad hoc basis, sometimes relying on
medical evidence as to when conception could possibly have
taken place, other times taking judicial notice of the “normal”
period of gestation.73 The normal period of gestation is more or
less 270 to 280 days but, as was indicated above in this chapter,
the courts have adopted a conservative approach towards
declaring a child to have been born of unmarried parents. As a
result, long periods of gestation have been accepted. In
Williams v Williams,74 for example, the court, in the absence of
medical evidence, was not prepared to hold that the eleventh
month was beyond the period of gestation, and in Mitchell v
Mitchell75 a gestation period of 320 days was accepted. In
contrast, it has been held that a gestation period of only 206
days was impossible.76 However, with advances in medical
treatment for, and increased survival rates of even very
premature babies the courts may well in future revise their view
on the minimum period of gestation.
(c) Sterility
Proof of sterility obviously shows that the man is not the child’s
father.77
(d) The exceptio plurium concubentium
Sometimes a man admits that he has had sex with a woman
during the time the child could have been conceived, but then
alleges and proves that the woman also had sex with another
man or other men during that period. This defence is known as
the exceptio plurium concubentium. Although our common-law
authors are not unanimous on the exceptio plurium
concubentium and the Appellate Division left the issue of the
applicability of the exceptio in modern law open in S v Swart,78
the generally accepted view nowadays is that the exceptio does
not form part of our law.79 Accordingly it is of no avail to a man
to prove that other men also had sex with the child’s mother.
It must be noted that this approach gives rise to problems.
Suppose, for example, that the woman points out A as the
child’s father and A proves that he is sterile. Can the woman
now simply point out B? In F v L80 it was said that the woman’s
selection “is presumably irrevocable” and that a man is
absolved from liability for maintenance once the mother has
selected another man as the father. In other words, once she has
named A as the father, B can rest assured that he cannot later be
named as the child’s father. However, it must be borne in mind
that the child’s best interests should be paramount.81 It is not in
the best interests of the child completely to exclude the

possibility of the child’s having a maintenance or succession
claim against a man (B) or the estate of a man who might
actually be the child’s father just because the child’s mother has
named another man (A) as the child’s father. It is therefore
submitted that the child should not be bound by the choice his
or her mother has made in respect of naming a particular man as
his or her father.
What is the position if a man other than the one the mother
has named wants to prove that he actually is the child’s father?
This question also arose in F v L. The facts of this case were
that a woman had had sex with two men during the period when
conception could have occurred. She married one of them. A
few years later the other man applied for an order declaring him
to be the child’s father. The court held that, in such a case, “the
law gives the mother the right to choose or appoint”82 the father.
Here she had chosen her husband and the other possible father
could not interfere with that choice. Judge Harms stated:
I know of no principle that gives the jilted lover the right to interfere with her
choice nor do I believe it to be in the public interest to create such a right.83
He conceded that the position might be different if it were in the
interests of the child that the other man be allowed to contest
the mother’s choice but he was of the view that in the present
case the child’s welfare was “not an issue”. The judge’s view
was presumably based on the argument that the effect of the
declaratory order sought “may not only be devastating for the
child”, but would also have serious legal consequences for him,
since it would deprive him of an existing right of maintenance.84
It was accordingly held that the applicant was not entitled to a

declaration that the child was born of unmarried parents by
having himself declared the child’s father.
It is submitted that the view that the mother has the right to
choose the child’s father should be reconsidered. Today
sophisticated scientific tests can be used to determine with a
very high degree of accuracy whether or not a particular man is
a child’s father.85 It would surely be better if the father’s
identity could be established by a more objective test than only
the mother’s choice. Furthermore, giving the mother the right to
choose the father of her child violates the other possible fathers’
right to equality before the law and equal protection and benefit
of the law.86 Depending on the circumstances of the case, it may
also infringe the child’s right to parental care and the child’s
right to have paramountcy afforded to his or her best interests.87
(e) Physical features
The fact that the physical features of the child do or do not
resemble those of the alleged father does not bear much weight
in proving or disproving paternity. Physical appearance may,
however, be considered in conjunction with other factors which
prove or disprove paternity.88
(f) Contraceptives
Evidence that a contraceptive device was used during sex is not
recognised as sufficient proof that a particular man is not the
child’s father.89
(g) Scientific tests
(i) The court’s power to order blood or DNA tests in a
paternity dispute

Until a few decades ago, blood and DNA tests were seldom
used in South Africa in paternity disputes, because these tests
were not as reliable as they are nowadays. Furthermore, the
blood or DNA of all three parties (that is, the alleged father,
alleged mother and the child) was needed in order to obtain a
result.90 If the parties voluntarily submitted themselves and the
child to a test, the courts were prepared to accept the results as
evidence. For example, in Ranjith v Sheela91 the mother’s
husband alleged that he did not have sex with her at the time
when the child was conceived. Blood tests were performed and
were accepted as sufficient proof that the husband could not be
the child’s father. In Van der Harst v Viljoen92 the plaintiff
averred that the defendant had had sex with her. The defendant
denied this. However, the results of blood tests corroborated her
evidence and showed an overwhelming probability that the
defendant was the child’s father. Again this evidence was
accepted. However, if one of the parties refused to have their
blood or DNA or the child’s blood or DNA tested, the matter
became much more complicated because of the decision in the
old case of E v E93 that the court could not compel anyone to
submit to blood tests.
Nowadays paternity can be established by using the DNA of
the child and the alleged father without any involvement of the
mother,94 and paternity tests have become much more
accurate.95 These tests are therefore used frequently. They are
sometimes even used by the father without the knowledge of
the mother or the child, or by the child without the knowledge
of either of his or her parents. Despite the increased use and
reliability of blood and DNA tests, the issue of whether the
court has the power to compel a child and/or an adult to submit
to blood or nowadays usually a DNA test in a paternity dispute
remains everything but simple.
The legislature could have settled the issue by conferring on,
or denying, the court the power to make such orders, but it has
failed to do so. Instead, it has enacted section 37 of the
Children’s Act which simply provides that if a party to a
paternity dispute refuses to submit himself or herself or a child
to the taking of a blood sample for the purposes of scientific
paternity tests, the court must warn that party of the effect the
refusal might have on his or her credibility.96 This provision is
the successor to section 2 of the Children’s Status Act 82 of
1987, which compelled the court to presume, until the contrary
was proved, that the person’s refusal to submit himself or
herself or the child to blood tests “is aimed at concealing the
truth concerning the paternity of that child”. Unlike section 2 of
the Children’s Status Act, section 37 of the Children’s Act does
not create a presumption of dishonesty; it merely compels the
court to warn the person “of the effect which such refusal might
have” on his or her credibility.
In the absence of a clear legislative statement, the courts have
been left to deliberate on their power to order children and
unwilling adults to submit to tests to establish paternity. In
respect of the court’s power to order tests on a minor against the
wishes of his or her parent,97 most courts have held that the
High Court acting in its capacity as the upper guardian of all
minors may order tests provided that they are in the best
interests of the particular minor. However, the courts have by
no means been unanimous on the circumstances in which such
tests are in the best interests of the child. In Seetal v Pravitha98
the blood test that was sought, could have disproved the
paternity of the mother’s husband, with the result that the child
would have been a child born of unmarried parents and would
have been deprived of his right to claim maintenance from his
mother’s husband. The court held that these circumstances
meant that the test would not be in the child’s interests. It
accordingly declined to order the blood test.
In O v O99 the court declined to make an order authorising
blood tests on these and other grounds. Here the applicant was
the former husband of the child’s mother. He did not dispute his
paternity until the child was around six years old. The court
held that the tests would not be in the child’s interests because
she and the applicant had a close and loving relationship; it
would have a devastating effect on her and her relationship with
the applicant if the tests were to show that the applicant was not
her father, and she would become a child born of unmarried
parents; the whereabouts, financial position, and so forth of the
only other possible man who could be her father were
unknown; and if the tests were to prove that the applicant was
indeed her father, she would resent him if she ever discovered
that he had had paternity tests done.
In contrast, the court found in M v R100 that an order
compelling blood tests would be in the interests of the particular
child whose paternity was in dispute. In this case, an unmarried
man applied for an order compelling the child’s mother to
submit herself and the child to blood tests. As far as the child
was concerned, Judge Kotze held that the court must not take
cognisance only of the child’s immediate circumstances and
ignore everything else, as this would entail disregarding other
objective considerations like the fact that the court must always
strive to establish the truth and that everyone puts a high
premium on his or her right to privacy. Thus the child’s best
interests must be paramount but must not be the only
consideration. In the present case, the child’s mother had
married three years after the child’s birth and the child accepted
and loved his mother’s husband as his father. The mother and
her husband were planning to tell the child the following year
that the applicant was actually his father. For Judge Kotze this
was the decisive factor. He was of the opinion that if this
disclosure were made to the child and it subsequently appeared
that the applicant was not the father, the child would suffer
extreme psychological damage, which should be avoided at all
costs. The judge felt that it was crucial for the child’s
development and happiness that clarity as regards the
applicant’s paternity should be obtained. He further held that
although taking blood samples would infringe the mother’s
right to privacy, she should, as the child’s guardian, act in the
child’s interests even if those interests clashed with her own –
as happened in this case. Judge Kotze accordingly made an
order that a blood sample be taken from the child and that the
sample be tested to determine whether the applicant was the
child’s father.
In S v L,101 however, the court held that it does not have the
power to interfere with the decision of a child’s parent not to
subject the child to blood tests, even if the court would have
come to a different decision. It accordingly refused to order a
test against the wishes of the child’s mother.
Fortunately, the Supreme Court of Appeal eventually settled
the issue of the court’s power to make an order that scientific
tests be performed on a child’s blood or DNA. In YM v LB102
the Supreme Court of Appeal confirmed that the High Court as
upper guardian of minors has an inherent power to order such
tests in a paternity dispute if the order is in the child’s best
interests. The court did not give any guidance on the
circumstances in which such order would be in the child’s best
interests.103 It did, however, in an obiter dictum state that it is
not always in an individual’s interests to know the truth and
that, in each case, the court must consider whether it is in the
interests of the particular child to know the truth about the
identity of his or her father.104 The latter statement has been
criticised on the ground that it violates the child’s right to know
his or her genetic parents.105 However, it is submitted that the
court’s statement is in keeping with the view of the
Constitutional Court that a child-centred approach is needed in
all matters involving children and that the court must undertake
“a close and individualised examination of the precise real-life
situation of the particular child involved”.106 Thus the court
must attach such weight to each of the relevant factors
(including the child’s interest in knowing the identity of his or
her father) as it sees fit, and must ultimately reach a conclusion
based on a value judgement on what is in the child’s best
interests in the particular case.107
Conflicting decisions have also been delivered on the court’s
power to compel an unwilling adult to submit to tests in a
paternity dispute. This conflict has not yet been resolved
because the Supreme Court of Appeal did not have to decide
this issue in YM v LB as it held that there was no dispute about
paternity in this case and consequently there was no need to
order DNA tests. Thus, we are left with the conflicting
decisions of various judges of the High Court.
In O v O108 the court stated in an obiter dictum that it cannot
order an unwilling adult to submit to paternity tests as there “is
no statutory nor common-law power enabling the court to order
an adult to allow a blood sample to be taken for the purpose of
establishing paternity”.109
In Nell v Nell110 and S v L111 the courts refused to order blood
tests on adults. In Nell v Nell the application was based on two
grounds. Firstly, the applicant relied on a clause in an
agreement between him and his wife in terms of which they had
undertaken to submit to blood tests in order to establish the
child’s paternity. The court refused to make an order for
specific performance in respect of this agreement, inter alia,
because the papers before it contained no details of the tests to
be done on the mother. The court therefore did not know how
much of the human body would be removed and from where it
would be removed.112 The second ground on which the
applicant based his case was that the court has an inherent
power to regulate its own procedures. On this basis it was
argued that the court could order an unwilling adult to submit to
a blood test because the court may search for and collect
evidence, which is a procedural matter.113 This argument was
also rejected. The court held that ordering someone to submit to
a blood test is not merely a procedural matter, because the order
also affects principles of substantive law114 in that the test
involves a violation of the person’s bodily integrity.115 The
court pointed out that it does not have the power to create
substantive law and argued that it could be very difficult to
draw the dividing line between substantive and procedural law.
Where this line could not be clearly drawn a remedy was
probably not available. It further stated that even if ordering a
blood test were a purely procedural matter, it would still not
grant the order since the test would not be in the interests of the
child.116
That an order compelling a person to have a blood or DNA
sample taken for purposes of a paternity test involves more than
a procedural matter, was also the court’s view in S v L117 and D
v K.118 In S v L the court further held that the alleged father had
approached the wrong forum. He should not have approached
the High Court for an order requiring the mother and child to
submit to blood tests. He should instead have proceeded in the
Maintenance Court and adduced proof of the mother’s refusal to
consent to blood tests in that court. If her refusal were found to
be without adequate reason, the applicant could have relied on
the presumption in the Children’s Status Act that the refusal
was “aimed at concealing the truth regarding the paternity of
that child”.119 He would then in all probability not have been
ordered to pay maintenance for the child. It is submitted that
this argument is unsatisfactory. Although application of the
presumption in the Children’s Status Act – which has since
been replaced by the presumption in section 37 of the
Children’s Act120 – might have meant that a person in whose
favour the presumption operated would not have had to pay
maintenance, it still would not have answered the question of
whether or not he really was the child’s father – which might
have been the issue he would actually have wanted resolved.
In M v R121 the court pointed out that the issue of compelling
an adult to submit to blood tests in a paternity dispute involves
conflicting interests: on the one hand there is the pursuit of truth
and on the other hand the right to privacy of the person who
does not want to submit to the tests. The court concluded that it
has an inherent power to compel an unwilling mother to submit
to blood tests. In this case, the court ordered the mother to
submit to such tests, inter alia because it was in her child’s best
interests to establish whether the applicant was his father and
because it is the ideal of every court to establish the truth as far
as possible.
From the discussion above it is clear that our courts have
generally been reluctant to make an order compelling a mother
to submit herself or her child to scientific tests in paternity
disputes – especially if these tests could prove that a man who
is paying maintenance for the child is not the child’s father,
with the result that the child would lose the maintenance.122
Judge Kotze in M v R123 correctly rejected this argument on the
ground that money which is wrongly taken from a man who is
not really the child’s father is not a “benefit” that should be
taken into account and protected by the court.
With the coming into operation of the Bill of Rights, a
constitutional dimension was added to the picture. In terms of
section 14 of the Constitution, every person has a right to
privacy, while section 12(2) of the Constitution provides that
every person has the right to bodily and psychological integrity,
which includes the right to security in and control over one’s
body. The constitutional issue is whether a court order
compelling someone to submit to blood or DNA tests
unjustifiably infringes these rights. In D v K124 the view was,
correctly, expressed that an order compelling a person to submit
to a blood test would infringe the person’s constitutional right
to privacy. This remark was based on section 13 of the interim
Constitution.125 The privacy clause in the final Constitution is
similar to that contained in the interim Constitution. In addition,
the Constitution now protects the right to bodily and
psychological integrity. Now an order compelling a person to
submit to blood or DNA tests in a paternity suit violates not
only the constitutional right to privacy but also the right to
bodily integrity. Section 28(1)(b) and section 28(2) of the
Constitution also come into play. They entitle the child to
parental care and provide that the best interests of the child
must be of paramount importance in every matter concerning
the child.126 Rendering the child’s best interests paramount does
not mean that all other constitutional rights may simply be
ignored or that limitations of the child’s best interests are
impermissible.127 Instead, the child’s best interests must be
applied “in a meaningful way without unduly obliterating other
valuable and constitutionally-protected interests”.128 Thus the
court must weigh up the competing interests of the child and the
adult and undertake a proportionality assessment to determine
which rights should prevail in each particular case.129
Finally, Ex parte Emmerson130 should be mentioned. In this
case, a pregnant woman applied for an order authorising DNA
tests on skin, blood and muscle samples of a man who had been
killed in a motor vehicle accident. She wanted the tests to be
done to prove that the deceased was the father of her unborn
child so that she could lodge a claim for maintenance against
his estate. The order was granted, but because of the extreme
urgency of the matter the court did not give any reasons for its
order. As regards this decision it has to be borne in mind that
the tests were to be done on a deceased person. A deceased
person is no longer a legal subject and therefore has no rights.131
The considerations which come into play if a request is made
for an order authorising samples to be taken from a corpse are
therefore not the same as those which arise in the case of a
living person. For instance, a dead person does not have a right
to bodily integrity or privacy. However, this does not mean that
anyone who wants to prove or disprove parentage by means of
blood or DNA tests may simply remove samples from a corpse,
as this may amount to the crime of violating a corpse, and may
furthermore violate community interests and the feelings of the
deceased’s next-of-kin, which might result in delictual liability.
(ii) The court’s power to take judicial notice of the technique
and reliability of blood or DNA tests
A further point regarding blood and DNA tests about which
there is uncertainty is whether a court may take judicial notice
of the technique and results of these tests. In Nell v Nell132 the
court refused an order for blood tests inter alia because the
papers before it contained no details of the tests to be done and
the court therefore did not know how much of the human body
would be removed and from where it would be removed. In
contrast, in the judgment of the court a quo in S v L133 Judge
Burger was of the view that he could take judicial notice of the
technique and accuracy of blood tests. The full bench doubted
whether this approach was correct and expressed its misgivings
as to whether developments in the technique of blood testing
had advanced to such a degree that judicial notice could be
taken of the fact that blood tests could exclude a man as the
father with a 99,85% probability of accuracy, and the corollary,
that if he was not excluded, he probably was the father.
It is submitted that Judge Burger was indeed justified in
taking judicial notice of the technique and results of blood tests
and that the same applies to DNA tests. The value and accuracy
of blood and DNA tests is widely recognised nowadays. In
terms of section 21 of the Maintenance Act 99 of 1998, a court
may even order the state to pay the full or part of the costs of
the taking of blood samples in order to carry out scientific tests
to determine paternity if both parties agree to submit to the tests
but cannot afford to pay for them. Surely the courts should be
prepared to take judicial notice of the technique and reliability
of, at the very least, blood tests if the legislature considers these
tests accurate enough to warrant the state bearing the costs of
the tests in Maintenance Court cases.
5.5 The legal relationship between a child and his
or her unmarried parents
5.5.1 Parental responsibilities and rights in
respect of the child
(a) Introduction
In terms of the common law, the mother of an “illegitimate”
child had parental authority (or parental power) over her child,
unless she was a minor.134 The child’s father had no parental
authority even if he lived with the child’s mother. He could,
however, approach the High Court in its capacity as upper
guardian of all minors for an order conferring any or all of the
elements of parental authority on him if this was in the best
interests of the child.135 Regardless of whether the father had
parental authority, he had to support his child.136
The Children’s Status Act and Natural Fathers of Children
Born out of Wedlock Act 86 of 1997 subsequently partly
codified the parental authority of unmarried parents. These Acts
essentially confirmed the common-law position. In terms of the
Children’s Status Act, the mother was the child’s guardian and
custodian (care-giving parent) unless she was an unmarried
minor.137 If she was an unmarried minor, guardianship vested in
her guardian but she had custody (care) unless a court directed
otherwise.138 As far as the father’s position was concerned, the
Natural Fathers of Children Born out of Wedlock Act afforded
the High Court a statutory power to award guardianship and/or
custody (care) and/or access (contact) to him if this was in the
best interests of the child.139

In 2007, when the first batch of sections of the Children’s
Act came into operation, the position changed radically. The
Children’s Act inter alia repealed and replaced the Children’s
Status Act and the Natural Fathers of Children Born out of
Wedlock Act. It also substituted the term “parental
responsibilities and rights” for “parental authority”.140 Section
1(1) read with section 18(2) of the Children’s Act defines
parental responsibilities and rights non-exhaustively to include
caring for the child, maintaining contact with the child, acting
as the child’s guardian, and contributing to the child’s
maintenance.
In terms of the Children’s Act, “care” refers to the following:
(1) Within available means, providing the child with a suitable
place to live, living conditions which are conducive to his
or her health, well-being and development, and the
necessary financial support. Thus care encompasses
providing the child with maintenance.
(2) Safeguarding and promoting the child’s well-being.
(3) Protecting the child from maltreatment, abuse, neglect,
degradation, discrimination, exploitation and any other
physical and moral harm or hazards.
(4) Respecting, protecting, promoting and securing the
fulfilment of, and guarding against any infringement of the
child’s constitutional rights and the rights set out in the
Children’s Act.
(5) Guiding and directing the child’s education and upbringing
in a manner which is appropriate to the child’s age,

maturity and stage of development.
(6) Guiding, advising and assisting the child in decisions he or
she has to take, bearing in mind the child’s age, maturity
and stage of development.
(7) Guiding the child’s behaviour in a humane manner.
(8) Maintaining a sound relationship with the child.
(9) Generally ensuring that the child’s best interest is the
paramount concern in all matters affecting the child.141
“Contact” refers to maintaining a personal relationship with the
child and communicating with him or her on a regular basis if
he or she lives with someone else. The communication may
take place in person (for example, by visiting or being visited
by the child) or in another way (for example, via telephone
calls, telefaxes, letters, videos, video calls, electronic mail,
mobile phone text messages, or social media).142
“Guardianship” refers to administering and safeguarding the
child’s property and property interests, assisting or representing
the child in administrative, contractual and other legal matters,
and giving or refusing any consent that is legally required in
respect of the child.143 A person need not have all the
components of parental responsibilities and rights.144 Thus, one
parent may have more parental responsibilities and rights than
the other, or one parent may have no parental responsibilities
and rights at all. In the case of parents who are not each other’s
spouses or civil union partners there are still many instances in
which the mother alone has parental responsibilities and rights.
(b) Parental responsibilities and rights of the child’s

mother
(i) General
Section 19 of the Act provides that, unless a biological mother
is the child’s surrogate mother, she acquires full parental
responsibilities and rights in respect of her child as soon as she
gives birth to the child.145 This rule applies regardless of
whether the mother is married or unmarried. In other words,
every mother apart from a surrogate mother acquires full
parental responsibilities and rights when she gives birth. An
exception regarding guardianship applies if the mother is
unmarried and a minor (that is, a person below the age of 18
years)146 and neither she nor the child’s biological father has
guardianship in respect of the child. In such event her guardian
is also her child’s guardian.147
The Act does not define the term “biological mother”. In the
absence of surrogate motherhood or artificial fertilisation using
a donor’s ovum, the phrase clearly refers to the child’s birth
mother as her contribution of biological material (ovum) makes
her the child’s biological mother.148 A surrogate mother is
excluded from acquiring parental responsibilities and rights,
because sections 19(3) and 297(1)(c) provide that section 19
does not apply to surrogate motherhood and that a surrogate
mother does not acquire parental responsibilities or rights in
respect of the child to whom she gives birth. Thus a surrogate
mother does not acquire parental responsibilities and rights
even if she is the child’s genetic mother because her ovum was
used for her artificial fertilisation. As is indicated above in this
chapter, the position is different if the surrogate motherhood
agreement is invalid or is terminated.149
In the absence of surrogate motherhood, the donor of an
ovum that is used to artificially fertilise a wife or civil union
partner also does not acquire parental responsibilities and rights
in terms of section 19. This is so because section 40(1)(a)
provides that a child who is born as a result of artificial
fertilisation is “for all purposes” regarded as the child of the
spouses or civil union partners as if their own gametes were
used for the artificial fertilisation. Thus the wife or civil union
partner is regarded as the child’s biological mother. She
acquires full parental responsibilities and rights, while the
woman whose ovum was used acquires none because her
biological contribution is legally disregarded. Furthermore, in
terms of section 40(3), no rights, responsibilities, duties or
obligations arise between the donor and the child unless the
donor is the child’s birth mother or the husband or civil union
partner of the birth mother.150 The latter provision also applies
to a child who was born as a result of the artificial fertilisation
of an unmarried woman with a donor’s ovum.151 However, in
the case of the artificial fertilisation of an unmarried woman
with a donor’s ovum, the donor’s biological contribution is not
disregarded, because section 40(2) does not deem the unmarried
woman’s gamete to have been used for her artificial
fertilisation.152
(ii) Registration of the child’s birth
As is explained in chapter 2 above, the birth of a child born of
unmarried parents is registered under the surname of the mother
unless the parents jointly request that the father’s surname be
used.153 If the child’s birth is to be registered under the father’s
surname, he must acknowledge paternity in writing in the
presence of the person to whom the notice of birth is given, and
enter his particulars on the notice.154 A father who wants to
acknowledge paternity and enter his particulars after the child’s
birth has been registered may do so with the consent of the
child’s mother.155 If the mother withholds consent, the father
may apply to the High Court for a declaratory order confirming
his paternity and dispensing with the mother’s consent.156 A
gamete donor and the father of a child who was conceived as a
result of rape or incest may, however, not have the child’s birth
registration amended to identify him as the father.157
(iii) Maintenance
In terms of our common law, both unmarried parents have a
duty to support their child.158 The duty is apportioned between
them according to their respective means.159 The provisions of
the Children’s Act do not displace the common-law rules
regarding maintenance of children. The Act does, however, add
the parental duty of support to the concept of parental
responsibilities and rights and defines “care” to encompass
some of the elements of support.160 Therefore unmarried parents
have retained their common-law duty of support, which now
forms part of their parental responsibilities and rights (including
care).161
If an unmarried mother dies, her estate is responsible for her
child’s maintenance.162 If neither parent (or his or her estate)
can support the child, the duty of support passes to the child’s
grandparents.163 In terms of the 1930 decision of the Appellate
Division in Motan v Joosub,164 only maternal grandparents are
liable for the child’s maintenance. In Petersen v Maintenance
Officer165 the Cape Provincial Division of the High Court (now
the Western Cape High Court, Cape Town) declared this rule
unconstitutional on the ground that it unjustifiably violates the
right of a child born of unmarried parents not to be subject to
unfair discrimination on the ground of birth and the child’s right
to dignity, and also fails to afford paramountcy to the child’s
best interests.166 Even though this decision is not binding on all
divisions of the court, it is likely that the decision will be
followed and that, in future, maternal and paternal grandparents
will be liable for support regardless of whether their grandchild
was born of married or unmarried parents.167
Because the duty of support is reciprocal, the child is obliged
to support his mother and maternal relations, should they
require support.168
(iv) Appointment of a guardian or a person to be vested with
care
If the mother of a child born of unmarried parents is the child’s
sole guardian or has sole care of the child, she may appoint a
person who will act as the child’s guardian or be vested with the
child’s care after her death.169 She must make the appointment
in her will, and the person she appoints must be fit and proper
to exercise guardianship or care.170 The appointed person
acquires guardianship or care only after the mother’s death and
upon accepting the appointment.171 Acceptance may be express
or implied.172 If two or more persons are appointed, any one or
more or all of them may accept the appointment, unless the
mother’s will stipulates otherwise.173
(c) Parental responsibilities and rights of the child’s father
(i) Introduction
As is pointed out above in this chapter, the Children’s Act174
replaced the common-law and statutory provisions that denied
unmarried fathers inherent parental authority with rules which,
inter alia, automatically confer parental responsibilities and
rights on certain unmarried fathers.175 These rules address most
of the constitutional criticism that was raised against the old
position. The criticism was, inter alia, that the child’s best
interests are not necessarily served by separate rules regarding
parental responsibilities and rights in respect of children born of
married and unmarried parents;176 that the differentiation
between the child’s parents amounts to unfair discrimination
against the child on the ground of social origin and birth;177 that
the child’s right to parental care is violated;178 and that, from the
perspective of the parents, there is inequality before the law as
well as unfair discrimination on the grounds of marital status,
sex and gender.179
Many arguments were raised in favour of and against
granting automatic responsibilities and rights to unmarried
fathers. It was argued, inter alia, that compelling both parents to
shoulder the responsibilities of parenthood, rather than just
leaving these responsibilities up to mothers, is what substantive
sex and gender equality, the child’s best interests, and the
child’s right to parental care demand. Those who opposed
automatic responsibilities and rights for unmarried fathers
argued that, since unmarried mothers are still predominantly the
primary caretakers of their children, their primary responsibility
for childcare justifies exclusion of unmarried fathers from
automatic rights in respect of their children. Another argument
in favour of exclusion of unmarried fathers from automatic
rights was that, because of the economic inequality of the sexes,
the unmarried mother should not be compelled to go to court to
challenge the unmarried father’s rights in respect of his child.
Even though the Children’s Act does not confer full parental
responsibilities and rights on all unmarried fathers, its
provisions probably satisfy most advocates of automatic
responsibilities and rights for unmarried fathers, while leaving
those who argue that fathers and mothers should not have equal
responsibilities and rights dissatisfied.180
(ii) Automatic parental responsibilities and rights for certain
unmarried fathers
In terms of section 21(1) of the Children’s Act, an unmarried
biological father acquires full parental responsibilities and
rights in respect of his child if:
(1) He lives with the child’s mother in a permanent life
partnership when the child is born.181
(2) Regardless of whether he has ever lived with the child’s
mother,
(a) he consents or successfully applies to be identified as
the child’s father182 or pays damages in terms of
customary law,183 and
(b) contributes or attempts in good faith to contribute to
the child’s upbringing and maintenance for a

reasonable period.184
In these circumstances he acquires exactly the same parental
responsibilities and rights as the child’s mother regardless of
whether the child was born before or after the coming into
operation of the Act.185 In such event, the child’s parents have
no choice but to co-parent, because the law imposes joint
parental responsibilities and rights on them.186 In other words,
the father’s acquisition of parental responsibilities and rights is
automatic.187 Therefore, even if the child lives with, for
instance, his or her grandparents after his or her birth, the father
retains parental responsibilities and rights.188
The application of section 21(1) to children born before the
coming into operation of the Act does not mean that the
unmarried father acquired parental responsibilities and rights in
respect of the period before the section came into operation. It
simply means that even if the child was born before the coming
into operation of the Act, his or her unmarried father acquired
parental responsibilities and rights when section 21 came into
operation, that is, on 1 July 2007.189
If unmarried parents cannot agree on whether the father
meets the requirements in (1) or (2) above, the dispute must be
referred for mediation by a family advocate, social worker,
social service professional or other suitably qualified person.190
(iii) Parental responsibilities and rights agreement
An unmarried father who does not qualify for automatic
parental responsibilities and rights in terms of section 21 can
acquire parental responsibilities and rights by concluding a

parental responsibilities and rights agreement with the child’s
mother or with any other person who has parental
responsibilities and rights in respect of the child in terms of
section 22.191 He may, however, not enter into such an
agreement if he already has full or specific parental
responsibilities and rights in terms of a court order.192 In other
words, if an unmarried father does not meet the conditions that
section 21 sets for his automatic acquisition of full parental
responsibilities and rights and he has not yet acquired full or
specific parental responsibilities and rights in terms of a court
order, he can acquire full or specific parental responsibilities
and rights if the child’s mother or another person who has
parental responsibilities and rights confers parental
responsibilities and rights on him in a parental responsibilities
and rights agreement. Any other person who has an interest in
the child’s care, well-being and development (such as a
grandparent, aunt or uncle) can also acquire parental
responsibilities and rights by entering into a parental
responsibilities and rights agreement with the child’s mother or
another person who has parental responsibilities and rights in
respect of the child.193
A parental responsibilities and rights agreement confers only
those parental responsibilities and rights that are set out in the
agreement.194 The agreement cannot confer more
responsibilities and rights than the conferrer has at the time of
the conclusion of the agreement.195 In other words, the
agreement may deal with fewer parental responsibilities and
rights than the conferrer has, but it may not deal with more
responsibilities and rights than he or she has. Thus, for example,
a 16-year-old unmarried mother may confer contact on the
child’s father, but, generally, she cannot confer guardianship on
him, because her guardian, not she, is the child’s guardian.196
The views and wishes of the child must be given due
consideration when a parental responsibilities and rights
agreement is being developed, bearing in mind the child’s age,
maturity and stage of development.197
A parental responsibilities and rights agreement must be in
the format and must contain the particulars that are prescribed
by the regulations under the Act.198 Even if the agreement meets
these requirements, it remains unenforceable unless it is
registered with a family advocate or is made an order of court
on the parties’ application.199 Unless the agreement deals with
guardianship, the High Court, a Regional Court dealing with a
divorce matter or the Children’s Court within whose area of
jurisdiction the child ordinarily resides may make it an order of
court.200 If the agreement relates to guardianship, only the High
Court may make it an order of court.201 Except for the
prescription that the High Court must be approached if the
agreement deals with guardianship, section 22 does not indicate
that different grounds apply for registration of the agreement by
the family advocate and making the agreement an order of
court. With the exception of cases dealing with guardianship,
the parties therefore have a choice as to whether they want to
approach the family advocate or the court.
Before registering the agreement or making it an order of
court, the family advocate or court must be satisfied that the
agreement is in the best interests of the child.202 The family
advocate or court must therefore apply the best interests of the
child standard as set out in section 7(1) of the Act. In terms of
section 7(1), the following factors must be taken into
consideration, where they are relevant:
(1) The nature of the personal relationship between the child
and his or her parents, or any specific parent, and between
the child and any other caregiver or relevant person.
(2) The attitude of the parents, or any specific parent, towards
the child and the exercise of parental responsibilities or
rights in respect of the child.
(3) The capacity of the parents, any specific parent, or any
other caregiver or person, to provide for the child’s needs,
including his or her emotional and intellectual needs.
(4) The likely effect any change in the child’s circumstances
would have on the child. This includes the likely effect of
the child’s separation from either parent or both parents, a
sibling, another child, or any other caregiver or person
with whom the child has been living.
(5) The practical difficulty and expense of the child having
contact with his or her parents, or a specific parent, and
whether that difficulty or expense would substantially
affect the child’s right to maintain personal relations and
direct contact with that parent on a regular basis.
(6) The child’s need to remain in the care of his or her parent,
family and extended family, and to maintain a connection
with his or her family, extended family, tribe, culture or

tradition.
(7) The child’s age, maturity, stage of development, gender,
background and any other relevant characteristic.
(8) The child’s physical and emotional security and his or her
intellectual, emotional, social and cultural development.
(9) Any disability the child may have.
(10) Any chronic illness from which the child may suffer.
(11) The child’s need to be brought up within a stable family
environment or, if this cannot be achieved, in an
environment resembling a family environment as closely
as possible.
(12) The need to protect the child from any physical or
psychological harm which may be caused by subjecting
him or her to maltreatment, abuse, neglect, exploitation or
degradation, exposing him or her to violence, exploitation
or other harmful behaviour, or exposing him or her to
maltreatment, abuse, degradation, ill-treatment, violence,
or harmful behaviour towards another person.
(13) Any family violence involving the child or a family
member of the child.
(14) Which action or decision would avoid or minimise further
legal or administrative proceedings regarding the child.
Once a parental responsibilities and rights agreement has been
registered or made an order of court, it can only be terminated
or amended by the family advocate or the court.203 If the family
advocate registered the agreement, he or she may amend or
terminate it on application by:
(1) A person who has parental responsibilities and rights in
respect of the child.
(2) The child, provided that he or she has the court’s consent.
(3) Any other person who is acting in the child’s interest and
has the court’s consent.204
If the agreement has been made an order of court, the court may
amend or terminate it on application by the same persons who
may approach the family advocate.205 If the agreement relates to
guardianship, only the High Court may amend or terminate it.206
(iv) Assignment of parental responsibilities and rights by a
court
An unmarried father can acquire parental responsibilities and
rights by means of a court order. Firstly, as upper guardian of
all minors, the High Court may confer any or all parental
responsibilities and rights on the father.207 The decisive
consideration is the child’s best interests. In determining the
child’s best interests the court must take the factors that are
listed in section 7(1) of the Children’s Act into account. The
Appellate Division has held that in first time contact or care
disputes, there is no evidentiary burden on either party. The
litigation is more in the nature of a judicial investigation as to
whether an award of contact or care is in the best interests of the
child.208
Secondly, in terms of section 23 of the Children’s Act,
anyone who has an interest in the child’s care, well-being or
development may approach the High Court, a Regional Court
dealing with a divorce matter, or the Children’s Court for an

order awarding contact or care to him or her.209 An unmarried
father clearly qualifies as a person who has an interest in his
child’s care, well-being or development. Other persons who
might qualify include grandparents and a parent’s life partner.
The court must take the following factors into account when
considering an application in terms of section 23:
(1) The best interests of the child.
(2) The relationship between the applicant and the child, and
between any other relevant person and the child.
(3) The degree of commitment the applicant has shown
towards the child.
(4) The extent to which the applicant has contributed towards
expenses in connection with the child’s birth and
maintenance.
(5) Any other fact that should, in the opinion of the court, be
taken into account.
If the court assigns contact or care to a person, it may impose
whatever conditions it deems necessary.210 Furthermore, the
assignment order does not affect the parental responsibilities
and rights another person has in respect of the child.211 Thus, for
example, an unmarried mother does not lose her parental
responsibilities and rights or any element of those
responsibilities and rights simply because the court assigns
contact or care to the child’s father. However, section 28(2)
authorises combining an application for termination, extension,
suspension or circumscription of parental responsibilities and
rights and an application for the assignment of contact and

care.212 Thus, for example, the unmarried father could ask the
court to suspend particular aspects of the mother’s care and to
assign them to him.
If an applicant applies for assignment of contact or care while
another applicant has already applied to adopt the child, the
court which hears the application for assignment of contact or
care must request a family advocate, social worker or
psychologist to prepare a report and recommendations on what
is in the child’s best interests.213 The court may also
conditionally suspend the application for assignment of contact
or care.214
Thirdly, a person who has an interest in the child’s care, well-
being or development may approach the High Court in terms of
section 24 for an order assigning guardianship to him or her.215
When considering the application the court must take the
following factors into account:
(2) The relationship between the applicant and the child, and
between any other relevant person and the child.
(3) Any other fact that should, in the opinion of the court, be
taken into account.216
If the child already has a guardian, the person who applies for
assignment of guardianship must give reasons why the existing
guardian is not suitable to have guardianship.217
(v) Adoption
A child may be adopted by his or her unmarried biological
father.218 If the father adopts the child, he acquires full parental
responsibilities and rights in respect of his child to the exclusion
of anybody (including the child’s mother) who had parental
responsibilities and rights in respect of the child before the
adoption order was made, unless the order provides
otherwise.219 Subject to the exceptions imposed by the adoption
order, the child is for all purposes regarded as the child of the
adoptive parent and vice versa.220 However, the adoption order
does not permit any marriage, civil union or sexual intercourse
between the child and any person which would have been
prohibited had the child not been adopted.221 Nor does the
adoption order affect any rights to property the child acquired
before the adoption.222
(vi) Maintenance
As is explained above in this chapter in the context of an
unmarried mother’s duty of support, both unmarried parents
must support their child, and this duty is apportioned between
them according to their respective means. If neither unmarried
parent can support the child, the duty of support passes to the
child’s grandparents. If an unmarried father dies, his estate is
responsible for his child’s maintenance.
From our common law it is clear that a child who is born of
unmarried parents must support his or her mother and maternal
blood relations.223 The position as far as the child’s father and
his blood relations are concerned is not quite as clear, for some
authors are of the view that the father and his blood relations
might not have a right to claim maintenance from the child.224
This view is not supported, because it is based on the fallacious
argument that an unmarried father is unrelated to his child.225
Furthermore, denying an unmarried father and his blood
relations the right to claim maintenance from the child
constitutes unjustifiable inequality before the law and unequal
protection and benefit of the law and is therefore
unconstitutional.226
(d) The position if both unmarried parents have parental
responsibilities and rights in respect of their child
(i) General
If both unmarried parents have parental responsibilities and
rights in respect of their child, they may exercise those
responsibilities and rights without each other’s consent unless
the Children’s Act, any other rule of law or a court order
provides otherwise.227 In other words, the starting point is that
co-holders may independently exercise their parental
responsibilities and rights. Joint consent may, however, be
required in terms of an Act, another rule of law, or a court
order.
(ii) Guardianship
In respect of guardianship, section 18(5) read with section 18(3)
(c) of the Act specifically requires the consent of all the child’s
guardians for:
(1) The child’s marriage.
(2) The child’s adoption.
(3) The child’s departure or removal from South Africa.
(4) The child’s application for a passport.
(5) The alienation or encumbrance of any immovable property
of the child.
The High Court or a Regional Court in a divorce matter may
grant exemption from the requirement of joint consent.228
(iii) Due consideration of the views and wishes of other co-
holders
A further limitation on the exercising of common parental
responsibilities and rights is found in section 31(2) of the Act.
This section provides that a person who holds parental
responsibilities and rights must give due consideration to the
views and wishes229 of all co-holders before taking any decision
which is likely to change significantly or to have a significant
adverse effect on a co-holder’s exercise of parental
responsibilities and rights. Once he or she has given such
consideration to the co-holder’s views and wishes, he or she
may, however, act independently.230 Failing to give
consideration to the co-holder’s views and wishes does not
render the decision void or invalid, but such a decision – like
any other – can be set aside by the court if it is not in the child’s
best interests.231
Although section 31(1) does not relate only to common
parental responsibilities and rights, it must be also borne in
mind in the present context. The section stipulates that a person
who holds parental responsibilities and rights must give due
consideration to any views and wishes the child expresses,
before taking any of the following decisions:
(1) A decision in connection with the child’s marriage,
adoption or removal from South Africa, an application for
a passport for the child, or the alienation or encumbrance
of the child’s immovable property. These are the decisions
for which the consent of all co-holders of guardianship is
required.
(2) A decision in connection with a matter affecting contact
between the child and a co-holder of parental
responsibilities and rights.
(3) A decision in connection with the appointment of the
person’s successor as sole guardian or sole holder of
care.232
(4) A decision which is likely to significantly change, or to
have an adverse effect on, the child’s living conditions,
education, health, personal relations with a parent or
family member or, generally, the child’s well-being.233
The person must bear in mind the child’s age, maturity and
stage of development when giving consideration to the child’s
wishes and views. Section 31(1) does not transfer the power or
the duty to make a decision to the child. The child simply has
the right to participate and to have due consideration afforded to
his or her views and wishes, bearing in mind his or her age,
maturity and stage of development. Thus the child need not
have the ability to make an informed decision; he or she must
simply be able to participate and to make his or her views and
wishes known.234
(iv) Surrender or transfer of parental responsibilities and
rights is prohibited
Section 30(3) places another restriction on co-holders’ powers.
It provides that a co-holder of parental responsibilities and
rights may not surrender or transfer his or her parental

responsibilities and rights. Co-holders may, however, agree that
one of them will exercise any or all of the parental
responsibilities and rights on behalf of the other co-holder(s).
In terms of section 30(4), an agreement in which a co-holder
authorises somebody to exercise his or her parental
responsibilities and rights on his or her behalf does not divest
him or her of those responsibilities and rights. He or she
remains “competent and liable” to exercise them. Thus, for
example, an unmarried father who has parental responsibilities
and rights may not waive his parental responsibilities and rights
or transfer them to the child’s mother, but he may delegate them
to her.
(v) Parenting plan
If co-holders of parental responsibilities and rights experience
difficulties in exercising those responsibilities and rights, they
may approach the court for an appropriate order, but before
doing so they must try to agree on a parenting plan in terms of
section 33.235 In preparing their parenting plan, they must seek
the assistance of a family advocate, social worker or
psychologist, or mediation through a social worker or other
suitably qualified person.236 If one or more of the co-holders
refuse to engage in discussions about a parenting plan, the court
can be approached for an order on the exercising of the
particular parental responsibilities and rights. In such event the
court may order the unwilling co-holder to enter into a
parenting plan with the other co-holder.237
Even if co-holders do not experience difficulties in exercising
their responsibilities and rights, they may enter into a parenting
plan,238 but then they need not seek the assistance of a family
advocate, social worker or psychologist, or mediation by any
person.
A parenting plan may determine any matter in connection
with parental responsibilities and rights, including where and
with whom the child is to live, the child’s maintenance, contact
between the child and any of the parties or between the child
and any other person, and the child’s schooling and religious
upbringing.239 A parenting plan must comply with the best
interests of the child standard as set out in section 7.240
The child must be consulted during the development of the
parenting plan, bearing in mind his or her age, maturity and
stage of development. He or she must be granted an opportunity
to express his or her views, and those views must be given due
consideration.241 If a parenting plan has been agreed on, the
family advocate, social worker, social service professional,
psychologist, suitably qualified person or the child’s legal
representative must inform the child of the contents of the
parenting plan, bearing in mind the child’s age, maturity and
stage of development.242
Section 34 lays down the formal requirements for a parenting
plan.243 It requires that the plan must be in writing and must be
signed by the parties who agreed on the plan.244 The plan may
be registered with a family advocate or made an order of
court.245 Since section 34 does not indicate that there are
different grounds for registration by the family advocate and the
making of a court order, the parties have a choice as to whether
they want to approach the family advocate or the court.246
A parenting plan that was registered with a family advocate
may subsequently be amended or terminated by the family
advocate upon application by the co-holders who are the parties
to the plan.247 A parenting plan that was made an order of court
may only be amended or terminated by a further order of court.
Three categories of persons may approach the court for
amendment or termination, namely:
(1) The co-holders who are the parties to the parenting plan.
(2) The child in respect of whom the parties to the parenting
plan have parental responsibilities and rights, provided that
the child has the court’s consent.
(3) Any other person who is acting in the child’s interest and
has the court’s consent.248
(e) Termination, extension, suspension or circumscription
of parental responsibilities and rights
Section 28 governs court ordered termination, extension,
suspension and circumscription of a person’s parental
responsibilities and rights. In terms of this section, the court
may give a person who already has parental responsibilities and
rights additional parental responsibilities and rights, delineate
the person’s parental responsibilities and rights, terminate all or
any of his or her parental responsibilities and rights, or suspend
all or any of his or her parental responsibilities and rights “for a
period”.249 The phrase “for a period” implies that a suspension
order may not operate indefinitely. It is submitted that the
period may be fixed either by reference to time or to some
future event, such as the person’s being released from prison,

obtaining suitable accommodation to house the child, having
successfully completed a rehabilitation programme for drug or
alcohol dependency, or having undergone psychotherapy.
The following persons may approach the court for the
order:250
(1) A co-holder of parental responsibilities and rights. In this
regard it must be remembered that section 33(2) prescribes
that, before seeking court intervention, co-holders who are
experiencing difficulties in exercising their parental
responsibilities and rights must try to agree on a parenting
plan. An attempt to enter into a parenting plan is therefore
a prerequisite to a co-holder’s applying for an order in
terms of section 28 if the application originates from
difficulties co-holders are experiencing in exercising their
parental responsibilities and rights.251
(2) Any other person having a sufficient interest in the care,
protection, well-being or development of the child.
(3) A child, provided that he or she has the court’s consent.
(4) Any person who is acting in the child’s interest and has the
court’s consent.
(5) A family advocate or the representative of any interested
organ of state.
When considering the application the court must take the
following factors into account:
(2) The relationship between the child and the person whose
parental responsibilities and rights are being challenged.
(3) The degree of commitment the person has shown towards
the child.
(4) Any other fact that should, in the court’s opinion, be taken
into account.252
In terms of section 135(1), the court may also make an order
suspending for a period, terminating, restricting, circumscribing
or transferring any or all of a person’s parental respon-sibilities
and rights on the application of the Director-General or
provincial head of the Department of Social Development or a
designated child protection organisation.253
5.5.2 Succession
(a) Intestate succession
In terms of section 1(2) of the Intestate Succession Act 81 of
1987, the fact that a child was born of unmarried parents254 does
not affect the capacity of one blood relation to inherit the
intestate estate of another. This means that children who are
born of unmarried parents can inherit intestate from both
parents (and more distant blood relations) and that both parents
(and more distant blood relations) can inherit intestate from the
children.255
(b) Testate succession
In modern South African law it is clear that both mother and
father may benefit their natural and adulterine children in a
will,256 even to the exclusion of children they might have had as
married parents. The position of incestuous children is less
clear. It could be argued that because incest is still a crime,
incestuous children are incompetent to inherit from their
parents. However, it is submitted that incestuous children too
should be able to inherit testate from both parents,257 because
punishing children for the crimes of their parents unjustifiably
violates section 28(2) of the Constitution, which requires that
the child’s best interests must be paramount. It also
unjustifiably violates the child’s right to dignity, which is
entrenched in section 10 of the Constitution.
In the past, if the intention of a testator was unclear, a
reference in a mother’s will to “my children” included children
she had as an unmarried person. The same did not apply in
respect of a father’s will.258 This unsatisfactory position was
changed by section 2D(1)(b) of the Wills Act 7 of 1953259
which provides that, for the purpose of interpretation of a will,
the fact that a child was born of unmarried parents260 is
irrelevant when determining a person’s relationship to the
testator or any other person.
5.6 Changing the status of a child born of

unmarried parents
5.6.1 Introduction
There are two, or possibly three, ways in which a child born of
unmarried parents can acquire the status of a child born of
married parents. These ways were previously referred to as
ways of “legitimating” the child. As is pointed out above in this
chapter, the Children’s Act shifted the focus from labelling the
child to labelling the marital status of the child’s parents.
Accordingly, a child is no longer called “legitimate” or
“illegitimate”. It is therefore no longer appropriate to refer to
“legitimating” a child.
5.6.2 A subsequent marriage or civil union
between the child’s parents
In terms of section 38 of the Children’s Act, a child born of
parents who marry each other after the child’s birth must for all
purposes be regarded as a child born of parents who were
married to each other at the time of the child’s birth.261 The
same applies if the child’s parents enter into a civil union with
each other after the child’s birth.262 This means that if the
child’s parents marry each other or enter into a civil union with
each other after the child’s birth, the child’s father retroactively
acquires full parental responsibilities and rights because the
child’s parents are deemed to have been married at the time of
the birth. This is the position even if the child’s parents could
not have legally married each other or could not legally have
entered into a civil union at the time of the child’s conception or
birth.263 It is also the position if the subsequent union between
the parents is a putative marriage.264
The question of whether an incestuous child can acquire the
status of a child born of married parents will rarely arise,
because persons who commit incest are related within the
prohibited degrees of relationship and can therefore not
subsequently marry each other or enter into a civil union with
each other.265 However, provisions regarding the forbidden
degrees of relationship do sometimes change. For example,
until 1961 a person could not marry his or her former spouse’s
collateral relatives because the Political Ordinance of 1580 laid

down that the same principles applied to blood relationship and
relationship by affinity in the collateral line.266 The Marriage
Act 25 of 1961 changed this position by providing that no
prohibition exists against a marriage between a person and his
or her relations by affinity in the collateral line.267 This means,
for example, that a child conceived as a result of sex between a
woman and her brother-in-law before the enactment of the
Marriage Act is incestuous but, since the enactment, the child
can become a child born of married parents if his or her parents
marry each other or enter into a civil union with each other.268
If a child’s mother marries someone other than the child’s
father or enters into a civil union with somebody other than the
child’s father, the child does not become a child born of married
parents and the marriage or civil union does not confer any
parental responsibilities and rights on the mother’s husband or
civil union partner.269
5.6.3 Adoption
When a child is adopted, the adoption confers full parental
responsibilities and rights on the adoptive parent, regardless of
whether or not he or she is married.270 Thus, for example, if a
child is adopted by his or her unmarried father, the father
acquires full parental responsibilities and rights regardless of
whether or not he had any parental responsibilities and rights in
respect of the child before the adoption.271
5.6.4 An order of the authorities
At common-law a child could be “legitimated” by an order of
the Sovereign. This was called legitimatio per rescriptum
principis. The Sovereign normally gave such an order as a
special favour, especially in cases where one of the parents of
the child had died so that the child could not be “legitimated”
by his or her parents’ subsequent marriage. In Potgieter v
Bellingan272 it was held that legitimatio per rescriptum principis
was unknown in South Africa and had become obsolete.273
The court is not vested with a general power to change the
status of a child born of unmarried parents to that of a child
born of married parents.274 It does have the power to make a
declaratory order in respect of the status of a child born of a
putative marriage, but in this situation it simply confirms an
existing fact, because a child who is born of a putative marriage
is in any event treated as a child born of married parents.275
1 See e.g. ss 19–21, 38, 40 and 233.

2 Children’s Act s 20; Grotius 1.12.2, 1.12.3; Van der Keessel Theses Selectae
169; Van Leeuwen Rooms-Hollands-Regt 1.7.2; Voet 1.6.6. This rule extends to
a child born of a voidable marriage: Children’s Act s 39(1) and (6). A child who
is born of a putative marriage is also treated as a child born of married parents,
even though the marriage is void: M v M 1962 (2) SA 114 (GW). On putative
marriages, see Heaton Family Law ch 4.
3 S 1(1).
4 S 13(2).
5 Grotius 1.12.6.
6 Children’s Act s 1(1). The harvesting and donation of sperm and ova for
purposes of artificial fertilisation are governed by ss 55, 56 and 60 of the
National Health Act 61 of 2003 and the Regulations Relating to Artificial
Fertilisation of Persons published in GN R175 GG 35099 of 2 March 2012.
8 The Children’s Act does not define “surrogate motherhood”. It does, however,
define “commissioning parent”, “surrogate mother” and “surrogate motherhood
agreement”: s 1(1). From these definitions one can deduce the definition of
surrogate motherhood that appears in the text above.
9 See the definition of “commissioning parent” read with the definition of
“surrogate motherhood agreement” in s 1(1) of the Children’s Act.
10 V v R 1979 (3) SA 1006 (T).
11 Children’s Act s 40(1)(a) read with s 13(2) of the Civil Union Act 17 of 2006.
In this case, the donor’s biological contribution is discounted because s 40(1)(a)
of the Children’s Act deems the gametes of the birth mother and her spouse or
civil union partner to have been used for the artificial fertilisation.
12 Children’s Act s 40(1)(b).
13 2003 (5) BCLR 463 (CC).
14 Children’s Act s 40(2) read with s 297(1)(a). Unlike s 40(1)(a), s 40(2) does not
deem the woman’s gamete to have been used for her artificial fertilisation. In
other words, s 40(2) does not disregard the donor’s contribution. On the issue
whether a donor might, in these circumstances, qualify as the child’s biological
parent, see Heaton in Davel and Skelton (eds.) Commentary on the Children’s
Act 3-7–3-8.
16 Ibid. S 40(3)(b) specifically refers to the woman’s “husband”, but in view of s
13(2) of the Civil Union Act the woman’s civil union partner also falls within
the ambit of the provision.
17 The ways in which an unmarried father can acquire parental responsibilities and
rights are discussed below in this ch.
18 S 41(1)(a). The child “or the guardian of such child” may access the information
(emphasis added). The word “or” does not mean that if the guardian has
obtained the information, the child is not entitled to obtain it too. Thus, e.g., if a
guardian were to refuse to share the information with the child, the child could
independently obtain the information. See also Heaton in Davel and Skelton
(eds.) Commentary on the Children’s Act 3-50–3-51.
19 S 41(1)(b).
20 S 41(2). The Director-General of the Department of Health (or any other person
specified by regulation) may require that a person receive counselling before
any of the above-mentioned information is disclosed: s 41(3).
21 On surrogate motherhood and the status of children born as a result of surrogate
motherhood, see further Boezaart Persons 97–98; Bosman-Sadie and Corrie ch
19; Kruger and Robinson in Robinson (ed.) Law of Children and Young Persons
12–13; Kruger and Skelton (eds.) Persons 89–96; Louw in Davel and Skelton
(eds.) Commentary on the Children’s Act ch 19; Schäfer Child Law ch 10;
Slabbert and Roodt in Trimmings and Beaumont (eds.) International Surrogacy
Arrangements (forthcoming); Van Heerden in Van Heerden et al (eds.) Boberg’s
Law of Persons and the Family 340–353; Sloth-Nielsen and Van Heerden 1998
SALJ 156, 164; Clark 2000 Stellenbosch LR 12–15; Mills 2010 Stell LR 429;
Carnelley and Soni May 2011 De Rebus 30.
22 S 295(c)(iv) and (v).
23 S 295(c)(vi) and (vii).
24 S 295(a) read with the definition of “commissioning parent” in s 1(1), ss 292(1)
(c), 293(1) and 294 of the Children’s Act, and s 13 of the Civil Union Act.
25 Ss 292(1), 293(1) and (2). If good cause is shown, the court may dispense with
the requirement that the surrogate mother and her spouse, civil union partner, or
permanent partner must be domiciled in South Africa: s 292(2). In certain
circumstances the court may dispense with the consent of the surrogate mother’s
spouse, civil union partner or partner in a permanent relationship: s 293(3). S
295 lists the aspects of which the court must be satisfied before it may confirm
the agreement. If the agreement does not comply with the requirements the Act
sets, it is invalid: s 297(2).
26 S 296(1).
27 S 294.
28 S 297(1)(a) and (b).
29 S 297(1)(c) and (f). Louw in Davel and Skelton (eds.) Commentary on the
Children’s Act 19-24 points out that the phrase “parental responsibilities and
rights” would have been preferable to “rights of parenthood or care”.
30 S 297(1)(d).
31 S 41(1)(a).
32 S 41(1)(b). On the issue of allowing the child “or” his or her guardian access to
the information, see fn 18 above in this ch.
33 S 41(2). The Director-General of the Department of Health (or any other person
specified by regulation) may require that a person receive counselling before
information is disclosed: s 41(3).
34 S 297(2).
35 S 298(1).
36 Partial surrogate motherhood refers to the situation where the surrogate mother
is the child’s genetic mother because her ovum was used for her artificial
fertilisation, while full surrogate motherhood refers to the situation where a
donor ovum and donor sperm were used for the surrogate mother’s artificial
fertilisation: Louw in Davel and Skelton (eds.) Commentary on the Children’s
Act 19-3.
37 S 298(2).
38 Ibid.
39 S 299(b).
40 S 299(a).
41 S 299(c).
42 Children’s Act s 300(1). On termination of pregnancy, see further ch 2 above.
43 For an example of such a case, see Petersen v Kruger 1975 (4) SA 171 (C).
44 On artificial fertilisation and surrogacy, see above in this ch.
45 [2011] JOL 27045 (WCC).
46 Constitution ss 28(1)(b), 28(2) and 10.
47 S 6 of the Children’s Act is discussed in ch 6 below.
48 Grotius 1.12.3; Voet 1.6.6. See also Fitzgerald v Green 1911 EDL 432; Atkin v
Estate Bowmer 1913 CPD 505; Williams v Williams 1925 TPD 538; Van
Lutterveld v Engels 1959 (2) SA 699 (A), Heaton Casebook on the Law of
Persons case [15]. As was indicated above in this ch, the consequences of a civil
union correspond to those of a civil marriage, and a civil union is covered by the
term “marriage” except in so far as the Marriage Act 25 of 1961 and the
Recognition of Customary Marriages Act 120 of 1998 are concerned: Civil
Union Act s 13.
49 See Bonthuys 2011 SALJ 430–431, who rejects this interpretation on the ground
of the principle of interpretation of statutes that an Act which does not expressly
change the common-law leaves it intact, and the undesirable consequences of
requiring all married fathers to prove paternity before they can acquire parental
responsibilities and rights in terms of s 20. See also Louw Acquisition of
Parental Responsibilities and Rights 105–106.
50 See further Heaton in Davel and Skelton (eds.) Commentary on the Children’s
Act 3-9–3-10.
51 Civil Proceedings Evidence Act 25 of 1965 s 3.
52 Van Lutterveld v Engels 1959 (2) SA 699 (A).
53 Boezaart Persons 100 fn 68; Lee and Honoré par 141; Spiro Parent and Child
21; Spiro 1964 Acta Juridica 58; Boberg 1988 Businessman’s Law 115; Jordaan
1988 THRHR 395. See further Van Heerden et al (eds.) Boberg’s Law of
Persons and the Family 355–356 fn 101.
54 1987 (4) SA 525 (W) (also reported as D v L 1990 (1) SA 894 (W)).
55 Children’s Status Act 82 of 1987 s 1. S 313 read with Schedule 4 of the
Children’s Act repealed the Children’s Status Act.
56 See also Boezaart Persons 99; Cockrell Bill of Rights Compendium par 3E26 fn
7; Van der Vyver and Joubert 215; Van Heerden et al (eds.) Boberg’s Law of
Persons and the Family 366 fn 130; Boberg 1988 Businessman’s Law 114.
57 1992 (3) SA 438 (T).
58 Voet 1.6.9; Boezaart Persons 99 fn 61; Hahlo and Kahn South Africa 353;
Schäfer Child Law 232 fn 8; Spiro Parent and Child 21; Van der Vyver and
Joubert 210; Van Heerden et al (eds.) Boberg’s Law of Persons and the Family
354 fn 98.
59 1.6.9.
60 Children’s Act s 36.
61 See e.g. Schmidt and Zeffertt LAWSA vol 9 Evidence par 846; Schwikkard and
Van der Merwe par 32.7.
62 It is also a departure from the approach that was adopted in respect of the
predecessor of s 36 of the Children’s Act, namely s 1 of the Children’s Status
Act: Heaton in Davel and Skelton (eds.) Commentary on the Children’s Act 3-
44.
63 Van Lutterveld v Engels 1959 (2) SA 699 (A).
64 See also Heaton in Davel and Skelton (eds.) Commentary on the Children’s Act
3-44; Schäfer Child Law 233. S 9(1) and (3) of the Constitution protects the
right to equality before the law and equal protection and benefit of the law and
the right not to be subject to unfair discrimination, inter alia, on the grounds of
marital status and birth.
65 S 36 of the Constitution contains the criteria for determining whether a
limitation of a fundamental right is justifiable.
66 This was the approach that was adopted in S v L 1992 (3) SA 713 (E) in respect
of the meaning of the word “evidence” in s 1 of the Children’s Status Act. There
does not seem to be any reason to adopt a different approach under s 36 of the
Children’s Act.
67 In Mackay v Ballot 1921 TPD 430 432 Stratford J said that by corroboration he
understood “that some evidence must be given in addition to the woman’s,
which, in some degree, is consistent with her story and inconsistent with the
innocence of the defendant”. See also Wiehman v Simon 1938 AD 447; Maharaj
v Parandaya 1939 NPD 239; Holloway v Stander 1969 (3) SA 291 (A).
69 S v Snyman 1968 (2) SA 582 (A).
Van Heerden et al (eds.) Boberg’s Law of Persons and the Family 364 fn 127.
71 See e.g. Fitzgerald v Green 1911 EDL 432; Atkin v Estate Bowmer 1913 CPD
505; R v Isaacs 1954 (1) SA 266 (N).
72 Lee Introduction 30.
73 Boezaart Persons 101; Hahlo and Kahn South Africa 353; Van der Vyver and
Joubert 211; Van Heerden in Van Heerden et al (eds.) Boberg’s Law of Persons
and the Family 357; Labuschagne 1984 De Jure 337–339.
74 1925 TPD 538.
75 1963 (2) SA 505 (D), Heaton Casebook on the Law of Persons case [17].
76 Gradidge v Gradidge 1948 (1) SA 120 (D).
77 See e.g. Fitzgerald v Green 1911 EDL 432; Williams v Williams 1925 TPD 538;
R v Pie 1948 (3) SA 1117 (O); R v Swanepoel 1954 (4) SA 31 (O); Van
Lutterveld v Engels 1959 (2) SA 699 (A).
78 1965 (3) SA 454 (A).
79 S v Jeggels 1962 (3) SA 704 (C); Gin v S 1966 (2) PH H335 (E); A v C 1986 (4)
SA 227 (C); Cronjé LAWSA vol 20 part 1 Persons par 453; Schäfer Child Law
233; Schäfer in Clark (ed.) Family Law Service par E15; Van den Heever 63;
Van der Vyver and Joubert 214, 218; Van Heerden in Van Heerden et al (eds.)
Boberg’s Law of Persons and the Family 358–359, 368. See also Grotius 3.35.8;
Voet 48.5.6.
80 1987 (4) SA 525 (W) 528 (also reported as D v L 1990 (1) SA 894 (W)).
81 Constitution s 28(2).
82 528D; see also Macdonald v Stander 1935 AD 325.
83 528E.
84 528F.
85 See the discussion on scientific tests below in this ch.
86 Constitution s 9(1). See further Cockrell Bill of Rights Compendium par 3E26.
87 Constitution s 28(1)(b) and (2); Children’s Act s 6(2)(a).
88 Seetal v Pravitha 1983 (3) SA 827 (D); M v R 1989 (1) SA 416 (O).
89 R v Swanepoel 1954 (4) SA 31 (O); S v Jeggels 1962 (3) SA 704 (C).
90 See e.g. M v R 1989 (1) SA 416 (O).
91 1965 (3) SA 103 (D).
92 1977 (1) SA 795 (C).
93 1940 TPD 333.
94 See e.g. Lupton in Clark (ed.) Family Law Service pars J72, J73, J75; Hou,
Tang, Liu and Hou 2008 Forensic Science International 649; Bonthuys 2011
SALJ 433. These tests are called “motherless paternity tests”. Home-kits for
motherless paternity tests are freely available in many countries, including South
Africa, and can even be ordered online: see e.g.
http://www.easydna.co.za/index.php, accessed 29 May 2012;
http://www.dnatest.co.za/index.php?
option=com_content&view=article&id=51&Itemid=15, accessed 29 May 2012.
95 Nowadays these tests are accurate enough to indicate almost with certainty
whether a particular man is the father. In M v R 1989 (1) SA 416 (O) an expert
witness stated that the statistical probability of a particular man being the father
could be as high as 99,9%. But see also S v L 1992 (3) SA 713 (E) where doubt
was expressed on whether blood testing techniques had advanced to such a
degree that judicial notice could be taken of the fact that blood tests could
exclude someone as the father with a 99,85% probability of accuracy, and the
corollary, that if he was not excluded, he probably was the father. The issue of
taking judicial notice of the technique and results of blood tests is discussed
below in this ch. On the scientific tests which can be used, see Lupton in Clark
(ed.) Family Law Service pars J72–J76.
96 As Schäfer Child Law 235 points out, the legislature’s restriction of the
provision to a blood sample is puzzling because DNA is not only present in
blood.
97 In some instances the minor has the capacity to consent to the tests with the
result that the consent of his or her guardian is not required. On the capacity of a
minor to consent to medical treatment and operations, see ch 6 below.
98 1983 (3) SA 827 (D).
99 1992 (4) SA 137 (C).
100 1989 (1) SA 416 (O).
101 1992 (3) SA 713 (E), Heaton Casebook on the Law of Persons case [18].
102 2010 (6) SA 338 (SCA), Heaton Casebook on the Law of Persons case [20].
103 For criticism of the court’s failure to provide such guidance, see Bonthuys 2011
SALJ 433–434.
104 Par [16].
105 See e.g. Bonthuys 2011 SALJ 432. Schäfer Child Law 235 is of the view that it
is “unlikely that there will be many cases in which a court could legitimately
conclude that a child is better off not knowing the truth of his paternity”.
106 M v S 2007 (12) BCLR 1312 (CC) (also reported as S v M (Centre for Child
Law as Amicus Curiae) 2008 (3) SA 232 (CC), 2007 (2) SACR 539 (CC)) par
[24]. For a discussion of the implications of an individualised, contextualised,
child-centred approach, see Heaton 2009 Journal for Juridical Science 1.
107 See e.g. K v M [2007] 4 All SA 883 (E); P v P [2007] 3 All SA 9 (SCA), 2007
(5) SA 94 (SCA).
108 1992 (4) SA 137 (C).
109 139J.
110 1990 (3) SA 889 (T).
111 1992 (3) SA 713 (E).
112 In S v L 1992 (3) SA 713 (E), too, the fact that the papers did not contain any
information regarding the precise nature of the proposed tests was an important
factor in the court’s refusal to grant the order. Anyone who approaches the court
for an order compelling someone to submit to blood or DNA tests would
therefore be well advised to submit full details to the court of exactly what the
tests entail.
113 See also Seetal v Pravitha 1983 (3) SA 827 (D); M v R 1989 (1) SA 416 (O).
114 This view was also adopted in S v L 1992 (3) SA 713 (E) and D v K 1997 (2)
BCLR 209 (N). See further O v O 1992 (4) SA 137 (C). On the distinction
between substantive and procedural law, see e.g. Zeffertt 1990 SALJ 579 et seq.
115 See also Seetal v Pravitha 1983 (3) SA 827 (D); Zeffertt 1990 SALJ 582.
116 See also S v L 1992 (3) SA 713 (E); O v O 1992 (4) SA 137 (C).
117 1992 (3) SA 713 (E).
118 1997 (2) BCLR 209 (N), Heaton Casebook on the Law of Persons case [19].
119 See also D v K 1997 (2) BCLR 209 (N).
120 S 37 of the Children’s Act is discussed above under this heading.
121 1989 (1) SA 416 (O).
122 See e.g. Seetal v Pravitha 1983 (3) SA 827 (D).
123 1989 (1) SA 416 (O).
124 1997 (2) BCLR 209 (N).
125 Constitution of the Republic of South Africa 200 of 1993.
126 On s 28 of the Constitution, see further ch 6 below.
127 Minister of Welfare and Population Development v Fitzpatrick 2000 (7) BCLR
713 (CC), 2000 (3) SA 422 (CC); LS v AT 2001 (2) BCLR 152 (CC) (also
reported as Sonderup v Tondelli 2001 (1) SA 1171 (CC)); M v S (Centre for
Child Law Amicus Curiae) 2007 (12) BCLR 1312 (CC) (also reported as S v M
(Centre for Child Law as Amicus Curiae) 2008 (3) SA 232 (CC), 2007 (2)
SACR 539 (CC)).
128 M v S (Centre for Child Law Amicus Curiae) 2007 (12) BCLR 1312 (CC) (also
reported as S v M (Centre for Child Law as Amicus Curiae) 2008 (3) SA 232
(CC), 2007 (2) SACR 539 (CC)) par [25]. See also YM v LB 2010 (6) SA 338
(SCA) par [15].
129 See further Cockrell Bill of Rights Compendium par 3E26; Van Heerden in Van
Heerden et al (eds.) Boberg’s Law of Persons and the Family 383; Heaton 1986
(2) Codicillus 45; Singh 1993 De Jure 123–124; Labuschagne 1993 TSAR 482;
Davel and De Kock 2001 De Jure 288; Bonthuys 2011 SALJ 434–435. If a
paternity test was done without the consent of the mother or the court – which is
possible since the mother’s DNA is no longer required to establish paternity (see
above in this ch) – the mother’s right to privacy was violated by the test. In such
event, a court which is asked to admit the results of the test would also have to
weigh all the competing interests and undertake a proportionality test in
deciding whether the results are admissible. On the admissibility of the results of
motherless paternity tests done without the knowledge of the child’s mother, see
also Bonthuys 2011 SALJ 435.
130 1992 (3) SA 987 (W).
131 See ch 1 above.
132 1990 (3) SA 889 (T).
133 1992 (3) SA 713 (E).
134 See e.g. Voet 27.2.1; Docrat v Bhayat 1932 TPD 125; Dhanabakium v
Subramanian 1943 AD 160; Ex parte Van Dam 1973 (2) SA 182 (W); Nokoyo v
AA Mutual Insurance Association Ltd 1976 (2) SA 153 (E); F v L 1987 (4) SA
525 (W) (also reported as D v L 1990 (1) SA 894 (W)). See also Ex parte Kedar
1993 (1) SA 242 (W).
135 See e.g. Rowan v Faifer 1953 (2) SA 705 (E); Ex parte Van Dam 1973 (2) SA
182 (W).
136 Grotius 3.35.8; Voet 25.3.5.6; Van Leeuwen Rooms-Hollands-Regt 1.13.7;
Davies v R 1909 EDC 149; Van der Westhuizen v R 1924 TPD 370; A v M 1930
WLD 292; Lamb v Sack 1974 (2) SA 670 (T); Tate v Jurado 1976 (4) SA 238
(W); Van der Harst v Viljoen 1977 (1) SA 795 (C); Sager v Bezuidenhout 1980
(3) SA 1005 (O). See also s 15(3)(a)(iii) of the Maintenance Act.
137 S 3(1).
138 Ibid.
139 S 2(1) and (2).
140 S 1(1).
141 Ibid.
142 Ibid.
143 S 18(3).
144 S 18(1).
145 S 19(1) read with s 19(3).
146 S 17.
147 S 19(2). An unmarried minor mother and/or an unmarried father can acquire
guardianship in terms of ss 22 or 24 of the Act. An unmarried father can also
acquire guardianship in terms of s 21. Ss 21, 22 and 24 are discussed below in
this ch.
148 See also Schäfer Child Law 236.
149 See ss 297(2) and 298 and the discussion of the termination of a surrogate
motherhood agreement above in this ch.
150 S 13(2) of the Civil Union Act provides that any reference to “spouse”,
“husband” or “wife” in any law other than the Marriage Act and the Recognition
of Customary Marriages Act includes “civil union partner”.
151 On artificial fertilisation, see further above in this ch.
152 On the implications of the rule that the donor’s biological contribution is not
disregarded, see Heaton in Davel and Skelton (eds.) Commentary on the
Children’s Act 3-7–3-8.
153 Births and Deaths Registration Act 51 of 1992 s 10(1).
154 Births and Deaths Registration Act s 10(1)(b).
155 Births and Deaths Registration Act s 11(4). See also s 26(1) of the Children’s
Act.
158 See e.g. Grotius 3.35.8; Voet 25.3.5.6; Van Leeuwen Rooms-Hollands-Regt
1.13.7; Davies v R 1909 EDC 149; Van der Westhuizen v R 1924 TPD 370; A v
M 1930 WLD 292; Lamb v Sack 1974 (2) SA 670 (T); Tate v Jurado 1976 (4)
SA 238 (W); Van der Harst v Viljoen 1977 (1) SA 795 (C); Sager v
Bezuidenhout 1980 (3) SA 1005 (O). See also s 15(3)(a)(iii) of the Maintenance
Act.
159 Maintenance Act s 15(3)(a)(ii); see also Lamb v Sack 1974 (2) SA 670 (T); Van
der Harst v Viljoen 1977 (1) SA 795 (C).
160 See ss 1(1) and 18(2)(d). By referring to providing the child with a suitable
place to live, living conditions that are conducive to the child’s health, well-
being and development, and the necessary financial support, the definition of
“care” incorporates aspects of the duty of support.
161 See also Schäfer Child Law 226. Before the coming into operation of the
Children’s Act, the parental duty of support existed independently of parental
authority.
162 Kramer v Findlay’s Executors (1878) 8 Buch 51; Carelse v Estate De Vries
(1906) 23 SC 532; Spies’ Executors v Beyers 1908 TS 473; Secretary for Inland
Revenue v Brey 1980 (1) SA 472 (A).
163 Ex parte Jacobs 1936 OPD 31; Gliksman v Talekinsky 1955 (4) SA 468 (W).
164 1930 AD 61, Heaton Casebook on the Law of Persons case [22]; see also F v L
1987 (4) SA 525 (W) (also reported as D v L 1990 (1) SA 894 (W)).
165 [2004] 1 All SA 117 (C), 2004 (2) BCLR 205 (C) (also reported as Petersen v
Maintenance Officer, Simon’s Town Maintenance Court 2004 (2) SA 56 (C)),
Heaton Casebook on the Law of Persons case [23].
166 The right not to be subject to unfair discrimination on the ground of birth is
protected by s 9(3) of the Constitution, while s 10 of the Constitution protects
the right to dignity. S 28(2) of the Constitution provides that the child’s best
interests must be paramount in every matter concerning the child.
167 See also Boezaart Persons 117; Robinson in Atkin (ed.) 2007 International
Survey of Family Law 283; Bekink 2008 De Jure 154.
168 D 25.3.5.4; Voet 25.3.8.
169 S 27(1)(a) and (b) and (2); see also s 72(1)(a)(ii) of the Administration of
Estates Act 66 of 1965.
170 S 27(1) and (2).
171 S 27(3).
172 S 27(3)(b).
173 S 27(4).
174 S 313 read with Schedule 4.
175 S 21. On s 21, see below in this ch.
176 S 28(2) of the Constitution provides that the child’s interests must be paramount
in every matter concerning him or her.
177 Such discrimination falls foul of s 9(3) of the Constitution; see also Promotion
of Equality and Prevention of Unfair Discrimination Act 4 of 2000, s 6 read with
the “prohibited grounds” in s 1(1).
178 S 28(1)(b) of the Constitution entrenches this right.
179 Which fall foul of s 9(1) and (3) of the Constitution; see also the right not to be
subject to unfair discrimination on the grounds of gender, sex and marital status
that is contained in the Promotion of Equality and Prevention of Unfair
Discrimination Act, s 6 read with the “prohibited grounds” in s 1(1); see further
s 8 of the same Act on unfair discrimination on the ground of gender.
180 On the constitutional implications of the legal position of unmarried parents, see
further Clark and Goldblatt in Bonthuys and Albertyn (eds.) Gender, Law and
Justice 228–232; Clark and Van Heerden in Burman and Preston-Whyte (eds.)
Questionable Issue: Illegitimacy in South Africa 56–58; Cockrell Bill of Rights
Compendium par 3E25; Heaton Bill of Rights Compendium par 3C42; Kaganas
in Murray (ed.) Gender and the New South African Legal Order 173–174;
Sinclair assisted by Heaton 118–126; South African Law Commission Report on
the Review of the Child Care Act Project 110 par 8.5.2.1; Van Heerden in Van
Heerden et al (eds.) Boberg’s Law of Persons and the Family 391–394 fn 205,
417; Clark 1992 SAJHR 568; Sonnekus and Van Westing 1992 TSAR 240 fn 50;
Goldberg 1993 SALJ 270; Hutchings 1993 THRHR 315; Labuschagne 1993
THRHR 417–419, 428; Mosikatsana 1996 Annual Survey of South African Law
183; Kruger 1996 THRHR 521–522; Pantazis 1996 SALJ 11–19; Labuschagne
1996 THRHR 181; Goldberg 1996 THRHR 282; Schwellnus 1996 Obiter 153;
Wolhuter 1997 Stellenbosch LR 65; Labuschagne 1997 THRHR 555; Mahomed
Nov 1998 De Rebus 75; Robinson 1999 De Jure 281–282; Boshoff 1999 TSAR
283–284; Pieterse 2000 Stellenbosch LR 326–328; Louw 2010 (3)
Potchefstroom Electronic Law Journal 156. See further Du Toit 2002 TSAR 46.
Many of these authors deal with the position prior to the coming into operation
of s 21 of the Children’s Act but several of the points they make remain
pertinent.
181 S 21(1)(a). The Act does not define the phrase “permanent life partnership”. The
phrase presumably refers to a life partnership that falls outside the ambit of the
Civil Union Act. When such a life partnership can be said to be permanent is, of
course, an issue that does not admit of a ready answer. See further Heaton in
Davel and Skelton (eds.) Commentary on the Children’s Act 3-13.
182 The application to be identified as the child’s father is governed by s 26 of the
Children’s Act.
183 The payment of damages in terms of customary law probably refers to delivery
of cattle or payment of another form of damages for the mother’s seduction or
pregnancy. It is unclear whether it also covers delivery of isondlo (i.e., delivery
of an animal by a father to the person who raised his child). See further Heaton
in Davel and Skelton (eds.) Commentary on the Children’s Act 3-14.
184 S 21(1)(b). When a period is “reasonable” is a relative matter on which the
views of the child’s parents may differ vastly. In respect of maintenance, it
should be noted that the section does not require that the father must have met
his full maintenance obligation for a reasonable period. He must merely have
made a contribution towards expenses in connection with the child’s
maintenance.
185 S 21(4).
186 M v V (Born N) [2011] JOL 27045 (WCC); MM v AV (unreported, WCC case no
2901/2010, 16 November 2011).
187 FS v JJ 2011 (3) SA 126 (SCA), Heaton Casebook on the Law of Persons case
[24].
188 Ibid.
189 Fish Hoek Primary School v Welcome 2009 (3) SA 36 (C). In Fish Hoek
Primary School v GW 2010 (2) SA 141 (SCA) the Supreme Court of Appeal
overturned the decision of the court a quo without dealing with this dictum.
190 S 21(3)(a). The outcome of the mediation may be reviewed by a court: s 21(3)
(b). On mediation in terms of s 21, see De Jong in Boezaart (ed.) Child Law in
South Africa 119–124; Heaton in Davel and Skelton (eds.) Commentary on the
Children’s Act 3-14–3-15; Schneider in Sloth-Nielsen and Du Toit (eds.) Trials
and Tribulations 145 et seq; De Jong 2008 THRHR 631–633.
191 S 22(1). S 22 relates to all children, regardless of their parents’ marital status.
Because the present ch deals with children born of unmarried parents, the
discussion in this paragraph focuses on parental responsibilities and rights
agreements by unmarried parents.
192 S 22(1)(a). If the father has parental responsibilities and rights in terms of s 21, s
22 is clearly inapplicable: M v V (Born N) [2011] JOL 27045 (WCC); MM v AV
(unreported, WCC case no 2901/2010, 16 November 2011).
193 S 22(1).
194 Ibid.
195 S 22(2).
196 In terms of s 19(2), the guardian of an unmarried minor mother is also the
guardian of the mother’s child unless the child’s father has guardianship or a
court has conferred guardianship on the mother. In so far as a parental
responsibilities and rights agreement is concerned, s 30(3) must also be borne in
mind. It provides that a co-holder of parental responsibilities and rights may not
surrender or transfer those responsibilities and rights: see further below in this
ch. Thus, a parental responsibilities and rights agreement may not provide, e.g.,
that an unmarried father who acquired parental responsibilities and rights in
terms of s 21, waives all his parental responsibilities and rights and/or transfers
them to the child’s mother or to his parents.
197 Reg 8(3)(a) of the General Regulations Regarding Children, 2010 in GN R261
GG 33076 of 1 April 2010.
198 S 22(3) read with the definition of “prescribed” in s 1(1). Reg 7 governs these
matters.
199 S 22(4).
200 S 22(4)(b) read with s 29(1).
201 S 22(7).
202 Ss 22(5) and 29(3).
203 S 22(6)(a).
204 Ibid.
205 S 22(6)(b).
206 S 22(7).
207 For examples of cases where the court’s common-law power as upper guardian
to confer (elements of) parental authority (i.e. parental responsibilities and
rights) on an unmarried father was invoked prior to the coming into operation of
the Children’s Act, see Docrat v Bhayat 1932 TPD 125; Rowan v Faifer 1953
(2) SA 705 (E); Ex parte Van Dam 1973 (2) SA 182 (W); Douglas v Mayers
1987 (1) SA 910 (Z); W v S 1988 (1) SA 475 (N); B v P 1991 (4) SA 113 (T); S
v S 1993 (2) SA 200 (W); B v S 1995 (3) SA 571 (A); Bethell v Bland 1996 (2)
SA 194 (W); Coetzee v Singh 1996 (3) SA 153 (D); V v H [1996] 3 All SA 579
(SEC); Krasin v Ogle [1997] 1 All SA 557 (W); T v M 1997 (1) SA 54 (A);
Wicks v Fisher 1999 (2) SA 504 (N) (also reported as W v F 1998 (9) BCLR
1199 (N)); I v S 2000 (2) SA 993 (C).
208 B v S 1995 (3) SA 571 (A); T v M 1997 (1) SA 54 (A); see also Bethell v Bland
1996 (2) SA 194 (W); Tyler v Tyler [2004] 4 All SA 115 (NC). But see the
criticism of this view by, inter alia, Sinclair assisted by Heaton 118–119; Van
Heerden in Van Heerden et al (eds.) Boberg’s Law of Persons and the Family
411 fn 266; Goldberg 1996 THRHR 290; Pantazis 1996 SALJ 18–19; Kruger
1996 THRHR 521–522; Labuschagne 1996 THRHR 184 and 1997 THRHR 555.
209 S 23(1). The court within whose area of jurisdiction the child ordinarily resides
has jurisdiction to make the order: s 29(1).
210 S 23(1).
211 S 23(4).
212 On termination, extension, suspension and circumscription of parental
responsibilities and rights, see below in this ch.
213 S 23(3)(a).
214 S 23(3)(b).
215 S 24(1) read with Ex parte Sibisi 2011 (1) SA 192 (KZP). See further Heaton in
Davel and Skelton (eds.) Commentary on the Children’s Act 3-21–3-22.
216 S 24(2).
217 S 24(3). On the difficulties in interpreting this requirement, see Heaton in Davel
and Skelton (eds.) Commentary on the Children’s Act 3-22–3-23; Louw
Acquisition of Parental Responsibilities and Rights 291–292; Schäfer Child Law
249–250; Skelton in Skelton in Boezaart (ed.) Child Law in South Africa 84.
218 S 231(1)(d). The child’s biological father who does not have guardianship is
entitled to be notified when the child becomes available for adoption and to be
given an opportunity to apply to adopt the child: s 231(7)(a).
219 Children’s Act s 242(1) and (2)(a) and (b). The exception may, inter alia, take
the form of approval of a post-adoption agreement which provides for post-
adoption communication (incl contact) between the child and his or her pre-
adoption parent(s) or guardian.
220 S 242(3).
221 S 242(2)(c) On the prohibited degrees of relationship, see Heaton Family Law
27–30, 196, 207.
222 S 242(2)(d). On adoption, see further Heaton Family Law 291–298.
223 D 25.3.5.4; Voet 25.3.8.
224 Hahlo and Kahn South Africa 355; Kruger and Robinson in Robinson (ed.) Law
of Children and Young Persons 43; Spiro Parent and Child 404; Van der Vyver
and Joubert 223 (but see also the same work at 629 where the view is expressed
that the child ought to be obliged to support his father).
225 Spiro Parent and Child 404.
226 S 9(1) of the Constitution enshrines the right to equality before the law and
equal protection and benefit of the law. See also Cockrell Bill of Rights
Compendium par 3E24; Heaton Bill of Rights Compendium par 3C44; Heaton
Family Law 328; Van Heerden in Van Heerden et al (eds.) Boberg’s Law of
Persons and the Family 422; Robinson in Atkin (ed.) 2007 International Survey
of Family Law 283; Davel 2004 De Jure 381 387.
227 Children’s Act ss 18(4) and (5), 30(2).
228 S 18(4) and (5) read with s 45(3)(a), (d) and (g).
229 A person’s views relate to his or her opinion, while his or her wishes relate to
what he or she wants or would like. On this difference, see further Heaton in
Davel and Skelton (eds.) Commentary on the Children’s Act 3-32–3-33.
230 J v J 2008 (6) SA 30 (C).
231 Ibid.
232 Such successor is appointed in terms of s 27, which is discussed above in this
ch.
233 S 31(1)(a) read with s 31(1)(b)(i), (ii) and (iv); see also s 10. On the overlap
between s 31(1) and s 10, and the difficulties in interpreting the words
“significant” and “significantly”, see Heaton in Davel and Skelton (eds.)
Commentary on the Children’s Act 3-32–3-34.
234 The statement in HG v CG 2010 (3) SA 352 (ECP) par [23] that the children in
the particular case were “of an age and level of maturity to make an informed
decision” creates the incorrect impression that the views and wishes of older,
mature children are tantamount to decisions which must be implemented unless
they are not in the children’s best interests.
235 S 33(2). See also reg 10(1) of the General Regulations Regarding Children.
236 S 33(5). On the difficulties relating to when a family advocate, social worker or
psychologist can be said to be giving “assistance” in preparing a parenting plan,
and the meaning of the phrase “other suitably qualified person”, see Heaton in
Davel and Skelton (eds.) Commentary on the Children’s Act 3-38.
237 M v V (Born N) [2011] JOL 27045 (WCC).
238 S 33(1).
239 S 33(3).
240 S 33(4).
241 Reg 11(1).
242 Reg 11(2).
243 See also reg 10(2).
244 S 34(1)(a).
245 S 34(1)(b).
246 See also Heaton in Davel and Skelton (eds.) Commentary on the Children’s Act
3-39; Skelton in Boezaart (ed.) Child Law in South Africa 91.
247 S 34(4).
248 S 34(5).
249 S 28(1)(a).
250 S 28(3)(b)–(e).
251 On parenting plans, see above in this ch.
252 S 28(4).
253 On such applications, see further Heaton Family Law 304–305.
254 The Act refers to “illegitimacy”.
255 See also Makholiso v Makholiso 1997 (4) SA 509 (Tk) where the Transkei court
(now the Eastern Cape High Court, Mthatha) held that adulterine children can
inherit intestate from their father.
256 Green v Fitzgerald 1914 AD 88; Estate Heinamann v Heinamann 1919 AD 99.
See also Secretary for Inland Revenue v Brey 1980 (1) SA 472 (A).
257 See also Cronjé LAWSA vol 20 part 1 Persons par 461; De Waal et al LAWSA
vol 31 Wills and Succession par 279; Hahlo and Kahn South Africa 356; Van der
Merwe and Rowland 242; Van Heerden in Van Heerden et al (eds.) Boberg’s
Law of Persons and the Family 426; Spiro 1964 Acta Juridica 66.
258 Voet 36.1.13; In re Russo (1896) 13 SC 185; Hoffman v Estate Mechau 1922
CPD 179.
259 Which was inserted by the Law of Succession Amendment Act 43 of 1992.
260 The section refers to the child’s being “born out of wedlock”.
261 Children’s Act s 38(1); see also s 11(1) of the Births and Deaths Registration
Act which permits registration of the child’s birth as if his or her parents were
legally married to each other at the time of his or her birth. S 5(a) of the Births
and Deaths Registration Amendment Act amends s 11(1) of the Births and
Deaths Registration Act to provide that the only persons who may apply to have
the registration of birth amended to reflect the birth as if the child’s parents were
married are one of the child’s parents or the child once he or she has attained
majority. This provision is not yet in operation. On registration of the child’s
birth, see further ch 2 above. At common law, marriage as a way of
“legitimating” a child was called legitimatio per subsequens matrimonium.
262 In terms of s 13 of the Civil Union Act, the consequences of a civil union
correspond to those of a civil marriage and a civil union is covered by the term
“marriage” except in so far as the Marriage Act and the Recognition of
Customary Marriages Act are concerned.
264 Makholiso v Makholiso 1997 (4) SA 509 (Tk); see also fn 2 above in this ch.
265 On the forbidden degrees of relationship for purposes of a civil marriage, a
customary marriage and a civil union, see Heaton Family Law 27–30, s 3(6) of
the Recognition of Customary Marriages Act, and s 8(6) of the Civil Union Act
in conjunction with Heaton Family Law 196, respectively.
266 Affinity in the collateral line refers to the relationship between one spouse or
civil union partner and the blood relations of the other spouse or civil union
partner. E.g., a wife is related in the collateral line of affinity to her husband’s
brother (i.e. her brother-in-law).
267 S 28.
268 See further Van Heerden in Van Heerden et al (eds.) Boberg’s Law of Persons
and the Family 332–333 fn 17, 432 fn 348.
269 In respect of the position prior to the coming into operation of the Children’s
Act, see Nokoyo v AA Mutual Insurance Association Ltd 1976 (2) SA 153 (E)
where it was held that the mother’s husband does not acquire guardianship in
respect of her child.
270 Children’s Act s 242(2)(a).
271 On adoption as a means of acquiring parental responsibilities and rights, see
further above in this ch.
272 1940 EDL 264, Heaton Casebook on the Law of Persons case [25].
273 In the 1950s Pont (1958 Acta Juridica 134, 1959 SALJ 448 et seq) advocated the
re-introduction of legitimatio per rescriptum principis and submitted that the
Department of Home Affairs should be the competent authority. It is doubted
whether this suggestion will find favour in modern times: see also Cronjé
LAWSA vol 20 part 1 Persons par 462; Van Heerden in Van Heerden et al (eds.)
Boberg’s Law of Persons and the Family 429.
274 W v S 1988 (1) SA 475 (N).
275 On putative marriages, see Heaton Family Law ch 4.

MINORITY
6.1 Introduction
Minority is one of the most important factors influencing a
person’s status. The legal view is that, because people’s juristic
acts are dependent on their expression of will, only persons who
have a reasonable understanding and judgement should have
capacity to act. In other words, the law confers capacity to enter
into juristic acts only on persons who can understand the nature,
purport and consequences of their acts, since such acts may
have far-reaching consequences for their authors: for example,
they may result in the creation or loss of rights and duties.
Obviously, youth has a major influence on a person’s powers of
judgement. For this reason the law protects young people by
limiting their capacity to participate in legal interaction. From a
legal point of view a person has neither the intellectual ability
nor the experience to participate independently in legal and
commercial dealings before reaching the age of 18 years. The
restrictions on a minor’s1 capacity do not violate the
constitutional right to equality, because their objective is the
minor’s protection.2
Generally speaking, a person acquires full capacity to
participate in legal interaction on his or her 18th birthday.3
However, several earlier ages are of legal importance. For
example: children below the age of seven (that is, infantes) have
no capacity to act, while minors between the ages of seven and
18 years have limited capacity to act, which means that they
can, as a rule, only enter into contracts with the assistance of
their guardian. Once children have turned 12 years of age, they
may independently buy condoms and receive free condoms on
request, and they may be provided with other contraceptives if
they request this, receive proper medical advice, and undergo a
medical examination to determine whether there are any
medical reasons why a specific contraceptive should not be
provided.4 As from the age of 14 years minors may witness a
will,5 and once they have turned 16, they may make a will.6
These examples and the other rules on minors’ capacity are set
out in more detail below in this chapter.
6.2 Children’s rights

6.2.1 Constitution of the Republic of South
Africa, 1996
Although minors can invoke the rights that the Constitution of
the Republic of South Africa, 1996 confers on everyone, they
are also afforded special protection by section 28 of the
Constitution. The purpose of section 28, which is commonly
known as the children’s rights clause, is to protect children, not
their parents. Thus it affords rights to children, not their
parents.7
Section 28(1) of the Constitution gives every child the right:
(1) To a name and nationality from birth.
(2) To family or parental care, or appropriate alternative care
when removed from the family environment.
(3) To basic nutrition, shelter, basic health care and social
services.
(4) To be protected from maltreatment, neglect, abuse and
degradation.
(5) To be protected from exploitative labour practices.
(6) Not to be required or permitted to perform work or provide
services that are inappropriate for someone of his or her
age, or place his or her well-being, education, physical or
mental health, or spiritual, moral or social development at
risk.
(7) Not to be detained except as a measure of last resort. If
detained, the child has all the rights which sections 12 and
35 of the Constitution afford all detainees. In addition, the
child may only be detained for the shortest possible period
and has the right to be kept separately from detained adults
and to be treated in a manner and kept in conditions that
take account of his or her age.
(8) To have a legal practitioner assigned to him or her by the
state in civil proceedings, at state expense, if substantial
injustice would otherwise result.
(9) Not to be used directly in armed conflict, and to be
protected in times of armed conflict.
Section 28(2) of the Constitution moreover provides that a
child’s best interests are of paramount importance in every
matter concerning the child. Consequently, the best interests of
the child must be central in all fields of the law.8
6.2.2 Children’s Act 38 of 2005
The rights that a child has in terms of the Children’s Act
supplement those that the Constitution confers on every child.9
The Act inter alia seeks to give effect to the child’s
constitutional rights to family or parental care or appropriate
alternative care when removed from the family environment, to
social services, to be protected from maltreatment, neglect,
abuse or degradation, and to have paramountcy afforded to his
or her best interests in every matter concerning him or her.10
The Act also seeks to give effect to the obligations concerning
the well-being of children that South Africa has incurred in
terms of international instruments such as the African Charter
on the Rights and Welfare of the Child and the United Nations
Convention on the Rights of the Child.11
Section 6 of the Act sets out general principles which must
guide the implementation of legislation and guide proceedings,
actions and decisions by organs of state relating to a specific
child or children in general.12 Included among these is the
principle that – subject to lawful limitation – all proceedings,
actions or decisions in a matter concerning a child must respect,
protect, promote and fulfil the rights the child has in terms of
the Bill of Rights, the best interests of the child standard that is
set out in section 7 of the Children’s Act, and the rights and
principles that are contained in the Children’s Act.13 In addition,
section 9 of the Act requires that the standard that the child’s

best interest is of paramount importance must be applied in all
matters concerning a child’s care, protection and well-being.
Other general principles section 6 sets out are that all
proceedings, actions or decisions in a matter concerning a child
must respect the child’s dignity, treat him or her fairly and
equitably, protect him or her from unfair discrimination on any
ground (including his or her own health status or that of a
family member), and recognise his or her need for development
and to engage in play and other recreational activities
appropriate to his or her age.14 If the child is disabled, his or her
disability must be recognised and an enabling environment
must be created to respond to the child’s special needs.15
Furthermore, section 11 lists specific issues which must be
considered in respect of children with disabilities or chronic
illnesses.
Section 6 also provides that, having regard to his or her age,
maturity and stage of development, the child must be informed
of any action or decision in a matter which significantly affects
him or her,16 and, if it is in the child’s best interests, his or her
family must be given an opportunity to express their views in
any matter concerning the child.17 In addition, section 10
affords every child who is of such an age, maturity and stage of
development as to be able to participate in a matter concerning
him or her, the right to participate in that matter in an
appropriate way. Due consideration must be given to the child’s
views. Section 6 further requires that an approach which is
conducive to conciliation and problem solving must be adopted
in any matter that concerns a child, and that a confrontational
approach must be avoided. A delay in any action or decision
regarding the child must be avoided as far as possible.18
Section 12 affords every child the right not to be subjected to
social, cultural and religious practices which are detrimental to
his or her well-being.19 The section specifically provides that
children below the minimum legal age for marriage may not
marry or get engaged at all.20 Once they reach the minimum
marriageable age they may not be given out in marriage or
engagement without their consent.21 The section further
prohibits female circumcision and genital mutilation, and
virginity testing of children below the age of 16 years.22 A
virginity test may be performed on a child who is over the age
of 16 years only if it is done in the manner that is prescribed by
the regulations under the Act, and the child has consented in the
prescribed manner and has received proper counselling.23 The
results of the test may not be disclosed without the child’s
consent, and the body of a child who has undergone the test
may not be marked.24 A male child who is below the age of 16
years may not be circumcised unless the circumcision is
performed for medical reasons on the recommendation of a
medical practitioner or for religious purposes in accordance
with the practices of the particular religion (for example, the
Jewish faith).25 Taking into consideration his age, maturity and
stage of development, every male child has the right to refuse
circumcision.26 If the child has already turned 16, he may be
circumcised only if the circumcision is performed in the manner
that is prescribed by the regulations, and he has given consent
in the prescribed manner and has received proper counselling.27
Section 13 entitles every child to access to information on
health promotion, the prevention and treatment of ill-health and
disease, sexuality, reproduction, his or her health status and the
causes and treatment of his or her health status. It also affords
the child the right to confidentiality regarding his or her health
status and the health status of his or her parent, care-giver or
family member, unless maintaining such confidentiality is not
in the child’s best interests.28 The health information that is
provided must be relevant and must be in a format that is
accessible to children. In providing the information, due
consideration must be given to the needs of disabled children.29
Even though the Constitution confers a right of access to
court on everyone30 and the common law regulates the minor’s
capacity to litigate,31 section 14 of the Children’s Act
specifically empowers every child to bring a matter to court and
to be assisted in bringing a matter to court. The first part of the
section, which empowers every child to bring a matter to court,
re-affirms the constitutional right of access to court and relates
it specifically to children.32 This part of the section ensures that
every child has access to court either directly (for example,
when the minor’s guardian institutes litigation on behalf of the
minor or assists the minor in litigation) or indirectly (for
example, when the court appoints a curator ad litem or legal
representative for the minor).33 As section 14 does not prescribe
the manner in which the minor must bring a matter to court or
the way in which he or she must be assisted in bringing the
matter to court, the court must decide these matters by applying
the standard of the best interests of the child.34 In FB v MB35 the
court held that it would refuse a minor’s request to be assisted
by his or her own legal representative in terms of section 14 in
exceptional circumstances only, particularly if the minor is a
party to legal proceedings. In this case, the minor’s parent was
prepared to pay for the minor’s legal representation. In the
absence of a financial benefactor, the minor would only be able
to obtain legal representation in terms of section 28(1)(h) of the
Constitution, in which event it would have to be shown that
substantial injustice would result if the minor were
unrepresented.36
Section 15 lists the persons who may approach the court to
enforce the rights that are conferred by the Bill of Rights and
the Children’s Act. They are:
(1) A child who is affected by or involved in the matter to be
adjudicated.
(2) Anyone acting in the child’s interest or on behalf of
another person who cannot act in his or her own name.
(3) Anyone acting as a member of, or in the interest of a group
or class of persons.
(4) Anyone acting in the public interest.37
Apart from conferring rights on children, the Children’s Act
provides that every child has responsibilities appropriate to his
or her age and ability towards his or her family, community and
the state.38
6.2.3 United Nations Convention on the Rights of
the Child and African Charter on the Rights
and Welfare of the Child
South Africa ratified the United Nations Convention on the
Rights of the Child in 1995 and the African Charter on the
Rights and Welfare of the Child in 2000. Many of the
provisions of the Children’s Act embody the obligations South
Africa has incurred by ratifying these international instruments.
Thus, for example, the provision that every child has
responsibilities appropriate to his or her age and ability towards
his or her family, community and the state was included in the
Children’s Act on the strength of the African Charter on the
Rights and Welfare of the Child and “the need to Africanise the
new children’s statute”.39 Other noteworthy provisions include
the stipulation in the Charter that the best interests of the child
must be “the primary” consideration in all actions concerning
the child40 and the stipulation in the Convention that the best
interests of the child must be “a primary” consideration in all
actions concerning the child.41 The Charter further provides that
every child must be given an opportunity to express his or her
views in all judicial and administrative proceedings which
affect him or her and to have those views taken into
consideration in accordance with the provisions of the law,42
while the Convention provides that children who are capable of
forming their own views must be given the right to express
those views freely in all matters that affect them, and that those
views must be given due weight, taking the child’s age and
maturity into account.43 These provisions are echoed in sections
6, 10 and 31 of the Children’s Act.44
6.3 The legal status of an infans

In view of the considerable difference in status between an
infans (that is, a child below the age of seven years) and a
minor (that is, a child between the ages of seven and 18
years),45 the legal status of these persons are dealt with
separately, that of the infans being covered first.
An infans has no capacity to act and cannot conclude any
juristic act. An infans can, for instance, not enter into any
agreement whatsoever;46 he or she cannot even enter into a
contract which confers only rights and does not impose any
duties on him or her.47 Nor can an infans act as somebody’s
agent.48 This is so, not because the law denies the existence of
an infans’ ability to form a will, but rather because the law
attaches no consequences to his or her expression of will.49
Even if there is in fact agreement between an infans and another
party, this is ignored by the law. Anything that is transferred to
an infans in terms of an agreement between the infans and a
third party can be reclaimed with an enrichment action.50
However, an infans’ act may constitute a juristic fact, giving
rise to legal consequences. For example, if an infans destroys
somebody’s property, the juristic fact is that the owner’s right
of ownership to that property ceases, but this still does not
change the infans’ act into a juristic act.51
An infans cannot conclude a juristic act even with the
assistance of his or her guardian;52 the guardian has to act for
the infans and on the infans’ behalf.53 An infans cannot even
accept a donation. The court, the Master of the High Court, or

the infans’ guardian must accept the donation on the infans’
behalf. Even if it is the infans’ guardian who is the donor, the
guardian has to accept the donation on the infans’ behalf, and it
has to be made clear that the donation is being accepted on the
infans’ behalf.54
However, once the guardian has entered into a contract on the
infans’ behalf, it is on the infans that rights are conferred and
duties imposed, and not on the guardian, because the infans has
legal capacity and can thus have rights, duties and capacities.55
Certain transactions cannot be concluded by the guardian on
the infans’ behalf at all, for instance an engagement.56 A
guardian may conclude an insurance contract on the infans’ life,
but the benefits that may be paid in terms of the insurance
policy are limited by statute.57
In practice infantes do enter into contracts, such as buying
toys and sweets, all the time. Strictly speaking all such
transactions are void. However, it is highly unlikely that a court
would entertain a case about such a contract, as the maxim de
minimis non curat lex (that is, the law is not concerned with
trivialities) would be applied.
In terms of the common law, an infans does not have locus
standi in iudicio and cannot be a party to a lawsuit even if he or
she is assisted by his or her guardian. The guardian must always
litigate for the infans and on the infans’ behalf.58 The litigation
is brought or defended in the name of the guardian in his or her
capacity as guardian.

Whether the common-law position still applies is not entirely
clear. Section 14 of the Children’s Act provides that “every
child” has the right to be assisted in bringing a matter to court.
It is arguable that the word “every” amends the common law by
conferring limited capacity to litigate on an infans and entitling
him or her to assistance which will supplement his or her
limited capacity to litigate. It is unlikely that this is what the
legislature had in mind, for such an interpretation would have
the extraordinary result that an infans would be able to litigate
with his or her guardian’s assistance, while being unable to
enter into even the most basic contract with his or her
guardian’s assistance – which could surely not be in the best
interests of the child. Consequently it is submitted that section
14 should not be interpreted as constituting a legislative
abolition of the firmly established common-law principle that
an infans does not have capacity to litigate.59
liability
Since an infans is completely unaccountable in law, he or she
can never be criminally liable.60 Nor can an infans be delictually
liable where liability is based on fault.61 An infans may,
however, be liable for delicts that are not based on fault. Thus
an infans may be sued under the actio de pauperie if he or she
is the owner of a domestic animal that has caused damage, and
may incur vicarious liability if his or her employee commits a
delict in the execution of the employee’s duties.62
An infans may also be liable on the ground of unjustified

enrichment or negotiorum gestio, for these forms of liability are
not based on capacity to act or capacity to incur delictual or
criminal liability.63
If the infans’ guardian uses the infans as his or her agent or
instrument or negligently fails to prevent the infans from
causing damage, the guardian may be held personally liable for
damage the infans causes.64
6.4 The legal status of a minor

Minors between the ages of seven and 18 years have limited
capacity to act. The influence this has on a minor’s capacity to
enter into specific juristic acts is dealt with under separate
headings immediately below.65
(a) Contracts
(i) General
Generally, a minor can incur contractual liability only if he or
she is assisted by his or her guardian when the contract is
made.66 A minor may, however, enter into an unassisted
contract if the contract improves his or her position without
imposing duties on him or her.67 In other words, the guardian’s
consent is unnecessary if the minor enters into a contract in
terms of which the other party incurs duties while the minor
acquires rights only. Thus, for example, a minor may accept a
donation without assistance or enter into an agreement that
releases him or her from a debt as long as the agreement does
not impose any obligation on him or her.68
If a minor enters into an unassisted contract which imposes
duties on him or her, he or she is not contractually liable.69 On
the minor’s side the contract creates a natural obligation
(naturalis obligatio), which is unenforceable against him or her
and his or her guardian.70 However, the contract is not void,71
because from the side of the other party72 the obligation is a
civil one (civilis obligatio), which is enforceable against him or
her.73 One can therefore say that a minor’s unassisted contract is
partially valid in the sense of being enforceable at the option of
the minor or his or her guardian. Stating that the contract is
enforceable at the option of the minor does not mean that the
contract is voidable, because a voidable contract is valid until
set aside, while a minor’s unassisted contract does not bind the
minor at all and, in that sense, is not valid as against the
minor.74 However, in terms of section 39(1)(b) of the Consumer
Protection Act 68 of 2008, an unassisted agreement to enter into
a transaction for the supply of goods or services and an
unassisted agreement for the supply of goods or services in
terms of the Act75 to an unemancipated minor consumer76 are
“voidable at the option of the consumer”, unless the agreement
is ratified by the minor’s guardian or by the minor after he or
she is emancipated or becomes an adult.77 In view of the
uncertainty as to the correct description of the nature of a
minor’s unassisted contract and the frequent inaccurate use of
the terms “void” and “voidable” to describe such contracts, it is
submitted that in employing the term “voidable” the legislature
did not intend to deviate from the common-law position
regarding a minor’s unassisted contract and to dictate that such

contracts are valid until set aside by the minor. It simply used
the term loosely.78
It is up to the guardian (or the minor upon reaching majority)
to decide whether the contract should be repudiated or
honoured.79 The other party to the contract has no option but to
abide by the guardian’s decision. In other words, the other party
cannot rely on the minor’s minority to avoid his or her own
contractual obligations. Nor can the other party avoid his or her
contractual obligations by invoking the exceptio non adimpleti
contractus.80
What normally happens is that the minor raises his or her
minority as a defence when sued on the contract. However,
nothing precludes the minor from taking the initiative and
applying for an order declaring him or her to be not
contractually liable.81 The minor cannot sue the other party for
performance in terms of the contract while withholding his or
her own performance, because the minor would need his or her
guardian’s consent for the litigation82 and if the guardian
consents to the litigation, the guardian will obviously be
ratifying the minor’s contract.83
If a minor has performed in terms of an unassisted contract
and the contract is repudiated, the minor may recover whatever
he or she has performed.84 Property other than money is
recovered by the rei vindicatio and money by a condictio.85 The
value of the minor’s performance is reduced by the amount by
which the minor was unjustifiedly enriched by the other party’s
performance.86 Because a minor’s unassisted contract cannot be
enforced against the minor, the minor does not have to apply for
restitutio in integrum (that is, return to the previous position) in
order to recover his or her performance.87 Restitutio in integrum
applies if the minor, with the required assistance, entered into a
contract which was to his or her detriment when it was made
and he or she has performed in terms of that contract.88
As a minor’s unassisted contract is not invalid but creates a
natural obligation, it can be ratified by the guardian or by the
minor once he or she has attained majority. Ratification
converts the minor’s natural obligation into a civil one with the
result that the contract becomes fully enforceable as against
both parties.89
The minor’s natural obligation may serve as the object of a
suretyship,90 and it can be novated91 and ceded.92
(ii) Assistance by the guardian
General
The objective of the rule that a minor cannot incur contractual
liability without his or her guardian’s assistance is to protect the
minor against his or her own immaturity of judgement.93 This
consideration falls away if the minor acts with the guardian’s
assistance. Then the minor is liable ex contractu as if he or she
were a major.94
The guardian’s assistance may take various forms. In the first
place the guardian may act on the minor’s behalf.95
Alternatively, the minor may personally enter into the contract
with his or her guardian’s consent96 or the guardian may ratify
the agreement after it has been concluded.97
The guardian’s consent may be given expressly or tacitly.98

For instance, if the guardian knows of a contract the minor
concluded and raises no objection to it, it can be accepted that
the guardian tacitly consents to the contract. As was pointed out
above in this chapter, the guardian will also be taken to have
ratified the contract if he or she allows the minor to sue the
other party for performance in terms of the contract.
The guardian’s consent may apply to a single transaction or
to several. For example, if parents allow their child to conduct
his or her own business, the minor may enter into all
transactions relating to that business.99
Whether or not a minor in fact has the required consent
depends on the circumstances of each particular case. As
Caney100 puts it:
To give his assistance the guardian must bring his mind deliberately to bear upon
the subject: his mere assent without consideration, especially if it be subsequent, is
valueless . . . Nor is knowledge by him of the fact of a contract without
information of its terms to be construed as assistance by him.
The guardian need not have knowledge of each and every term
of the contract, but must be aware of its nature and essential
terms.101 Consent obtained through fraud or undue influence is
worthless.102 A guardian who has consented to a transaction
may withdraw consent prior to the conclusion of the
transaction.103
The guardian is obliged to assist the minor in entering into
legal transactions which are beneficial to the minor, or to
conclude such transactions on the minor’s behalf. If the
guardian is unable or unwilling to do this, the court may order
the guardian to do so, or may itself give the required consent.104
The court will also intervene if the guardian’s own interests in a
transaction clash with his or her duty to further the minor’s
interests,105 or where the guardian’s consent is insufficient in
itself (as is the case, for example, in respect of alienating or
mortgaging the minor’s immovable property).106 There are some
contracts the guardian cannot conclude on the minor’s behalf
although the guardian may consent to the minor’s entering into
such contracts. This is the case in respect of an agreement of a
closely personal nature (such as an antenuptial contract),107 and
a contract that will come into operation only after the minor has
attained majority.108
It is submitted that a guardian may not conclude an
employment contract that contravenes section 43 of the Basic
Conditions of Employment Act 75 of 1997 on behalf of the
minor, or consent to the minor’s entering into such a contract.
Section 43 inter alia prohibits employment of a minor who is
below the age of 15 years109 or who is below the minimum legal
school-leaving age if this is 15 years or older.110 Although a
contract that is concluded in contravention of a statutory
prohibition is not necessarily void,111 it is submitted that a
contract that contravenes section 43 ought to be illegal and
void.112 South Africa has ratified various international
instruments which combat child labour and require the setting
of a minimum age for entry into employment. These
instruments include the United Nations Convention on the
Rights of the Child, the African Charter on the Rights and
Welfare of the Child and Convention 138 of the International
Labour Organisation of 1973.113 The Convention on the Rights
of the Child and the African Charter on the Rights and Welfare
of the Child further require state parties to provide for
appropriate penalties or other sanctions to ensure effective
enforcement of, inter alia, the ban on the employment of
children below the minimum employable age. Section 43 of the
Basic Conditions of Employment Act complies with the
requirement regarding the minimum employable age these
international instruments set. Enforcement of the minimum
employable age would be much more effective if no recognition
at all were afforded to a contract that contravenes section 43.
Nullity of the contract, linked with imposition of the criminal
sanction on the employer, would be a much more appropriate
penalty and sanction, and would send a much stronger message
of discouragement of child labour than would the mere
imposition of a criminal sanction on the offending employer.114
A guardian may conclude an insurance contract on the
minor’s life or assist the minor in entering into such a contract.
The benefits that may be paid in terms of the insurance policy
are, however, limited by statute if the minor is below the age of
14 years.115
In some instances, such as the alienation or encumbrance of
immovable property of a minor, the consent of all the guardians
of the minor is required.116
Liability of the guardian
As a rule, the guardian does not incur personal liability in
respect of the minor’s contract, regardless of whether the
guardian assists the minor or acts on the minor’s behalf.117 The
other party can therefore not claim performance of the minor’s
obligations from the guardian.118 The guardian is, however,
liable on the contract if the minor acted as his or her agent.119
A guardian can also be liable if he or she guaranteed the
minor’s performance or bound himself or herself as surety for
the minor’s performance.120 In this situation the guardian’s
liability arises only if the minor does not perform in terms of
the contract.
A guardian may also incur liability on the basis of
negotiorum gestio if he or she is the child’s parent. Parents have
a duty to support their children.121 If a third party fulfils the
parental duty of support on behalf of a parent by supplying a
minor with necessaries like food and clothing, the parent may
be liable on the basis of negotiorum gestio. In this case the
guardian’s liability does not arise contractually but quasi-
contractually.122
(iii) Ratification
As is pointed out above in this chapter, a guardian may
expressly or tacitly ratify a contract the minor initially
concluded without the guardian’s consent.123 Ratification
validates the contract with retroactive effect.124 A guardian
cannot ratify a contract he or she could not validly have
concluded on the minor’s behalf at the time when the contract
was made.125
Upon attaining majority, the former minor may ratify a
contract he or she initially concluded without the requisite
assistance, with the result that the contract becomes fully
enforceable with retroactive effect.126 As is the case in respect
of ratification by the guardian, ratification by the former minor

may take place either expressly or tacitly.127 Express ratification
presents no problem, but it can be quite difficult to determine
whether a contract has been tacitly ratified. The court considers
the former minor’s conduct, and deduces from all the
circumstances whether or not he or she had the intention of
ratifying the contract.128
It is unclear whether a former minor who is unaware of his or
her rights can ratify a contract after attaining majority. The
former minor may, for example, not know that he or she is not
contractually liable and is entitled to repudiate the contract.
Would an act that would normally amount to ratification, be
ratification in such circumstances? On the one hand one can
rely upon the maxim ignorantia iuris haud excusat (that is,
ignorance of the law is no excuse). According to this view the
former minor’s ratification is assumed and the minor is
contractually liable.129 On the other hand, because of the
decision of the Appellate Division (now the Supreme Court of
Appeal) in S v De Blom130 that ignorantia iuris haud excusat no
longer applies without qualification, it seems that an inference
of ratification can be rebutted if the former minor’s ignorance is
reasonable and excusable.131
In Edelstein v Edelstein132 it was held that an antenuptial
contract that was concluded without the necessary consent is
void and cannot be ratified by the minor or the minor’s guardian
once the marriage has taken place, because ratification would
amount to an impermissible change of the matrimonial property
system.133 This is still the position if the minor enters into a civil
or customary marriage with consent but concludes an
antenuptial contract without consent.
In terms of the Civil Union Act 17 of 2006, only persons who
have already reached the age of 18 years may enter into a civil
union.134 Thus a minor cannot validly enter into a civil union
regardless of whose consent he or she obtains. However, he or
she might conclude an unassisted antenuptial contract in
anticipation of a civil union he or she intends entering into upon
attaining majority. In such event, the antenuptial contract could
be ratified prior to the coming into existence of the civil union.
Once the civil union has taken place, the decision in Edelstein v
Edelstein135 would apply136 and ratification would be
impermissible. The position would be the same if a minor
concluded an unassisted antenuptial contract in anticipation of a
civil or customary marriage he or she intended entering into
upon attaining majority.
(iv) Statutory exceptions regarding a minor’s capacity to incur
contractual liability
Some Acts create exceptions to the rule that a minor cannot
incur contractual liability without his or her guardian’s
assistance. For example:
(1) Unless the articles of the particular mutual bank provide
otherwise, a minor over the age of 16 years may be a
member of or a depositor with any mutual bank. He or she
may, without the consent or assistance of his or her
guardian, execute all necessary documents, give all
necessary acquittances, and cede, pledge, borrow against
and generally deal with his or her share or deposit as he or
she thinks fit. The minor has all the privileges and
obligations of a member or depositor except that he or she
cannot hold office in the mutual bank.137
(2) Unless the memorandum of association or articles of
association of a bank provide otherwise, a minor over the
age of 16 years may be a depositor with a bank. He or she
may, without the consent or assistance of his or her
guardian, execute all necessary documents, give all
necessary acquittances, and cede, pledge, borrow against
and generally deal with his or her deposit as he or she
thinks fit. The minor has all the privileges and obligations
of a depositor and the conditions imposed on a
depositor.138
(3) If the rules of a registered friendly society permit this, any
minor may be a member of the friendly society. Once a
minor who is a member of a friendly society has attained
the age of 16 years, he or she may execute all necessary
documents and give all necessary acquittances without the
consent of his or her guardian, but he or she may not
manage the affairs or be the principal officer of the
friendly society.139
(v) Misrepresentation by the minor
Introduction
It is generally agreed that a minor who misrepresents himself or
herself to be a major, to be emancipated, or to have the
necessary consent, and who thereby misleads somebody to enter
into a contract with him or her, ought to be liable,140 but there is
no unanimity on the basis for such liability. The two possible

grounds on which the minor could be held liable are the
contract he or she entered into and the delict he or she
committed (namely, the misrepresentation). Each of these bases
is considered below.
Contractual liability
Those who advocate contractual liability for a minor who
committed a misrepresentation advance various reasons for
their theory. In the first place they point out that the Roman-
Dutch writers expressly denied the remedy of restitutio in
integrum141 to a minor who committed a misrepresentation.142
Restitutio in integrum, it is argued, presupposes a binding
contract and, as the old writers deal with, and deny, the remedy
to the fraudulent minor, it is implied that there is a binding
underlying contract.143
This argument is unconvincing because restitutio in integrum
has been relied upon in circumstances where it was unnecessary
to do so. Restitutio in integrum should only be used in respect
of a minor’s binding contract (that is, in respect of a contract the
minor concluded with the necessary assistance or a contract the
minor’s guardian concluded on the minor’s behalf).144 However,
Roman-Dutch practice was also to apply for restitutio in
integrum in cases where a minor had entered into an unassisted
contract.145 In these circumstances the minor was in fact not
contractually liable and therefore did not have to rely on
restitutio in integrum; the minor could, instead, simply have
used the rei vindicatio or a condictio to recover the performance
he or she had rendered in terms of the unenforceable contract.
Invocation of restitutio in integrum in circumstances where it
was unnecessary to rely on the remedy surely does not justify
the inference that the minor is contractually liable purely
because of his or her misrepresentation. As Cockrell146 puts it:
[T]he unassisted minor’s contract does not require setting aside by restitutio in
integrum: it is simply not binding on the minor as a matter of law. How, then, can
minors be punished for fraud by denying them a remedy that is not needed in any
event?
In this context the decision in Louw v MJ & H Trust (Pty) Ltd147
should be mentioned. Judge Eloff held that because the minor
had misrepresented himself as emancipated when he bought a
motor cycle from a major without the necessary assistance, he
could not recover the part of the purchase price he had already
paid. Judge Eloff further held that the fact that a fraudulent
minor is denied restitutio in integrum does not mean that he is
contractually bound because of his misrepresentation. Judge
Eloff argued that because the minor is not contractually bound,
he cannot be ordered to pay the balance of the purchase price.
The minor’s misrepresentation therefore does not result in the
contract being enforced against him. It merely results in the
minor not being allowed to claim restitutio in integrum, and
because the minor cannot claim restitutio in integrum he cannot
recover the contractual payments he made.
It is submitted that this decision is wrong.148 It is indeed
correct to say that refusing the minor restitutio in integrum does
not mean that the minor becomes contractually liable. Once it is
agreed that a minor who enters into an unassisted contract
cannot be contractually liable it is clear that the remedy of
restitutio in integrum is not required at all. As indicated above,
if a contract is not enforceable against someone, he or she can
simply recover his or her performance with the rei vindicatio or
a condictio. Thus the court erred in holding that denying the
minor restitutio in integrum barred him from recovering the part
of the purchase price he had already paid. The result of Judge
Eloff’s decision is that the minor was both held bound because
he was not allowed to recover the payments he had made, and
not bound because he was not compelled to pay the balance of
the purchase price. This is untenable. Either the minor is
contractually liable, in which case he cannot recover what he
has performed and is bound to carry out his remaining
obligations, or he is not contractually liable, in which case he
may recover what he has performed and is not bound to render
further performance.149 In Louw’s case the minor’s claim for
recovery of payments already made should therefore have been
upheld and the major’s counterclaim for full payment of the
outstanding amount should have been dismissed.150 This would
not have left the major without a remedy, for he or she could
still have sued the minor in delict or for unjustified
enrichment.151
In the second place those who advocate contractual liability
of a minor who commits misrepresentation rely on estoppel.152
They argue that if someone enters into a contract with a minor
on the strength of the minor’s misrepresentation, the minor
cannot raise his or her minority as a defence. Consequently the
minor is held liable as if he or she were in fact a major when the
contract was concluded. The other party can therefore simply
sue the minor on the contract and then, by means of estoppel,
frustrate any reliance by the minor on his or her minority. This
argument should be rejected on policy grounds: invoking
estoppel to hold the minor to the false impression he or she
created and enforcing the contract against him or her has the
undesirable consequence of permitting the minor to alter his or
her capacity to act by committing a misrepresentation even
though his or her fraudulent conduct or omission does not
inevitably mean that he or she has the necessary ability to judge
and that he or she therefore does not need the legal protection
that is ordinarily afforded to minors.153
Thirdly, it is arguable that section 39(2) of the Consumer
Protection Act is authority for the view that a fraudulent minor
is contractually liable, at least in so far as agreements in terms
of the Act are concerned.154 In terms of section 39(1)(b) of the
Act, an agreement to enter into a transaction for the supply of
goods or services to an unemancipated minor consumer and an
agreement for the supply of goods or services to an
unemancipated minor consumer in terms of the Act are voidable
at the option of the consumer unless the minor has the consent
of his or her guardian to enter into the agreement or the
agreement is ratified.155 Section 39(2) creates an exception to
this rule. It provides that the rule does not apply if the minor or
somebody acting on behalf of the minor induced the supplier to
believe that the minor had unfettered capacity to enter into the
contract or if the minor or person acting on his or her behalf
tried to obscure or suppress the fact that the minor did not have
unfettered capacity to enter into the contract. Although this
section does not expressly state that a fraudulent minor is
contractually liable, it is arguable that this is the implication of
the inapplicability of the rule that the contract is voidable at the
option of the minor. However, accepting this argument would
lead to the same policy concern that applies in respect of
invoking estoppel to hold a fraudulent minor to the false
impression he or she created and enforcing the contract against
him or her, namely that it is undesirable to permit the minor to
alter his or her capacity to act by committing a
misrepresentation.
Delictual liability
It is submitted that delict ought to be the basis on which the
fraudulent minor is held liable.156 Delictual liability of a minor
was not unknown in Roman-Dutch law. Grotius, for instance,
says:
Doch de burgerlicke-wet houd van onwaerde alle verbintenisse van onmondigen,
uitgesondert door misdaed, ofte voor soo veel sy souden mogen zijn gebaet.157
By “misdaed” Grotius means “delict” so that a minor can
therefore only be liable in delict or for unjustified enrichment
(“gebaet”).158
By making delict the basis of liability, the cases in which the
minor was held liable for the contract price are not explained.159
However, in those cases there was no discussion of the ground
on which the minor was held liable and it is therefore doubtful
whether they can serve as authority to substantiate the basis of
the minor’s liability as being contractual in nature.
If a minor openly claims to be a major, to have the necessary
assistance, or to be emancipated, there is no doubt that he or she
is committing a misrepresentation.160 The other party does not
have to enquire into the truth of the minor’s statement unless he
or she has good cause for believing that he or she is in fact
dealing with a minor.161 In the case of a tacit misrepresentation
the issue is whether the minor’s conduct amounts to a
misrepresentation. This depends on the circumstances of each
case. If the minor knows that the other party thinks he or she is
a major, is emancipated, or has the necessary consent and does
nothing to remove this erroneous belief, the minor commits a
misrepresentation.162 In the case of an erroneous belief that the
minor is a major, the minor must be old enough to be
reasonably mistaken for a major.163 However, if the other party
is the minor’s blood relation, it is accepted that he or she knew
that the minor was in fact a minor.164
Once it has been established that the minor committed a
misrepresentation, the onus rests on the minor to prove that the
other party was not misled. The misrepresentation must have
been the cause that induced the other party to enter into the
contract with the minor.165 Obviously, the other party must have
suffered loss.
(vi) Unjustified enrichment
In terms of Roman and Roman-Dutch law, a minor incurred
liability if he or she entered into an unassisted contract and
benefited from the contract. The benefit theory was adopted in
our law in Nel v Divine, Hall & Co166 in which Lord De Villiers
held that if a contract, taken as a whole, was to the minor’s
benefit, the minor was bound by it.167 This view, although
incorrect, was applied fairly consistently by our courts168 until it
was authoritatively rejected by the Appellate Division in
Edelstein v Edelstein.169 In Edelstein it was correctly held that a
minor is not contractually liable whenever a contract is in “a
vague and general way” to his or her advantage,170 but that the
minor may be held liable ex lege on the ground of unjustified
enrichment.171
Liability on the ground of unjustified enrichment arises if one
person obtains a patrimonial advantage (that is, is enriched) at
the expense of another in the absence of a legal ground
justifying the enrichment.172 The enrichment claim is limited to
the lesser of either the amount by which the enriched person’s
estate remains enriched at the date of institution of the action or
the amount by which the other person’s estate remains
impoverished at that date.173 In arriving at this amount the
contract price is ignored; it is the actual value of the asset at the
time of institution of the action that is in issue.174 Accordingly,
if the value of the asset has decreased by the time the action is
instituted, it is the decreased value that is used. If the asset was
lost prior to the institution of the action, the impoverished party
cannot claim anything. If the asset was alienated, the
impoverished party can claim only what is left of the proceeds,
unless the enriched party used the proceeds to obtain
necessaries, such as food, clothing, accommodation and
medical treatment.175 In the latter case, the cost of the
necessaries is the value that is used to determine the amount of
the enrichment even if nothing remains of those necessaries.
The reason for this rule is that the enriched party would have
had to pay for the necessaries out of his or her own pocket were
it not for the fact that he or she had the asset or its proceeds.
Therefore the extent of his or her enrichment is equal to the cost
of the necessaries.176
The difference between contractual liability and liability on
the ground of unjustified enrichment can involve a great deal of
money. Contractual liability entails that the minor is liable for
the contract price, irrespective of when the action is instituted.
In contrast, if the minor is liable on the ground of unjustified
enrichment, he or she is only liable for the value of the asset at
the time when the action is instituted. The amount for which the
minor may be liable on the ground of unjustified enrichment
may therefore be much less than the contract price.
(vii) Restitutio in integrum
Even if a minor entered into a contract with his or her
guardian’s consent or if the guardian validly entered into a
contract on the minor’s behalf, the minor may still escape
contractual liability by relying on restitutio in integrum.177
Restitutio in integrum is available even if the court consented to
the minor’s contract, because the court might have erred or
might have been misled.178
Restitutio in integrum is an extraordinary remedy and is only
available if the contract was prejudicial to the minor when it
was made.179 Prejudice arising at some later stage is
irrelevant.180
The purpose of restitutio in integrum is to restore the status
quo ante (that is, the previous position). This means that
complete restitution from both sides must take place, placing
both parties in the position they would have been in had they
never entered into the contract. Each party must return

everything he or she received under the contract, as well as the
proceeds or any advantage derived from the contract. Each
party must also compensate the other for any loss suffered as a
result of the contract.181
As indicated above in this chapter, restitutio in integrum is
only necessary if the minor is indeed contractually liable.
Therefore, if the minor did not have the requisite assistance
when he or she entered into the contract, he or she is not
contractually liable and need not seek restitutio in integrum.182
If some doubt exists as to whether or not the minor is
contractually liable, the minor could apply for restitutio in
integrum, but then the minor would have to prove that the
contract was to his or her detriment when it was made.183
Restitutio in integrum is not available only in respect of
contracts: the minor may invoke the remedy whenever he or she
has suffered prejudice.184 For example, in Landers v Estate
Landers185 restitutio in integrum was granted to a minor who
had lost his inheritance through his guardian’s failure to protect
his interests. Restitutio in integrum can, however, not be
invoked to set aside a marriage or escape delictual or criminal
liability.186
A minor who misrepresented himself or herself as a major or
an emancipated minor or as having the requisite consent to
enter into the contract, and thereby persuaded the other party to
enter into a contract with him or her may not rely on restitutio
in integrum.187 Whether an emancipated minor may obtain
restitutio in integrum is controversial. It is submitted that
restitutio in integrum should indeed be available to an
emancipated minor, because it is illogical to deny the minor the
remedy simply because his or her guardian has consented to his
or her entering into all transactions within a particular sphere
instead of just consenting to one particular transaction.188
Restitutio in integrum not only affords a cause of action but
may also be raised as a defence, for example, if a minor is sued
for performance in terms of a prejudicial contract.189
With the assistance of his or her guardian, the minor may
apply for restitutio in integrum before attaining majority, or the
guardian may apply on the minor’s behalf. If the guardian fails
to assist the minor, a curator ad litem may be appointed to
assist the minor in the litigation.190 Alternatively, the minor may
await majority and then institute the action on his or her own,
but in this event he or she has to consider the possibility of
prescription of the claim. Prescription usually takes place three
years after the date on which the cause of action arises but, in
the case of a minor, it is delayed until at least a year after the
minor becomes a major.191 If, after attaining majority, the minor
ratifies the contract, he or she is barred from obtaining restitutio
in integrum.192
Restitutio in integrum accorded to a minor differs from other
cases of restitution in that it does not release someone who has
bound himself or herself as a surety for the minor.193 Thus, if a
minor’s guardian has stood surety for the minor’s obligations,
the guardian would still have to meet those obligations.
(b) Other agreements
The principle that a minor may improve his or her position but

not encumber it without the consent of his or her guardian also
applies to other agreements. Thus, for example, a real
agreement by which a right is transferred to a minor is valid
even if the minor is unassisted,194 but a real agreement by which
a minor attempts to transfer a real right to another person
without his or her guardian’s assistance, is invalid. Likewise, a
minor can enter into an unassisted agreement which
extinguishes a debt he or she owes, but a minor cannot enter
into an unassisted agreement by which another person’s debt to
him or her is extinguished.195 Therefore, someone who entered
into a contract with a minor cannot validly render performance
in terms of the contract unless the minor is assisted by his or her
guardian. If the other party to the contract does render
performance, that party is not released from his or her duty to
perform, but if the minor is enriched by the performance, the
minor may incur liability on the ground of unjustified
enrichment.196
If the minor performs without his or her guardian’s
assistance, the performance is invalid197 and can be recovered.
The reason for this rule obviously is that although performance
entails an advantage for the minor in so far as his or her
indebtedness is terminated, it also entails a disadvantage
because the minor loses his or her right of ownership to
whatever his or her performance consists of. It must, however,
be borne in mind that if a minor entered into a contract with the
requisite assistance but rendered performance under that
contract without assistance, the minor may not recover his or
her performance, for in this case the minor’s guardian is taken
to have consented not only to the contract but also to the
minor’s fulfilling the contract by rendering performance.198
(c) Wills
Once a minor reaches the age of 14 years, he or she may
witness a will.199 A person who is 16 years or older may make
his or her own will and in it dispose of his or her property as he
or she pleases.200
(d) Marriages and civil unions
(i) Consent requirement
Civil marriages
A minor may enter into a civil marriage if he or she has the
requisite consent.201 All the guardians of the minor must consent
to the marriage, unless the court orders otherwise.202 If the
minor is a boy below the age of 18 years or a girl below the age
of 15 years, he or she must obtain the consent of the Minister of
Home Affairs in addition to obtaining his or her guardians’
consent, unless the High Court authorises the marriage.203
Ministerial consent will be given only if the marriage is
desirable and in the parties’ interests.204 Because children below
the age of puberty205 cannot enter into a civil marriage at all, the
Minister’s power to grant consent applies only to civil
marriages of girls between the ages of 12 and 15 years and boys
between the ages of 14 and 18 years.206
If a guardian is absent, mentally ill or in any other way
incompetent to consent to the minor’s civil marriage, or if the
minor can for any other good reason not obtain the consent of
his or her guardian, the presiding officer of the Children’s Court

may grant consent.207 The presiding officer must also determine
whether it is in the minor’s interest to enter into an antenuptial
contract. If it is, the presiding officer must ensure that an
antenuptial contract is entered into before he or she consents to
the marriage and must assist the minor in the execution of the
contract.208 If the presiding officer refuses to consent to the
marriage, the minor may approach the High Court for
consent.209 The minor may also approach the High Court for
consent if one or more of his or her guardians withhold consent.
The court may grant such consent only if it is of the opinion that
the refusal to grant consent is without adequate reason and
contrary to the minor’s interests.210 If the court grants consent, it
may also order that a particular matrimonial property system
must apply to the civil marriage.211 If an antenuptial contract
must be entered into, the court may appoint a curator to assist
the minor.212
A minor who has previously entered into a valid civil or
customary marriage and whose marriage has been dissolved by
death or divorce may enter into another civil marriage without
consent because he or she attained majority upon entering into
the first marriage213 and the dissolution of the marriage did not
revive his or her minority.214
Customary marriages
A minor who wants to enter into a customary marriage needs
the consent of all his or her guardians.215 If such consent cannot
be obtained, the minor may ask the presiding officer of the
Children’s Court to consent to the customary marriage.216 If a
guardian or presiding officer withholds consent, the minor may
approach the High Court for consent. The court will grant
consent if it is of the opinion that the refusal by the guardian or
presiding officer is without adequate reason and contrary to the
minor’s best interests.217
Unless the High Court authorises the customary marriage,
every minor who wants to enter into a customary marriage must
also obtain the written consent of the Minister of Home Affairs
or the Minister’s designate. Such consent will be given only if
the marriage is desirable and in the parties’ interests.218
Ministerial consent does not release the minor from the need to
comply with all the other requirements for a valid customary
marriage, such as obtaining the consent of his or her
guardians.219
Civil unions
As the Civil Union Act restricts civil unions to persons who
have already reached the age of 18 years,220 a minor cannot
enter into a civil union even if he or she is assisted by his or her
guardian.221
(ii) Effect of absence of consent
Civil marriages
If the consent of the Minister of Home Affairs was needed but
not obtained, the minor’s civil marriage is null and void. The
Minister may, however, subsequently declare the civil marriage
valid if the marriage is desirable and in the parties’ interests and
in all other respects complies with the Marriage Act 25 of
1961.222
If a minor fails to obtain the necessary consent from his or

her parents, guardian, or the presiding officer of the Children’s
Court, the civil marriage is voidable. It may be set aside by the
court on application by either of the following applicants:
(1) The parents or guardian before the minor attains majority
and within six weeks from the date on which they become
aware of the existence of the marriage.
(2) The minor before attaining majority or within three months
thereafter.223
The patrimonial consequences of a civil marriage a minor enters
into without the requisite consent are governed by section 24 of
the Matrimonial Property Act 88 of 1984. Section 24(1)
provides that if the marriage is dissolved due to lack of consent,
the court may make any order with regard to the division of the
matrimonial property it deems just. Section 24(2) regulates the
patrimonial consequences if the marriage is not dissolved. In
this event the patrimonial consequences are the same as if the
minor were of age when the civil marriage was entered into and
any antenuptial contract in terms of which the accrual system224
is included and which was executed with a view to the
marriage, is deemed to be valid.225
Customary marriages
If a minor enters into a customary marriage without the consent
of the Minister of Home Affairs, the Minister may subsequently
declare the marriage valid if the marriage is desirable and in the
parties’ interests and in all other respects complies with the
Recognition of Customary Marriages Act 120 of 1998.226 If
such declaration is not obtained, the customary marriage is null

and void.227
The patrimonial consequences of a customary marriage a
minor enters into without the requisite consent are governed by
section 24(1) of the Matrimonial Property Act if the customary
marriage is set aside.228 Consequently, the court may make any
order with regard to the division of the matrimonial property it
deems just. It is unclear what the patrimonial consequences are
if an unassisted minor’s customary marriage is not set aside.229
(e) Medical treatment, operations, HIV tests, and
contraceptives230
In terms of section 129 of the Children’s Act, a minor who is
below the age of 12 years may not have medical treatment or an
operation without the consent of his or her guardian.231 A minor
who has turned 12 may independently consent to medical
treatment being performed on him or her or his or her child,
provided that he or she is sufficiently mature and has the mental
capacity to understand the benefits, risks, social and other
implications of the treatment.232 If he or she is insufficiently
mature or is unable to understand the benefits, risks and social
implications of the treatment, his or her guardian’s consent is
required.233 A minor who has already turned 12 may also
consent to an operation on him or her or his or her child if he or
she is sufficiently mature and has the mental capacity to
understand the benefits, risks, social and other implications of
the operation, but in such event he or she must still be “duly
assisted” by his or her guardian.234 The Act does not define the
phrase “duly assisted”. Presumably the phrase retains its
common-law meaning of obtaining consent.235 In the case of an
operation, a minor over the age of 12 can therefore not
independently give consent unless the operation in issue is a
termination of pregnancy.236 If the minor has turned 12 but is
insufficiently mature or is unable to understand the benefits,
risks and social implications of the operation, his or her
guardian’s consent is required.237
Section 129 further provides that a minor’s guardian may not
refuse to assist the minor in respect of an operation or withhold
consent to medical treatment or an operation on the ground of
religious or other beliefs, unless the guardian can show that
there is a medically accepted alternative to the operation or
medical treatment.238 If the minor or his or her guardian
unreasonably withholds consent to treatment or an operation,
the Minister of Social Development may give consent.239 The
same applies if the guardian unreasonably refuses to assist a
minor over the age of 12 in respect of an operation.240 The
Minister may also give consent if the guardian is incapable of
consenting, is incapable of assisting the minor, cannot readily
be traced, or is deceased.241 If the Minister, the minor or the
guardian refuses or is unable to give consent, the High Court or
Children’s Court may give consent.242 If the treatment or
operation is necessary to preserve the minor’s life or to save
him or her from serious or lasting physical injury or disability
and the need for the treatment or operation is so urgent that it
cannot be postponed to obtain the requisite consent, the
superintendent or, in the absence of the superintendent, the
person who is in charge of the hospital may consent to it.243
Different rules apply to an HIV test on a minor. Those rules
are contained in sections 130 to 133 of the Children’s Act. A
minor may undergo an HIV test in the following instances only:
(1) If the test is necessary to establish whether a health worker
may have contracted HIV due to contact in the course of a
medical procedure with any substance from the minor’s
body that may transmit HIV.
(2) If any other person may have contracted HIV due to
contact with a substance from the minor’s body that may
transmit HIV, and a court has authorised the test.
(3) If the test is in the child’s best interests and the necessary
consent has been given for the test.244
If the minor has turned 12 or is below 12 years of age but is
sufficiently mature to understand the benefits, risks and social
implications of the test, he or she may independently consent to
the test.245 If the minor is below 12 years of age and is
insufficiently mature to understand the benefits, risks and social
implications of the test, the consent of his or her parent or
caregiver, the provincial head of social development, or the
designated child protection organisation that is arranging the
minor’s placement is required.246 If the minor has no parent or
caregiver and no designated child protection organisation is
arranging his or her placement, the superintendent or person in
charge of a hospital may consent to the test.247 If the minor or
his or her parent or caregiver is incapable of giving consent, or
if the minor, parent, caregiver, provincial head or child
protection organisation unreasonably withholds consent, the
Children’s Court may give consent.248

If the minor is sufficiently mature to understand the benefits,
risks and social implications of the test, the test may not be
performed until the minor has been properly counselled by an
appropriately trained person. If the minor is sufficiently mature
to understand the implications of the test result, an
appropriately trained person must also provide the minor with
post-test counselling.249 If the minor’s parent or caregiver
knows about the test, he or she must also receive pre- and post-
test counselling.250
If the test results show that the minor is HIV-positive, this
fact may not be disclosed unless the minor gives his or her
consent if he or she has turned 12 or is below 12 years of age
but is sufficiently mature to understand the benefits, risks and
social implications of the disclosure.251 If the minor is below 12
years of age and insufficiently mature to understand the
benefits, risks and social implications of the disclosure, the
consent of his or her parent or caregiver or the designated child
protection organisation that is arranging his or her placement
must be obtained.252 If the minor is below 12 years of age,
insufficiently mature to understand the benefits, risks and social
implications, and has no parent or caregiver and no designated
child protection organisation is arranging his or her placement,
the superintendent or person in charge of a hospital may
consent to the disclosure.253 If the minor or his or her parent or
caregiver is incapable of giving consent, or if the minor, parent,
caregiver or designated child protection organisation
unreasonably withholds consent and disclosure is in the child’s
best interests, the Children’s Court may consent to the
disclosure.254
The Act permits disclosure of the minor’s HIV-positive
status without consent only in the following circumstances:
(1) If the person who makes the disclosure does so within the
scope of his or her powers and duties in terms of the
Children’s Act or any other law.
(2) If the disclosure is necessary for purposes of carrying out
the provisions of the Children’s Act.
(3) If the disclosure takes place for purposes of legal
proceedings.
(4) If the disclosure is made in terms of a court order.255
In terms of section 134 of the Children’s Act, a minor below the
age of 12 requires the consent of his or her parent or guardian to
obtain contraceptives.256 The Act does not provide for those
cases where the parent or guardian withholds consent, but in its
capacity as upper guardian of all minors the High Court has the
power to dispense with consent should the minor’s best interests
require this. A minor who has turned 12 may independently buy
condoms and receive free condoms on request.257 He or she may
also be provided with other contraceptives if he or she requests
them, receives proper medical advice and undergoes a medical
examination to determine whether there are any medical
reasons why a specific contraceptive should not be provided to
him or her.258 A minor who obtains condoms, contraceptives or
contraceptive advice is entitled to confidentiality in this
respect.259
In terms of section 5(2) and (3) of the Choice on Termination

of Pregnancy Act 92 of 1996, a pregnant minor of whatever age
may independently consent to termination of her pregnancy. In
Christian Lawyers Association of South Africa v The Minister of
Health (Reproductive Health Alliance as Amicus Curiae)260 this
rule was challenged on constitutional grounds. The plaintiff
alleged that a minor is incapable of giving informed consent as
required by the Choice on Termination of Pregnancy Act, and
that allowing a pregnant minor independently to decide whether
or not to have a termination violates various of her
constitutional rights, including her right to family or parental
care and her right to equality before the law and equal
protection and benefit of the law, and does not render her best
interests of paramount importance.261 The defendant raised an
exception against the plaintiff’s particulars of claim on the
ground that they did not disclose a cause of action. In upholding
the exception, the court inter alia held that the cornerstone of
the regulation of terminations under the Choice on Termination
of Pregnancy Act is that the pregnant woman’s informed
consent is needed. The court pointed out that the implication of
the plaintiff’s allegation that a minor cannot give informed
consent is that a minor does not qualify for a termination under
the Act unless she has the assistance of her parent or guardian.
Thus the Act actually does not permit a termination in the
circumstances the plaintiff alleges and the plaintiff’s particulars
of claim therefore do not show a cause of action.
6.4.2 Capacity to hold certain offices and perform
certain functions
On the ground of his or her minority a person who is below 18
years of age is incompetent to perform certain functions and to
hold certain offices. For example, a minor cannot be a director
of a company262 or mutual bank,263 or a trustee in an insolvent
estate.264 Whether a minor can be the executor of a deceased
estate has not been finally settled, but it is submitted that he or
she cannot.265 As emancipation does not terminate minority, an
emancipated minor should be disqualified from holding these
positions,266 but a minor who has attained majority status
through entering into a marriage267 should not be disqualified.268
A married parent who is younger than 18 years qualifies as
his or her child’s guardian,269 but cannot be appointed as the
guardian of somebody other than his or her child.270 The same
applies to an unmarried parent who is younger than 18 years
and has obtained guardianship in respect of his or her child in
terms of the Children’s Act.271
A minor can act as someone’s agent without the consent of
his or her guardian since an agent does not bind himself or
herself but instead binds his or her principal.272
Generally speaking, a minor has limited locus standi in iudicio
in civil proceedings. The minor’s guardian may either sue or be
sued on the minor’s behalf or the minor may sue or be sued in
his or her own name with his or her guardian’s assistance.273 As
is the case in respect of capacity to act, the guardian’s
assistance may be given by way of ratification.274
If the minor does not have a guardian, a curator ad litem is
usually appointed to assist the minor.275 In Vista University,

Bloemfontein Campus v Student Representative Council, Vista
University276 the High Court relied on its powers as upper
guardian of all minors and itself assisted the minors in the
particular litigation.
In some civil cases a minor may litigate without assistance.
For example, if the High Court grants the minor venia agendi
(that is, permission to conduct litigation) the minor is treated
like a major for purposes of the particular proceedings.277 Other
exceptions relate to maintenance claims against a minor in the
Maintenance Court, an application to court for consent to marry
without the consent of the minor’s guardian, and certain
election disputes.278 In criminal proceedings the guardian’s
assistance is not needed.
If a court makes a costs order against a minor, it is normally
the minor who is liable. In exceptional instances the court may
order the minor’s guardian to pay the costs either alone or
jointly and severally with the minor. Such an order may be
made if the guardian instituted or defended the litigation
frivolously or recklessly or allowed the minor to do so, or if the
guardian acted in a mala fide, unreasonable or negligent manner
in respect of instituting or defending the litigation.279
liability
To incur delictual or criminal liability the minor must be
accountable. A person is accountable only if he or she has the
mental ability to distinguish right from wrong and to act
accordingly.280

In terms of the common law, it is rebuttably presumed that
minors between the ages of seven years and puberty are not
accountable for their delicts.281 (The age of puberty is 14 years
for boys and 12 years for girls.) Boys between 14 and 18 years
of age and girls between 12 and 18 years of age are rebuttably
presumed to be delictually accountable.282 In other words, they
are considered accountable until the opposite is proved. The
different ages at which boys and girls are presumed to acquire
the capacity to be delictually accountable may well amount to
unjustifiable sex discrimination.283
If the minor’s guardian uses the minor as his or her agent or
instrument or negligently fails to prevent the minor from
causing damage, the guardian may be held personally liable for
damage the minor causes.284 If the guardian employs the minor,
he or she can also incur vicarious liability for delicts the minor
commits in the course of his or her employment.285
A minor’s capacity to be held criminally accountable is
governed by the Child Justice Act 75 of 2008. In terms of the
Act, the minimum age for criminal accountability is 10 years; in
other words, a minor below the age of 10 years cannot be held
accountable for any crime he or she commits.286 A child
between 10 and 14 years of age is presumed to be criminally
unaccountable.287 Such a child has criminal capacity only if the
state proves beyond reasonable doubt that when the alleged
crime was committed, the child had the capacity to understand
the difference between right and wrong and to act in accordance
with that understanding.288 A minor over the age of 14 is
criminally accountable in the same way as an adult.289
6.5 Termination of minority290
6.5.1 Attainment of the prescribed age
On 1 July 2007, section 17 of the Children’s Act lowered the
age of majority from 21 to 18 years of age.291 Because the Act
does not operate retroactively, the lowering of the age of
majority did not retroactively affect rights that vested in or
accrued to a person who was below the age of 21 years before 1
July 2007. Thus it was held in Shange v MEC for Education,
KwaZulu-Natal292 that if a person who was below the age of 21
years obtained a claim before 1 July 2007, he or she should be
treated as a minor for the purposes of establishing whether
extinctive prescription has taken place in respect of the claim.
Prescription usually takes place three years after the date on
which the claim arises but, in the case of a minor, prescription
is delayed until at least a year after the minor becomes a
major.293 For example, if a minor acquired a claim on the day he
or she turned 13, the claim does not prescribe when the minor
turns 16; instead, it prescribes one year after the minor attains
majority. In Shange, an 18-year-old youth acquired a claim in
January 2006 because he was assaulted by the deputy principal
of the school he attended. Being a minor, the youth would, prior
to 1 July 2007, have had a year after turning 21 to institute
action in respect of the claim. However, with the lowering of
the age of majority on 1 July 2007, the prescription period
became one year from the time when the youth turned 18.
Summons in this matter was issued only in December 2008,
when the youth was already 20 years old. The court rejected the
argument that the youth’s claim had prescribed. It referred to
the best interests of the child as protected by section 6 of the
Children’s Act and section 28(2) of the Constitution,294 and held
that the legislature did not intend the lowering of the age of
majority to have the effect of depriving persons who were
classified as minors before the coming into operation of section
17 of the Children’s Act of their vested or accrued rights. It
further held that any such deprivation of rights would be absurd,
irrational and discriminatory, would not be in the interests of
justice or fairness and equity, and would not be in keeping with
section 28(2) of the Constitution or the spirit, purport and
objects of the Bill of Rights.295 The court accordingly concluded
that the youth’s claim would prescribe only when he turned 22
years of age – as was the position before the age of majority
was lowered.
Majority ensues at the beginning of the day of the person’s
18th birthday, unless it is to his or her advantage to prolong
minority until the precise moment that corresponds to the time
of his or her birth.296 It is doubted whether the exception is ever
applied in practice.
6.5.2 Marriage or a civil union
A person who enters into a valid civil or customary marriage
before turning 18 thereby becomes a major for all purposes. If
the marriage is dissolved by death or divorce before the person
reaches the age of 18 years, his or her minority does not
revive.297 A void marriage does not terminate minority, and the
annulment of a voidable marriage restores a minor’s limited
capacity with retroactive effect.298

The Civil Union Act restricts civil unions to persons who
have already reached the age of 18 years.299 Thus a minor
cannot acquire majority status by entering into a civil union.
6.5.3 Venia aetatis and release from tutelage
At common law the sovereign (that is, the head of state) could
grant a minor a concession to act as a major. This was known as
venia aetatis. The effect of venia aetatis was to make the minor
a major in the eyes of the law with the exception that he or she
could not alienate immovable property or burden it with a
mortgage unless this capacity was expressly conferred.300 In
South African law venia aetatis was granted in the Free State,
where it was governed by statute and granted by the State
President by proclamation in the Government Gazette after the
Supreme Court had recommended it.301 Although the legislature
has not repealed venia aetatis and our courts have not expressly
decided whether venia aetatis is obsolete, it is clear that no
administrative machinery has existed for dealing with it for
some time.302 It is therefore submitted that venia aetatis can no
longer be granted.303
In the past, the Cape courts were willing to grant an order
releasing a minor from tutelage.304 Even though such an order
had more or less the same practical effect as venia aetatis, it
was held that the court was actually merely emancipating the
minor in its capacity as upper guardian of all minors.305 Today,
in its capacity as upper guardian of all minors, the High Court
might still be willing to release a minor from all or some of the
parental responsibilities and rights his or her parents have in

respect of him or her. In this sense, so-called “release from
tutelage” might still be possible. It has to be borne in mind
though that section 28 of the Children’s Act empowers the High
Court, a Regional Court dealing with a divorce matter, and the
Children’s Court within whose area of jurisdiction the child
ordinarily resides306 to terminate, suspend or circumscribe a
person’s parental responsibilities and rights. With the court’s
permission, an application for such termination, suspension or
circumscription may be made by the child in respect of whom
the parental responsibilities and rights operate.307 In future, the
judicial power embodied in section 28 may well, in practice,
replace “release from tutelage” (should the latter mechanism
still exist in our law).
6.5.4 Emancipation
A minor is emancipated if his or her guardian grants him or her
freedom independently to enter into contracts.308 This occurs,
for example, where the minor participates in a commercial
enterprise as an economically independent person.
Emancipation can be compared to the situation where a minor
performs a valid juristic act with the assistance of his or her
guardian. In the latter instance the guardian consents to a
specific act, whereas in the case of emancipation the guardian
consents to a range of juristic acts falling within a particular
sphere. Whenever such consent is given the minor incurs
liability like a major.
Either parent may emancipate the child, provided that the
parent has guardianship of the child.309 Whether a minor is

emancipated if one guardian emancipates the minor while the
other refuses to allow the minor to be emancipated is unclear. If
a minor has no parents, the minor’s legal guardian may
emancipate the minor.310
Emancipation can only be effected by express or implied
consent. Mere carelessness on the part of the guardian does not
result in the minor’s emancipation.311 Whether or not a minor
has been emancipated is a question of fact, which the court
must decide upon after considering all the circumstances of the
case. That the minor lives on his or her own and manages his or
her own business are mere factual details which, together with
others such as the minor’s age, the relationship between the
minor and the guardian, the nature of the minor’s occupation
and the length of time for which the occupation has been carried
on, help to establish whether emancipation has in fact taken
place.312 If the minor lives with his or her guardian rather than
on his or her own, stronger evidence will, however, be required
to prove emancipation.313 The onus of proving emancipation
rests upon the person who alleges that it has taken place.314
It is unclear whether a guardian who emancipated a minor
may later revoke the emancipation. Obiter dicta in Cohen v
Sytner315 and Landmann v Mienie316 support the view that
emancipation is irrevocable. The better view is that the guardian
is entitled to revoke the emancipation.317
The question of the effect of emancipation on the minor’s
capacity to act has not been authoritatively decided. The issue is
whether emancipation applies only to transactions in connection
with, for example, the minor’s business, or whether the minor
may act beyond the scope of that business. Some cases are
authority for the view that emancipation gives the minor
capacity to act in respect of all contracts,318 except that the
minor may not alienate or encumber immovable property or
marry without his or her guardian’s consent.319 In other cases it
was held that the minor is emancipated only with regard to
contracts in connection with his or her particular business.320 It
seems, however, that in this respect the courts have confused
two common-law institutions, namely tacit emancipation and
general authority. At common law, tacit emancipation
terminated minority,321 while general authority was “no more
than advance consent to enter into transactions of a certain kind,
had no effect on the parental power and could be revoked at
will”.322
Be that as it may, it is submitted that as far as modern
practice is concerned, the degree of legal independence a minor
has acquired is a question of fact that depends on all the
circumstances of the case. If the minor has been given
“complete freedom of action with regard to his mode of living
and earning his livelihood”,323 the minor is emancipated to all
intents and purposes. In contrast, the minor’s capacity to act is
restricted to matters connected with his or her business if his or
her guardian has only emancipated him or her for purposes of
that particular business without otherwise relinquishing parental
responsibilities and rights.324
It was submitted above in this chapter that since restitutio in
integrum is available to a minor who concluded a prejudicial
contract with his or her guardian’s consent, there is no reason
why it should not also be available to an emancipated minor.
The courts seem to assume that an emancipated minor has
locus standi in iudicio.325 However, it is doubted whether this
assumption is correct. A guardian who consents to a minor’s
entering into a specific individual transaction does not
automatically also consent to the minor’s engaging in litigation
regarding that transaction. It therefore seems inaccurate to
assume that a minor who has been emancipated automatically
has locus standi in iudicio in respect of all matters falling within
the sphere of the transactions to which his or her emancipation
relates.326
1 For lack of a better word, “minor” is used to denote a person between seven and
18 years of age although, strictly speaking, the term includes a person under the
age of seven years. On the preference for the word “minor”, see further Heaton
in Van Heerden et al (eds.) Boberg’s Law of Persons and the Family 755 fn 39.
2 The right to equality is protected by s 9 of the Constitution of the Republic of
South Africa, 1996; see also Promotion of Equality and Prevention of Unfair
Discrimination Act 4 of 2000 s 6 read with the “prohibited grounds” in s 1(1),
which inter alia prohibit unfair discrimination on the ground of age.
3 Children’s Act 38 of 2005 s 17.
4 Children’s Act s 134(1) and (2).
5 Wills Act 7 of 1953 s 1.
6 Wills Act s 4.
7 SW v F 1997 (1) SA 796 (O). This case was decided in the context of the
children’s rights clause in the interim Constitution (Constitution of the Republic
of South Africa 200 of 1993 s 30), but it is submitted that the principle holds
good in respect of the children’s rights clause in the final Constitution too. See
also M v S (Centre for Child Law Amicus Curiae) 2007 (12) BCLR 1312 (CC)
(also reported as S v M (Centre for Child Law as Amicus Curiae) 2008 (3) SA
232 (CC), 2007 (2) SACR 539 (CC)).
8 On children’s rights, see further Heaton Family Law ch 22 and the sources cited
there.

9 Children’s Act s 6(2)(a) read with s 8(1).
10 S 2(b); compare s 28(1)(b), (d) and (2) of the Constitution.
11 S 2(b). On these international instruments, see further below in this ch.
12 S 6(1).
13 S 6(2)(a).
14 S 6(2)(b)–(e).
15 S 6(2)(f).
16 S 6(5).
17 S 6(3).
18 S 6(4). See also FS v JJ 2011 (3) SA 126 (SCA), Heaton Casebook on the Law
of Persons case [24].
19 S 12(1).
20 S 12(2)(a).
21 S 12(2)(b). A minor’s capacity to marry is discussed below in this ch.
22 S 12(3) and (4); see also s 8(b) of the Promotion of Equality and Prevention of
Unfair Discrimination Act.
23 S 12(5).
24 S 12(6) and (7).
25 S 12(8).
26 S 12(10).
27 S 12(9). On virginity tests and circumcision, see further Kassan and Mahery in
Boezaart (ed.) Child Law in South Africa 186–194; Mahery, Proudlock and
Jamieson 7–8; Schäfer Child Law 169–173; Bennett, Mills and Munnick 2010
TSAR 254; Vawda and Maqutu 2011 South African Journal of Bioethics and the
Law 36.
28 S 13(1).
29 S 13(2).
30 Constitution s 34.
31 See below in this ch.
32 On the implications of the use of the word “every” in respect of a minor’s right
to be assisted in bringing a matter to court, see below in this ch.
33 Boezaart Persons 57.
34 FB v MB 2012 (2) SA 394 (GSJ).
35 Ibid.
36 The statutory entitlement to assistance in legal proceedings which s 14 confers
on every child is broader in scope than that which is conferred by s 28(1)(h) of
the Constitution because it does not limit the child’s right to legal representation
to cases where substantial injustice would otherwise result or restrict the child to
a legal practitioner assigned by the state: FB v MB 2012 (2) SA 394 (GSJ). On s
28(1)(h) of the Constitution, see above in this ch and see further Heaton Family
Law 275–276 and the sources cited there. On s 14 and the difficulties it creates
as well as the benefits it offers, see below in this ch and see further Davel in
Davel and Skelton (eds.) Commentary on the Children’s Act 2-19–2-24; Kruger
and Skelton (eds.) Persons 113–114, 136; Schäfer Child Law 173–174; Boezaart
and De Bruin 2011 De Jure 416.
37 S 15(2). The list resembles that which is contained in s 38 of the Constitution.
38 S 16.
39 South African Law Commission Discussion Paper Review of the Child Care Act
Project 110 par 5.4.
40 Art 4(1).
41 Art 3(1).
42 Art 4(2).
43 Art 12.
44 On the Convention and the Charter, see further Heaton Family Law 278–279
and the sources cited there.
45 On the use of the term “minor” to signify a child between the ages of seven and
18 years, see fn 1 above.
46 Voet 26.8.9.
47 Voet 4.4.52, 26.8.4, 26.8.9; Van Leeuwen Censura Forensis 1.4.3.2, Rooms-
Hollands-Regt 4.2.2.
48 De Wet and Van Wyk 98.
49 This also applies to a mentally ill person: see ch 7 below.
50 Voet 12.6.11.
51 On the meaning of “juristic act” and the distinction between a juristic act and a
juristic fact, see Heaton in Van Heerden et al (eds.) Boberg’s Law of Persons
and the Family 69–70 fn 16, 746 fn 6 and 751 fn 25.
52 In this ch the term “guardian” is generally used to signify the minor’s natural
guardian (i.e. his or her parent) as well as a legal guardian that is appointed to a
minor. On the appointment of guardians, see ch 5 above and Heaton Family Law
ch 25.
53 Voet 26.8.9, 41.2.6; Van Leeuwen Rooms-Hollands-Regt 4.2.2.
54 Buttar v Ault 1950 (4) SA 229 (T); Ex parte Hulton 1954 (1) SA 460 (C).
55 Voet 26.9.2. On the meaning of “legal capacity”, see ch 3 above.
56 Children’s Act s 12(2)(a).
57 Long-term Insurance Act 52 of 1998 s 55. The limit differs depending on
whether the child is below or over the age of 6 years. On minors and insurance
contracts, see further Van Niekerk 2006 SA Merc LJ 204.
58 Voet 2.4.4.
59 See also Boezaart Persons 57; Boezaart in Boezaart (ed.) Child Law in South
Africa 22; Schäfer Child Law 203; Boezaart and De Bruin 2011 De Jure 420–
422, 437, 438. On s 14, see further above in this ch.
60 Child Justice Act 75 of 2008 s 7(1) and (3).
61 D 9.2.5.2, 48.8.12; Van Leeuwen Rooms-Hollands-Regt 4.32.6; Voet 9.2.29;
Attorney-General, Transvaal v Additional Magistrate for Johannesburg 1924
AD 421; De Bruyn v Minister van Vervoer 1960 (3) SA 820 (O); Van
Oudtshoorn v Northern Assurance Co Ltd 1963 (2) SA 642 (A); Jones v Santam
Bpk 1965 (2) SA 542 (A); Neuhaus v Bastion Insurance Co Ltd 1968 (1) SA
398 (A); Roxa v Mtshayi 1975 (3) SA 761 (A); Green v Naidoo 2007 (6) SA 372
(W).
62 Cronjé LAWSA vol 20 part 1 Persons par 466; Donaldson 90; Hahlo and Kahn
South Africa 378; Keightley in Van Heerden et al (eds.) Boberg’s Law of
Persons and the Family 893; Schäfer in Clark (ed.) Family Law Service par
E64; Spiro Parent and Child 179; Wille’s Principles 177.
63 Grotius 3.30.3; Voet 26.8.2; Van der Keessel Praelectiones 3.30.3.
64 See e.g. Wessels v Ten Oven 1938 TPD 26; De Beer v Sergeant 1976 (1) SA 246
(T); Maylett v Du Toit 1989 (1) SA 90 (T); Godfrey v Campbell 1997 (1) SA
570 (C).
65 On the issue of whether a minor is “a person not having capacity to contract” for
purposes of s 5(3) of the Bills of Exchange Act 34 of 1964, see Heaton and
Pretorius 2007 SALJ 112.
66 Voet 26.8.2–26.8.4; Van Leeuwen Censura Forensis 1.1.17.10, 1.4.3.2, Rooms-
Hollands-Regt 1.16.8, 4.2.3; Van der Linden 1.4.1; Grotius 1.8.5, 3.1.26, 3.6.9,
3.48.10; Van der Keessel Theses Selectae 128. The courts have also often
confirmed this principle: see e.g. Dhanabakium v Subramanian 1943 AD 160
and Edelstein v Edelstein 1952 (3) SA 1 (A). In terms of the Consumer
Protection Act 68 of 2008, a supplier may require the consent of a parent,
guardian or other responsible adult before supplying or providing access to
goods or services to an unemancipated minor if a public regulation requires the
supplier to do so or if such consent is a reasonable precaution to protect the
minor’s health, welfare or safety: s 9(1)(a). A supplier may also on reasonable
grounds refuse to enter into, continue or renew an agreement for the supply of
goods or services with an unemancipated minor: s 9(1)(b). It is submitted that
refusal on the ground that the minor does not have the assistance of his or her
guardian to a contract that imposes obligations on the minor would be
reasonable.
67 Voet 26.8.2; Grotius 1.8.5; Van Leeuwen Rooms-Hollands-Regt 1.16.8, 4.2.3;
Edelstein v Edelstein 1952 (3) SA 1 (A).
68 Boezaart Persons 60; Boezaart in Boezaart (ed.) Child Law in South Africa 24;
Cockrell in Van Heerden et al (eds.) Boberg’s Law of Persons and the Family
785 fn 78; Cronjé LAWSA vol 20 part 1 Persons par 469; De Wet and Van Wyk
59; Heaton in Van Heerden et al (eds.) Boberg’s Law of Persons and the Family
847; Kruger and Robinson in Robinson (ed.) Law of Children and Young
Persons 23; Kruger and Skelton (eds.) Persons 116; Schäfer Child Law 201;
Schäfer in Clark (ed.) Family Law Service par E70; Van Heerden in Van
Heerden et al (eds.) Boberg’s Law of Persons and the Family 737. A minor’s
capacity to enter into other agreements is discussed below in this ch. On
donations by a parent to his or her child, see Van Heerden in Van Heerden et al
(eds.) Boberg’s Law of Persons and the Family 732 et seq.
69 Strictly speaking it is incorrect to say that the minor is not bound by the
agreement: see e.g. Grotius 3.6.9 and De Wet and Van Wyk 59–60. There is,
after all, an obligation in terms of which the minor must perform, although the
minor cannot be held liable in court on the strength of this obligation. Therefore
it is more accurate to say that the minor is bound but not liable. In South African
legal terminology “bound” and “liable” (gebonde and aanspreeklik) are,
however, used more or less as synonyms and this practice is followed in this
book. See also Cockrell in Van Heerden et al (eds.) Boberg’s Law of Persons
and the Family 800 fn 131; Cronjé LAWSA vol 20 part 1 Persons par 469 fn 7.
70 Voet 15.1.11, 26.8.4, 44.7.3; Van Leeuwen Censura Forensis 1.4.3.2;
McCallum v Hallen 1916 EDL 74; Mazzur v Cleghorn & Harris Ltd 1917 CPD
291; Marshall v National Wool Industries Ltd 1924 OPD 238, Heaton Casebook
on the Law of Persons case [27].
71 But see e.g. De Beer v Estate De Beer 1916 CPD 125; McCallum v Hallen 1916
EDL 74; Louw v MJ & H Trust (Pty) Ltd 1975 (4) SA 268 (T); Grand Prix
Motors WP (Pty) Ltd v Swart 1976 (3) SA 221 (C) in which judges described
the contract as void.
72 For purposes of this discussion it is assumed that the other party is a major.
73 Grotius 3.6.9; Voet 26.8.3; Van Leeuwen Censura Forensis 1.1.17.10; Edelstein
v Edelstein 1952 (3) SA 1 (A).
74 But see Du Toit v Lotriet 1918 OPD 99 where the contract was described as
voidable. Further on the difficulty in correctly describing the nature of a minor’s
unassisted contract, see Boezaart Persons 71–72; Cockrell in Van Heerden et al
(eds.) Boberg’s Law of Persons and the Family 830 et seq; Christie 244–245;
Kruger and Robinson in Robinson (ed.) Law of Children and Young Persons
33–34; Kruger and Skelton (eds.) Persons 122; Schäfer Child Law 200–201;
Van der Vyver and Joubert 162 et seq; Reinecke 1964 THRHR 133.
75 The Act applies to every transaction that takes place in South Africa, unless the
transaction relates to the promotion or supply of goods or services to the state, a
credit agreement under the National Credit Act 34 of 2005, services in terms of
an employment contract, an industry-wide exemption that has been granted by
the Minister responsible for consumer protection, or giving effect to a collective
bargaining agreement or collective agreement in terms of the Labour Relations
Act 66 of 1995, or unless the consumer is a juristic person whose asset value or
annual turnover, at the time of the transaction, equals or exceeds the threshold
value determined by the Minister: s 5(1)(a) read with s 5(2) and (3) and the
definition of “Minister”. At present, the threshold value is R2 000 000: GN 294
GG 34181 of 1 April 2011. In certain circumstances, the Act also applies to the
promotion of goods or services or the promotion of the supplier of goods or
services: s 5(1)(b). It also applies to the goods supplied or services performed in
terms of a transaction to which the Act applies and, to a limited extent, to goods
that are supplied in South Africa in terms of a transaction to which the Act does
not apply: s 5(1)(c) and (d). A “supplier” is a person who markets any goods or
services: s 1.
76 A consumer includes (1) a person to whom goods or services are marketed in
the ordinary course of a supplier’s business; and (2) a person who has entered
into a transaction with a supplier in the ordinary course of the supplier’s
business, unless the transaction relates to a credit agreement under the National
Credit Act, services in terms of an employment contract, an industry-wide
exemption that has been granted by the Minister or giving effect to a collective
bargaining agreement: pars (a) and (b) of the definition of “consumer” read with
s 5(2)(a), (c)–(g) and (3). In certain circumstances, a franchisee also qualifies as
a consumer: par (d) of the definition of “consumer” in s 1.
77 On ratification, emancipation, and the age of majority, see below in this ch.
78 See also Schäfer Child Law 202–203.
79 On the rule that while the minor’s minority lasts the guardian, and not the minor,
must make the decision, see Voet 29.2.34; Rhode v Minister of Defence 1943
CPD 40; Edelstein v Edelstein 1952 (3) SA 1 (A).
80 The exceptio non adimpleti contractus entails that one party to a contract that
provides for reciprocal performance cannot claim the other party’s performance
without also performing or tendering performance. As the exceptio is founded
on the principle of reciprocity, it cannot be invoked against someone whose
performance is not yet due or someone who is not contractually bound to
perform at all – as is the position in the case of an unassisted minor. Thus it does
not offer an avenue for withholding performance to someone who has entered
into a contract with an unassisted minor. Nor does it enable that person to hold
the minor to the terms of the contract: Cockrell in Van Heerden et al (eds.)
Boberg’s Law of Persons and the Family 807–808. On the exceptio non
adimpleti contractus, see further Christie 437–440; De Wet and Van Wyk 196–
208; Kerr 683–687; Wille’s Principles 827–828.
81 Rhode v Minister of Defence 1943 CPD 40.
82 A minor’s capacity to litigate is discussed below in this ch.
84 On a minor’s right to recover performance, see in general Voet 4.4.21, 26.8.4,
44.7.3; Grotius 3.30.11, 3.39.11; Van der Keessel Theses Selectae 529,
Praelectiones 1.8.5; Baddeley v Clarke (1923) 44 NLR 306; Louw v MJ & H
Trust (Pty) Ltd 1975 (4) SA 268 (T); Grand Prix Motors WP (Pty) Ltd v Swart
1976 (3) SA 221 (C), Heaton Casebook on the Law of Persons case [40].
85 Boezaart Persons 74; Cockrell in Van Heerden et al (eds.) Boberg’s Law of
Persons and the Family 801; Cronjé LAWSA vol 20 part 1 Persons par 469;
Kruger and Skelton (eds.) Persons 122–123; Schäfer in Clark (ed.) Family Law
Service par E71; Van der Vyver and Joubert 164–165; Wille’s Principles 179;
Reinecke 1964 THRHR 138 fn 38. See also De Vos 95.
86 Baddeley v Clarke (1923) 44 NLR 306. Unjustified enrichment is discussed
below in this ch.
87 Voet 4.1.13, 4.4.21, 4.4.47, 4.4.52; Grotius 3.48.10; Van Leeuwen Censura
Forensis 1.4.43.2; Van der Keessel Theses Selectae 128, Praelectiones 1.8.5; De
Beer v Estate De Beer 1916 CPD 125; Du Toit v Lotriet 1918 OPD 99; Tjollo
Ateljees (Eins) Bpk v Small 1949 (1) SA 856 (A); Edelstein v Edelstein 1952 (3)
SA 1 (A); Boezaart Persons 68; Cockrell in Van Heerden et al (eds.) Boberg’s
Law of Persons and the Family 802; Christie 243, 244–245; Cronjé LAWSA vol
20 part 1 Persons par 469; De Wet and Van Wyk 68; Hahlo and Kahn South
Africa 382; Kruger and Skelton (eds.) Persons 123; Van der Vyver and Joubert
159; Schäfer in Clark (ed.) Family Law Service par E71; Wessels Contract par
835.
88 Edelstein v Edelstein 1952 (3) SA 1 (A). On restitutio in integrum, see further
below in this ch.
89 Ratification is discussed below in this ch.
90 Voet 4.4.39, 26.8.4, 44.7.3; Grotius 3.3.22, 3.48.12; Van Leeuwen Censura
Forensis 1.4.3.2, 1.4.43.10.
91 Voet 44.7.3.
92 Cockrell in Van Heerden et al (eds.) Boberg’s Law of Persons and the Family
785 fn 78; Cronjé LAWSA vol 20 part 1 Persons par 469; Kruger and Skelton
(eds.) Persons 123; Reinecke 1964 THRHR 136.
94 Voet 14.5.4, 26.9.1, 26.9.2; Van der Keessel Theses Selectae 133; Van Leeuwen
Censura Forensis 1.1.17.10–1.1.17.13; Moolman v Erasmus 1910 CPD 79;
Skead v Colonial Banking & Trust Co Ltd 1924 TPD 497; Marshall v National
Wool Industries Ltd 1924 OPD 238; Wood v Davies 1934 CPD 250, Heaton
Casebook on the Law of Persons case [33]; Van Dyk v SAR & H 1956 (4) SA
410 (W), Heaton Casebook on the Law of Persons case [26].
95 Voet 26.9.1, 26.9.2; Grotius 1.8.5, 1.8.7, 3.48.10; Van Leeuwen Censura
Forensis 1.1.17.11–1.1.17.13, Rooms-Hollands-Regt 1.16.8; Van der Keessel
Theses Selectae 133; Truter v Van der Westhuizen 1918 CPD 31; Du Toit v
Lotriet 1918 OPD 99; Skead v Colonial Banking & Trust Co Ltd 1924 TPD 497;
Ex parte Fortoen 1938 WLD 62; Ten Brink v Motala 2001 (1) SA 1011 (D).
96 Voet 4.4.21, 26.8.3, 39.5.7; Grotius 3.48.10; Van Leeuwen Censura Forensis
1.4.43.1; Skead v Colonial Banking & Trust Co Ltd 1924 TPD 497; Marshall v
National Wool Industries Ltd 1924 OPD 238; Wood v Davies 1934 CPD 250;
Dhanabakium v Subramanian 1943 AD 160; Dreyer v Sonop Bpk 1951 (2) SA
392 (O); Van Dyk v SAR & H 1956 (4) SA 410 (W).
97 Ratification is discussed below in this ch.
98 McCallum v Hallen 1916 EDL 74; Ex parte Blignaut 1963 (4) SA 36 (O).
99 This is known as emancipation. On emancipation, see further below in this ch.
100 1930 SALJ 182. See further Rousseau v Norton (1908) 18 CTR 621; De Beer v
Estate De Beer 1916 CPD 125; Du Toit v Lotriet 1918 OPD 99; Baddeley v
Clarke (1923) 44 NLR 306; Fouche v Battenhausen & Co 1939 CPD 228,
Heaton Casebook on the Law of Persons case [30]; Ex parte Blignaut 1963 (4)
SA 36 (O).
101 Van Dyk v SAR & H 1956 (4) SA 410 (W).
102 Auret v Hind (1884) 4 EDC 283; Du Toit v Lotriet 1918 OPD 99.
103 Schoeman v Rafferty 1918 CPD 485.
104 Voet 26.8.8.
105 D 26.8.1 pr; Voet 26.8.6; Grotius 1.7.11; Van Leeuwen Rooms-Hollands-Regt
1.16.4.
106 In such event the court (or the Master of the High Court if the value of the
property does not exceed the amount the Minister of Justice and Constitutional
Development sets by notice in the GG) must also consent to the transaction:
Administration of Estates Act 66 of 1965 s 80(1).
107 Ex parte Potgieter et Uxor 1943 OPD 4. An antenuptial contract is a contract
between persons who intend to get married or intend to enter into a civil union
in which they regulate the consequences of their future marriage or civil union
and, in particular, the matrimonial property system which is to apply to it. The
matrimonial property system determines whether the couple’s marriage or civil
union is in or out of community of property. On antenuptial contracts, see
further Heaton Family Law ch 7.
108 Du Toit v Lotriet 1918 OPD 99.
109 See also s 141(1)(e) of the Children’s Act which prohibits any person from
using, procuring, offering or employing a child for child labour. “Child labour”
is defined as work by a child which is exploitative, hazardous or otherwise
inappropriate for a person of that age, and places his or her well-being,
education, physical or mental health, or spiritual, moral, emotional or social
development at risk: Children’s Act s 1. S 43 of the Basic Conditions of
Employment Act further prohibits employment of a minor of any age in
employment that is inappropriate for a person of that age, or places his or her
well-being, education, physical or mental health, or spiritual, moral or social
development at risk. See also s 28(1)(f) of the Constitution, which affords every
child the right not to be required or permitted to perform work or provide
services that are inappropriate for a person of that age or place his or her well-
being, education, physical or mental health or spiritual, moral or social
development at risk. The Basic Conditions of Employment Act permits
exemptions from the prohibitions in s 43 in respect of advertisements, sports,
and artistic or cultural activities: s 50(2)(b).
110 In terms of s 3(1) of the South African Schools Act 84 of 1996, a learner must
attend school until the last school day of the year in which he or she reaches the
age of 15 years or the ninth grade, whichever occurs first.
111 If the particular Act is silent on whether contravention results in nullity, the
contract may be held to be voidable or even valid: see e.g. the exposition in
Christie 351–358 and Wille’s Principles 761–763, and the case law cited there.
112 See also Boezaart Persons 84; Grogan Workplace Law 36; Kruger and Skelton
(eds.) Persons 118.
113 See art 32 of the Convention on the Rights of the Child and art 15 of the African
Charter on the Rights and Welfare of the Child. Convention 138 of the
International Labour Organisation specifically dictates that the minimum age
should not be lower than the minimum school-leaving age and may not be less
than 15 years. It, however, allows developing countries initially to set the
minimum age at 14 years under certain circumstances. In the case of “light
work”, the minimum age may be 13 years (or 12 years in the case of developing
countries which set 14 years as the general minimum age). South Africa ratified
Convention 138 in 2000.
114 On the above-mentioned international instruments and child labour in general,
see Church and Church LAWSA vol 2 part 2 Children pars 70–71; Schäfer Child
Law 140–141; South African Law Commission Discussion Paper Review of the
Child Care Act Project 110 par 13.5 and Report on the Review of the Child Care
Act Discussion Paper 103 Project 110 par 12.4; Mayimele-Hashatse in Davel
(ed.) Children’s Rights in a Transitional Society 79–87; Nhenga-Chakarisa 2010
African Human Rights Law Journal 161.
115 Long-term Insurance Act s 55. On minors and insurance contracts, see further
Van Niekerk 2006 SA Merc LJ 204.
116 Children’s Act s 18(3)(c)(v) read with s 18(5).
117 Van der Keessel Theses Selectae 133; Van Leeuwen Censura Forensis
1.1.17.10–1.1.17.13; Marshall v National Wool Industries Ltd 1924 OPD 238;
Ex parte Fortoen 1938 WLD 62; Fouche v Battenhausen & Co 1939 CPD 228.
118 Our courts have, however, sometimes adopted the opposite view: see e.g.
McCallum v Hallen 1916 EDL 74; Skead v Colonial Banking & Trust Co Ltd
1924 TPD 497. In Skead’s case it was held that a guardian who enters into a
contract which is detrimental to the minor’s interests is personally liable on that
contract. This view is incorrect, as the parties to the contract never intended that
the guardian should be personally liable. The incorrect view is based on a wrong
interpretation of Voet 15.1.11 and is not supported; see also Voet 26.9.2, 26.9.3;
Van Leeuwen Censura Forensis 1.1.17.13; Marshall v National Wool Industries
Ltd 1924 OPD 238; Dreyer v Sonop Bpk 1951 (2) SA 392 (O); Boezaart Persons
66; Boezaart in Boezaart (ed.) Child Law in South Africa 30; Cockrell in Van
Heerden et al (eds.) Boberg’s Law of Persons and the Family 796; Christie 242–
243; Cronjé LAWSA vol 20 part 1 Persons par 469, 475; Kruger and Robinson
in Robinson (ed.) Law of Children and Young Persons 32; Kruger and Skelton
(eds.) Persons 118; Schäfer Child Law 200; Van der Vyver and Joubert 158.
119 McCallum v Hallen 1916 EDL 74; Marshall v National Wool Industries Ltd
1924 OPD 238; Dreyer v Sonop Bpk 1951 (2) SA 392 (O).
798; Cronjé LAWSA vol 20 part 1 Persons par 475; Kruger and Robinson in
Robinson (ed.) Law of Children and Young Persons 32; Kruger and Skelton
(eds.) Persons 118; Van der Vyver and Joubert 158, 167; Spiro 1951 SALJ 178
et seq. The surety remains liable even if the minor, not having had the required
consent, is not liable: Voet 44.7.3.
121 On the parental duty of support, see Heaton Family Law 322, 324–328.
122 The Colonial Government v William Meldrum (1890) 11 NLR 139; Schreiber v
Paper (1906) 20 EDC 34; McCallum v Hallen 1916 EDL 74; Mazzur v
Cleghorn & Harris Ltd 1917 CPD 291; Fillis v Joubert Park Private Hospital
(Pty) Ltd 1939 TPD 234. Generally on negotiorum gestio, see Wille’s Principles
1072–1073. See further Cockrell in Van Heerden et al (eds.) Boberg’s Law of
Persons and the Family 780, 798, 813.
123 Baddeley v Clarke (1923) 44 NLR 306.
124 Voet 26.8.1; Van der Keessel Praelectiones 1.8.5; Groenewegen ad Inst 1.21.2;
Van Leeuwen Censura Forensis 1.1.17.10, Rooms-Hollands-Regt 4.2.3
(Decker’s n (f)); Du Toit v Lotriet 1918 OPD 99; Baddeley v Clarke (1923) 44
NLR 306; Fouche v Battenhausen & Co 1939 CPD 228; Perkins v Danford
1996 (2) SA 128 (C).
125 Du Toit v Lotriet 1918 OPD 99.
126 Voet 4.4.44, 26.8.4; Riesle and Rombach v McMullin (1907) 10 HCG 381;
Breytenbach v Frankel 1913 AD 390; Stuttaford & Co v Oberholzer 1921 CPD
855, Heaton Casebook on the Law of Persons case [28]; De Canha v Mitha
1960 (1) SA 486 (T).
127 Voet 4.4.44; De Villiers v Liebenberg (1907) 17 CTR 867; Skead v Colonial
Banking & Trust Co Ltd 1924 TPD 497.
128 Voet 4.4.44; Stuttaford & Co v Oberholzer 1921 CPD 855. See also Mort v
Henry Shields-Chiat 2001 (1) SA 464 (C).
129 See e.g. Wessels Contract pars 856–857; Caney 1930 SALJ 194.
130 1977 (3) SA 513 (A).
131 See also Cockrell in Van Heerden et al (eds.) Boberg’s Law of Persons and the
Family 805–806. Cockrell further points out that the issue is bound up with the
more general question of waiver of rights in ignorance of the law. He inter alia
refers to Van der Merwe v Die Meester 1967 (2) SA 714 (SWA) 724 where
Muller J concluded that “onkunde van die reg . . . by ’n geval van
afstanddoening vergewe kan word, nieteenstaande die beginsel ignorantia juris
haud excusat, mits sodanige onkunde as waarskynlik aanvaar word en
regverdigbaar is”. Kruger and Skelton (eds.) Persons 123 support Cockrell’s
submission that this approach should extend to ratification by a former minor so
that an inference of ratification could be refuted by proof that the minor was
reasonably and excusably ignorant of the right to repudiate the contract. So do I.
(The view propounded by Cockrell was originally expressed in Boberg 590.)
Christie 253 submits that the question should be whether the erstwhile minor “so
conducted himself that the other party, as a reasonable man, is entitled to assume
that he has ratified”. On Christie’s view, it is not the reasonableness of the
former minor’s conduct but the reasonableness of the other party’s interpretation
of the former minor’s conduct that determines the outcome.
133 On postnuptial alteration of the matrimonial property system, see Heaton Family
Law ch 8.
134 See the definition of “civil union” in s 1 of the Act.
135 1952 (3) SA 1 (A).
136 In terms of s 13 of the Civil Union Act, the consequences of a civil union match
those of a marriage, except in so far as the Marriage Act 25 of 1961 and the
Recognition of Customary Marriages Act 120 of 1998 are concerned. Thus
decisions regarding a civil marriage apply equally to a civil union except in so
far as they relate specifically to the Marriage Act.
137 Mutual Banks Act s 88(1).
138 Banks Act 94 of 1990 s 87(1).
139 Friendly Societies Act 25 of 1956 s 16.
140 Voet 4.4.43, 27.9.13; Van Leeuwen Censura Forensis 1.4.43.7; Auret v Hind
(1884) 4 EDC 283; JC Vogel & Co v WA Greentley (1903) 24 NLR 252; Pleat v
Van Staden 1921 OPD 91, Heaton Casebook on the Law of Persons case [29];
Fouche v Battenhausen & Co 1939 CPD 228; Louw v MJ & H Trust (Pty) Ltd
1975 (4) SA 268 (T); Grand Prix Motors WP (Pty) Ltd v Swart 1976 (3) SA 221
(C); Boezaart Persons 81–84; Boezaart in Boezaart (ed.) Child Law in South
Africa 28–29; Cockrell in Van Heerden et al (eds.) Boberg’s Law of Persons
and the Family 817; Cronjé LAWSA vol 20 part 1 Persons par 470; De Wet and
Van Wyk 63 et seq; Donaldson 27–33; Hahlo and Kahn South Africa 381;
Kruger and Robinson in Robinson (ed.) Law of Children and Young Persons 30;
Kruger and Skelton (eds.) Persons 126–128; Schäfer Child Law 201–202;
Schäfer in Clark (ed.) Family Law Service par E72; Van der Vyver and Joubert
156 et seq; Wessels Contract pars 830–844. See further Christie 248–251.
141 Restitutio in integrum is discussed below in this ch.
142 Voet 4.4.43, 27.9.13; Van Leeuwen Censura Forensis 1.4.43.7; Fouche v
Battenhausen & Co 1939 CPD 228; Louw v MJ & H Trust (Pty) Ltd 1975 (4)
SA 268 (T).
143 Pleat v Van Staden 1921 OPD 91; Fouche v Battenhausen & Co 1939 CPD 228;
De Wet and Van Wyk 63; Van der Vyver and Joubert 156–157.
144 See e.g. Edelstein v Edelstein 1952 (3) SA 1 (A) 11A where it was said:
“Restitution presupposes a binding contract; therefore one concluded by a minor
with the assistance of his guardian”.
145 Voet 4.1.13; Breytenbach v Frankel 1913 AD 390; Du Toit v Lotriet 1918 OPD
99.
818–819, whose statements are based on Boberg 600–601. See also Boezaart
Persons 83; Cronjé LAWSA vol 20 part 1 Persons par 470; Donaldson 29–30;
Hahlo and Kahn South Africa 381; Kruger and Robinson in Robinson (ed.) Law
of Children and Young Persons 31 fn 212; Kruger and Skelton (eds.) Persons
126–127; Schäfer Child Law 202; Schäfer in Clark (ed.) Family Law Service par
E71; Wessels Contract pars 830–843.
147 1975 (4) SA 268 (T), Heaton Casebook on the Law of Persons case [31].
148 See also Boezaart Persons 83; Cockrell in Van Heerden et al (eds.) Boberg’s
Law of Persons and the Family 821; Cronjé LAWSA vol 20 part 1 Persons par
470; Kruger and Skelton (eds.) Persons 127; but see Scott Unjust Enrichment by
Transfer in South African Law: Unjust Factors or Absence of Legal Ground?
Thesis, University of Oxford 2005 196 as cited in Visser Unjustified Enrichment
549 who is of the view that in Louw v MJ & H Trust (Pty) Ltd restitutio in
integrum was the correct remedy. Du Plessis 83 is of the view that some of the
objections against using restitutio in integrum are unconvincing, but he doubts
whether it would be beneficial to rely on restitutio in integrum because claims
based on enrichment “provide more appropriate protection to the minor in terms
of the quantification of liability”. See also Du Plessis 84.
821–822; Cronjé LAWSA vol 20 part 1 Persons par 470. But see Van der Vyver
and Joubert 157 who are of the view that the decision in Louw’s case is wrong,
but submit that the minor is bound by the contract as a result of his
misrepresentation.
822 fn 184; Cronjé LAWSA vol 20 part 1 Persons par 470.
151 These remedies are discussed below in this ch.
152 Van der Vyver and Joubert 157; Pauw 1976 THRHR 83–84. The courts have not
yet specifically considered estoppel as a ground of liability on the part of the
minor although it was said in JC Vogel & Co v WA Greentley (1903) 24 NLR
252 254 that “there can be no doubt that under Roman-Dutch Law where the
minor represents himself to be of age, and by virtue of the representation enters
into a contract that he is generally bound by that representation”.
153 See also Louw v MJ & H Trust (Pty) Ltd 1975 (4) SA 268 (T) 273H; Boezaart
Persons 82; Cockrell in Van Heerden et al (eds.) Boberg’s Law of Persons and
the Family 824–825, 826; Cronjé LAWSA vol 20 part 1 Persons par 470;
Donaldson 32; Kruger and Robinson in Robinson (ed.) Law of Children and
Young Persons 31; Kruger and Skelton (eds.) Persons 127–128; Schäfer Child
Law 202; Sonnekus Die Estoppelleerstuk 195; Wessels Contract pars 830–831.
154 See fn 75 above on the transactions that are governed by the Act.
155 On this section, see above in this ch.
156 See also Cockrell in Van Heerden et al (eds.) Boberg’s Law of Persons and the
Family 826; Cronjé LAWSA vol 20 part 1 Persons par 470; Donaldson 30;
Kruger and Robinson in Robinson (ed.) Law of Children and Young Persons 31;
Kruger and Skelton (eds.) Persons 128; Schäfer Child Law 202; Schäfer in
Clark (ed.) Family Law Service par E72; Spiro Parent and Child 115; Wille’s
Principles 181.
157 3.1.26. See also 1.8.5, 3.6.9.
158 See also Van Leeuwen Censura Forensis 1.1.17.10, 1.4.3.2, Rooms-Hollands-
Regt 1.16.8, 4.2.3; Voet 26.8.2; Van der Keessel Theses Selectae 529,
Praelectiones 1.8.5, 3.30.3.
159 See e.g. JC Vogel & Co v WA Greentley (1903) 24 NLR 252; Pleat v Van
Staden 1921 OPD 91; Fouche v Battenhausen & Co 1939 CPD 228.
160 Pleat v Van Staden 1921 OPD 91.
161 Voet 4.4.43; Pleat v Van Staden 1921 OPD 91; Fouche v Battenhausen & Co
1939 CPD 228; Louw v MJ & H Trust (Pty) Ltd 1975 (4) SA 268 (T). Some
authors suggest that a distinction should be made between a minor’s
misrepresentation concerning his or her emancipation or guardian’s consent on
the one hand, and one regarding his or her age on the other: see e.g. Hahlo and
Kahn South Africa 381; Spiro Parent and Child 115 fn 63. According to these
authors the other party to the contract must look into the truth of the minor’s
statement in the first two instances. This view was correctly rejected in Louw v
MJ & H Trust (Pty) Ltd.
828; Christie 248; Cronjé LAWSA vol 20 part 1 Persons par 470; Kruger and
Skelton (eds.) Persons 128. See also s 39(2) of the Consumer Protection Act.
163 Pleat v Van Staden 1921 OPD 91; Louw v MJ & H Trust (Pty) Ltd 1975 (4) SA
268 (T).
164 Voet 4.4.43; Pleat v Van Staden 1921 OPD 91.
165 Pleat v Van Staden 1921 OPD 91; Fouche v Battenhausen & Co 1939 CPD 228;
Louw v MJ & H Trust (Pty) Ltd 1975 (4) SA 268 (T).
166 (1890) 8 SC 16.
167 Prior to this decision there had been judgments following the Roman-Dutch
rule, i.e. that an unassisted minor is not liable on the contract: see e.g. Gantz v
Wagenaar (1828) 1 Menz 92; Riggs v Calff (1836) 3 Menz 76; Fouchee v De
Villiers (1883) 3 EDC 147; and also the later cases Groenewald v Rex 1907 TS
47 and Tanne v Foggitt 1938 TPD 43.
168 See e.g. Queen v Koning (1900) 17 SC 541; JC Vogel & Co v WA Greentley
(1903) 24 NLR 252; Fick v R 1904 ORC 25; Drayton v Wattrus (1908) 18 CTR
657; Riesle and Rombach v McMullin (1907) 10 HCG 381; Du Toit v Lotriet
1918 OPD 99; Baddeley v Clarke (1923) 44 NLR 306; Skead v Colonial
Banking & Trust Co Ltd 1924 TPD 497; R v Muila 1926 OPD 119; Silberman v
Hodkinson 1927 TPD 562.
169 1952 (3) SA 1 (A). Prior to this case the Transvaal court had already rejected
this approach in Tanne v Foggitt 1938 TPD 43.
170 12EF.
171 Capacity to act is not a requirement for liability based on enrichment. On a
minor’s liability for enrichment, see also Voet 12.6.11, 26.8.2; Grotius 1.8.5,
3.1.26, 3.6.9, 3.30.3, 3.30.11; Van Leeuwen Rooms-Hollands-Regt 1.16.8, 4.2.3,
Censura Forensis 1.1.17.10; Van der Keessel Theses Selectae 529; Pretorius v
Van Zyl 1927 OPD 226; Tanne v Foggitt 1938 TPD 43. On the issue of which
condictio is to be used to recover whatever the minor or the other party to the
contract has delivered, see Du Plessis 80–82; Visser Unjustified Enrichment
547–551.
172 See e.g. Pretorius v Van Zyl 1927 OPD 226; Nortjé v Pool 1966 (3) SA 96 (A);
McCarthy Retail Ltd v Shortdistance Carriers CC [2001] 3 All SA 236 (SCA),
2001 (3) SA 482 (SCA).
811; De Wet and Van Wyk 61; Du Plessis 80–81; Kruger and Robinson in
Robinson (ed.) Law of Children and Young Persons 34; Kruger and Skelton
(eds.) Persons 125; Lotz LAWSA vol 9 Enrichment par 209; Sonnekus
Ongegronde Verryking 167–168; Van der Vyver and Joubert 165, 166–167;
Visser Unjustified Enrichment 161, 163, 730; Wille’s Principles 181–182. See
further Wille’s Principles 1048–1051. Van den Heever JA refers to “the time of
the action” in Edelstein v Edelstein 1952 (3) SA 1 (A) 12F. Christie 247 submits
that “[t]he time of the action, as the time to gauge enrichment, cannot be the
time of the hearing or even litis contestatio, as this would be an open invitation
to the minor to divest himself of the enrichment after service of the summons on
him”. Christie concludes that Van den Heever JA must have had the time of
service of summons in mind. See also De Vos 89–90.
174 Boezaart Persons 76; Christie 247; Kruger and Skelton (eds.) Persons 125;
Sonnekus Ongegronde Verryking 52.
175 Grotius 3.30.3; Edelstein v Edelstein 1952 (3) SA 1 (A); see also Boezaart
Persons 76; Christie 247–248; Cockrell in Van Heerden et al (eds.) Boberg’s
Law of Persons and the Family 811–814; De Wet and Van Wyk 61; Du Plessis
81; Kruger and Skelton (eds.) Persons 125; Sonnekus Ongegronde Verryking
56; Van der Vyver and Joubert 166; Visser Unjustified Enrichment 732–736;
Wille’s Principles 182, 1048–1051.
176 Boezaart Persons 76; De Vos 46; Kruger and Skelton (eds.) Persons 125;
Sonnekus Ongegronde Verryking 56; Van der Vyver and Joubert 166; Wille’s
Principles 182. Christie 247 extends this principle to necessary gifts such as a
birthday gift for the minor’s mother or an engagement ring for his fiancée. See
further Cockrell in Van Heerden et al (eds.) Boberg’s Law of Persons and the
Family 813.
177 Voet 4.4.12–4.4.54; Van der Keessel Theses Selectae 133; Grotius 1.8.8, 3.48.5,
3.48.10–3.48.12; Van Leeuwen Censura Forensis 1.4.43.1–1.4.43.2;
Breytenbach v Frankel 1913 AD 390; Du Toit v Lotriet 1918 OPD 99; Skead v
Colonial Banking & Trust Co Ltd 1924 TPD 497; Wood v Davies 1934 CPD
250. See also Metedad v National Employers’ General Insurance Co Ltd 1992
(3) SA 538 (W).
178 Voet 4.4.15; In re Nooitgedacht: Ex parte Wessels (1902) 23 NLR 81; De Wet v
Bouwer 1919 CPD 43.
179 Voet 4.1.11 et seq; Grotius 3.48.10; Van Leeuwen Censura Forensis 1.4.43.1–
1.4.43.2; Van der Byl & Co v Solomon (1877) 7 Buch 25; Skead v Colonial
Banking & Trust Co Ltd 1924 TPD 497; Wood v Davies 1934 CPD 250.
180 D 4.4.11.4–4.4.11.5; Voet 4.4.49; Grotius 3.48.11; Skead v Colonial Banking &
Trust Co Ltd 1924 TPD 497.
181 Grotius 3.48.5; Voet 4.1.22, 4.4.36–4.4.37; Wood v Davies 1934 CPD 250.
182 Voet 4.1.13, 4.4.21, 4.4.52; Grotius 3.48.10; Van Leeuwen Censura Forensis
1.4.43.2; Van der Keessel Theses Selectae 128, 133, Praelectiones 1.8.5;
Breytenbach v Frankel 1913 AD 390; Du Toit v Lotriet 1918 OPD 99; Skead v
Colonial Banking & Trust Co Ltd 1924 TPD 497; Wood v Davies 1934 CPD
250; Tjollo Ateljees (Eins) Bpk v Small 1949 (1) SA 856 (A); Edelstein v
Edelstein 1952 (3) SA 1 (A).
183 Breytenbach v Frankel 1913 AD 390.
184 Voet 4.4.14–4.4.32.
185 1933 NPD 415.
186 Voet 4.4.45.
187 Voet 4.4.43; Van Leeuwen Censura Forensis 1.4.43.7; Fouche v Battenhausen
& Co 1939 CPD 228; Louw v MJ & H Trust (Pty) Ltd 1975 (4) SA 268 (T).
188 See also Boezaart Persons 70; Boezaart in Boezaart (ed.) Child Law in South
Africa 28; Cockrell in Van Heerden et al (eds.) Boberg’s Law of Persons and
the Family 490; Cronjé LAWSA vol 20 part 1 Persons par 486; De Wet and Van
Wyk 69; Van der Vyver and Joubert 153–155. But see Christie 255; Spiro
Parent and Child 251.
189 Van der Byl & Co v Solomon (1877) 7 Buch 25; Skead v Colonial Banking &
Trust Co Ltd 1924 TPD 497.
190 Grotius 3.48.12.
191 Prescription Act 68 of 1969 s 13(1)(a). On the effect of the lowering of the age
of majority on prescription, see below in this ch.
192 Voet 4.4.44; Van Leeuwen Censura Forensis 1.4.43.8; Van der Byl & Co v
Solomon (1877) 7 Buch 25; Wolff v Solomon’s Trustee (1895) 12 SC 42;
Fenner-Solomon v Martin 1917 CPD 22; Du Toit v Lotriet 1918 OPD 99; Skead
v Colonial Banking & Trust Co Ltd 1924 TPD 497.
193 Voet 4.4.39; Van Leeuwen Censura Forensis 1.4.43.10; Lee Introduction 48.
194 Harvey v Reed 1879 OFS 48; Reinecke 1964 THRHR 137.
195 Grotius 3.30.11; Voet 4.4.22; Van Leeuwen Rooms-Hollands-Regt 1.16.8; Van
der Keessel Praelectiones 1.8.5.
196 It must be noted that the minor’s performance is invalid only in so far as it
purports to extinguish the other party’s debt. It may be valid in so far as it is to
the minor’s advantage. E.g., if something is delivered to the minor in terms of a
contract of sale, delivery does not extinguish the other party’s obligation to
deliver, but ownership of the asset usually passes to the minor. In this regard,
see Reinecke 1964 THRHR 133–134.
197 D 46.3.14.8.
198 Voet 4.4.21.
199 Wills Act s 1.
200 Wills Act s 4.
201 The civil marriage of a minor is dealt with more fully in Heaton Family Law 17–
25. On the constitutional implications of the limitations on a minor’s capacity to
enter into a civil marriage, see Cockrell Bill of Rights Compendium par 3E40;
Heaton Bill of Rights Compendium par 3C14.2; Schäfer Child Law 205; Van der
Vyver in Robinson (ed.) Law of Children and Young Persons 290, 294.
202 Children’s Act s 18(3)(c) and (5); see also Matrimonial Affairs Act 37 of 1953 s
5(1); Divorce Act 70 of 1979 s 6(3).
203 Marriage Act s 26(1). As the age of majority is 18 years, this requirement means
that all male minors must obtain the Minister’s consent.
204 Marriage Act s 26(1).
205 At common law the age of puberty is 12 years for girls and 14 years for boys.
206 Boezaart Persons 84; Heaton in Van Heerden et al (eds.) Boberg’s Law of
Persons and the Family 836 fn 2; Kruger and Robinson in Robinson (ed.) Law
of Children and Young Persons 16; Kruger and Skelton (eds.) Persons 129; Lee
and Honoré par 41; Sinclair assisted by Heaton 367; Van der Vyver and Joubert
172, 486–487; Van Schalkwyk 70; Visser and Potgieter 51; Menge 1956 SALJ
450; Spiro 1960 THRHR 5; Van der Walt 1961 THRHR 119. See also s 12(2)(a)
of the Children’s Act which provides that a child “below the minimum age set
by law for a valid marriage” may not be given out in marriage or engagement.
For this provision to have a rational meaning there must be a minimum age of
marriage which is higher than the child’s date of birth. As our law has not
previously stipulated any cut-off age that is lower than the age of puberty, it
seems reasonable to assume that the minimum age the legislature had in mind
when drafting the Children’s Act was the common-law age of puberty. But see
Hahlo Husband and Wife 90; Conradie 1956 SALJ 190.
208 Marriage Act s 25(2) and (3).
210 Ibid.
211 On the various matrimonial property systems, see Heaton Family Law chs 6 and
7.
212 C v T 1965 (2) SA 239 (O).
213 Marriage Act s 24(2). The section refers to a “valid marriage”. At the time when
the Marriage Act was drafted, the legislature clearly had only a civil marriage in
mind. However, because s 2 of the Recognition of Customary Marriages Act
now recognises customary marriages as valid, the phrase “valid marriage”
should be interpreted to apply to a valid customary marriage too. Further, as s 6
of the Recognition of Customary Marriages Act confers “full status and
capacity” on wives in customary marriages, and husbands in customary
marriages always acquired adult status and capacity upon entering into a
customary marriage, minors of both sexes now obtain majority status when they
enter into a valid customary marriage.
214 Voet 4.4.6; Cohen v Sytner (1897) 14 SC 13. See also below in this ch.
215 Recognition of Customary Marriages Act s 3(1)(a) read with s 18(3)(c)(i) of the
Children’s Act. The customary marriage of a minor is dealt with more fully in
Heaton Family Law 207, 215–217.
216 S 25(1) of the Marriage Act read with s 3(3)(b) of the Recognition of Customary
Marriages Act.
217 S 25(4) of the Marriage Act read with s 3(3)(b) of the Recognition of Customary
Marriages Act.
218 Recognition of Customary Marriages Act s 3(4)(a).
219 Recognition of Customary Marriages Act s 3(4)(b). The position corresponds to
that of a girl below the age of 15 years or a boy below the age of 18 years who
wants to enter into a civil marriage: see above in this ch.
221 See also Boezaart Persons 48 fn 10; Kruger and Skelton (eds.) Persons 130;
Schäfer Child Law 205; Schäfer in Clark (ed.) Family Law Service par R41; Van
Schalkwyk 2007 De Jure 168, 172.
223 Marriage Act s 24A.
224 The accrual system applies in some civil marriages out of community of
property. By virtue of this system the spouses share their profit at the dissolution
of the marriage. On the accrual system, see further Heaton Family Law ch 7.
225 On the patrimonial consequences of a minor’s civil marriage, see further Heaton
Family Law 22–25.
226 Recognition of Customary Marriages Act s 3(4)(c).
227 The consequences of failing to obtain the Minister’s consent are not governed
by s 3(5) of the Recognition of Customary Marriages Act, for this section only
regulates the consequences of failure to obtain the consent of the minor’s parent
or guardian, the presiding officer of the Children’s Court, or a judge. Since the
age of majority has been lowered to 18 years, a minor may only enter into a
customary marriage with the Minister’s consent. S 3(5) has consequently
become irrelevant.
228 Recognition of Customary Marriages Act s 8(4)(a).
229 See Heaton Family Law 215–217.
230 On a minor’s capacity to consent to medical treatment, operations, HIV
treatment and contraception in terms of the Children’s Act, see further Boezaart
Persons 86–87; Bosman-Sadie and Corrie 138–144; Kassan and Mahery in
Boezaart (ed.) Child Law in South Africa 206–221; Kruger and Skelton (eds.)
Persons 131–134; Mahery, Proudlock and Jamieson 9–17; Schäfer Child Law
186–198; Schäfer in Clark (ed.) Family Law Service pars E83–E85; Sloth-
Nielsen in Davel and Skelton (eds.) Commentary on the Children’s Act 7-31–7-
41; Himonga and Cooke 2007 International Journal of Children’s Rights 323;
Karels and Oosthuizen 2010 (2) Journal for Juridical Science 90–91; Strode,
Slack and Essack 2010 South African Medical Journal 247; Ncube and Ross
2010 South African Journal of Bioethics and the Law 67; Malherbe and
Govindjee 2010 THRHR 61; Pieterse 2010 THRHR 230. On children’s access to
contraception in Africa generally, see Durojaye 2011 CILSA 1.
231 S 129(3)–(5).
232 S 129(2).
233 S 129(4).
234 S 129(3).
235 On the lack of clarity regarding the requirement of due assistance, see also
Slabbert 2004 (2) Potchefstroom Electronic Law Journal 8.
236 In terms of s 5(2) and (3) of the Choice on Termination of Pregnancy Act 92 of
1996, a pregnant minor of any age may independently consent to the termination
of her pregnancy: see further below in this ch and ch 5 above.
237 S 129(5).
238 S 129(10).
239 S 129(7)(a) and (8).
240 S 129(7)(a).
241 S 129(7)(b)–(d).
242 S 129(9).
243 S 129(6).
244 S 130(1).
245 S 130(2)(a).
246 S 130(2)(b)–(d).
247 S 130(2)(e).
248 S 130(2)(f).
249 S 132(2).
250 S 132(1) and (2).
251 S 133(2)(a).
252 S 133(2)(b)–(c).
253 S 133(2)(d).
254 S 133(2)(e).
255 S 133(1).
256 S 134(1) and (2).
257 S 134(1).
258 S 134(2).
259 S 134(3).
260 2005 (1) SA 509 (T) (also reported as Christian Lawyers’ Association v Minister
of Health [2004] 4 All SA 31 (T), 2004 (10) BCLR 1086 (T)), Heaton Casebook
on the Law of Persons case [4]. On this case, see further ch 2 above.
261 Constitution ss 28(1)(b), 9(1) and 28(2), respectively.
262 Companies Act 71 of 2008 s 69(7)(b).
263 Mutual Banks Act s 38(a).
264 Insolvency Act 24 of 1936 s 55(c).
Heaton in Van Heerden et al (eds.) Boberg’s Law of Persons and the Family
853–854; Kruger and Skelton (eds.) Persons 115; Spiro Parent and Child 158;
Van der Vyver and Joubert 170–171; Van der Vyver 1997 SALJ 750.
266 In Ex parte Velkes 1963 (3) SA 584 (C) the question of whether an emancipated
minor can become a company director was left open. Emancipation is discussed
below in this ch.
267 As a person below the age of 18 years cannot enter into a civil union (Civil
Union Act s 1), it is impossible to obtain majority status by concluding such a
union. On a minor’s inability to enter into a civil union, see further above in this
ch.
268 Boezaart Persons 59; Cronjé LAWSA vol 20 part 1 Persons par 480; Heaton in
Van Heerden et al (eds.) Boberg’s Law of Persons and the Family 853 fn 61;
Kruger and Skelton (eds.) Persons 115; Van der Vyver and Joubert 170.
269 Children’s Act s 19(1) and (2) and s 20(a). This rule does not apply to civil
union partners, for only persons who are at least 18 years of age may enter into a
civil union: see above in this ch.
270 Grotius 1.7.6; Voet 26.1.3–26.1.5; Van der Keessel Theses Selectae 112, 114;
Dhanabakium v Subramanian 1943 AD 160.
271 On the parental responsibilities and rights of unmarried parents, see ch 5 above.
272 Voet 14.3.1; Cronjé LAWSA vol 20 part 1 Persons par 480; De Wet and Van
Wyk 98; Heaton in Van Heerden et al (eds.) Boberg’s Law of Persons and the
Family 854; Kruger and Skelton (eds.) Persons 115; Van der Vyver and Joubert
170.
273 Voet 2.4.4, 5.1.11; Grotius 1.8.4; Van Leeuwen Rooms-Hollands-Regt 5.3.5;
Van der Keessel Theses Selectae 127; Wolman v Wolman 1963 (2) SA 452 (A);
President Insurance Co Ltd v Yu Kwam 1963 (3) SA 766 (A). S 14 of the
Children’s Act entitles the minor to assistance in bringing a matter to court. On s
14, see further above in this ch.
274 See e.g. Perkins v Danford 1996 (2) SA 128 (C).
275 See e.g. Van Rij v Employers’ Liability Assurance Corporation Ltd 1964 (4) SA
731 (T); Ex parte Visser: In re Khoza 2001 (3) SA 524 (T). In Ex parte Oppel
2002 (5) SA 125 (C) (also reported as Ex parte Oppel: In re Appointment of
Curator ad Litem and Curator Bonis [2002] 1 All SA 8 (C)), Heaton Casebook
on the Law of Persons case [34] the court held that if the minor’s guardian is
alive and available, a curator ad litem will be appointed in exceptional
circumstances only. The court specifically referred to instances “where the
guardian refuses to act, where the minor litigates against the guardian or where
there is a clash of interests between that of the minor and that of the guardian”
(31DE).
276 1998 (4) SA 102 (O) (also reported as Vista University (Bloemfontein Campus)
v Student Representative Campus Vista 1998 (4) BCLR 514 (O)). In this case,
an order was sought interdicting all students enrolled at Vista University’s
Bloemfontein campus from committing certain acts which interfered with,
prevented, or disrupted the normal functioning of the university. The court
assumed that the majority of the students were minors, resulting in their having
limited capacity to litigate. The minors had, however, not been cited as duly
assisted by their guardians. In order to protect those students who wanted the
normal academic and administrative functions of the university to continue, the
court assumed responsibility for assisting all the minor students in the litigation
and made the order sought.
277 Ex parte Goldman 1960 (1) SA 89 (D); Boezaart Persons 87; Boezaart in
Boezaart (ed.) Child Law in South Africa 34; Cockrell in Van Heerden et al
(eds.) Boberg’s Law of Persons and the Family 904–905; Kruger and Skelton
(eds.) Persons 135; Wille’s Principles 188; Boezaart and De Bruin 2011 De Jure
424–425.
278 On the exceptions, see Boezaart Persons 87–88; Boezaart in Boezaart (ed.)
Child Law in South Africa 34; Cockrell in Van Heerden et al (eds.) Boberg’s
Law of Persons and the Family 908 et seq; Kruger and Robinson in Robinson
(ed.) Law of Children and Young Persons 34–35; Kruger and Skelton (eds.)
Persons 135; Schäfer Child Law 203; Van der Vyver and Joubert 174 et seq.
279 See e.g. Re Estate Potgieter 1908 TS 982; Taylor v Lucas 1937 TPD 405;
Jacobs v Kegopotsimang 1937 GWL 43; Grobler v Potgieter 1954 (2) SA 188
(O); Ex parte Hodgert 1955 (1) SA 371 (D); Ex parte Bloy 1984 (2) SA 410
(D); Tshona v Principal, Victoria Girls High School 2007 (5) SA 66 (E), Heaton
Casebook on the Law of Persons case [35].
280 See e.g. Weber v Santam Versekeringsmaatskappy Bpk 1983 (1) SA 381 (A).
281 Weber v Santam Versekeringsmaatskappy Bpk 1983 (1) SA 381 (A).
282 On the delictual accountability of children, see further Kruger and Skelton (eds.)
Persons 137–138; Schäfer Child Law 206; Davel 2001 De Jure 604;
Labuschagne 2003 De Jure 147.
283 See the obiter remark in Eskom Holdings Ltd v Hendriks 2005 (5) SA 503
(SCA) 511GH. S 9(3) of the Constitution provides that nobody may be unfairly
discriminated against on the ground of sex.
284 Wessels v Pretorius [2008] 1 All SA 131 (SCA).
285 De Beer v Sergeant 1976 (1) SA 246 (T). On the arguments for and against the
imposition of vicarious liability on parents whose children cause delictual
damage, see Potgieter 2011 Obiter 189.
286 S 7(1) and (3).
287 S 7(2) and (3).
288 S 11(1).
289 On the criminal accountability of children, see further Burchell ch 19; Kruger
and Skelton (eds.) Persons 136–137; Schäfer Child Law 206–210.
290 On the distinction between the Afrikaans concepts meerderjarigheid (majority)
and mondigheid (for which there is no English translation), see Meyer v The
Master 1935 SWA 3, Heaton Casebook on the Law of Persons case [36].
Meerderjarigheid refers to a specific age that one must reach and is one way of
becoming mondig, but there are also other ways in which it can take place, e.g.
by marriage. I.e., all majors are mondig but not all mondiges are majors.
291 Children’s Act s 17. 1 July 2007 is the date on which the first batch of sections
of the Act, which included s 17, came into operation: Procl 13 GG 30030 of 29
June 2007.
292 2012 (2) SA 519 (KZD). Heaton Casebook on the Law of Persons case [37].
293 Prescription Act s 13(1)(a).
294 On s 6 of the Children’s Act and s 28(2) of the Constitution, see above in this
ch.
295 Pars [28]–[32]. S 39(2) of the Constitution requires that every court must
promote the spirit, purport and objects of the Bill of Rights when it interprets
legislation.
296 Voet 4.4.1; Grotius 3.48.9; Van Leeuwen Censura Forensis 1.1.8.4–1.1.8.5,
1.4.43.11–1.4.43.12.
297 Voet 4.4.6; Cohen v Sytner (1897) 14 SC 13.
298 Berning v Berning 1942 1 PH B26 (W). On void and voidable marriages, see
Heaton Family Law ch 4.
300 Voet 4.4.5; Van Leeuwen Censura Forensis 1.1.18.8, Rooms-Hollands-Regt
1.16.11; Grotius 1.10.3.
301 Ch 89 Law Book of the Orange River Colony 1901.
302 Cronjé LAWSA vol 20 part 1 Persons par 485; De Wet and Van Wyk 67 fn 67;
Hahlo and Kahn South Africa 363; Coertze 1937 THRHR 195.
303 See also Boezaart Persons 92; Kruger and Skelton (eds.) Persons 139; Schäfer
Child Law 21; Boezaart 2008 De Jure 246.
304 See e.g. In re Cachet (1898) 15 SC 5; Ex parte Estate Van Schalkwyk 1927 CPD
268; Ex parte Curling 1952 1 PH M13 (C); Ex parte Van den Hever 1969 (3)
SA 96 (E), Heaton Casebook on the Law of Persons case [38].
305 Ex parte Van den Hever 1969 (3) SA 96 (E) 99CD. See also Spiro Parent and
Child 249. For criticism of the view that the court emancipated the minor, see
Zeffertt 1969 SALJ 407 et seq. See further Cockrell in Van Heerden et al (eds.)
Boberg’s Law of Persons and the Family 468.
306 S 28(1) read with s 29(1).
307 S 28(3)(c). On termination, suspension and circumscription of parental
responsibilities and rights in terms of s 28, see further ch 5 above.
308 See, in general, Cairncross v De Vos (1876) 6 Buch 5; Steenkamp v Kamfer
1914 CPD 877; Venter v De Burghersdorp Stores 1915 CPD 252; Pleat v Van
Staden 1921 OPD 91; Ambaker v African Meat Co 1927 CPD 326; Ochberg v
Ochberg’s Estate 1941 CPD 15; Ahmed v Coovadia 1944 TPD 364; Dickens v
Daley 1956 (2) SA 11 (N), Heaton Casebook on the Law of Persons case [39];
Grand Prix Motors WP (Pty) Ltd v Swart 1976 (3) SA 221 (C); Boezaart
Persons 77–81; Boezaart in Boezaart (ed.) Child Law in South Africa 26–28;
473 et seq; Cronjé LAWSA vol 20 part 1 Persons par 486; De Wet and Van Wyk
64–66; Kruger and Robinson in Robinson (ed.) Law of Children and Young
Persons 27–30; Kruger and Skelton (eds.) Persons 140–141; Schäfer Child Law
21–22; Schäfer in Clark (ed.) Family Law Service par E24; Spiro Parent and
Child 249 et seq; Van der Vyver and Joubert 151 et seq; Wille’s Principles 191–
193; Steyn 1927 SALJ 313.
309 Children’s Act s 18(4). On the ways in which an unmarried father can acquire
parental responsibilities and rights (incl guardianship) in respect his child, see ch
5 above. An unmarried mother automatically has guardianship unless she herself
is a minor: Children’s Act s 19(1) and (2). If a child is born of married parents
or civil union partners, both parents automatically have guardianship of their
child: Children’s Act ss 19(1) and 20 read with s 13(2) of the Civil Union Act.
See further ch 5 above.
310 Le Grange v Mostert (1909) 26 SC 321; Pleat v Van Staden 1921 OPD 91.
311 See Sesing v Minister of Police 1978 (4) SA 742 (W) 745H, Heaton Casebook
on the Law of Persons case [41] where Margo J says: “There is no justification
for depriving a minor of the law’s protection merely because his parents have
failed in their duties and left him to face life alone and unassisted”. See also
Watson v Koen h/a BMO 1994 (2) SA 489 (O), Heaton Casebook on the Law of
Persons case [42].
312 Dama v Bera 1910 TPD 928; Venter v De Burghersdorp Stores 1915 CPD 252;
Pleat v Van Staden 1921 OPD 91; Ahmed v Coovadia 1944 TPD 364; Dickens v
Daley 1956 (2) SA 11 (N).
313 Pleat v Van Staden 1921 OPD 91; Dama v Bera 1910 TPD 928; Venter v De
Burghersdorp Stores 1915 CPD 252.
314 Ochberg v Ochberg’s Estate 1941 CPD 15; Sesing v Minister of Police 1978 (4)
SA 742 (W); Watson v Koen h/a BMO 1994 (2) SA 489 (O).
315 (1897) 14 SC 13.
316 1944 OPD 59.
317 Ex parte Keeve 1929 OPD 19; Boezaart Persons 80, 88; Boezaart in Boezaart
(ed.) Child Law in South Africa 28; Cronjé LAWSA vol 20 part 1 Persons par
486; Donaldson 80; Schäfer in Clark (ed.) Family Law Service par E24; Spiro
Parent and Child 250; Kruger and Robinson in Robinson (ed.) Law of Children
and Young Persons 29; Kruger and Skelton (eds.) Persons 140; Van der Vyver
and Joubert 153, 155; Wille’s Principles 193. See also Ex parte Van den Hever
1969 (3) SA 96 (E); Hahlo and Kahn South Africa 366; Zeffertt 1969 SALJ 410–
411; Boezaart and De Bruin 2011 De Jure 427. See further Cockrell in Van
Heerden et al (eds.) Boberg’s Law of Persons and the Family 487.
318 Cairncross v De Vos (1876) 6 Buch 5; Nangle v Mitchell (1904) 18 EDC 56;
Bosch v Titley 1908 ORC 27; Dickens v Daley 1956 (2) SA 11 (N). See also
Watson v Koen h/a BMO 1994 (2) SA 489 (O) 493FG.
319 Ex parte Van den Hever 1969 (3) SA 96 (E). It must be remembered that
marriage is not a contract: see e.g. Ex parte AB 1910 TS 1332; Holland v
Holland 1973 (1) SA 897 (T); Mahendra v Framashnee Case 8422/2006 21
May 2007 (W) (unreported); Van der Linden 1.3.1; Christie 135; Heaton Family
Law 15; Visser and Potgieter 4; Aquilius 1944 SALJ 239.
320 Riesle and Rombach v McMullin (1907) 10 HCG 381; Ambaker v African Meat
Co 1927 CPD 326; Ochberg v Ochberg’s Estate 1941 CPD 15; Ahmed v
Coovadia 1944 TPD 364. On the distinction between absolute and relative
emancipation, see also Grand Prix Motors WP (Pty) Ltd v Swart 1976 (3) SA
221 (C); Sesing v Minister of Police 1978 (4) SA 742 (W).
321 Voet 1.7.11–1.7.15; Van der Keessel Theses Selectae 107, 110, 161; Grotius
1.6.4; Van Leeuwen Censura Forensis 1.1.9.9–1.1.9.16, Rooms-Hollands-Regt
1.13. 4–1.13.6.
476; see further Steyn 1927 SALJ 313 et seq; Conradie 1946 SALJ 25 et seq. See
also Grand Prix Motors WP (Pty) Ltd v Swart 1976 (3) SA 221 (C); Sesing v
Minister of Police 1978 (4) SA 742 (W).
323 Dickens v Daley 1956 (2) SA 11 (N) 16G.
324 Hahlo and Kahn South Africa 365, who refer to relinquishing the reins of
“paternal power”.
325 Cairncross v De Vos (1876) 6 Buch 5; Fouchee v De Villiers (1883) 3 EDC 147;
Pienaar v Godden (1893) 10 SC 129; Bosch v Titley 1908 ORC 27; Dama v
Bera 1910 TPD 928; Venter v De Burghersdorp Stores 1915 CPD 252; Dickens
v Daley 1956 (2) SA 11 (N). The question of whether emancipation confers
locus standi in iudicio on the minor came before the court in Ahmed v Coovadia
1944 TPD 364 and Sesing v Minister of Police 1978 (4) SA 742 (W). On the
facts of these two cases it was unfortunately unnecessary for the courts to decide
the question.
326 See also Boezaart Persons 80, 88; Cockrell in Van Heerden et al (eds.) Boberg’s
Law of Persons and the Family 910 fn 32; Kruger and Robinson in Robinson
(ed.) Law of Children and Young Persons 29; Kruger and Skelton (eds.) Persons
141; Van der Vyver and Joubert 155; Boezaart and De Bruin 2011 De Jure 427.

MENTAL ILLNESS
7.1 Introduction
The capacity to enter into legal transactions and to litigate
independently is very closely related to a person’s mental
condition. For this reason the law precludes a person from
participating in legal interaction independently if he or she is
mentally ill to such a degree that he or she cannot understand
the nature, purport and consequences of his or her acts.1 The
law attaches no consequences whatsoever to a mentally ill
person’s expressions of will. Thus a mentally ill person has no
capacity to act or litigate.2 The object of this restriction is not to
punish the mentally ill person but to protect him or her from
exploitation.
7.2 Definition
At common law mentally ill persons, as a class, were confined
to furiosi, dementes or lunatici.3 These terms clearly relate to
persons who are so bereft of their senses that they cannot grasp
the consequences of their acts and cannot make rational
decisions at all.

In modern law the courts ascribe a much wider meaning to
mental illness. In Pheasant v Warne4 Chief Justice Innes held
that the test was whether the person’s “mind was such that he
could understand and appreciate the transaction into which he
purported to enter”. In Lange v Lange5 the Appellate Division
(now the Supreme Court of Appeal) held that a person is
mentally ill not only if he or she cannot understand the nature of
the transaction in question, but also if he or she does understand
the nature and consequences of his or her juristic acts but is
motivated or influenced by delusions caused by a mental
illness.6 In this case, a man had married while suffering from a
mental condition which inter alia caused him to hear imaginary
voices. Although at the time of the wedding the man had
understood the nature of the juristic act, the court held that the
marriage should be declared null and void on account of his
mental illness.
7.3 Proving mental illness

Whether or not a person was mentally ill at a specific moment
is a question of fact which must be determined on a
preponderance of probabilities.7 It is the person’s mental
capacity at the time of the conclusion of the transaction that is
at issue.8
Medical evidence is usually crucial in proving mental illness.
The court must, however, make its own finding after
considering all the evidence and is not bound even by the
unanimous opinion of psychiatrists. As judges are not experts in
the psychiatric field, a court will not lightly reject the opinions
of expert witnesses.9 It will only do so if, in its view, the
specialists have based their opinion upon inadequate knowledge
of the relevant facts or have ignored such facts.10
7.4 Legal status of a mentally ill person

The statutory measures relating to mental health care and the
certification and administration of a mentally ill person’s estate
must be clearly distinguished from the legal principles
governing the person’s legal status. In general, a mentally ill
person’s status is determined by common-law principles as
interpreted and extended by the courts.11 However, as is
explained below in this chapter, section 39(1) of the Consumer
Protection Act 68 of 2008 adds a specific rule in connection
with agreements that fall within the ambit of this Act.
The measures relating to mental health care and the
certification and administration of a mentally ill person’s estate
are contained in the Mental Health Care Act 17 of 2002. The
Act is discussed below in this chapter. We first consider the
person’s legal status.
In so far as a mentally ill person’s status is concerned it was
pointed out above that the person has no capacity to act or locus
standi in iudicio. Accordingly, a mentally ill person cannot
enter into legal transactions or litigate even with the assistance
of his or her curator; the curator must conclude transactions and
sue on behalf of the mentally ill person.12 From this it follows
that a mentally ill person, unlike a minor, cannot enter into
transactions, even if he or she acquires only rights and the other
party incurs only duties.13 Any transaction a de facto mentally
ill person enters into is void and cannot be ratified.14 The
transaction remains void even if the person dealing with the
mentally ill person was unaware of the mental illness.15 A bona
fide third party can therefore not insist on the agreement being
carried out but may have an action based on unjustified
enrichment16 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.17
In terms of the common law, a judicial declaration that a
person is mentally ill (that is, certification) and the appointment
of a curator to the person do not, as such, affect the person’s
liability and capacity to act.18 In other words, someone who has
not been certified does not have capacity to act if he or she is in
fact mentally ill when the transaction is entered into, and a
person who has been certified has capacity to act if he or she is
in fact not mentally ill at the time the juristic act is performed.
The legal position is thus determined by whether or not the
person was actually mentally ill at a specific moment.19
Certification is important only as far as the onus of proof is
concerned. In the case of an uncertified person the onus of
proof is on the party alleging that the person was mentally ill at
the time the transaction was concluded, because it is ordinarily
presumed that everyone is sane.20 In contrast, in the case of a
certified person the onus is on the party alleging that the person
was sane at the conclusion of the transaction, because it is
rebuttably presumed that a certified person is mentally ill.21 A
juristic act that is performed during a lucidum intervallum (that
is, a lucid interval) by a person who has been declared mentally
ill is valid and enforceable.22
Section 39(1)(a) of the Consumer Protection Act creates a
different rule with regard to transactions governed by the Act.23
It provides that an agreement to enter into a transaction for the
supply of any goods or services and an agreement for the supply
of any goods or services to a consumer24 “is void if the
consumer is subject to an order of a competent court holding
that person to be mentally unfit and the supplier knew, or could
reasonably have determined, that the consumer was the subject
of such an order”.25 Thus, this section renders all such
agreements – even those which the person enters into during a
lucidum intervallum – void if the supplier knew or could
reasonably have determined that the consumer has been
declared mentally ill. This rule, which obviously has the
objective of protecting the mentally ill, renders all persons who
have been declared mentally ill incapable of entering into
agreements with a supplier who knows or could reasonably
have established that the person has been declared mentally ill,
and this incapacity operates regardless of the de facto mental
condition of the person at the time of the particular agreement.
In laying down this restriction, the section violates the right to
equality and the right to dignity of persons who have been
declared mentally ill.26 One wonders whether the extent of this
limitation is not too broad and too restrictive to render it
justifiable in terms of section 36 of the Constitution since it
does not provide for any exception to the rule that the
agreement is void – not even if the agreement is very
advantageous to the consumer.
A marriage or civil union is not automatically dissolved by
the mental illness of one of the spouses or civil union partners.27
However, in terms of the Divorce Act 70 of 1979,28 mental
illness for which there is no reasonable prospect of a cure is a
ground for divorce. If a spouse or civil union partner’s mental
illness results in the irretrievable breakdown of the marriage or
civil union, a divorce may also be sought on this ground.29
In a marriage or civil union in community of property, the
court may suspend the power of a mentally ill spouse or civil
union partner to deal with the joint estate for a definite or
indefinite period if suspension is essential for the protection of
the interest of the other spouse or civil union partner in the joint
estate.30 At common law a spouse’s mental illness was not
sufficient reason for ordering boedelscheiding.31 However, in
terms of the Matrimonial Property Act 88 of 1984, the
immediate division of the joint estate may be ordered if the sane
spouse or civil union partner satisfies the court that his or her
interest in the joint estate is being or will probably be seriously
prejudiced by the conduct or proposed conduct of the other
spouse or civil union partner, and that no other person will be
prejudiced by the division.32
In a marriage or civil union out of community of property
which is subject to the accrual system, the sane spouse or civil
union partner may ask the court to make an order for the
immediate division of the accrual. The order will be made if the
applicant satisfies the court that the conduct or proposed
conduct of the other spouse or civil union partner seriously
prejudices or will probably seriously prejudice the applicant’s
right to share in the accrual of the estate of the other spouse or
civil union partner at the dissolution of the marriage or civil
union, and that no other person will be prejudiced by the
order.33
A parent’s mental illness does not automatically terminate his
or her parental responsibilities and rights.34 Exercising its
common-law authority as upper guardian of all minors or its
various statutory powers, the court may, however, make an
appropriate order in respect of any or all of the elements of the
parent’s responsibilities and rights if this is in the best interests
of his or her child.35
The running of prescription against a person cannot be
completed while he or she is mentally ill.36
There are numerous offices a mentally ill person cannot
hold.37
Generally speaking, fault in the form of intention or
negligence is a requirement for criminal or civil liability. As a
mentally ill person is doli and culpae incapax, he or she is not
responsible for his or her crimes and delicts.38
7.5 Appointment of a curator39

In terms of our common law, the High Court may appoint a
curator bonis to look after a mentally ill person’s property and
to supplement his or her lack of capacity to act.40 In terms of the
Mental Health Care Act, the court also has a statutory power to
appoint an administrator for the care and administration of the
property of a mentally ill person or a person with severe or
profound intellectual disability. This statutory power is
discussed below in this chapter.
It is important to note that the mere fact that a person has
been declared mentally ill and that a curator has been appointed
to administer his or her estate does not mean that he or she loses
all capacity to act. In Pienaar v Pienaar’s Curator41 Judge
President De Villiers stated:
The mere fact that such a person has been declared insane or incapable of
managing his affairs, and that a curator is appointed to such person, does not
deprive him of the right of administering his own property and entering into
contracts and other legal dispositions to the extent to which he may de facto be
capable, mentally and physically, of so doing. Such mental or physical capacity
may vary from day to day, but at all times it remains a question of fact. The object
of appointing a curator is merely to assist the person in question in performing
legal acts to the extent to which such assistance is 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 and enter
into contracts whenever he is mentally capable of doing so.
Acts that are considered to be of too personal a nature cannot be
performed by a curator. For example, a curator has no locus
standi to institute an action for divorce on behalf of a mentally
ill person.42 Nor can a curator make a will43 or exercise parental
responsibilities and rights on behalf of a mentally ill person.44
In legal proceedings a mentally ill person must be
represented by a curator ad litem45 because the law denies locus
standi in iudicio to someone who is unable to understand the
proceedings.46
If necessary, a curator is appointed to care for the mentally ill
person’s person (that is, the person’s body), either generally or
for a specific purpose.47 Such a curator is called a curator
personae. As the appointment of a curator personae involves a

serious curtailment of a person’s rights and freedoms48 it is not
done lightly.49
7.6 Mental Health Care Act 17 of 2002

7.6.1 Definition
The fundamental concept in the Mental Health Care Act is that
of “mental health care user”, which section 1 defines as “a
person receiving care, treatment and rehabilitation services or
using a health service at a health establishment aimed at
enhancing the mental health status of a user, State patient and
mentally ill prisoner”. In certain circumstances the phrase
extends to a prospective mental health care user, the person’s
next of kin, someone who has been legally authorised to act on
that person’s behalf, an administrator appointed in terms of the
Act,50 and the executor of a deceased mental health care user’s
estate. A person’s mental health status is “the level of mental
well-being of an individual as affected by physical, social and
psychological factors and which may result in a psychiatric
diagnosis”.51
7.6.2 Rights of mental health care users
The objects of the Act are the regulation of mental health care,
treatment and rehabilitation services and the manner in which
the property of mentally ill persons and persons with severe or
profound intellectual disability52 may be dealt with, and the
clarification of the rights and duties of mental health care users
and providers.53
The Act inter alia contains a separate chapter setting out
specific rights and duties mental health care users have.54 These
rights and duties operate in addition to the rights other laws
confer on mental health care users.55 Whenever these rights or
duties are exercised or performed regard must be had to the best
interests of the mental health care user.56 The rights of mental
health care users include the right to representation (including
legal representation),57 confidentiality,58 having their person,
human dignity and privacy respected,59 and being provided with
care, treatment and rehabilitation services that improve their
mental capacity to develop to their full potential and to facilitate
their integration into community life.60 Care, treatment and
rehabilitation services may not be used as punishment or for the
convenience of other people,61 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 care,
treatment and rehabilitation”.62 Except in urgent cases, mental
health care users must be informed of their rights prior to the
administration of any care, treatment and rehabilitation
services.63
The Act also prohibits unfair discrimination on the ground of
a person’s mental health status,64 and provides that any
determination concerning a person’s mental health status must
be based solely on factors that are relevant to his or her mental
health status and not socio-political or economic status, cultural
or religious background, or affinity.65 A determination of a
person’s mental health status may be made only for purposes
that are directly relevant to his or her mental health status.66
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.67 The Act furthermore 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.68
7.6.3 Care, treatment and rehabilitation
The Act distinguishes between different categories of persons
requiring mental health care on the ground of whether or not
they voluntarily submit to mental health care and admission.
The basic premise is that care, treatment and rehabilitation
services may only be provided and a mental health care user
may only be admitted to a health establishment if one of the
following circumstances is present:
(1) The mental health care user consents to it.
(2) A court or Mental Health Review Board69 authorises it.
(3) Due to the mental health care user’s mental illness, any
delay in providing the services may result in:
(a) the mental health care user’s death;
(b) irreversible harm to the mental health care user’s
health;
(c) the mental health care user inflicting serious harm on
himself or herself or somebody else; or
(d) the mental health care user causing serious damage to
or loss of his or her own or somebody else’s
property.70
If the services are provided or admission occurs in the
circumstances of urgency referred to in paragraph (3) above, the
health care provider or health establishment must report this to
the Mental Health Review Board. Unless an application is made
for voluntary, assisted or involuntary mental health care within
24 hours, the services may not be provided for more than 24
hours.71
(a) Voluntary care, treatment and rehabilitation
A person who voluntarily submits to treatment and admission
while being capable of making informed decisions in this regard
may be treated and admitted without court intervention. Such a
person is entitled to appropriate care, treatment and
rehabilitation services or to be referred to an appropriate health
establishment.72
(b) Assisted care, treatment and rehabilitation
A person who is incapable of making informed decisions due to
his or her mental health status but who does not refuse health
interventions is referred to as an “assisted mental health care
user”.73 Assisted care, treatment and rehabilitation services may
only be administered to a person without his or her consent if
the head of a health establishment approves a written
application for the provision of such services, and there is a
reasonable belief at the time of making the application that the
mental health care user is suffering from a mental illness or
severe or profound intellectual disability and requires those
services for his or her own or other people’s health or safety.74
The application must be made by the mental health care user’s
spouse, civil union partner, next of kin, partner, associate,
parent or guardian.75 If that person is unwilling, incapable or not
available to make the application, a health care provider may
make the application.76 In either case the applicant must have
seen the mental health care user within seven days prior to
making the application.77
Upon receipt of the application the head of the health
establishment must have the mental health care user examined
by two mental health care practitioners.78 The application may
only be approved if the practitioners agree that conditions for
assisted care, treatment and rehabilitation are present.79 An
application for admission to a health establishment may only be
approved if the practitioners agree that admission is necessary
and the head of the establishment is satisfied that the
restrictions and intrusions on the mental health care user’s
rights to freedom of movement, privacy and dignity are
proportionate to the care, treatment and rehabilitation services
required.80 If the application is approved, the Mental Health
Review Board must be notified. The Review Board must
conduct an investigation and then either request the head of the
health establishment to continue providing services to the
mental health care user or request the person’s discharge. The
Review Board must report its findings to the head of the
provincial department.81 The mental health care user, or his or
her spouse, civil union partner, next of kin, partner, associate,
parent or guardian may lodge an appeal against the decision of
the head of the health establishment with the Review Board.82
Six months after commencing care, treatment and
rehabilitation services, and once a year thereafter, the head of
the health establishment must have the person’s mental health
status reviewed and submit a report to the Review Board.83 If
the Review Board decides that the person must be discharged,
all care, treatment and rehabilitation services administered to
him or her must be stopped according to accepted clinical
practices and he or she must be discharged unless he or she
consents to receiving services.84
If the head of a health establishment has reason to believe85
that the assisted mental health care user has recovered the
capacity to make informed decisions, the person must be asked
whether he or she will voluntarily continue receiving services.86
If the person is willing to continue, he or she becomes a user of
voluntary services. If the person is unwilling, he or she must be
discharged if the head of the establishment is satisfied that the
person is no longer mentally ill. However, if the head of the
establishment is of the view that the person is still mentally ill,
the person who applied for assisted services for the mental
health care user, and the mental health care practitioner,
registered social worker or nurse administering these services
must be informed87 and advised that they have 30 days within
which to apply for the person’s involuntary commitment.88 If an
application for involuntary commitment is not made within that
period, the mental health care user must be discharged.89
(c) Involuntary care, treatment and rehabilitation
If the mental health care user is incapable of making informed
decisions on the need for care, treatment and rehabilitation
services and does not want such services, involuntary services
must be provided to him or her if the head of a health
establishment approves a written application for the provision
of such services.90 At the time of making the application there
must be a reasonable belief that the mental health care user has
a mental illness of such a nature that he or she is likely to inflict
serious harm on himself or herself or others, or that care,
treatment and rehabilitation services are necessary for the
protection of his or her financial interests or reputation.91
As in the case of assisted services, the application must be
made by the mental health care user’s spouse, civil union
partner, next of kin, partner, associate, parent or guardian, or, if
they are unwilling, incapable or not available to make the
application, by a health care provider.92 The applicant must
have seen the mental health care user within seven days prior to
making the application.93 Upon receipt of the application the
head of the health establishment must have the mental health
care user examined by two mental health care practitioners.94
The application may only be granted if the practitioners agree
that conditions for involuntary care, treatment and rehabilitation
are present.95 Up to this point the procedure is the same as that
which applies in respect of assisted services. However, in the
case of involuntary services the mental health care user must be
referred for a 72-hour assessment period prior to the further
provision of involuntary services. This assessment is done by a
medical practitioner and another mental health care practitioner.
Their task is to evaluate the mental health care user’s physical
and mental health status, and to consider whether he or she
must continue receiving involuntary services and be
involuntarily committed.96
After the assessment the head of the establishment must
discharge the mental health care user immediately if he or she is
of the opinion that the person’s mental health status does not
warrant involuntary care, treatment and rehabilitation.
However, if the mental health care user consents to receiving
services, he or she need not be discharged. If the head of the
establishment is of the opinion that the person’s mental health
status indeed warrants further involuntary services but does not
warrant commitment, the person must be discharged subject to
the prescribed conditions and procedures for outpatient care,
treatment and rehabilitation, and the Review Board must be
informed. If the head of the establishment is of the opinion that
the person’s mental health status warrants involuntary
commitment, he or she must submit a written request to the
Review Board for approval of further involuntary care,
treatment and rehabilitation on an inpatient basis.97 If the
Review Board grants the request, the matter must be referred to
the High Court.98 After considering all the information the High
Court may either order the mental health care user’s immediate
discharge or his or her further hospitalisation.99 If necessary, an
administrator may be appointed to care for and administer the
person’s financial affairs.100 The mental health care user, or his
or her spouse, civil union partner, next of kin, partner, associate,
parent or guardian may lodge an appeal against the decision of
the head of the health establishment with the Review Board.101
Six months after the commencement of involuntary services,
and once a year thereafter, the head of the health establishment
must have the person’s mental health status reviewed, and
submit a report to the Review Board.102 If the Review Board
decides that the person must be discharged, all care, treatment
and rehabilitation services must be stopped according to
accepted clinical practices and the person must be discharged
unless he or she consents to receiving services.103
If the head of the establishment has reason to believe104 that
an involuntary mental health care user has recovered the
capacity to make informed decisions, he or she must enquire
whether the person is willing to voluntarily continue receiving
services.105 If the person is willing to continue, he or she
becomes a user of voluntary services. If the person is unwilling,
he or she must be discharged if the head of the establishment is
satisfied that he or she is no longer mentally ill.106
(d) Report by a member of the police
A member of the police who has reason to believe107 that
someone is likely to inflict serious harm on himself or herself or
others because of mental illness or severe or profound
intellectual disability, must arrest that person. The person must
be taken to a state-controlled health establishment for
assessment of his or her mental health status and handed over
into custody of the head of the establishment or someone the
head designates.108 If, after the assessment, a mental health care
practitioner shares the view of the member of the police, the
person must be admitted to the health establishment. Within 24
hours of the person’s admission an application must be made to
obtain involuntary care, treatment and rehabilitation services for
him or her.109 If, in contrast, the mental health practitioner is of
the view that the person is unlikely to cause harm, the person
must be released immediately.110
The police may also be used to locate, apprehend and return
an assisted or involuntary mental health care user who has
absconded or is deemed to have absconded from a health
establishment, and when an assisted or involuntary mental
health care user is transferred to another health establishment.111
7.6.4 Place of admission
Mental health care users may only be admitted to health
establishments.112
7.6.5 Mentally ill prisoners and state patients
The Act also governs the confinement of and provision of
mental health care to mentally ill prisoners and state patients.113
As the relevant provisions apply only to persons who have
committed criminal acts, they fall outside the scope of this
book.
7.6.6 Care and administration of the property of
mentally ill persons
If a High Court conducts an enquiry into a person’s mental
health and the presiding judge has reason to believe that the
person may be incapable of managing his or her property, the
judge may initiate an investigation into the person’s mental
health status and ability to manage his or her property. The
court may exercise this power in any other legal proceedings
too.114 If the investigation reveals that the person’s mental
health status is such that he or she is indeed incapable of
managing his or her property, the court makes a

recommendation regarding the appointment of an administrator
and informs the person and the Master of the High Court
accordingly.115 The Master then appoints an administrator to
take care of and administer the person’s property, to perform all
functions incidental thereto, and to carry on the person’s
business or undertaking, if any.116
The Master may also, upon application by any adult, appoint
an administrator in respect of the property of a mentally ill
person or a person with severe or profound intellectual
disability.117 Instead of appointing (or declining to appoint) an
administrator, the Master may refer the matter for consideration
by a judge in chambers.118 After considering the matter the
judge makes a recommendation to the Master on whether or not
an administrator should be appointed. If the judge recommends
appointment of an administrator, the Master appoints the
administrator.119
The power to appoint an administrator obviously does not
replace the court’s common-law powers to appoint a curator to
a mentally ill or intellectually disabled person.
1 Molyneux v Natal Land and Colonization Co Ltd 1905 AC 555 (PC) 561, (1905)
26 NLR 423; Pheasant v Warne 1922 AD 481; Lange v Lange 1945 AD 332;
Theron v AA Life Assurance Association Ltd 1993 (1) SA 736 (C); Theron v AA
Life Assurance Association Ltd 1995 (4) SA 361 (A), Heaton Casebook on the
Law of Persons case [45]; Eerste Nasionale Bank van Suidelike Afrika Bpk v
Saayman 1997 (4) SA 302 (SCA); Judin v Wedgwood 2003 (5) SA 472 (W),
Heaton Casebook on the Law of Persons case [46].
2 On mental capacity as an element of the capacity to make a will, see e.g. De
Waal et al LAWSA vol 31 Wills and Succession par 273 fns 4 and 5; Du Toit
2005 SALJ 661.

3 See e.g. Voet 27.10.3.
4 1922 AD 481 488. See also Theron v AA Life Assurance Association Ltd 1993
(1) SA 736 (C).
5 1945 AD 332, Heaton Casebook on the Law of Persons case [43].
6 See also Prinsloo’s Curators Bonis v Crafford and Prinsloo 1905 TS 669,
Heaton Casebook on the Law of Persons case [44]; Pheasant v Warne 1922 AD
481; Estate Rehne v Rehne 1930 OPD 80; Levin v Mechanich 1931 EDL 32;
Uys v Uys 1953 (2) SA 1 (E); Du Toit 2005 SALJ 663–667. On the perception of
mental illness in African societies, see Labuschagne and Boonzaaier 2003
CILSA 106.
7 Lange v Lange 1945 AD 332.
8 Theron v AA Life Assurance Association Ltd 1993 (1) SA 736 (C).
9 See e.g. S v McBride 1979 (4) SA 313 (W).
10 See e.g. S v Kavin 1978 (2) SA 731 (W). See further Du Toit 2005 SALJ 661.
11 The common law restrictions on a mentally ill person’s status are not
unconstitutional: Cockrell Bill of Rights Compendium par 3E31; Heaton in Van
Heerden et al (eds.) Boberg’s Law of Persons and the Family 105 fn 3.
12 There are certain acts a curator cannot perform on behalf of a mentally ill
person: see below in this ch.
26 NLR 423.
14 Inst 3.19.8; D 44.7.1.12, 50.17.5; Grotius 3.1.19; Voet 27.10.3; Van Leeuwen
Rooms-Hollands-Regt 2.7.8; Pheasant v Warne 1922 AD 481; Lange v Lange
1945 AD 332; Phil Morkel Bpk v Niemand 1970 (3) SA 455 (C), Heaton
Casebook on the Law of Persons case [50]. See also Theron v AA Life
Assurance Association Ltd 1993 (1) SA 736 (C).
26 NLR 423.
16 Grotius 3.30.3; Van Leeuwen Censura Forensis 1.4.3.2; Molyneux v Natal Land
and Colonization Co Ltd 1905 AC 555 (PC) 561, (1905) 26 NLR 423; Christie
256; Cronjé LAWSA vol 20 part 1 Persons par 487; De Vos 96, 220; Du Plessis
111; Wille’s Principles 384. But see Van der Vyver and Joubert 332.
26 NLR 423; Cronjé LAWSA vol 20 part 1 Persons par 487; Du Plessis 85;
111; Wille’s Principles 384.
18 Certification is discussed below in this ch.
19 Voet 27.10.4; Molyneux v Natal Land and Colonization Co Ltd 1905 AC 555
(PC) 561, (1905) 26 NLR 423; Prinsloo’s Curators Bonis v Crafford and
Prinsloo 1905 TS 669; Pienaar v Pienaar’s Curator 1930 OPD 171.
20 Pheasant v Warne 1922 AD 481; Vermaak v Vermaak 1929 OPD 13; De
Villiers v Espach 1958 (3) SA 91 (T).
21 Prinsloo’s Curators Bonis v Crafford and Prinsloo 1905 TS 669; Pheasant v
Warne 1922 AD 481; Vermaak v Vermaak 1929 OPD 13; Levin v Mechanich
1931 EDL 32.
22 See e.g. Prinsloo’s Curators Bonis v Crafford and Prinsloo 1905 TS 669.
23 On the transactions to which the Act applies, see ch 6 fn 74.
24 On the definition of “consumer”, see ch 6 fn 76 above.
25 On the definition of a “supplier”, see ch 6 fn 75 above.
26 Ss 9 and 10 of the Constitution of the Republic of South Africa, 1996 protect the
right to equality and the right to dignity.
27 Voet 23.2.48; Barnes v Hayward 1944 CPD 203.
28 S 5(1).
29 S 4. On the grounds for divorce, see further Heaton Family Law ch 11.
30 Matrimonial Property Act 88 of 1984 s 16(2). In those cases where s 15 of the
Matrimonial Property Act requires the consent of both spouses or civil union
partners for a particular transaction, the sane spouse or civil union partner may
also, in terms of s 16(1) of the Act, ask the court to dispense with the consent of
the mentally ill spouse or civil union partner on the ground that consent cannot
be obtained and there is good reason to dispense with it. To avoid having
repeatedly to invoke s 16(1) it would be advisable to apply for complete
suspension of the powers of the mentally ill spouse or civil union partner in
terms of s 16(2). On ss 15 and 16 of the Matrimonial Property Act, see further
Heaton Family Law 75–81.
31 Ex parte Dixie 1950 (4) SA 748 (W).
32 S 20(1). The court is also authorised to order that community of property be
replaced by another matrimonial property system: s 20(2). On s 20, see further
Heaton Family Law 81–82.
33 Matrimonial Property Act s 8(1). The court may also order that the accrual
system be replaced by another matrimonial property system: s 8(2). On s 8, see
further Heaton Family Law 99–100.
34 Voet 1.7.13; Ex parte Human 1948 (1) SA 1022 (O); Ex parte Powrie 1963 (1)
SA 299 (W).
35 Parental responsibilities and rights and court interference with parental
responsibilities and rights are discussed in Heaton Family Law ch 23. See also
ch 5 above, where the parental responsibilities and rights of unmarried parents
are discussed.
36 Prescription Act 68 of 1969 ss 3(1)(a), 13(1)(a). In Gqamane v The Multilateral
Motor Vehicle Accidents Fund [1999] 3 All SA 683 (SE) it was held that, for
purposes of prescription, an unconscious person is considered to be of unsound
mind and thus falls within the ambit of s 13 of the Prescription Act. In terms of
our common law, prescription does not run against a person who suffers from a
disability, which includes mental illness: Road Accident Fund v Smith [1998] 4
All SA 429 (SCA). The application of the common-law rule has, however, been
limited or excluded by various Acts, including the Prescription Act.
37 See Boezaart Persons 122; Kruger and Skelton (eds.) Persons 165; Van der
Vyver and Joubert 335–336.
38 D 9.2.5.2; Voet 27.10.3; Van Leeuwen Censura Forensis 1.4.3.2, Rooms-
Hollands-Regt 4.2.2, 4.32.6; R v Holliday 1924 AD 250. On a mentally ill
person’s capacity to incur delictual and criminal liability, see further Criminal
Procedure Act 51 of 1977 ss 78 and 79; Boezaart Persons 124–125; Burchell ch
20; De Wet 113–121; Hiemstra ch 13; Kruger Bill of Rights Compendium pars
3EB13–3EB14; Kruger LAWSA vol 17 part 2 Mental Health pars 250–256;
Kruger and Skelton (eds.) Persons 168–169; Van der Vyver and Joubert 336–
348; Wille’s Principles 384.
39 On curators generally, see Boezaart Persons 146–154; Heaton Family Law ch
25; Kruger and Skelton (eds.) Persons 150–154; South African Law
Commission Incapable Adults Issue Paper 18 Project 122 pars 3–5; Wille’s
Principles 376–381; Neumann June 1998 De Rebus 62.
40 Minister of the Interior v Cowley 1955 (1) SA 307 (N). Rule 57 of the Uniform
Rules of Court governs applications to the High Court for an order declaring
someone to be “of unsound mind and as such incapable of managing his
affairs”. The application for appointment of a curator to a mentally ill person is
brought in terms of this rule. On applications in terms of rule 57, see further
Judin v Wedgwood 2003 (5) SA 472 (W); Boezaart Persons 152–154; Kruger
Bill of Rights Compendium par 3EB20; Kruger LAWSA vol 17 part 2 Mental
Health pars 294–298; Schäfer in Clark (ed.) Family Law Service par F13;
Wille’s Principles 830–831. On the functions, powers and duties of a curator
bonis, see Administration of Estates Act 66 of 1965 ch IV; Ex parte Du Toit: In
re Curatorship Estate Schwab 1968 (1) SA 33 (T); Ex parte Hulett 1968 (4) SA
172 (D); Ex parte Thompson 1983 (4) SA 392 (E); Boezaart Persons 148–150;
138–140 fn 137; Wille’s Principles 376–378, and ch 10 fn 6 below. See also ch
8 below on the appointment of curators for persons who cannot manage their
own affairs.
41 1930 OPD 171 174–175, Heaton Casebook on the Law of Persons case [48].
42 Ex parte AB 1910 TPD 1332; Spangenberg v De Waal [2008] 1 All SA 162 (T).
43 Estate Watkins-Pitchford v Commissioner for Inland Revenue 1955 (2) SA 437
(A).
44 Voet 27.10.10; Ex parte AB 1910 TPD 1332.
45 On the functions, powers and duties of a curator ad litem, see Du Plessis v
Strauss 1988 (2) SA 105 (A); Martin v Road Accident Fund 2000 (2) SA 1016
(W); Kruger LAWSA vol 17 part 2 Mental Health par 297; Wille’s Principles
379–380.
46 De Villiers v Espach 1958 (3) SA 91 (T). The Director of Public Prosecutions is
the official curator ad litem for state patients: Mental Health Care Act s 1. A
state patient is a mentally ill accused in a criminal case who is detained by virtue
of a court order, pending the decision of a judge in chambers. If a person lacks
the necessary mental capacity when instructing an attorney to litigate on his or
her behalf, such authorisation is invalid but the legal proceedings which follow
it are of full force and effect if the person’s curator ad litem ratifies the legal
steps taken: Kotze v Santam Insurance Ltd 1994 (1) SA 237 (C) confirmed on
appeal in Santam Insurance Ltd v Booi 1995 (3) SA 301 (A); see also Road
Accident Fund v Mdeyide 2007 (7) BCLR 805 (CC), 2008 (1) SA 535 (CC) par
[37] (obiter).
47 In certain circumstances a curator personae may consent to a sterilisation or
termination of pregnancy: see ch 2 above. In Ex parte Dixie 1950 (4) SA 748
(W) a curator personae was appointed with the sole function of deciding
whether or not an operation should be performed on the patient. In Clarke v
Hurst 1992 (4) SA 630 (D) the patient had suffered serious and irreversible
brain damage as a result of which he had been in a coma for years. The
applicant, who was his wife, applied to be appointed as curatrix personae with
the power to authorise discontinuation of medical treatment and artificial
feeding of the patient, notwithstanding that this would cause his death. The court
granted the order. It emphasised that a curator personae must always act in the
best interests of the patient. It concluded that in the circumstances of the present
case discontinuation of artificial feeding would be in the best interests of the
patient.
48 Hudson v Price 1933 CPD 367; Martinson v Brown; Gray v Armstrong 1961 (4)
SA 107 (C).
49 Martinson v Brown; Gray v Armstrong 1961 (4) SA 107 (C); Ex parte Powrie
1963 (1) SA 299 (W). In Hudson v Price 1933 CPD 367 the view was adopted
that a curator personae can only be appointed if the person is declared mentally
disordered or defective. This view was correctly rejected in Ex parte Hill 1970
(3) SA 411 (C).
50 The appointment of an administrator is discussed below in this ch.
51 S 1.
52 Severe or profound intellectual disability refers to a “range of intellectual
functioning extending from partial self-maintenance under close supervision,
together with limited self-protection skills in a controlled environment through
limited self care and requiring constant aid and supervision, to severely
restricted sensory and motor functioning and requiring nursing care”: s 1.
53 S 3.
54 Ch III. On the Bill of Rights and the treatment and care of mentally ill persons,
see Kruger Bill of Rights Compendium 3EB23–3EB31; Bonthuys 2001 SALJ
682–686; Swanepoel 2011 (7) Potchefstroom Electronic Law Journal 127, 2011
Obiter 282. On a patient’s right to receive or refuse treatment, see Heaton in
Kruger Bill of Rights Compendium par 3EB9–3EB12; Kruger LAWSA vol 17
part 2 Mental Health pars 239–243; Snyman 1983 Journal for Juridical Science
193; Oosthuizen, Fick and Els 1995 Medicine and the Law 601; Allen and Allen
1997 SALJ 578 and 724.
55 S 7(1).
56 S 7(2).
57 S 15.
58 S 13.
59 S 8(1).
60 S 8(2).
61 S 11(1)(c).
62 S 8(3).
63 S 17. The information must be given “in an appropriate manner”. The urgent
cases are listed in s 9(1)(c) and are set out under the next heading below.
64 S 10(1).
65 S 12(1). The same applies if someone’s mental health status has to be
determined for purposes of giving effect to the Criminal Procedure Act.
66 S 12(2).
67 S 11(1)(a) and (b).
68 S 4(c).
69 Mental Health Review Boards are established and regulated by ch IV of the Act.
For a brief overview of some of the cases reviewed by the Western Cape Mental
Health Review Board, see Bateman 2012 South African Medical Journal 72.
70 S 9(1).
71 S 9(2).
72 S 25. See also s 9(1)(a).
73 S 1.
74 S 26.
75 S 27(1)(a) of the Act read with s 13(2) of the Civil Union Act 17 of 2006. An
associate is someone who has a substantial or material interest in the well-being
of a mental health care user or a person who is in “substantial contact” with the
mental health care user: s 1. If the application relates to a minor, it must be made
by the minor’s parent or guardian: s 27(1)(a)(i).
76 S 27(1)(a)(ii).
77 S 27(1)(b).
78 S 27(4). Neither of the practitioners may be the person who made the
application, and at least one of them must be qualified to conduct physical
examinations. “[M]ental health care practitioner” refers to a psychiatrist,
registered medical practitioner, registered nurse, occupational therapist,
psychologist, or social worker who has been trained to provide mental health
care, treatment and rehabilitation services: s 1.
79 S 27(7).
80 S 27(8).
81 S 28(1)–(3).
82 S 29(1) of the Act read with s 13(2) of the Civil Union Act.
83 S 30(1)–(3).
84 S 30(5)(a).
85 The belief may be based on personal observation, information obtained, or
representations made by the mental health care user: s 31(1).
86 S 31(1).
87 S 31(3).
88 S 31(4). Involuntary commitment is discussed immediately below in this ch.
89 S 31(5).
90 S 32. See also the definition of “involuntary care, treatment and rehabilitation”
in s 1.
91 S 32(b).
92 S 33(1) of the Act read with s 13(2) of the Civil Union Act. If the application
relates to a minor, it must be made by the minor’s parent or guardian.
93 S 33(1)(b).
94 S 33(4). Neither of the practitioners may be the person who made the
application, and at least one of them must be qualified to conduct physical
examinations.
95 S 33(7).
96 S 34.
97 S 34(3)(a)–(c). If the head of the establishment subsequently concludes that the
mental health care user is fit to be an outpatient, the person must be discharged
subject to the prescribed conditions and procedures for outpatient care, treatment
and rehabilitation, and the Review Board must be informed: s 34(5).
98 S 34(7)(c).
99 S 36(c).
100 The appointment of such an administrator is discussed below in this ch.
101 S 35(1) of the Act read with s 13(2) of the Civil Union Act.
102 S 37(1).
103 S 37(5)(a).
104 The belief may be based on personal observation, information obtained, or
representations made by the mental health care user: s 38(1).
105 S 38(1).
106 S 38(2) and (3).
107 The belief may be based on personal observation or information obtained from a
mental health care practitioner: s 40(1).
108 S 40(1). Bonthuys 2001 SALJ 672–673 questions the legitimacy of police
apprehension of mentally ill persons and doubts whether the police have the
necessary knowledge to enable them to identify mentally ill persons. She
suggests that “this function should not be fulfilled by members of the police,
who are currently hard-pressed to fulfil their legitimate policing functions”
(673).
109 S 40(2)(a). See also s 40(3). The application is made in terms of s 33 of the Act.
110 S 40(2)(b).
111 S 40(4).
112 Such establishments include health establishments with maximum-security
facilities: s 39(1). Health establishments are institutions, facilities, buildings or
places (incl community health and rehabilitation centres, clinics, hospitals and
psychiatric hospitals) where persons receive care, treatment, rehabilitative
assistance, diagnostic or therapeutic interventions or other health services: s 1.
113 Chs VI and VII of the Act.
114 S 61(1).
115 S 61(3).
116 The administrator’s powers, functions and duties are similar to those a curator
has in terms of ch IV of the Administration of Estates Act: s 63. In addition,
some of the provisions of the Administration of Estates Act apply to an
administrator appointed in respect of the estate of a “mentally disabled person”:
Mental Health Care Act s 65. The Mental Health Care Act does not define
“mentally disabled person”, but it presumably signifies a mental health care user
and a person who has a severe or profound intellectual disability.
117 Ss 59(1) and 60(1).
118 S 60(8).
119 S 60(12)–(13).

INABILITY TO MANAGE OWN
AFFAIRS
8.1 General
In terms of our common law, the High Court has the power to
appoint a curator to a person who is not mentally ill but is
incapable of managing his or her own affairs because of a
physical or mental disability or incapacity.1 This is done in
order to protect the person from exploitation. Today, our courts
can still appoint a curator to such a person even if that person
falls outside the ambit of the Mental Health Care Act 17 of
2002.2
The courts give a liberal interpretation to the categories of
persons who can be placed under curatorship. For example,
curatores bonis have been appointed to persons unable to
manage their affairs as a result of old age,3 serious illness,4
physical disability,5 mental disability or a mental incapacity
such as retarded development or senile dementia,6 persons who
have disappeared and in respect of whom a presumption of
death has not been pronounced,7 persons residing in an enemy
country during war,8 and a prisoner of war.9 Apart from

appointing a curator bonis, the court may also appoint a curator
personae and/or a curator ad litem to such persons.10
The courts are hesitant to appoint a curator to an adult.11 As
Judge Blieden pointed out in Judin v Wedgwood:12
[T]o appoint a curator to a person without full justification therefor . . . constitutes
a serious violation of that person’s dignity and status, which is contrary to the
provisions of s 10 of the Constitution of the Republic of South Africa 108 of
1996.13
Although the court is not compelled to appoint a curator to
someone who consents to the appointment, consent is an
important factor in deciding whether or not to place the person
under curatorship.14 For any weight to be attached to his or her
consent, the person must obviously be able to understand the
proceedings.15 If the person is unable to understand the
proceedings, a curator ad litem will first be appointed to
represent him or her at an inquiry into his or her mental state.
The court does not regard it as proper that the person
personally apply to be placed under curatorship, because if a
person is incapable of managing his or her affairs, he or she,
strictly speaking, has no locus standi in iudicio and cannot
make the application. Therefore, a family member or someone
else who has an interest in the person’s person or property has
to make the application.16
Where the appointment of a curator bonis for a person who is
“of unsound mind and as such incapable of managing his
affairs” is sought, an application must first be made for the
appointment of a curator ad litem to assist the person in the
application that will follow.17 The curator ad litem as well as

the Master of the High Court report to the court.18 If the court is
convinced that the appointment is justified, it appoints a
suitable person as curator bonis with powers that are
appropriate in the circumstances.19
The court in whose area the person is domiciled or owns
immovable property has jurisdiction to declare him or her
incapable of managing his or her affairs and to place him or her
under curatorship.20
8.2 Legal status of a person who is incapable of

administering his or her affairs
Someone who has been declared incapable of administering his
or her affairs and to whom a curator has been appointed has the
capacity to conduct his or her affairs whenever he or she is in
fact mentally and physically able to do so. In other words, the
fact that a curator bonis has been appointed in respect of a
person’s estate does not mean that the person has been deprived
of capacity to act and litigate;21 nor does it mean that the person
is incapable of being held accountable for crimes and delicts.22
In Pienaar v Pienaar’s Curator23 Judge President De Villiers
stated as follows:
Here again the curator is merely appointed to assist the person in making legal
dispositions in so far as such assistance is necessary, according to the nature of the
incapacity in question, but the person still retains his contractual and legal
capacities and the administration of his property to the full extent to which he is
from time to time mentally or physically able to exercise them.
Accordingly, someone who has been placed under curatorship
because of inability to manage his or her affairs can enter into a
valid legal transaction with its normal consequences if, at that
particular moment, he or she is physically and mentally able to
do so. Thus, for example, it has been held that such a person
may marry without his or her curator’s consent (whether in or
out of community of property),24 make a will,25 enter into a
contract,26 and litigate.27
If it is found that the person lacked the capacity to understand
the nature or consequences of a transaction when he or she
entered into it, he or she is not bound by the transaction and the
transaction is void for want of capacity.28 The person’s capacity
to enter into valid legal transactions may therefore differ from
day to day but remains a question of fact. Legally a person who
is placed under curatorship because of his or her inability to
manage his or her affairs is therefore not in the same position as
an interdicted prodigal.29
1 Voet 27.10.3; Grotius 1.11.1–1.11.3; Van Leeuwen Censura Forensis 1.1.16.28.

See also Pienaar v Pienaar’s Curator 1930 OPD 171; Ex parte Derksen 1960
(1) SA 380 (N); Ex parte Powrie 1963 (1) SA 299 (W); Ex parte Du Toit: In re
Curatorship Estate Schwab 1968 (1) SA 33 (T); Ex parte Van der Linde 1970
(2) SA 718 (O); Ex parte Hill 1970 (3) SA 411 (C).
2 The Act is discussed in ch 7 above. Although a mentally ill person necessarily
suffers from a mental incapacity the converse is not always true. In other words,
the fact that someone suffers from a mental disability or incapacity does not
inevitably mean that he or she is mentally ill: Mitchell v Mitchell 1930 AD 217;
De Villiers v Espach 1958 (3) SA 91 (T); Geldenhuys v Borman 1990 (1) SA
161 (E).
3 Ex parte Geldenhuys 1941 CPD 243; Ex parte Du Toit: In re Curatorship Estate
Schwab 1968 (1) SA 33 (T); Ex parte Maritz 1944 NPD 339; Ex parte De Klerk
1968 (4) SA 130 (C). Thomas 2005 Obiter 687 submits that a curator should be
appointed for an aged person by developing the Roman law form of curatorship
known as cura debilium personarum instead of relying on the ground that the
person is incapable of managing his or her affairs.

Aged persons are in need of special care and protection. The Older Persons Act
13 of 2006 seeks to afford better protection and social services to the elderly.
The Act inter alia lays down general principles which must guide the
implementation of all legislation and all proceedings, actions and decisions by
an organ of state regarding an older person or older persons in general: s 5(1). In
many respects, these principles echo those that are laid down by the Children’s
Act 38 of 2005 in respect of minors (see ch 6 above). Thus, s 5(2) inter alia
stipulates that all proceedings, actions or decisions in a matter concerning an
older person must respect, protect, promote and fulfill the person’s rights and
best interests and the rights and principles set out in the Act, respect the person’s
inherent dignity, treat him or her fairly and equitably, and protect him or her
from unfair discrimination on any ground, incl his or her health status or
disability. S 5(3) requires that an approach which is conducive to conciliation
and problem-solving must be followed in any matter concerning an older person
and that a confrontational approach must be avoided. Furthermore, a delay in
any action or decision must be avoided as far as possible. Chs 3 and 4 of the Act
shift the emphasis from institutional care for the elderly to community-based
care and regulate residential facilities, while ch 5 deals with abuse of the elderly.
4 Ex parte De Villiers 1943 WLD 56; Ex parte Stewart-Wynne: In re Mason 1944
EDL 176; Ex parte Van Hasselt 1965 (3) SA 553 (W); Ex parte Hill 1970 (3)
SA 411 (C); Ex parte Ewing: In re Sheridan 1995 (4) SA 101 (O).
5 In re J Rensburgh (1835) 3 Menz 99; In re GC Rens (1844) 3 Menz 100;
Mitchell v Mitchell 1930 AD 217; Ex parte Van Dyk 1939 CPD 202; Van den
Berg v Van den Berg 1939 WLD 228; Ex parte Maritz 1944 NPD 339; Ex parte
Bell 1953 (2) SA 702 (O); Nkosi v Minister of Justice 1964 (4) SA 365 (W); Ex
parte Powrie 1963 (1) SA 299 (W); Ex parte Tod 1965 (1) SA 262 (D).
6 Mitchell v Mitchell 1930 AD 217; Hudson v Price 1933 CPD 367; Van den Berg
v Van den Berg 1939 WLD 228; Ex parte Berman: In re Estate Dhlamini 1954
(2) SA 386 (W); Ex parte Tomich 1957 (4) SA 667 (N); Ex parte Jacobs 1965
(3) SA 270 (C); Francescutti v Francescutti; Ex parte Francescutti 2005 (2) SA
442 (W).
7 Re McKenzie’s Estate 1908 TS 420; Ex parte Thomson 1919 CPD 277; Ex parte
Lennon Ltd 1929 WLD 195; Ex parte Luhn 1935 EDL 40; Ex parte Shulman
1955 (1) SA 514 (W); Ex parte Pearlman 1957 (4) SA 666 (N). The
presumption of death is discussed in ch 2 above.
8 Ex parte Kuhr 1940 CPD 327; Ex parte Becker 1943 CPD 164.
9 Ex parte Jones 1943 WLD 134.
10 See e.g. Martinson v Brown; Gray v Armstrong 1961 (4) SA 107 (C); Ex parte
Powrie 1963 (1) SA 299 (W); see also Ex parte Hill 1970 (3) SA 411 (C);
Santam Insurance Ltd v Booi 1995 (3) SA 301 (A). In Taurog v Lapinsky 1943
WLD 100 the person was so indifferent to his affairs as to be in danger of
suffering serious loss. The court held that, even in the absence of evidence that a
person suffers from a mental or physical disability, it can appoint a curator ad
litem to investigate his or her condition and report on whether he or she is
capable of managing his or her affairs. On the different types of curators and
their functions, see further ch 7 above.
11 Mitchell v Mitchell 1930 AD 217; Ex parte Kotze 1955 (1) SA 665 (C); Ex parte
Klopper: In re Klopper 1961 (3) SA 803 (T), Heaton Casebook on the Law of
Persons case [47].
12 2003 (5) SA 472 (W) 478J–479A, Heaton Casebook on the Law of Persons case
[46].
13 S 10 of the Constitution of the Republic of South Africa, 1996 provides that
everyone has inherent dignity and has the right to have his or her dignity
respected and protected.
14 Mitchell v Mitchell 1930 AD 217; Ex parte Van Dyk 1939 CPD 202; Ex parte
Bell 1953 (2) SA 702 (O); Ex parte Berman: In re Estate Dhlamini 1954 (2) SA
386 (W); Ex parte Derksen 1960 (1) SA 380 (N); Nkosi v Minister of Justice
1964 (4) SA 365 (W); Ex parte Van der Linde 1970 (2) SA 718 (O); Ex parte
Wilson: In re Morison 1991 (4) SA 774 (T); Judin v Wedgwood 2003 (5) SA
472 (W).
15 Ex parte Van Dyk 1939 CPD 202; Ex parte Bell 1953 (2) SA 702 (O).
16 Ex parte Geldenhuys 1941 CPD 243. A creditor does not have a sufficient
interest to be allowed to bring an application for the appointment of a curator ad
litem in respect of his or her debtor: Judin v Wedgwood 2003 (5) SA 472 (W).
17 Rule 57(1) of the Uniform Rules of Court.
18 The report must be submitted by the Master of the High Court which has
jurisdiction in the area where the person for whom a curator bonis is to be
appointed ordinarily resides: Ex parte Beukes 2011 (5) SA 521 (WCC).
19 See rule 57(10) of the Uniform Rules of Court. See further ch 7 fn 40 above.
20 Ex parte Derksen 1960 (1) SA 380 (N); Ex parte Berry: In re Berry 1961 (4) SA
79 (D); Ex parte De Villiers 1976 (4) SA 576 (O).
21 The completion of prescription of a claim by or against someone who has been
placed under curatorship is, however, delayed until a year after the curatorship
has come to an end: Prescription Act 68 of 1969 s 13(1).
22 See also Boezaart Persons 132; Cronjé LAWSA vol 20 part 1 Persons par 488 fn
143.
23 1930 OPD 171 175, Heaton Casebook on the Law of Persons case [48]; see also
Voet 27.10.13; Ex parte Hamer 1946 OPD 163.
24 Pienaar v Pienaar’s Curator 1930 OPD 171; Mitchell v Mitchell 1930 AD 217.
But see Sonnekus 2009 THRHR 141–143, 145 who states that a person whose
estate is administered by a curator bonis may enter into a marriage without the
consent of the curator but may not enter into an antenuptial contract without
such consent.
25 Spies v Smith 1957 (1) SA 539 (A).
26 Ex parte De Bruin 1946 OPD 110.
27 De Villiers v Espach 1958 (3) SA 91 (T).
28 Grotius 1.11.5, 3.30.3; Van Leeuwen Censura Forensis 1.4.3.2, Rooms-
Hollands-Regt 4.2.3; Van der Keessel Praelectiones 3.30.3; Eerste Nasionale
Bank van Suidelike Afrika Bpk v Saayman 1997 (4) SA 302 (SCA); Francescutti
v Francescutti; Ex parte Francescutti 2005 (2) SA 442 (W).
29 Prodigality is discussed in ch 10 below.

INFLUENCE OF ALCOHOL AND
DRUGS
As in the case of mental or physical incapacity, intoxication can

affect a person’s legal status. The issue of the effect of
intoxication on status normally arises in the context of a
person’s capacity to act or his or her capacity to be held
accountable for crimes and delicts.1 The rules relating to
intoxication apply not only to the effects of alcohol but also to
those of any drug.2
The influence of alcohol or drugs affects capacity to act only
for as long as it lasts. Thus it usually results in only a temporary
loss of capacity to act.3 If, however, a person becomes
incapable of managing his or her affairs because of continuous
abuse of alcohol or drugs, he or she may be placed under
curatorship.4
As to the degree of the influence of alcohol or drugs that is
required for the law to consider a person’s capacity to act to be
affected, Judge Rumpff held in Van Metzinger v Badenhorst5
that it is insufficient if the person was merely more easily
persuadable or more willing to enter into a transaction. What is

required is that the person must have been unaware that he or
she was entering into a transaction or must have had no idea of
its provisions. Accordingly, the mere fact that a person is under
the influence of alcohol or drugs or is rendered reckless by his
or her consumption of alcohol or drugs does not mean that the
transaction is not legally binding. The influence of alcohol or
drugs must be such as to deprive the person of his or her powers
of reasoning.6 A transaction which is concluded under these
circumstances is void ab initio and cannot be ratified.7 The onus
of proof is on the party who alleges that the person was under
the influence of alcohol or drugs.8
A person who is under the influence of alcohol or drugs can
be held liable on the ground of unjustified enrichment or
negotiorum gestio because such liability is not based on the
existence of a valid agreement.9
As the influence of alcohol or drugs often diminishes a
person’s ability to appreciate the consequences of his or her
actions, it can affect his or her capacity to be held accountable
for delicts and crimes.10
1 For examples of instances where a person’s legal capacity or capacity to litigate

may be affected by his or her intoxicated state, see Boezaart Persons 143, 144.
2 Christie 258; Cronjé LAWSA vol 20 part 1 Persons par 489; De Wet and Van
Wyk 57; Heaton in Van Heerden et al (eds.) Boberg’s Law of Persons and the
Family 143 fn 152; Van der Vyver and Joubert 413.
3 Voet 18.1.4; Grotius 3.14.5; Van Leeuwen Censura Forensis 1.4.19.3; Van der
Linden 1.14.3; Dennis v Kupfel (1896) 11 EDC 63; Donovan v Rowbotham
(1905) 19 EDC 38; Goodman v Pritchard (1907) 28 NLR 227; Van Metzinger v
Badenhorst 1953 (3) SA 291 (T).
4 Ex parte Derksen 1960 (1) SA 380 (N). On the appointment of a curator to a

person who is incapable of managing his or her affairs, see ch 8 above.
5 1953 (3) SA 291 (T), Heaton Casebook on the Law of Persons case [49].
6 Goodman v Pritchard (1907) 28 NLR 227; Van Metzinger v Badenhorst 1953
(3) SA 291 (T).
7 Ibid.
8 Ibid.
9 Cronjé LAWSA vol 20 part 1 Persons par 489; De Vos 96, 220; Heaton in Van
Heerden et al (eds.) Boberg’s Law of Persons and the Family 145. See also Van
der Vyver and Joubert 413–414.
10 Further on the delictual and criminal liability of an intoxicated person, see
Boezaart Persons 145–146; Burchell ch 21; De Wet 121 et seq; Van der Merwe
and Olivier 112; Van der Vyver and Joubert 414–417.

PRODIGALITY
10.1 Introduction
Prodigals are persons with normal mental ability who squander
their assets in an irresponsible and reckless way due to some
defect in their power of judgement.1 To protect such people and
their families from their prodigal tendencies their status can be
restricted by an order of court.2 The reason for a person’s
prodigality is of no real importance, but from the case law it
appears that prodigality normally goes together with
alcoholism, drug addiction and/or gambling.3
Unlike mental illness,4 prodigality as such does not affect a
person’s status. It is only once the person has been declared a
prodigal and prohibited from managing his or her own affairs
that his or her capacities are restricted. Any interested party
(including the prodigal personally)5 may apply to court for an
order declaring the person to be a prodigal and requesting the
appointment of a curator bonis to administer the person’s
estate.6 The case law reflects that it usually is the prodigal’s
spouse who applies for the order.7 The application is made by
way of notice of motion and supporting affidavits. The

respondent must be notified of the application so that he or she
may oppose it on the return day.8 The applicant may ask that the
rule nisi serve as an interim interdict restraining the respondent,
pending a final order, from administering his or her estate.
Because such an interdict obviously has serious and far-
reaching consequences for the prodigal, it will be granted only
“in exceptional circumstances, where there is some pressing and
immediate urgency”.9
A prodigal is not mentally incapacitated and will normally be
fully able to understand the nature and implications of the
application to appoint a curator bonis to administer his or her
estate. Accordingly, a curator ad litem will be appointed to
assist a prodigal in exceptional cases only.10
As the rights of third parties are also affected by a declaration
of prodigality, the court order must be published.11 In Delius v
Delius12 it was required that the order be published in the
Government Gazette and a local newspaper.
A prodigal’s status is not automatically fully reinstated when
he or she abandons his or her prodigal tendencies; nor does a
marriage or civil union discharge a prodigal from curatorship.13
A prodigal regains full capacity only when he or she is
discharged from curatorship by a court order.14
10.2 Legal capacity

The limitations on an interdicted prodigal’s legal capacity relate
to his or her participation in commercial dealings and handling
finances.15 For example, an interdicted prodigal is barred from
being a director of a company16 or a trustee of an insolvent
estate.17

Merely declaring someone to be a prodigal is not enough to
deprive the person of capacity to act: the declaration must be
coupled with an order restraining the person from administering
his or her estate.18 The effect of an order that interdicts a
prodigal from administering his or her estate is that the
prodigal’s legal position becomes analogous to that of a minor,
rather than a mentally ill person.19 Like a minor, an interdicted
prodigal has limited capacity to act and may consequently not
independently enter into juristic acts by which he or she incurs
obligations.20 An interdicted prodigal can either enter into
transactions assisted by his or her curator or the curator can act
on his or her behalf.21
It must be remembered that a mentally ill person’s incapacity
to act is a result of his or her mental illness and not of the court
order declaring him or her to be mentally ill, whereas an
interdicted prodigal’s capacity to act is restricted by the court
order and not by a mental defect.22 In Phil Morkel Bpk v
Niemand23 it was said that a prodigal’s capacity to act is
curtailed because he or she lacks the necessary judgement to
know which obligations he or she should be party to, and not
because he or she cannot take part normally in the creation of
an obligation. In the case of interdicted prodigals and of
mentally ill persons the purpose of the restriction on their
capacity to act is protective, even though the reason for the
protection differs. In the case of an interdicted prodigal – as in
the case of a minor – the reason is the person’s lack of
judgement (onoordeelkundigheid).
An interdicted prodigal’s curator must honour transactions
the prodigal validly concluded before being interdicted,24
because up till then the prodigal had full capacity to act.
If an interdicted prodigal enters into a legal transaction with a
third party in disregard of the court order interdicting him or her
from dealing with his or her estate, he or she may be prosecuted
for contempt of court.25 In respect of the validity of the
particular transaction the position is the same as in the case of a
minor: the prodigal’s curator may ratify or repudiate it.26 If the
transaction is ratified, it is binding. If repudiated, the other party
must return whatever the interdicted prodigal has delivered or
paid,27 but may hold the interdicted prodigal liable on the basis
of unjustified enrichment.28
If an interdicted prodigal misrepresents himself or herself as
a person having full capacity to act or as having his or her
curator’s consent, the question arises whether he or she can be
held contractually liable on the ground of that
misrepresentation. Holding an interdicted prodigal liable on the
contract would obviously defeat the object of the interdict
prohibiting him or her from dealing with his or her estate (just
like holding a fraudulent minor contractually liable would
defeat the object of limiting the minor’s capacity to act29) and is
therefore not supported.30
There is some controversy among Roman-Dutch writers on
whether an interdicted prodigal may become engaged without
his or her curator’s consent. Voet31 argues that the curator’s
consent is required because the marriage might negatively
affect the prodigal’s estate. Brouwer,32 in contrast, is of the
opinion that the curator’s consent is not required because a
prodigal may, in his view, marry without his or her curator’s
assistance, and if a prodigal may marry without his or her
curator’s consent, it is self-evident that he or she may get
engaged without consent. It is suggested that Brouwer’s view is
the better one.33
Although the Roman-Dutch writers were also divided on the
question of whether an interdicted prodigal may enter into a
valid marriage without his or her curator’s consent,34 modern
South African writers are in agreement that the curator’s
consent is not necessary.35 The same should apply in respect of
a civil union.
A prodigal’s curator cannot make a will on behalf of the
prodigal. Nor can the curator assist the prodigal in making
one.36 Whether the prodigal has the capacity personally to make
a will is unclear. The common-law position seems to be that a
prodigal can execute a valid will provided that it benefits his or
her descendants or otherwise deals with his or her property
equitably.37 However, as the interdict deprives the prodigal of
the power to make any disposition of his or her property
whatsoever, it was considered safer to obtain permission from
the state to make a will.38 To what state body application had to
be made was not indicated. It seems that currently there is none
in South Africa which can give the necessary consent. In Ex
parte F39 it was held that the Supreme Court (now the High
Court) does not have the power to consent to a prodigal’s
making a will. The enactment of the Wills Act 7 of 1953 did not
solve the problem, for the Act does not clearly indicate whether
a prodigal has the capacity to make a will. Section 4 permits
“[e]very person” above the age of 16 years to make a will
unless, at the time of making the will, that person is “mentally
incapable of appreciating the nature and effect of his act”. As a
prodigal is usually not “mentally incapable of appreciating the
nature and effect of his act” it seems that section 4 gives him or
her the capacity to make a will in which he or she – like any
other person who has the capacity to make a will – can,
presumably, dispose of his or her property as he or she likes.40
In contrast, it may be argued that section 4 has to be interpreted
in light of the common-law provisions requiring the prodigal’s
will to benefit his or her descendants or otherwise deal
equitably with his or her property.41 The solution lies in
enacting legislation which deprives an interdicted prodigal of
the capacity to make a will without the consent of the court (or
the Master of the High Court), and at the same time authorises
the court (or the Master) to give such consent,42 or legislation
which provides that a prodigal’s estate has to devolve according
to the rules of intestate succession.43 However, such legislation
would be premised on the notion that placing limitations on a
prodigal is constitutionally justifiable, which, it is submitted, is
extremely doubtful.44
If the arguments in Phil Morkel Bpk v Niemand?45 are applied
consistently, a will the prodigal executed before being
interdicted as a prodigal remains valid because the prodigal had
the required capacity to act when the will was executed.
An interdicted prodigal retains parental responsibilities and
rights in respect of his or her child.46 This means, inter alia, that
a prodigal can consent to his or her child’s marriage without
obtaining his or her curator’s consent47 and, incongruously,
apparently retains control of the child’s estate.48

In principle, an interdicted prodigal may not embark on
litigation without his or her curator’s consent because, through
such litigation, he or she might incur liability for costs which
would lead to a disposition of his or her estate and would
therefore be in breach of the interdict prohibiting him or her
from administering his or her estate.49 An interdicted prodigal
may, however, sue unassisted for divorce, and for an order to
have his or her curator dismissed or the curatorship set aside.50
10.5 Capacity to be held accountable for crimes

and delicts
Prodigality and an order interdicting a prodigal from
administering his or her estate do not affect the prodigal’s
capacity to be held accountable for crimes and delicts he or she
commits.51
10.6 Constitutional implications of interdiction as a

prodigal
It is submitted that the limitations placed on interdicted
prodigals are unconstitutional. The interdict preventing the
prodigal from administering his or her estate infringes his or her
rights to dignity52 and privacy.53 It might be argued that the
infringement is reasonable and justifiable in the case of a
prodigal with dependants to support, as society is justified in
requiring a person who has dependants “to conform to socially
acceptable spending patterns lest his dependants become a
charge upon society through his profligacy”.54 However,
distinguishing between prodigals with dependants and those
without dependants falls foul of the right to equality before the
law and equal protection and benefit of the law.55 It is submitted
that the duty of support is an insufficient justification for the
infringement of the prodigal’s constitutional rights and that the
limitations placed on all prodigals are unconstitutional.56
1 For common-law definitions of prodigality, see Voet 27.10.6; Grotius 1.11.4;

Van Leeuwen Rooms-Hollands-Regt 1.16.13; Van der Keessel Praelectiones
1.11.4.
2 See e.g. Master of the Supreme Court v Farrer 1906 TS 748; Lockwood v
Lockwood 1935 EDL 1; Ex parte McLinden 1945 OPD 96; Yared v Yared 1952
(4) SA 182 (T); Traub v Traub 1955 (2) SA 671 (C); Delius v Delius 1960 (1)
SA 270 (N).
3 See e.g. Re Chism (1892) 9 SC 61; Master of the Supreme Court v Farrer 1906
TS 748; Lockwood v Lockwood 1935 EDL 1; Cillie v Cillie 1938 CPD 513;
Yared v Yared 1952 (4) SA 182 (T); Ex parte Wilding 1953 (1) SA 633 (C);
Delius v Delius 1960 (1) SA 270 (N).
4 See ch 7 above.
5 For examples, see Re Chism (1892) 9 SC 61 (brother); In re Miller: Ex parte
Keldie (1892) 9 SC 414 (daughter); Master of the Supreme Court v Farrer 1906
TS 748 (Master); Ex parte Yarr 1927 CPD 366 (prodigal); Cillie v Cillie 1938
CPD 513 (former spouse); Ex parte McLinden 1945 OPD 96 (prodigal and
spouse jointly); Ex parte Wilding 1953 (1) SA 633 (C) (spouse); Delius v Delius
1960 (1) SA 270 (N) (spouse).
6 In the past it was the practice of our courts to confer upon a prodigal’s curator
bonis the same powers as those granted to a mentally ill person’s curator bonis

in terms of s 65 of the Mental Disorders Act 38 of 1916. Although this section
was not directly applicable to prodigals, the courts found in it a useful summary
of the powers that should be conferred upon the curator and, instead of setting
out those powers in each case, the courts simply referred to s 65: Cillie v Cillie
1938 CPD 513; Ex parte Tolmie & Japhet: In re Estate Linklater 1939 WLD 36;
Ex parte McLinden 1945 OPD 96; Delius v Delius 1960 (1) SA 270 (N). S 65
was repealed by the Administration of Estates Act 66 of 1965, which currently
regulates the powers and duties of curators: see ch IV. In Ex parte Du Toit: In re
Curatorship Estate Schwab 1968 (1) SA 33 (T) Boshoff J was of the opinion
that it is no longer necessary to confer upon the curator bonis all the powers
mentioned in the now-repealed s 65, while Fannin J stated in Ex parte Hulett
1968 (4) SA 172 (D) that the court order ought to specify the powers conferred
on the curator. In Ex parte Thompson 1983 (4) SA 392 (E) Smalberger J held
that, since Hulett’s case, it had become practice to confer upon a curator the
powers set out in that case, but that this did not mean that such powers were
exhaustive. In Ex parte Thompson the court gave the curators the further power
of making such gifts and loans to his children and grandchildren on behalf of the
person placed under curatorship as the Master may consider reasonable in the
circumstances. The latter case did not deal with a prodigal but with the general
powers of a curator bonis.
It is submitted that prodigality does not fall within the scope of “severe or
profound intellectual disability” and that an administrator can accordingly not be
appointed to a prodigal in terms of ch VIII of the Mental Health Care Act 17 of
2002. On the Mental Health Care Act, see ch 7 above.
7 E.g. Lockwood v Lockwood 1935 EDL 1; Yared v Yared 1952 (4) SA 182 (T);
Ex parte Wilding 1953 (1) SA 633 (C). If a marriage or civil union is in
community of property and one spouse or civil union partner squanders the joint
estate, the other spouse or civil union partner may apply to the court for
immediate division of the joint estate: Matrimonial Property Act 88 of 1984 s 20
read with Civil Union Act 17 of 2006 s 13(2). Alternatively he or she may
invoke s 16(2) of the Matrimonial Property Act (read with s 13(2) of the Civil
Union Act), which empowers the court to suspend the power of a spouse or civil
union partner to deal with the joint estate for a definite or an indefinite period if
this is essential for the protection of the interest of the other spouse or civil
union partner in the joint estate. In a marriage or civil union that is subject to the
accrual system the court may be asked to order the immediate division of the
accrual in terms of s 8 of the Matrimonial Property Act (read with s 13(2) of the
Civil Union Act) if the conduct of one of the spouses or civil union partners
seriously prejudices or will probably seriously prejudice the other’s right to
share in the accrual at the dissolution of the marriage or civil union.
8 Lockwood v Lockwood 1935 EDL 1; Master of the Supreme Court v Farrer
1906 TS 748; Yared v Yared 1952 (4) SA 182 (T).
9 Delius v Delius 1960 (1) SA 270 (N) 272AB. See also Ex parte Wilding 1953
(1) SA 633 (C).
10 Ex parte McLinden 1945 OPD 96; Delius v Delius 1960 (1) SA 270 (N).
11 Grotius 1.11.4; Van Leeuwen Rooms-Hollands-Regt 1.12.3, 1.16.13, 2.7.8,
Censura Forensis 1.1.16.28; Van der Keessel Praelectiones 1.11.4;
Groenewegen 45.1.6; Voet 27.10.8; Van der Linden 1.5.8; Delius v Delius 1960
(1) SA 270 (N).
12 1960 (1) SA 270 (N).
13 Vedeski v Vedeski 1923 WLD 31.
14 Van der Keessel Praelectiones 1.11.4; Grotius 1.11.4; Voet 27.10.7.
15 Boezaart Persons 134; Kruger and Skelton (eds.) Persons 146–147.
16 Companies Act 71 of 2008 s 69(7)(c).
17 Insolvency Act 24 of 1936 s 55(c).
18 Grotius 1.11.4; Van der Keessel Praelectiones 1.11.4; Groenewegen 45.1.6; Re
Chism (1892) 9 SC 61; Cillie v Cillie 1938 CPD 513; Ex parte McLinden 1945
OPD 96; Ex parte Wilding 1953 (1) SA 633 (C); Delius v Delius 1960 (1) SA
270 (N).
19 Voet 27.10.9; Phil Morkel Bpk v Niemand 1970 (3) SA 455 (C). On the position
of a minor, see ch 6 above.
20 Voet 27.10.9; Phil Morkel Bpk v Niemand 1970 (3) SA 455 (C).
21 Voet 27.10.9; Boezaart Persons 135; Christie 260; Cronjé LAWSA vol 20 part 1
Persons par 490; De Wet and Van Wyk 58; Hahlo and Kahn South Africa 387;
153; Kruger and Skelton (eds.) Persons 147; Wille’s Principles 385.
22 Grotius 1.11.4; Voet 27.10.7; Phil Morkel Bpk v Niemand 1970 (3) SA 455 (C).
23 1970 (3) SA 455 (C), Heaton Casebook on the Law of Persons case [50].
24 Voet 27.10.7; Phil Morkel Bpk v Niemand 1970 (3) SA 455 (C).
25 S v Beyers 1968 (3) SA 70 (A).
26 Phil Morkel Bpk v Niemand 1970 (3) SA 455 (C); Boezaart Persons 135, 136;
Christie 260; Cronjé LAWSA vol 20 part 1 Persons par 490; Heaton in Van
Heerden et al (eds.) Boberg’s Law of Persons and the Family 153, 154; Kruger
and Skelton (eds.) Persons 148; Van der Vyver and Joubert 360; Wille’s
Principles 385.
27 Heaton in Van Heerden et al (eds.) Boberg’s Law of Persons and the Family
154; Kruger and Skelton (eds.) Persons 148; Van der Vyver and Joubert 361.
28 Christie 260; Cronjé LAWSA vol 20 part 1 Persons par 490; De Vos 96, 220;
154; Kruger and Skelton (eds.) Persons 148; Van der Vyver and Joubert 361.
But see Du Plessis 85 who states that the restitutionary consequences of a
contract a prodigal concluded without the consent of his or her curator are
unclear if the contract is repudiated by the curator.
29 On the liability of a minor who has committed a misrepresentation, see ch 6
above.
30 See also Boezaart Persons 136; Heaton in Van Heerden et al (eds.) Boberg’s
Law of Persons and the Family 154; Kruger and Skelton (eds.) Persons 148;
31 23.1.3.
32 1.4.18; see also Van Bijnkershoek 2.1536.
33 Cronjé LAWSA vol 20 part 1 Persons par 490; Sinclair assisted by Heaton 317
fn 31. Should a prodigal wish to buy an engagement ring he or she will, of
course, have to be assisted by his or her curator.
34 Voet 23.1.3 and Kersteman 90 (sv “curatele”) submit that such consent is
required, while Brouwer 1.4.18 (see also Van Bijnkershoek 2.1536; Van
Leeuwen Rooms-Hollands-Regt 4.2.3 fn (e)) advocates the opposite view.
Van Heerden et al (eds.) Boberg’s Law of Persons and the Family 155; Kruger
and Skelton (eds.) Persons 149; Van der Vyver and Joubert 362; Wille’s
Principles 385–386. See further Pienaar v Pienaar’s Curator 1930 OPD 171,
Heaton Casebook on the Law of Persons case [48]; Mitchell v Mitchell 1930 AD
217; Ex parte Hamer 1946 OPD 163. A prodigal’s capacity to marry is
discussed in more detail in Heaton Family Law ch 3.
Kruger and Skelton (eds.) Persons 149; Spiro Parent and Child 112; Van der
Vyver and Joubert 364.
37 See the authority referred to in Ex parte F 1914 WLD 27; Phil Morkel Bpk v
Niemand 1970 (3) SA 455 (C) 458GH; see also Cronjé LAWSA vol 20 part 1
Persons par 490; Heaton in Van Heerden et al (eds.) Boberg’s Law of Persons
and the Family 157.
38 See the discussion in Ex parte F 1914 WLD 27.
39 1914 WLD 27.
40 Cronjé LAWSA vol 20 part 1 Persons par 490; De Waal et al LAWSA vol 31
Wills and Succession par 273 fn 2; Heaton in Van Heerden et al (eds.) Boberg’s
Law of Persons and the Family 158; Lee and Honoré par 563 fn 2; Van der
Merwe and Rowland 211.
41 Beinart 1953 SALJ 283 294 doubts whether the Wills Act affords a prodigal the
capacity to make a will.
42 Cronjé LAWSA vol 20 part 1 Persons par 490; Heaton in Van Heerden et al
(eds.) Boberg’s Law of Persons and the Family 158.
43 Boezaart Persons 137; Van der Vyver and Joubert 364.
44 The constitutionality of the limitations is discussed below in this ch.
45 1970 (3) SA 455 (C).
46 Phil Morkel Bpk v Niemand 1970 (3) SA 455 (C); Boezaart Persons 137; Cronjé
LAWSA vol 20 part 1 Persons par 490; Heaton in Van Heerden et al (eds.)
Boberg’s Law of Persons and the Family 157; Kruger and Skelton (eds.)
Persons 150; Wille’s Principles 385.
47 Boezaart Persons 137; Cronjé LAWSA vol 20 part 1 Persons par 490; Hahlo
Husband and Wife 92; Heaton in Van Heerden et al (eds.) Boberg’s Law of
Persons and the Family 157 fn 203; Kruger and Skelton (eds.) Persons 150.
Kruger and Skelton (eds.) Persons 150.
49 Heaton in Van Heerden et al (eds.) Boberg’s Law of Persons and the Family
157 fn 204; Kruger and Skelton (eds.) Persons 150. This explanation was
originally put forward by Boberg (179 fn 90). But see Van der Vyver and
Joubert 364 and Wille’s Principles 385 who suggest that an interdicted prodigal
may litigate unassisted.
50 Ribbens v Ribbens 1965 1 PH F5 (T).
51 Voet 27.10.9; Boezaart Persons 137; Cronjé LAWSA vol 20 part 1 Persons par
490; Heaton in Van Heerden et al (eds.) Boberg’s Law of Persons and the
Family 156–157; Kruger and Skelton (eds.) Persons 150; Van der Vyver and
Joubert 364–365; Wille’s Principles 385 fn 149.
52 S 10 of the Constitution of the Republic of South Africa, 1996.
53 S 14 of the Constitution.
54 This view was advanced by Boberg in 1977 already as a general justification for
the imposition of limitations on the status of an interdicted prodigal: Boberg
180.
55 S 9(1) of the Constitution.
56 See further Cockrell Bill of Rights Compendium par 3E35; Heaton in Van
Heerden et al (eds.) Boberg’s Law of Persons and the Family 157 fn 203. See
also Boezaart Persons 134 fn 110.

INSOLVENCY
11.1 Introduction
A person is insolvent if his or her liabilities exceed his or her
assets (in other words, when he or she has more debts than
assets). If the person’s estate is sequestrated by the High Court
as a result of this state of affairs, the sequestration affects the
person’s legal capacity, capacity to act and capacity to litigate.
The limitations that are imposed on the insolvent do not have
the object of punishing him or her but of protecting others.1
When a person is declared insolvent and his or her estate is
sequestrated, he or she is divested of the estate, which then
vests in the Master of the High Court until such time as a trustee
is appointed. When the trustee is appointed the insolvent estate
vests in the trustee.2 In the case of spouses or civil union
partners whose marriage or civil union is subject to community
of property the joint estate is sequestrated and both of the
spouses or civil union partners are rendered insolvent by the
sequestration order.3 Even if the order refers only to
sequestrating the joint estate, all assets of both of the spouses or
civil union partners fall into the insolvent estate. This applies
even to property which is excluded from the joint estate.4
In general all property the insolvent acquires during
insolvency also vests in the insolvent estate.5 Some assets do,
however, fall outside the insolvent estate. They include:
(1) Earnings the Master of the High Court has allowed the
insolvent to keep for his or her own and his or her
dependants’ support.6
(2) Pension money.7
(3) Compensation the insolvent receives for loss or damage as
a result of defamation or personal injury.8
(4) Certain personal belongings such as clothes, bedding,
household furniture, tools and other essential means of
subsistence.9
(5) Certain life insurance policies.10
11.2 Legal capacity

An insolvent person’s legal capacity is influenced by the
sequestration of his or her estate as there are certain offices he
or she cannot hold. For example, an insolvent person may not
be a director of a company or mutual bank,11 or a trustee.12

Even though the trustee of an insolvent estate administers the
estate this does not mean that the insolvent loses all capacity to
act. The insolvent may still enter into contracts, provided that
he or she does not thereby purport to dispose of property of the
insolvent estate.13 However, the insolvent needs the written
consent of the trustee to enter into a contract which adversely

affects or is likely to adversely affect the insolvent estate.14 The
insolvent also needs the trustee’s consent to carry on, be
employed in or have any interest in the business of a trader who
is a general dealer or manufacturer.15
If the insolvent enters into a contract in breach of these
provisions, the contract is nevertheless valid if the following
requirements are met:
(1) The property the insolvent disposed of was acquired after
sequestration.
(2) The disposition was for valuable consideration.
(3) The person with whom the insolvent transacted was
unaware and had no reason to suspect that the estate was
under sequestration.16
Other contracts in breach of the limitations are voidable at the
instance of the trustee.17

The insolvent does not lose all capacity to litigate when his or
her estate is sequestrated.18 Upon sequestration, all civil
proceedings by or against the insolvent are stayed until a trustee
is appointed to act on behalf of the insolvent estate.19 For the
rest, the insolvent retains locus standi in iudicio. The insolvent
may, in particular, in his or her own name and without the
trustee’s consent or cooperation, sue or be sued in respect of:
(1) Any matter relating to his or her status or any right in so
far as it does not affect the insolvent estate.20
(2) Any claims arising from contracts concluded after
sequestration that are not detrimental to the insolvent
estate.21
(3) Any claims to recover a pension to which he or she is
entitled.22
(4) Actions for compensation in respect of defamation or
personal injury he or she suffered. The insolvent must,
however, have the court’s consent to institute an action
against the trustee of the insolvent estate on the ground of
malicious prosecution or defamation.23
(5) Remuneration for work done or professional services
rendered by him or her or on his or her behalf after
sequestration.24
(6) Actions against him or her for any delict he or she
committed after sequestration.25
(7) Actions to recover property or institute a claim in favour of
the insolvent estate should the trustee refuse, neglect or
decline to do so.26
(8) Actions against the trustee of the insolvent estate because
of maladministration or improper disposal of assets of the
insolvent estate or the improper recognition of obligations
to the detriment of the insolvent estate.27
If the insolvent embarks upon unnecessary litigation, the court
may order the insolvent to give security for his or her
opponent’s costs before proceeding. However, the mere fact
that someone is insolvent does not warrant an order for security
for costs against him or her.28

Capacity to be held accountable for crimes
11.5 and delicts
Insolvency does not affect the insolvent’s capacity to be held
accountable for crimes and delicts. However, if the insolvent
commits a delict after sequestration, the compensation must be
paid out of those assets the insolvent acquired after
sequestration that fall outside the insolvent estate.29
11.6 Rehabilitation
The legal limitations sequestration places on the capacity of an
insolvent person come to an end when he or she is rehabilitated
by an order of the High Court30 or once ten years have elapsed
since the sequestration.31 Rehabilitation also discharges all debts
the insolvent incurred prior to sequestration.32
1 Because protection of the public is the rationale for the disabilities and
disqualifications imposed on the insolvent, the limitations on the insolvent’s
rights do not violate the Bill of Rights: Boezaart Persons 139 fn 159; Cockrell
Bill of Rights Compendium par 3E36; Heaton in Van Heerden et al (eds.)
Boberg’s Law of Persons and the Family 219 fn 60. See also Podlas v Cohen
and Bryden 1994 (3) BCLR 137 (T), 1994 (4) SA 662 (T).
2 Insolvency Act 24 of 1936 s 20(1)(a). Some years ago, moves were afoot to
replace the Insolvency Act. After an investigation lasting more than a decade,
the South African Law Commission published a Report on the Review of the
Law of Insolvency Project 63 in 2000. Vol 2 of the report contains a draft
Insolvency Bill which embodies the Commission’s recommendations on the
reform of our insolvency law. The Bill has not yet been tabled in Parliament.
3 See e.g. De Wet v Jurgens 1970 (3) SA 38 (A); Badenhorst v Bekker 1994 (2)
SA 155 (N); Du Plessis v Pienaar [2002] 4 All SA 311 (SCA), 2003 (1) SA 671
(SCA); Voget v Kleynhans 2003 (2) SA 148 (C). S 21(13) of the Insolvency Act
includes a heterosexual life partner in the definition of a spouse. However, if an
insolvent life partner is still legally married, it is his or her spouse’s estate – and

not that of his or her life partner – which vests in the Master and trustee:
Chaplin v Gregory 1950 (3) SA 555 (C).
4 Badenhorst v Bekker 1994 (2) SA 155 (N); Du Plessis v Pienaar [2002] 4 All
SA 311 (SCA), 2003 (1) SA 671 (SCA).
5 Insolvency Act s 20(2)(b).
6 Insolvency Act s 23(5).
9 Insolvency Act s 82(6). The insolvent’s household furniture, tools and other
essential means of subsistence are excluded only to the extent that his or her
creditors or the Master of the High Court allow him or her to keep them for
personal use.
10 Long-Term Insurance Act 52 of 1998 s 63(1).
11 Companies Act 71 of 2008 s 69(8)(b)(i) and Mutual Banks Act 124 of 1993 s
38(b)(i), respectively.
12 Insolvency Act ss 55(a) and 58(a).
14 Ibid.
15 Insolvency Act s 23(3). If the trustee refuses consent, the insolvent may appeal
to the Master of the High Court.
17 WL Carroll & Co v Ray Hall Motors (Pty) Ltd 1972 (4) SA 728 (T).
18 See e.g. Grevler v Landsdown 1991 (3) SA 175 (T); Marais v Engler
Earthworks (Pty) Ltd; Engler Earthworks (Pty) Ltd v Marais 1998 (2) SA 450
(E); Voget v Kleynhans 2003 (2) SA 148 (C).
21 Insolvency Act s 23(6) read with s 23(2).
24 Insolvency Act s 23(9). This is subject to s 23(5), which entitles the trustee to
claim so much of the insolvent’s earnings as the Master of the High Court
determines is not required for the support of the insolvent and his or her
dependants.
26 The insolvent has locus standi in iudicio in respect of these matters because he
or she retains a reversionary interest in his or her insolvent estate: Mears v
Rissik, Mackenzie and Mears’ Trustee 1905 TS 303; Nieuwoudt v The Master
1988 (4) SA 513 (A); Voget v Kleynhans 2003 (2) SA 148 (C); Haupt t/a Soft
Copy v Brewers Marketing Intelligence (Pty) Ltd 2005 (1) SA 398 (C).
27 Ecker v Dean 1938 AD 102; Grevler v Landsdown 1991 (3) SA 175 (T).
28 See e.g. Ecker v Dean 1938 AD 102; Hobson v Abib 1981 (1) SA 556 (N).
30 Insolvency Act s 129(1). Rehabilitation may be subject to conditions: s 127(2).
The court has a discretion either to grant or to refuse the application for
rehabilitation: Ex parte Fourie [2008] 4 All SA 350 (D).
31 Insolvency Act s 127A(1).

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TABLES OF CASES
Page
A
A v C 1986 (4) SA 227 (C) 58
A v M 1930 WLD 292 65, 67
AB, Ex parte 1910 TPD 1332 115, 121
Ahmed v Coovadia 1944 TPD 364 114, 115, 116
Alexander, Ex parte 1956 (2) SA 608 (A) 30
Amalgamated Engineering Union v Minister of Labour 1965 (4) SA 94 (W) 6
Ambaker v African Meat Co 1927 CPD 326 114, 115
AS v CS 2011 (2) SA 360 (WCC) 40
Atkin v Estate Bowmer 1913 CPD 505 54, 57
Attorney-General, Transvaal v Additional Magistrate for Johannesburg 1924 AD 421
89
Auret v Hind (1884) 4 EDC 283 93, 97
B
B v E 1992 (3) SA 438 (T) 55
B v P 1991 (4) SA 113 (T) 73
B v S 1995 (3) SA 571 (A) 73
Baddeley v Clarke (1923) 44 NLR 306 91, 93, 95, 100
Badenhorst v Bekker 1994 (2) SA 155 (N) 141
Baker v Baker 1945 AD 708 45
Barclays National Bank Ltd, Ex parte 1972 (4) SA 667 (N) 15
Barnes v Hayward 1944 CPD 203 119
Basillie et Uxor, Ex parte 1928 CPD 218 20
Beaglehole, Re 1908 TS 49 30
Becker, Ex parte 1943 CPD 164 130
Bell v Bell 1991 (4) SA 195 (W) 40
Bell, Ex parte 1953 (2) SA 702 (O) 129, 130
Berger v Aiken 1964 (2) SA 396 (W) 32, 33
Berman, Ex parte: In re Estate Dhlamini 1954 (2) SA 386 (W) 129, 130
Berning v Berning 1942 1 PH B26 (W) 113
Berry, Ex parte: In re Berry 1961 (4) SA 79 (D) 131
Bethell v Bland 1996 (2) SA 194 (W) 73
Beukes, Ex parte 2011 (5) SA 521 (WCC) 130
Blieden, Ex parte 1965 (1) SA 474 (W) 15
Blignaut, Ex parte 1963 (4) SA 36 (O) 92, 93
Bloy, Ex parte 1984 (2) SA 410 (D) 111
Boedel Steenkamp, Ex parte 1962 (3) SA 954 (O) 14
Booysen, In re 1880 Foord 187 30, 32
Bosch v Titley 1908 ORC 27 115, 116
Botha v Thompson 1936 CPD 1 13
Bothma v Bothma 1940 (1) PH B9 (O) 45
Breytenbach v Frankel 1913 AD 390 95, 97, 102
Buttar v Ault 1950 (4) SA 229 (T) 88
C
Cachet, In re (1898) 15 SC 5 113
Cairncross v De Vos (1876) 6 Buch 5 114, 115, 116
Carelse v Estate De Vries (1906) 23 SC 532 68
Carvalho v Carvalho 1936 SR 219 45
Chaplin v Gregory 1950 (3) SA 555 (C) 141
Chinatex Oriental Trading Co v Erskine 1998 (4) SA 1087 (C) 44, 45
Chisholm v East Rand Proprietary Mines Ltd 1909 TH 297 16, 17
Chism, Re (1892) 9 SC 61 135, 136
Chodos, Ex parte 1948 (4) SA 221 (N) 33
Christian Lawyers Association of South Africa v The Minister of Health

1998 (11) BCLR 1434 (T), 1998 (4) SA 1113 (T) 24
Christian Lawyers Association of South Africa v The Minister of Health
(Reproductive Health Alliance as Amicus Curiae) 2005 (1) SA 509 (T)
(also reported as Christian Lawyers’ Association v Minister of Health
[2004] 4 All SA 31 (T), 2004 (10) BCLR 1086 (T)) 22, 25, 109
Christian League of Southern Africa v Rall 1981 (2) SA 821 (O) 12, 17, 23, 27
Cillie v Cillie 1938 CPD 513 135, 136
Clarke v Hurst 1992 (4) SA 630 (D) 122
Coetzee v Singh 1996 (3) SA 153 (D) 73
Cohen v Sytner (1897) 14 SC 13 105, 113, 115
Commissioner for Inland Revenue v Friedman 1993 (1) SA 353 (A) 6
Cook v Cook 1939 CPD 314 44
Crookes v Watson 1956 (1) SA 277 (A) 20
Curling, Ex parte 1952 1 PH M13 (C) 113
Cuthbert, In re 1932 NPD 615 30, 32
D
D v K 1997 (2) BCLR 209 (N) 62, 63
Dama v Bera 1910 TPD 928 114, 115, 116
Davids, Ex parte 1948 (1) SA 1018 (W) 32
Davies v R 1909 EDC 149 65, 67
De Beer v Estate De Beer 1916 CPD 125 90, 91, 93
De Beer v Sergeant 1976 (1) SA 246 (T) 89, 112
De Bruin, Ex parte 1946 OPD 110 131
De Bruyn v Minister van Vervoer 1960 (3) SA 820 (O) 89
De Canha v Mitha 1960 (1) SA 486 (T) 95
De Jager, Ex parte 1950 (4) SA 583 (E) 14
De Klerk, Ex parte 1968 (4) SA 130 (C) 129
De Villiers v Espach 1958 (3) SA 91 (T) 119, 121, 129, 131
De Villiers v Liebenberg (1907) 17 CTR 867 95
De Villiers, Ex parte 1943 WLD 56 129
De Villiers, Ex parte 1976 (4) SA 576 (O) 131
De Vos v Die Ringskommissie van die NGK 1952 (2) SA 83 (O) 6
De Wet v Bouwer 1919 CPD 43 102
De Wet v Jurgens 1970 (3) SA 38 (A) 141
De Winnaar, Ex parte 1959 (1) SA 837 (N) 14, 15
Delius v Delius 1960 (1) SA 270 (N) 135, 136
Dempers and Van Ryneveld v SA Mutual Co (1908) 25 SC 162 30
Dennis v Kupfel (1896) 11 EDC 63 133
Derksen, Ex parte 1960 (1) SA 380 (N) 129, 130, 131, 133
Dhanabakium v Subramanian 1943 AD 160 65, 89, 92, 110
Dickens v Daley 1956 (2) SA 11 (N) 114, 115, 116
Dixie, Ex parte 1950 (4) SA 748 (W) 120, 122
Docrat v Bhayat 1932 TPD 125 65, 73
Doctors for Life International v Speaker of the National Assembly
2006 (12) BCLR 1399 (CC), 2006 (6) SA 416 (CC) 21
Donelly, Ex parte 1915 WLD 29 41, 42
Donovan v Rowbotham (1905) 19 EDC 38 133
Dorward, Ex parte 1933 NPD 17 30
Douglas v Mayers 1987 (1) SA 910 (Z) 73
Drakensbergpers Bpk v Sharpe 1963 (4) SA 615 (N) 44
Drayton v Wattrus (1908) 18 CTR 657 100
Dreyer v Sonop Bpk 1951 (2) SA 392 (O) 92, 94, 95
Du Plessis v Pienaar [2002] 4 All SA 311 (SCA), 2003 (1) SA 671 (SCA) 141
Du Plessis v Strauss 1988 (2) SA 105 (A) 121
Du Toit v Lotriet 1918 OPD 99 90, 91, 92, 93, 95, 97, 100, 102, 103
Du Toit, Ex parte: In re Curatorship Estate Schwab 1968 (1) SA 33 (T) 121, 129, 135
E
E v E 1940 TPD 333 59
Ecker v Dean 1938 AD 102 143
Edelstein v Edelstein 1952 (3) SA 1 (A) 40, 89, 90, 91, 92, 96, 97, 101, 102
Eerste Nasionale Bank van Suidelike Afrika Bpk v Saayman
1997 (4) SA 302 (SCA)
117, 131
Eilon v Eilon 1965 (1) SA 703 (A) 41, 44
Emmerson, Ex parte 1992 (3) SA 987 (W) 64
Engelbrecht, Ex parte 1956 (1) SA 408 (E) 30
Erskine v Chinatex Oriental Trading Co 2001 (1) SA 817 (C) 44
Eskom Holdings Ltd v Hendriks 2005 (5) SA 503 (SCA) 111
Estate Baker v Estate Baker (1908) 25 SC 234 40
Estate Heinamann v Heinamann 1919 AD 99 79
Estate Lewis v Estate Jackson (1905) 22 SC 73 13
Estate Potgieter, Re 1908 TS 982 111
Estate Rehne v Rehne 1930 OPD 80 117
Estate Russell, Ex parte 1926 WLD 118 30, 32
Estate Van Schalkwyk, Ex parte 1927 CPD 268 113
Estate Watkins-Pitchford v Commissioner for Inland Revenue 1955 (2) SA 437 (A)
121
Ewing, Ex parte: In re Sheridan 1995 (4) SA 101 (O) 129
F
F v L 1987 (4) SA 525 (W) (also reported as D v L 1990 (1) SA 894 (W))
55, 58, 65, 68
F, Ex parte 1914 WLD 27 138
FB v MB 2012 (2) SA 394 (GSJ) 86
Fenner-Solomon v Martin 1917 CPD 22 103
Fick v R 1904 ORC 25 100
Fillis v Joubert Park Private Hospital (Pty) Ltd 1939 TPD 234 95
Finlay v Kutoane 1993 (4) SA 675 (W) 34
Fish Hoek Primary School v GW 2010 (2) SA 141 (SCA) 70
Fish Hoek Primary School v Welcome 2009 (3) SA 36 (C) 70
Fitzgerald v Green 1911 EDL 432 54, 57, 58
Forster v Forster & Wheeling (1905) 26 NLR 124 42
Fortoen, Ex parte 1938 WLD 62 92, 94
Fouche v Battenhausen & Co 1939 CPD 228 93, 94, 95, 97, 100, 102
Fouchee v De Villiers (1883) 3 EDC 147 100, 116

Fourie v Minister of Home Affairs 2005 (3) BCLR 241 (SCA), 2005 (3) SA 429
(SCA) 40
Fourie, Ex parte [2008] 4 All SA 350 (D) 143
Fozard v Fozard 1923 CPD 62 45
Francescutti v Francescutti; Ex parte Francescutti 2005 (2) SA 442 (W) 129, 131
Frankel’s Estate v The Master 1950 (1) SA 220 (A) 40
Friedman v Glicksman 1996 (1) SA 1134 (W) 17, 18, 19, 20
FS v JJ 2011 (3) SA 126 (SCA) 70, 85
G
G v Superintendent, Groote Schuur Hospital 1993 (2) SA 255 (C) 23
Gabavana v Mbete [2000] 3 All SA 561 (Tk) 34
Gantz v Wagenaar (1828) 1 Menz 92 100
GC Rens, In re (1844) 3 Menz 100 129
Geldenhuys v Borman 1990 (1) SA 161 (E) 129
Geldenhuys, Ex parte 1941 CPD 243 129, 130
Gerdener, Ex parte 1933 CPD 29 30
Gin v S 1966 (2) PH H335 (E) 58
Glass et Uxor, Ex parte 1948 (4) SA 379 (W) 45
Gliksman v Talekinsky 1955 (4) SA 468 (W) 68
Godfrey v Campbell 1997 (1) SA 570 (C) 89
Goldman, Ex parte 1960 (1) SA 89 (D) 111
Gonsalves v Gonsalves 1985 (3) SA 507 (T) 34
Goodman v Pritchard (1907) 28 NLR 227 133
Govender, Ex parte 1993 (3) SA 721 (D) 30
Gqamane v The Multilateral Motor Vehicle Accidents Fund [1999] 3 All SA 683
(SE) 120
Gradidge v Gradidge 1948 (1) SA 120 (D) 58
Graham, Ex parte 1963 (4) SA 145 (D) 33
Grand Prix Motors WP (Pty) Ltd v Swart 1976 (3) SA 221 (C) 90, 91, 97, 114, 115
Green v Fitzgerald 1914 AD 88 79
Green v Naidoo 2007 (6) SA 372 (W)
89
Grevler v Landsdown 1991 (3) SA 175 (T) 142, 143
Greyling v Greyling 1978 (2) SA 114 (T) 33
Grindal v Grindal 1997 (4) SA 137 (C) 42, 43
Grobler v Potgieter 1954 (2) SA 188 (O) 111
Groenewald v Rex 1907 TS 47 100
Gunn v Gunn 1910 TS 423 42
H
Halbert, Ex parte 1912 CPD 706 32
Halbert, Ex parte 1912 EDL 167 32
Hamer, Ex parte 1946 OPD 163 131, 138
Harvey v Reed 1879 OFS 48 103
Haupt t/a Soft Copy v Brewers Marketing Intelligence (Pty) Ltd 2005 (1) SA 398143
(C)
Heard, Ex parte 1947 (1) SA 236 (C) 30
Henning’s Executor v The Master (1885) 3 SC 235 46
HG v CG 2010 (3) SA 352 (ECP) 76
Hill, Ex parte 1970 (3) SA 411 (C) 122, 129, 130
Hobson v Abib 1981 (1) SA 556 (N) 143
Hodgert, Ex parte 1955 (1) SA 371 (D) 111
Hoffman v Estate Mechau 1922 CPD 179 79
Holland v Holland 1973 (1) SA 897 (T) 115
Holloway v Stander 1969 (3) SA 291 (A) 57
Hopkins v Estate Smith 1920 CPD 558 13
Hudson v Price 1933 CPD 367 122, 129
Hulett, Ex parte 1968 (4) SA 172 (D) 121, 135
Hulton, Ex parte 1954 (1) SA 460 (C) 88
Human v Human 1975 (2) SA 251 (E) 34
Human, Ex parte 1948 (1) SA 1022 (O) 120
Hutchison’s Executor v The Master (Natal) 1919 AD 71 42

I
I v S 2000 (2) SA 993 (C) 73
J
J Rensburgh, In re (1835) 3 Menz 99 129
J v Director General, Department of Home Affairs 2003 (5) BCLR 463 (CC)
9, 10, 15, 49
J v J 2008 (6) SA 30 (C) 76
Jacobs v Kegopotsimang 1937 GWL 43 111
Jacobs, Ex parte 1936 OPD 31 68
Jacobs, Ex parte 1950 (1) SA 129 (T) 14
Jacobs, Ex parte 1965 (3) SA 270 (C) 129
James, Ex parte 1947 (2) SA 1125 (T) 30
JC Vogel & Co v WA Greentley (1903) 24 NLR 252 97, 99, 100
Jones v Santam Bpk 1965 (2) SA 542 (A) 89
Jones, Ex parte 1943 WLD 134 130
Judin v Wedgwood 2003 (5) SA 472 (W) 117, 121, 130
K
K v M [2007] 4 All SA 883 (E) 62
Kaiser, Ex parte 1902 TH 165 41
Kakuva v Minister van Polisie 1983 (2) SA 684 (SWA) 30
Kannemeyer, In re: Ex parte Kannemeyer (1899) 16 SC 407 31, 32
Kedar, Ex parte 1993 (1) SA 242 (W) 65
Keeve, Ex parte 1929 OPD 19 115
Kerkhof, Ex parte 1924 TPD 711 32
Kirby, In re (1899) 16 SC 245 30
Klopper, Ex parte: In re Klopper 1961 (3) SA 803 (T) 130
Kotze v Santam Insurance Ltd 1994 (1) SA 237 (C) 121
Kotze, Ex parte 1955 (1) SA 665 (C) 130
Kramer v Findlay’s Executors (1878) 8 Buch 51 68
Krasin v Ogle [1997] 1 All SA 557 (W) 73

Kruger, Ex parte 1976 (1) SA 609 (O) 15
Kuhr, Ex parte 1940 CPD 327 130
L
Labistour, In re 1908 NLR 227 30
Lamb v Sack 1974 (2) SA 670 (T) 65, 67
Land and Agricultural Bank of South Africa v Parker 2005 (2) SA 77 (SCA) 6
Landers v Estate Landers 1933 NPD 415 102
Landmann v Mienie 1944 OPD 59 115
Lange v Lange 1945 AD 332 117, 118
Lauchlin v Lauchlin (1903) 24 NLR 230 42
Le Grange v Mostert (1909) 26 SC 321 114
Lennon Ltd, Ex parte 1929 WLD 195 130
Levin v Mechanich 1931 EDL 32 117, 119
Leviny v Leviny (1908) 25 SC 173 41
Lockwood v Lockwood 1935 EDL 1 135, 136
Louvis v Diconomos 1917 TPD 465 6
Louw v MJ & H Trust (Pty) Ltd 1975 (4) SA 268 (T) 90, 91, 97, 98, 99, 100, 102
Louw, Ex parte 1972 (1) SA 551 (O) 15
LS v AT 2001 (2) BCLR 152 (CC) (also reported as Sonderup v Tondelli
2001 (1) SA 1171 (CC)) 64
Luhn, Ex parte 1935 EDL 40 130
Lupacchini v Minister of Safety and Security [2011] 1 All SA 138 (SCA) 6
M
M v M 1962 (2) SA 114 (GW) 47
M v R 1989 (1) SA 416 (O) 59, 60, 61, 62, 63
M v S (Centre for Child Law Amicus Curiae) 2007 (12) BCLR 1312 (CC)
(also reported as S v M (Centre for Child Law as Amicus Curiae)
2008 (3) SA 232 (CC), 2007 (2) SACR 539 (CC)) 62, 64, 84
M v V (Born N) [2011] JOL 27045 (WCC) 53, 70, 71, 77
Mabula v Thys 1993 (4) SA 701 (SEC) 34
Macdonald v Stander 1935 AD 325 58
Mackay v Ballot 1921 TPD 430 57
Maclean, Ex parte 1968 (2) SA 644 (C) 29
Macleod, Ex parte 1946 CPD 312 44
Mahala v Nkombombini 2006 (5) SA 524 (SEC) 34
Maharaj v Parandaya 1939 NPD 239 57
Mahendra v Framashnee Case 8422/2006 21 May 2007 (W) (unreported) 115
Makholiso v Makholiso 1997 (4) SA 509 (Tk) 79, 80
Malebjoe v Bantu Methodist Church of South Africa 1957 (4) SA 465 (W) 6
Mankahla v Matiwane 1989 (2) SA 920 (C) 34
Marais v Engler Earthworks (Pty) Ltd; Engler Earthworks (Pty) Ltd v Marais
1998 (2) SA 450 (E) 142
Marais v Tiley 1990 (2) SA 899 (A) 31
Marais, Ex parte 1960 (2) SA 197 (GW) 15
Maritz, Ex parte 1944 NPD 339 129
Marshall v National Wool Industries Ltd 1924 OPD 238 90, 92, 94, 95
Martienssen, Ex parte 1944 CPD 139 33
Martin v Road Accident Fund 2000 (2) SA 1016 (W) 121
Martinson v Brown; Gray v Armstrong 1961 (4) SA 107 (C) 122130
Mason v Mason (1885) 4 EDC 330 41, 42
Massey v Massey 1968 (2) SA 199 (T) 42
Master of the Supreme Court v Farrer 1906 TS 748 135, 136
Mayer v Williams 1981 (3) SA 348 (A) 57
Maylett v Du Toit 1989 (1) SA 90 (T) 89
Mazzur v Cleghorn & Harris Ltd 1917 CPD 291 90, 95
Mbanjwa v Mona 1977 (4) SA 403 (Tk) 34
McCallum v Hallen 1916 EDL 74 90, 92, 94, 95
McCarthy Retail Ltd v Shortdistance Carriers CC
[2001] 3 All SA 236 (SCA), 2001 (3) SA 482 (SCA) 101
McKenzie’s Estate, Re 1908 TS 420 130
McLinden, Ex parte 1945 OPD 96 135, 136

McMillan v McMillan 1943 TPD 345 45
Mears v Rissik, Mackenzie and Mears’ Trustee 1905 TS 303 143
Metedad v National Employers’ General Insurance Co Ltd 1992 (3) SA 538 (W) 102
Meyer v The Master 1935 SWA 3 112
Miller, In re: Ex parte Keldie (1892) 9 SC 414 135
Minister of the Interior v Cowley 1955 (1) SA 307 (N) 121
Minister of Welfare and Population Development v Fitzpatrick
2000 (7) BCLR 713 (CC), 2000 (3) SA 422 (CC) 64
Mitchell v Mitchell 1930 AD 217 58, 129, 130, 131, 138
MM v AV (unreported, WCC case no 2901/2010, 16 November 2011) 70, 71
Mnyama v Gxalaba 1990 (1) SA 650 (C) 34
Molyneux v Natal Land and Colonization Co Ltd
1905 AC 555 (PC) 561, (1905) 26 NLR 423 117, 118, 119
Moolman v Erasmus 1910 CPD 79 92
Moore v Moore 1945 TPD 407 45
Mort v Henry Shields-Chiat 2001 (1) SA 464 (C) 95
Motan v Joosub 1930 AD 61 68
N
Nangle v Mitchell (1904) 18 EDC 56 115
Natal Fresh Produce Growers Association v Agroserve (Pty) Ltd 1990 (4) SA 749
(N) 22
Natal Land and Colonization Co Ltd v Pauline Colliery and Development Syndicate
Ltd 1904 AC 120 20
Naville v Naville 1957 (1) SA 280 (C) 45
Nefler v Nefler 1906 ORC 7 46
Nel v Divine, Hall & Co (1980) 8 SC 16 100
Nell v Nell 1990 (3) SA 889 (T) 62, 64
Nepgen v Van Dyk 1940 EDL 123 33
Neuhaus v Bastion Insurance Co Ltd 1968 (1) SA 398 (A) 89
Nicol v Nicol 1948 (2) SA 613 (C) 45
Nicolson, Re 1908 TS 870 32
Nieuwoudt v The Master 1988 (4) SA 513 (A) 143
Nkosi v Minister of Justice 1964 (4) SA 365 (W) 129, 130
Nokoyo v AA Mutual Insurance Association Ltd 1976 (2) SA 153 (E) 65, 80
Nooitgedacht, In re: Ex parte Wessels (1902) 23 NLR 81 102
Nortjé v Pool 1966 (3) SA 96 (A) 101
O
O v O 1992 (4) SA 137 (C) 60, 62
Ochberg v Ochberg’s Estate 1941 CPD 15 114, 115
Odendaal, Ex parte 1928 OPD 218 14
Oppel, Ex parte 2002 (5) SA 125 (C) (also reported as Ex parte Oppel:
In re Appointment of Curator ad Litem and Curator Bonis [2002] 1 All SA 8 (C))
110
Oxton, Ex parte 1948 (1) SA 1011 (C) 41
P
P v P [2007] 3 All SA 9 (SCA), 2007 (5) SA 94 (SCA) 62
Padi v Botha 1996 (3) SA 732 (W) 31
Panaar, Ex parte 1908 CTR 544 30
Parker, Ex parte 1947 (3) SA 285 (C) 30
Pearlman, Ex parte 1957 (4) SA 666 (N) 130
Perkins v Danford 1996 (2) SA 128 (C) 95, 110
Petersen v Kruger 1975 (4) SA 171 (C) 53
Petersen v Maintenance Officer [2004] 1 All SA 117 (C), 2004 (2) BCLR 205 (C)
(also reported as Petersen v Maintenance Officer, Simon’s Town Maintenance
Court
2004 (2) SA 56 (C)) 68
Pheasant v Warne 1922 AD 481 117, 118, 119
Phil Morkel Bpk v Niemand 1970 (3) SA 455 (C) 118, 137, 138, 139
Pienaar v Godden (1893) 10 SC 129 116
Pienaar v Pienaar’s Curator 1930 OPD 171 119, 121, 129, 131, 138
Pieters, Ex parte 1993 (3) SA 379 (D) 30, 32
Pinchin v Santam Insurance Co Ltd 1963 (2) SA 254 (W) 12, 17, 18, 27

Pleat v Van Staden 1921 OPD 91 97, 100, 114, 115
Podlas v Cohen and Bryden 1994 (3) BCLR 137 (T), 1994 (4) SA 662 (T) 141
Potgieter et Uxor, Ex parte 1943 OPD 4 93
Potgieter v Bellingan 1940 EDL 264 81
Powrie, Ex parte 1963 (1) SA 299 (W) 120, 122, 129, 130
President Insurance Co Ltd v Yu Kwam 1963 (3) SA 766 (A) 110
Pretorius v Pretorius 1967 (2) PH B17 (O) 15, 19
Pretorius v Van Zyl 1927 OPD 226 101
Prinsloo’s Curators Bonis v Crafford and Prinsloo 1905 TS 669 117, 119
Q
Queen v Koning (1900) 17 SC 541 100
Quintrell, Ex parte 1922 TPD 14 45
R
R v Holliday 1924 AD 250 120
R v Isaacs 1954 (1) SA 266 (N) 57
R v Moato 1947 (1) SA 490 (O) 4
R v Muila 1926 OPD 119 100
R v Pie 1948 (3) SA 1117 (O) 58
R v Sephuma 1984 (3) SA 982 (T) 28
R v Swanepoel 1954 (4) SA 31 (O) 58, 59
Ranjith v Sheela 1965 (3) SA 103 (D) 59
Readings, Ex parte 1958 (4) SA 432 (C) 45
Rhode v Minister of Defence 1943 CPD 40 91
Ribbens v Ribbens 1965 1 PH F5 (T) 139
Riesle and Rombach v McMullin (1907) 10 HCG 381 95, 100, 115
Rifkin v Rifkin 1936 WLD 69 46
Riggs v Calff (1836) 3 Menz 76 100
Road Accident Fund v Mdeyide 2007 (7) BCLR 805 (CC), 2008 (1) SA 535 (CC)121
Road Accident Fund v Mtati 2005 (6) SA 215 (SCA) (also reported as Road

Accident Fund v M obo M [2005] 3 All SA 340 (SCA)) 17, 18, 27
Road Accident Fund v Smith [1998] 4 All SA 429 (SCA) 120
Rogers v Erasmus 1975 (2) SA 59 (T) 15
Rookminia, Ex parte: In re Sardha 1964 (4) SA 163 (D) 30
Rousseau v Norton (1908) 18 CTR 621 93
Rowan v Faifer 1953 (2) SA 705 (E) 65, 73
Roxa v Mtshayi 1975 (3) SA 761 (A) 89
Rungasamy, Ex parte 1958 (4) SA 688 (D) 30
Russo, In re (1896) 13 SC 185 79
S
S v Beyers 1968 (3) SA 70 (A) 137
S v De Blom 1977 (3) SA 513 (A) 96
S v Jeggels 1962 (3) SA 704 (C) 58, 59
S v Kavin 1978 (2) SA 731 (W) 118
S v McBride 1979 (4) SA 313 (W) 118
S v Mshumpa 2008 (1) SACR 126 (E) 7, 24
S v S 1993 (2) SA 200 (W) 73
S v Snyman 1968 (2) SA 582 (A) 57
S v Swart 1965 (3) SA 454 (A) 58
S v L 1992 (3) SA 713 (E) 56, 60, 61, 62, 63, 64
Sager v Bezuidenhout 1980 (3) SA 1005 (O) 65, 67
Saiid v Schatz 1972 (1) SA 491 (T) 34
Sandberg, Ex parte 1912 TPD 805 42
Santam Insurance Ltd v Booi 1995 (3) SA 301 (A) 121, 130
Schoeman v Rafferty 1918 CPD 485 93
Schreiber v Paper (1906) 20 EDC 34 95
Secretary for Inland Revenue v Brey 1980 (1) SA 472 (A) 68, 79
Seedat’s Executors v The Master (Natal) 1917 AD 302 41
Seetal v Pravitha 1983 (3) SA 827 (D) 59, 60, 62, 63
Sekeleni v Sekeleni 1986 (2) SA 176 (Tk) 34

Sesing v Minister of Police 1978 (4) SA 742 (W) 114, 115, 116
Shange v MEC for Education, KwaZulu-Natal 2012 (2) SA 519 (KZD) 112
Shields v Shields 1946 CPD 242 15, 19
Shulman, Ex parte 1955 (1) SA 514 (W) 130
Sibisi, Ex parte 2011 (1) SA 192 (KZP) 74
Silberman v Hodkinson 1927 TPD 562 100
Skead v Colonial Banking & Trust Co Ltd 1924 TPD 497 92, 94, 95, 100, 102, 103
Smith v Smith 1952 (4) SA 750 (O) 41, 44
Spangenberg v De Waal [2008] 1 All SA 162 (T) 121
Sperling v Sperling 1975 (3) SA 707 (A) 40
Spies v Smith 1957 (1) SA 539 (A) 131
Spies’ Executors v Beyers 1908 TS 473 68
Steenkamp v Kamfer 1914 CPD 877 114
Steinberg v Cosmopolitan National Bank of Chicago 1973 (4) SA 564 (RA) 44
Stewart v Botha [2007] 3 All SA 440 (C), 2007 (9) BCLR 1012 (C), 2007 (6) SA 247
(C) 18
Stewart-Wynne, Ex parte: In re Mason 1944 EDL 176 129
Stoter, Ex parte 1996 (4) SA 1299 (E) 30
Strauss, Ex parte 1949 (3) SA 929 (O) 14
Stuttaford & Co v Oberholzer 1921 CPD 855 95
Sukovs v Van der Walt [1998] 3 All SA 664 (O) 41, 44
SW v F 1997 (1) SA 796 (O) 84
Swanepoel, Ex parte 1953 (1) SA 280 (A) 14
T
T v M 1997 (1) SA 54 (A) 73
Tanne v Foggitt 1938 TPD 43 100, 101
Tate v Jurado 1976 (4) SA 238 (W) 65, 67
Taurog v Lapinsky 1943 WLD 100 130
Taylor v Lucas 1937 TPD 405 111
Ten Brink v Motala 2001 (1) SA 1011 (D) 92

The Colonial Government v William Meldrum (1890) 11 NLR 139 95
Theron v AA Life Assurance Association Ltd 1993 (1) SA 736 (C) 117, 118
Theron v AA Life Assurance Association Ltd 1995 (4) SA 361 (A) 117
Thesen’s Steamship Co Ltd, Ex parte 1944 CPD 165 30
Thompson, Ex parte 1983 (4) SA 392 (E) 121, 135
Thomson, Ex parte 1919 CPD 277 130
Tjollo Ateljees (Eins) Bpk v Small 1949 (1) SA 856 (A) 5, 92, 102
Tod, Ex parte 1965 (1) SA 262 (D) 129
Tolmie & Japhet, Ex parte: In re Estate Linklater 1939 WLD 36 135
Tomich, Ex parte 1957 (4) SA 667 (N) 129
Toumbis v Antoniou 1999 (1) SA 636 (W) 43
Traub v Traub 1955 (2) SA 671 (C) 135
Trollip v Du Plessis 2002 (2) SA 242 (W) 34
Truter v Van der Westhuizen 1918 CPD 31 92
Tseola v Maqutu 1976 (2) SA 418 (Tk) 34
Tshona v Principal, Victoria Girls High School 2007 (5) SA 66 (E) 111
Tyler v Tyler [2004] 4 All SA 115 (NC) 73
U
Uys v Uys 1953 (2) SA 1 (E) 117
V
V v H [1996] 3 All SA 579 (SEC) 73
V v R 1979 (3) SA 1006 (T) 49
Van Dam, Ex parte 1973 (2) SA 182 (W) 65, 73
Van den Berg v Van den Berg 1939 WLD 228 129
Van den Hever, Ex parte 1969 (3) SA 96 (E) 113, 115
Van der Byl & Co v Solomon (1877) 7 Buch 25 102, 103
Van der Harst v Viljoen 1977 (1) SA 795 (C) 59, 65, 67
Van der Linde, Ex parte 1970 (2) SA 718 (O) 129, 130
Van der Merwe v Die Meester 1967 (2) SA 714 (SWA) 96

Van der Westhuizen v R 1924 TPD 370 65, 67
Van Dyk v SAR & H 1956 (4) SA 410 (W) 92, 93
Van Dyk, Ex parte 1939 CPD 202 129, 130
Van Hasselt, Ex parte 1965 (3) SA 553 (W) 129
Van Heerden v Joubert 1994 (4) SA 793 (A) 23, 31
Van Lutterveld v Engels 1959 (2) SA 699 (A) 54, 55, 56, 58
Van Metzinger v Badenhorst 1953 (3) SA 291 (T) 133
Van Oudtshoorn v Northern Assurance Co Ltd 1963 (2) SA 642 (A) 89
Van Rensburg v Ballinger 1950 (4) SA 427 (T) 43
Van Rij v Employers’ Liability Assurance Corporation Ltd 1964 (4) SA 731 (T) 110
Van Zyl v Bolton 1994 (4) SA 648 (C) 22
Vedeski v Vedeski 1923 WLD 31 136
Velkes, Ex parte 1963 (3) SA 584 (K) 110
Venter v De Burghersdorp Stores 1915 CPD 252 114, 115, 116
Vermaak v Vermaak 1929 OPD 13 119
Verster, Ex parte 1956 (1) SA 409 (C) 30
Visagie, Ex parte 1940 CPD 42 14, 15
Visser, Ex parte: In re Khoza 2001 (3) SA 524 (T) 110
Vista University, Bloemfontein Campus v Student Representative Council,
Vista University 1998 (4) SA 102 (O) (also reported as Vista University
(Bloemfontein
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Voget v Kleynhans 2003 (2) SA 148 (C) 141, 142, 143
Volks v Robinson 2005 5 BCLR 446 (CC) 10
W
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Watson v Koen h/a BMO 1994 (2) SA 489 (O) 114, 115
Webber v Webber 1915 AD 239 41, 44
Weber v Santam Versekeringsmaatskappy Bpk 1983 (1) SA 381 (A) 111
Welsh, Ex parte: In re Estate Keegan 1943 WLD 147 33
Wessels v Pretorius [2008] 1 All SA 131 (SCA) 112
Wessels v Ten Oven 1938 TPD 26 89
Wicks v Fisher 1999 (2) SA 504 (N) (also reported as W v F 1998 (9) BCLR 1199
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Widdicombe, In re (1929) 50 NLR 311 32
Wiehman v Simon 1938 AD 447 57
Wilding, Ex parte 1953 (1) SA 633 (C) 135, 136
Wilken v Brebner 1935 AD 175 6
Williams v Williams 1925 TPD 538 54, 58
Wilson, Ex parte: In re Morison 1991 (4) SA 774 (T) 130
WL Carroll & Co v Ray Hall Motors (Pty) Ltd 1972 (4) SA 728 (T) 142
Wolff v Solomon’s Trustee (1895) 12 SC 42 103
Wolman v Wolman 1963 (2) SA 452 (A) 110
Wood v Davies 1934 CPD 250 92, 102
Y
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Yarr, Ex parte 1927 CPD 366 135
YM v LB 2010 (6) SA 338 (SCA) 61, 62
Z
Ziedler, Ex parte 1897 HCG 136 32

TABLES OF STATUTES
Page
A
Administration of Estates Act
66 of 1965 15, 121, 135
Chapter 4 127
Section 44 15
Section 63 127
Section 72(1)(a)(ii) 68
Section 94 15
Section 80(1) 93
B
Banks Act 94 of 1990 6
Section 87(1) 97
Basic Conditions of Employment Act 75 of 1997
Section 43 93, 94
Section 50(2)(b) 93
Bills of Exchange Act 34 of 1964
Section 5(3) 89
Births and Deaths Registration Act
51 of 1992 8, 10, 33, 34
Section 1(1) 8, 9
Section 1(2) 9
Section 1(2)(a) 9
Section 4 8
Section 9(1) 8
Section 9(1A)
8
Section 9(2) 8
Section 9(6) 8
Section 10(1) 10, 67
Section 10(1)(b) 10, 67
Section 11(1) 10, 11, 80
Section 11(4) 10, 67
Section 11(5) 67
Section 12(2) 8
Section 14 33
Section 14(1) 33
Section 14(3) 34
Section 14(4) 34
Section 15 33
Section 15(1) 29
Section 15(2) 29
Section 15(3) 34
Section 16 34
Section 17 33
Section 18 33
Section 18(1) 34
Section 18(2) 34
Section 20(1) 34
Section 22 29
Section 22A 33
Section 24(1) 12
Section 24(2) 12
Section 25(1) 11
Section 25(1A) 11
Section 25(1)(b) 11
Section 25(1)(c) 11

Section 25(1)(1A) 11
Section 25(2) 11
Section 25(3) 11
Section 26(1) 11
Section 26(2) 11, 12
Section 28(2) 29
Section 31(1)(a) 8
Regulation 14(2) 34
Regulation 14(3) 34
Regulation 18 29
Births and Deaths Registration Amendment Act 18 of 2010
Section 1 9
Section 4(b) 8
Section 5(a) 80
Section 5(c) 10
Section 6 8
Section 8 33
Section 11(4A) 10
Section 11(5) 10
C
Child Justice Act 75 of 2008 112
Section 7(1) 89, 112
Section 7(2) 112
Section 7(3) 89, 112
Section 11(1) 112
Children’s Act9,38
27,of47,
2005
48, 50, 65, 66, 68, 69, 79, 84, 86, 87, 104, 107, 109, 110, 129
Schedule 4 9, 55, 69
Section 1 93
Section 1(1) 9, 27, 47, 48, 51, 53, 68
Section 2(b) 84
Section 6 54, 84, 85, 87, 112
Section 6(1) 84
Section 6(2)(a) 54, 59, 85
Section 6(2)(b) 85
Section 6(2)(c) 85
Section 6(2)(d) 85
Section 6(2)(e) 85
Section 6(2)(f) 85
Section 6(3) 85
Section 6(4) 85
Section 6(5) 85
Section 7 77, 85
Section 7(1) 72, 73
Section 8(1) 84
Section 9 85
Section 10 76, 87
Section 12 85
Section 12(1) 85
Section 12(2)(a) 85, 88, 104
Section 12(2)(b) 85
Section 12(3) 85
Section 12(4) 85
Section 12 (5) 85
Section 12(6) 85
Section 12(7) 85
Section 12(8) 85
Section 12(10) 85
Section 13 86
Section 13(1) 86
Section 13(2) 86
Section 14 86, 88, 110
Section 15 86

Section 15(2) 87
Section 16 87
Section 17 43, 66, 83, 112
Section 18(1) 66
Section 18(2) 65
Section 18(2)(d) 68
Section 18(3) 66
Section 18(3)(c) 75, 104
Section 18(3)(c)(i) 105
Section 18(3)(c)(v) 94
Section 18(4) 75, 76, 114
Section 18(5) 75, 76, 94, 104
Section 19 9, 54, 66, 67
Section 19(1) 66, 110, 114
Section 19(2) 66, 71, 110, 114
Section 19(3) 66
Section 20 9, 47, 54, 114
Section 20(a) 110
Section 21 66, 69, 70, 71
Section 21(1) 70
Section 21(1)(a) 70
Section 21(3)(a) 70
Section 21(3)(b) 70
Section 21(4) 70
Section 22 66, 71, 72
Section 22(1) 71
Section 22(1)(a) 71
Section 22(2) 71
Section 22(3) 71
Section 22(4) 71
Section 22(4)(b) 72

Section 22(5) 72
Section 22(6)(a) 73
Section 22(6)(b) 73
Section 22(7) 73
Section 23 73
Section 23(1) 73, 74
Section 23(3)(a) 74
Section 23(3)(b) 74
Section 23(4) 74
Section 24 66, 74
Section 24(1) 74
Section 24(2) 74
Section 24(3) 74
Section 26 70
Section 26(1) 10, 67
Section 26(2) 10, 67
Section 27(1) 68
Section 27(1)(a) 68
Section 27(1)(b) 68
Section 27(2) 68
Section 27(3) 68
Section 27(3)(b) 68
Section 27(4) 68
Section 28 78, 113, 114
Section 28(1) 114
Section 28(1)(a) 78
Section 28(2) 74
Section 28(3)(b) 78
Section 28(3)(c) 78, 114
Section 28(3)(d) 78
Section 28(3)(e) 78

Section 28(4) 78
Section 29(1) 72, 73, 114
Section 29(3) 72
Section 30(2) 75
Section 30(3) 71, 76
Section 30(4) 77
Section 31 87
Section 31(1) 76
Section 31(1)(a) 76
Section 31(1)(b)(i) 76
Section 31(1)(b)(ii) 76
Section 31(1)(b)(iv) 76
Section 31(2) 76
Section 33 77
Section 33(1) 77
Section 33(2) 77, 78
Section 33(3) 77
Section 33(4) 77
Section 33(5) 77
Section 34 77
Section 34(1)(a) 77
Section 34(1)(b) 77
Section 34(4) 78
Section 34(5) 78
Section 36 56
Section 37 60, 63
Section 38 79
Section 38(1) 10, 80
Section 38(2) 80
Section 39(1) 47
Section 39(6) 47

Section 40 9, 10, 49
Section 40(1)(a) 49, 67
Section 40(1)(b) 49
Section 40(2) 49, 67
Section 40(3) 49
Section 40(3)(b) 50
Section 41(1) 49, 50
Section 41(1)(a) 50, 51
Section 41(1)(b) 50, 52
Section 41(2) 50, 52
Section 41(3) 50
Section 45(3)(a) 76
Section 45(3)(d) 76
Section 45(3)(g) 76
Section 129 107
Section 129(2) 107
Section 129(3) 107
Section 129(4) 107
Section 129(5) 107
Section 129(6) 108
Section 129(7)(a) 107
Section 129(7)(b) 107
Section 129(7)(c) 107
Section 129(7)(d) 107
Section 129(8) 107
Section 129(9) 107
Section 129(10) 107
Section 130 108
Section 130(1) 108
Section 130(2)(a) 108
Section 130(2)(b) 108

Section 130(2)(c) 108
Section 130(2)(d) 108
Section 130(2)(e) 108
Section 130(2)(f) 108
Section 131 108
Section 132 108
Section 132(1) 108
Section 132(2) 108
Section 133 108
Section 133(1) 109
Section 133(2)(a) 108
Section 133(2)(b) 108
Section 133(2)(c) 108
Section 133(2)(d) 109
Section 133(2)(e) 109
Section 134 109
Section 134(1) 83, 109
Section 134(2) 83, 109
Section 134(3) 109
Section 135(1) 78
Section 141(1)(e) 93
Section 231(1)(d) 74
Section 231(7)(a) 74
Section 242(1) 74
Section 242(2)(a) 74, 80
Section 242(2)(b) 74
Section 242(2)(c) 75
Section 242(3) 75
Section 292(1) 51

Section 292(2) 51
Section 293(1) 51
Section 293(2) 51
Section 293(3) 51
Section 294 51
Section 295 51
Section 295(a) 51
Section 295(c)(iv) 50
Section 295(c)(v) 50
Section 295(c)(vi) 50
Section 295(c)(vii) 50
Section 296(1) 51
Section 297(1)(a) 49, 51
Section 297(1)(c) 51, 66
Section 297(1)(f) 51
Section 297(2) 51, 52, 67
Section 298 67
Section 298(1) 52
Section 298(2) 52
Section 299(a) 52
Section 299(b) 52
Section 299(c) 52
Section 300(1) 53
Section 300(2) 21
Section 300(3) 21
Section 301(2) 22
Section 301(3) 22
Section 313 9, 55, 69
Children’s Status Act 82 of 1987 9, 55, 63, 65

Section 1 55, 56
Section 2 60
Section 3(1) 65
Section 5 9, 10
Choice on Termination of Pregnancy Act
92 of 1996 20, 21, 24, 25, 53, 109
Section 1 20
Section 2(1)(a) 20
Section 2(1)(b) 21, 22
Section 2(1)(c) 21
Section 2(2) 21
Section 4 20
Section 5(1) 21
Section 5(2) 21, 25, 107, 109
Section 5(3) 21, 107
Section 5(4) 23
Section 5(5)(a) 23
Section 5(5)(b) 23
Section 10(1)(a) 21
Section 10(1)(b) 21
Section 10(1)(c) 21
Choice on Termination of Pregnancy
Amendment Act 1 of 2008 21
Civil Proceedings Evidence Act 25 of 1965
Section 3 55
Civil Union Act 17 of 2006 9, 47, 49, 70, 96, 106
Section 1 43, 106, 110
Section 13 9, 15, 22, 51, 54, 80, 96
Section 13(1) 56
Section 13(2) 10, 11, 26, 32, 40, 47, 49, 50, 67, 114, 124, 125, 126, 136
Companies Act 71 of 2008 6
Section 8(1)
6
Section 8(3) 6
Section 69(8)(b)(i) 142
Constitution of the Republic of South Africa
200 of 1993 24
Chapter 3 6, 23
Section 13 63
Constitution of the Republic of South Africa,
1996 22, 23, 63, 83, 86
Bill of Rights 6, 16, 23, 24, 53, 54, 63, 84, 86, 113, 141
Chapter 2 6
Section 9 11, 16, 25, 40, 83, 119
Section 9(1) 22, 56, 59, 69, 75, 109, 140
Section 9(3) 9, 22, 25, 40, 56, 68, 69
Section 9(4) 40
Section 10 22, 25, 54, 68, 79, 119, 130, 139
Section 11 24, 25
Section 12 84
Section 12(1) 22
Section 12(2) 22, 24, 63
Section 14 22, 25, 63, 139
Section 15(1) 25
Section 27(1)(a) 22, 25
Section 28 63, 83, 84
Section 28(1) 8, 59, 84
Section 28(1)(b) 54, 63, 69, 86, 109
Section 28(1)(h) 86
Section 28(1)(f) 93
Section 28(2) 54, 84, 63, 69 79, 109, 112, 113
Section 30
84
Section 34 86
Section 35 84
Section 36 54, 119
Section 38 87
Section 39(2) 53
Consumer Protection Act
68 of 2008 89, 90, 118
Section 1 83, 90
Section 1(a) 91
Section 1(b) 91
Section 1(d) 91
Section 5(1)(a) 90
Section 5(1)(b) 90
Section 5(1)(c) 90
Section 5(1)(d) 90
Section 5(2) 90
Section 5(3) 90
Section 9(1)(a) 89
Section 9(1)(b) 89
Section 39(1)(b) 90, 99
Section 39(2) 99
Co-operatives Act 14 of 2005 6
Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007
Section 14 28
Section 60 57
Criminal Procedure Act 51 of 1977 123
Section 78 120
Section 79 120
D
Dissolution of Marriages on Presumption of Death Act 23 of 1979 32
Section 1 32
Section 2 33
Divorce Act 70 of 1979 119
Section 2(1)(b) 41
Section 4 119
Section 5(1) 119
Section 6(3) 104
Section 13 40
Domicile Act 3 of 1992 39, 42, 43, 44
Section 1 42, 45
Section 1(1) 43, 46
Section 1(2) 43, 44
Section 2 42, 46
Section 2(1) 46
Section 2(2) 46
Section 2(3) 46
Section 3(1) 40, 42, 46
Section 3(2) 42
Section 5 40
Section 8(2) 39
F
Friendly Societies Act 25 of 1956
Section 16 97
G
General Law Amendment Act 46 of 1935
Section 113 8
General Law Amendment Act 62 of 1955
Section 33(1) 14, 15
General Regulations Regarding Children, 2010
Regulation 7 71
Regulation 8(3)(a) 71
Regulation 10(1) 77
Regulation 10(2) 77
Regulation 11(1) 77
Regulation 11(2) 77
I
Identification Act 68 of 1997
Section 13(1) 29
Immovable Property (Removal or Modification of Restrictions) Act 94 of 1965 15
Section 2(1) 15
Income Tax Act 58 of 1962
Section 1 6
Inquests Act 58 of 1959 33, 34
Section 2(1) 34
Section 3(2) 31
Section 5(2) 31
Section 10 31
Section 16 31
Section 16(1) 31
Section 16(3) 31
Section 18(1) 31
Section 18(2) 31
Section 18(2A) 31
Section 18(3) 31
Insolvency Act 24 of 1936 141
Section 23(2) 142
Section 23(3) 142
Section 23(5) 141

Section 23(6) 142
Section 23(7) 141, 143
Section 23(8) 141, 143
Section 23(9) 143
Section 23(10) 143
Section 24(1) 142
Section 55(a) 142
Section 55(c) 110, 136
Section 58(a) 142
Section 82(6) 142
Section 127A(1) 143
Section 127(2) 143
Section 129(1) 143
Section 129(1)(b) 143
Section 21(13) 141
Intestate Succession Act 81 of 1987
Section 1(2) 79
L
Labour Relations Act 66 of 1995 90
Law Book of the Orange River Colony 1901
Chapter 89 113
Law of Succession Amendment Act
43 of 1992 79
Long-Term Insurance Act 52 of 1998
Section 55 88, 94
Section 63(1) 142
M
Maintenance Act 99 of 1998
Section 15(3)(a)(iii) 65, 67
Section 21 65

Maintenance of Surviving Spouse Act
27 of 1990 10
Marriage Act 25 of 1961 47, 54, 67, 80, 96, 105, 106
Section 24A 106
Section 25(1) 105
Section 25(2) 105
Section 25(3) 105
Section 25(4) 105
Section 26(1) 104
Section 26(2) 106
Section 28 80
Matrimonial Affairs Act 37 of 1953
Section 5(1) 104
Matrimonial Property Act 88 of 1984 120
Section 8 120, 136
Section 8(1) 120
Section 8(2) 120
Section 15 120
Section 16 120
Section 16(1) 120
Section 16(2) 136, 120
Section 20 136, 120
Section 20(1) 120
Section 20(2) 120
Section 24 106
Section 24(1) 106
Section 24(2) 106
Mental Disorders Act 38 of 1916
Section 65 135
Mental Health Care Act
17 of 2002 118, 121, 122, 123, 129, 135
Chapter 6 127
Chapter 7 127
Section 1 122, 124, 125, 127
Section 3 122
Section 4(c) 123
Section 7(1) 122
Section 7(2) 122
Section 8(1) 123
Section 8(2) 123
Section 8(3) 123
Section 9(1) 124
Section 9(1)(a) 124
Section 9(1)(c) 123
Section 9(2) 124
Section 10(1) 123
Section 12(1) 123
Section 12(2) 123
Section 13 123
Section 15 123
Section 17 123
Section 25 124
Section 26 124
Section 27(1)(a)(i) 124
Section 27(4) 124
Section 27(7) 124
Section 27(8) 124

Section 28(1) 125
Section 28(2) 125
Section 28(3) 125
Section 29(1) 125
Section 30(1) 125
Section 30(2) 125
Section 30(3) 125
Section 31(1) 125
Section 31(3) 125
Section 31(4) 125
Section 31(5) 125
Section 32 125
Section 32(b) 125
Section 33 127
Section 33(1) 125
Section 33(4) 126
Section 33(7) 126
Section 34 126
Section 34(5) 126
Section 35(1) 126
Section 36(c) 126
Section 37(1) 126
Section 38(1) 126
Section 38(2) 126

Section 38(3) 126
Section 39(1) 127
Section 40(1) 127
Section 40(3) 127
Section 40(4) 127
Section 59(1) 128
Section 60(1) 128
Section 60(8) 128
Section 60(12) 128
Section 60(13) 128
Section 61(1) 127
Section 61(3) 127
Section 65 128
Mutual Banks Act 124 of 1993 6
Section 38(a) 110
Section 38(b)(i) 142
Section 88(1) 96
N
National Credit Act 34 of 2005 90, 91
National Health Act 61 of 2003 29
Section 1 28
Section 7(1)(e) 28
Section 14 29
Section 15 29
Section 17 29
Section 17(2) 29
Section 55 48
Section 56 48
Section 60
48
Section 62 28
Section 66 28
Section 67 28
Natural Fathers of Children Born out of
Wedlock Act 56 of 1997 65
Section 1(1) 65
Section 2(1) 65
Section 2(2) 65
O
Older Persons Act 13 of 2006 129
Chapter 3 129
Chapter 4 129
Chapter 5 129
Section 5(1) 129
Section 5(2) 129
Section 5(3) 129
P
Prescription Act 68 of 1969 120
Section 3(1)(a) 120
Section 13 120
Section 13(1) 120, 131
Section 13(1)(a) 103, 112, 120
Promotion of Equality and Prevention of
Unfair Discrimination Act 4 of 2000
Section 1(1) 25, 69, 83
Section 6 25, 69, 83
Section 8 25, 69
Section 8(b) 85

Recognition of Customary Marriages Act
120 of 1998 47, 54, 67, 96, 106
Section 2 105
Section 2(1) 9
Section 2(2) 9
Section 3(1)(a) 105
Section 3(3)(b) 105
Section 3(4)(a) 105
Section 3(4)(b) 105
Section 3(4)(c) 106
Section 3(5) 106
Section 6 105
Section 8(4)(a) 106
S
South African Schools Act 84 of 1996
Section 3(1) 93
Sterilisation Act 44 of 1998 25, 26
Section 2(1) 25
Section 2(3)(a) 26
Section 2(3)(b) 26
Section 2(3)(c)(i) 26
Section 2(3)(c)(ii) 26
Section 3(1)(a) 26
Section 3(1)(b) 26, 27
Section 3(1)(c) 26
Section 3(2) 26
Section 3(5) 27
Section 3(7) 26
Section 4 26

Wills Act 7 of 1953 138
Section 1 104
Section 2D(1)(b) 79
Section 2D(1)(c) 13
Section 4 104, 138
Uniform Rules of Court

Rule 14(2) 6
Rule 57 120
Rule 57(1) 130
Rule 57(10) 130
International Instruments
African Charter on the Rights and
Welfare of the Child 84, 87, 94
Article 3(1) 87
Article 4(1) 87
Article 4(2) 87
Article 15 94
Convention 138 of the International
Labour Organisation of 1973 94
Convention on the Rights of the
Child 87, 94
Article 32 94
United Nations Convention on the
Rights of the Child 84, 87
Article 12 87
Article 32 94

INDEX
Page
A
Abortion (see Termination of pregnancy)
Access (see Contact)
Accountability (see also Capacity)
meaning of 37
of insolvent person 143
of minor 111-112
of person unable to manage own affairs 131
of person under influence of alcohol or drugs 133
of prodigal 139
often coincides with capacity to act and capacity to litigate 37
Actio de pauperie
may be instituted against infans 89
Administrator
for intellectually disabled person 121, 127-128
for mentally ill person 121, 126, 127, 128
functions, powers and duties of 127
Admission of sex with child’s mother
presumption arising as result of 56
rebuttal of 56
(see also Paternity)
Adoption 74-75, 80
changing child’s status by 81
Adulterine child
(see Child born of unmarried parents)
Affairs, inability to manage own
(see Inability to manage own affairs)
Age
7 years 19, 83, 87, 89, 111
10 years 112
12 years 83, 94, 104, 107, 108, 111
13 years 94
14 years 50, 83, 94, 104, 111, 112
15 years 93, 94, 104, 105
16 years 83, 85, 96, 97, 104
18 years 25, 50, 83, 87, 89, 96, 104, 106, 110, 111, 112, 113
of majority (see Majority)
of puberty 104, 111
old 129
(see also Infans; Majority; Minor)
Agent
acting on behalf of unborn child 19
infans as 87
minor as 95
Agreement
by infans (see Infans)
by insolvent (see Insolvent)
by mentally ill person
(see Mentally ill person)
by minor (see Minor)
by person unable to manage own affairs
(see Inability to manage own affairs)
by person under influence
of alcohol or drugs
(see Alcohol; Drugs)
by prodigal (see Prodigal)
Alcohol
influence of
on capacity to act 133
on criminal and delictual liability 133
on liability based on negotiorum gestio 133
on liability based on unjustified enrichment 133
onus of proof regarding 133
Antenuptial contract
of minor 93, 96, 105
Artificial fertilisation
meaning of 48
covers in vitro fertilisation 48
covers surrogate motherhood 48
registration of birth of child born as result of 9
relationship between child born as result of
and birth mother 49-50
and blood relations of person whose gamete used 49-50
and person whose gamete used 49-50
and surrogate mother 51
status of child born as result of 49
Assisted fertilisation
(see Artificial fertilisation)
Assisted reproduction
Association
as juristic person 5-6
B
Birth
live
as requirement for legal personality 7, 27
medical evidence of 7
proof of 7
registration of 8-10
change of name after 12
change of surname after 11-12
duty to register 8
forename and surname at 9

termination of surrogate motherhood agreement
after 52
before 52
Blood or DNA test
constitutional issues regarding 63-64
courts’ power to order 60-64
on adult 60, 62-64
on child 60-62, 63-64
judicial notice of technique and reliability of 64-65
motherless 60
Burial
deceased’s instructions regarding 34
right to determine arrangements for 34
right to determine place of 34
Burial order 34
C
Capacities
distinguished from rights 35
Capacity
legal
meaning of 35-36
of insolvent (see Insolvent)
of mentally ill person (see Mentally ill person)
of prodigal (see Prodigal)
possessed by all human beings 35
to act
meaning of 36
of infans (see Infans)
of mentally ill person
(see Mentally ill person)
of minor (see Minor)

of person unable to manage own affairs (see Inability to manage own affairs)
of person under influence of alcohol or drugs (see Alcohol; Drugs)
to hold certain offices
to incur criminal and delictual liability
meaning of 37
of person under influence of alcohol or drugs (see Alcohol; Drugs)
to litigate
meaning of 36-37
Care
assignment of 74
definition of 65-66
(see also Child born of unmarried parents; Unborn child)
Child
best interests of
applied in all fields of law 84
child of mentally ill person 120
factors in determining 72
must be paramount 84
regarding blood or DNA test 60-62, 63-64
(see also Blood or DNA test; Paternity)
regarding declaration of paternity
60-61
born of married parents (see Child born of married parents)
born of unmarried parents (see Child born of unmarried parents)
born out of wedlock (see Child born of unmarried parents)
chronically ill 72
disabled 72
domicile of (see Domicile)
extra-marital (see Child born of unmarried parents)
illegitimate (see Child born of unmarried parents)
legitimate (see Child born of married parents)
minor (see Minor)
unborn (see Unborn child)
views of 76, 77, 85
Child born of married parents
definition of 47
registration of birth of 8-9
Child born of unmarried parents
adoption of 74-75, 80-81
consent to 75
(see also Adoption)
adulterine child is 48
application for passport by 75
born as result of artificial fertilisation
care of
father’s application for 73-74
categories of 47-48
changing status of 79-81
by adoption 80-81
by order of authority 81
by subsequent marriage or civil union of parents 79-80
constitutional issues regarding 69
contact with 66, 71-74
definition of
47
departure or removal of, from South Africa 75
guardianship of 65, 66, 71-74, 75
immovable property of
alienation or encumbrance of 75
incestuous child is 48
maintenance of 67-68, 75
marriage of
consent to 75
natural child is 48
parental authority in respect of (see Parental responsibilities and rights)
paternity
presumption of 56
proof of parentage of (see Paternity)
registration of birth of 10, 67
succession by 79
intestate 79
testate 79
surname of 10
Children’s rights
in terms of
African Charter on the Rights and Welfare of the Child 87
Children’s Act 84-87
Constitution 83-84
Convention on the Rights of the Child 87
Civil obligation of minor 90
Civil union
artificial fertilisation of party to 49
child born of 9
Commissioning parent
definition of 48
legal relationship of, with child 48, 51-52

obligations of surrogate mother towards 51-52
(see also Surrogate motherhood)
Commorientes
meaning of 33
(see also Death)
Competences
distinguished from rights 35
Condictio indebiti
against heir for return of benefits 33
Contact
assignment of 73-74
definition of 66
maintaining 65
(see also Child born of unmarried parents; Parental responsibilities and rights)
Contraceptives
advice to minor regarding 109
confidentiality of 109
provision to minor of 109
Corporeal thing
meaning of 3
Costs
order against minor 111
security for, by insolvent 143
Cremation
deceased’s instructions regarding 34
right to determine arrangements for 34
Curator
appointment of 121-122
courts hesitant to appoint 130
(see also Curator ad litem; Curator bonis; Curator personae)
Curator ad litem
for mentally ill person 121
for person unable to manage own affairs 130
for prodigal 136
for unborn child 23
in respect of interest involving immovable property 15
to assist minor in litigation 86, 103, 110-111
to investigate whether child born of married or unmarried parents 55
Curator bonis
procedure for appointing 121-122
common law 120
statutory 120
(see also Administrator)
for missing person 32
for person unable to manage own affairs 130-131
for prodigal 135-136
procedure for appointing 135-136
functions, powers and duties of 131, 135
Curator personae
for person unable to manage own affairs 130
in respect of termination of pregnancy 23
Custody (see Care)
D
Death
inquest into 29, 31, 33, 34
legal definition of 28
medical evidence regarding 29
of several people in same disaster 33
presumption of
common-law procedure for 29-30
dissolution of marriage or civil union on 32-33
division of estate on 32
effect of order of 32-33

rebuttable 32
statutory procedure for 31
proof of 29
sequence of 33
unnatural 31, 34
Degrees of relationship
prohibited
for civil marriage 75
for civil union 75
sex between persons within, is incest 75
Director of Public Prosecutions
is official curator ad litem for state patient 121
DNA test (see Blood or DNA test)
Domicile
generally 39
assigned 42, 46
by operation of law 46
change in 40, 41, 43
definition of 39
general principles governing 41
importance of 40-41
kinds of 42
of choice 42-46
animus requirement for 44-45
factum requirement for 43-44
majority status necessary for 43
of dependence 43
of deported individual 44
of diplomat 45-46
of employee of foreign government or business 45-46
of fugitive from justice 44

of illegal alien 43, 44
of mentally incapacitated person 46
of military staff 45
of minor 46
of origin 42
of prisoner 46
of public servant 45-46
Donation
to infans 88
to minor 90
Drugs
influence of 133
on capacity to act 133
on criminal and delictual liability 133
on liability based on negotiorum gestio 133
on liability based on unjustified enrichment 133
E
Emancipation
consent to 114
effect of 115
express 114
proof of 115
revocation of 115
tacit 115
Engagement
by minor 85
by prodigal 138
Exceptio non adimpleti contractus
meaning of 91
not available to party seeking to enforce minor’s unassisted contract 91

Exceptio plurium concubentium
meaning of 58
Extra-marital birth (see Child born of unmarried parents)
F
Family advocate
assistance by, in preparing parenting plan 77-78
mediation by 70
Fideicommissum 14
Foetus (see Nasciturus; Still-born foetus; Unborn child)
G
Gamete
definition of 48
Genetic parent
definition of 50
Guardianship
assignment of 73-74
definition of 66
(see also Child born of unmarried parents; Parental responsibilities and rights;
Unborn child)
I
Ignorantia iuris haud excusat
application in respect of ratification 95-96
meaning of 96
Illegitimate child (see Child born of unmarried parents)
Immaterial property (see Intellectual property)
In vitro fertilisation
meaning of 48
(see also Artificial fertilisation)
Inability to manage own affairs
generally 129-131
curator appointed in event of
129
legal status of person suffering from 131
distinguished from legal status of prodigal 131
Incestuous child (see Child born of unmarried parents)
Incestuous relationship
registration of birth of child born of 10, 80
Infans
acting as agent 87
actio de pauperie against 89
capacity to act of 87-88
capacity to litigate of 88
criminal liability of 89
definition of 19, 87
delictual liability of 89
juristic act of 87
legal status of 87
definition of 87
vicarious liability of 89
Inquest (see Death)
Insolvency
contract in breach of limitations
imposed by 142
definition of 141
effect of, on insolvent’s spouse or civil union partner 141
Insolvent
capacity of
to act 142
to hold certain offices 142
to incur criminal liability 143
to incur delictual liability 143
to litigate 142-143
estate of
assets falling outside 141-142

joint estate of 141
legal capacity of 142
limitations imposed on 141
rehabilitation of 143
trustee for 141, 142, 143
Intellectual disability
person with severe or profound
administrator appointed for 121, 128
arrest of person believed to be 127
definition of 122
Intellectual property 4
J
Juristic act
by infans 87
meaning of 36
Juristic person
categories of 5-6
common-law requirements for recognition of 6
functionaries act on behalf of 5
has legal existence independent
of members 5
meaning of 2, 5-6
L
Law
distinguished from right 1-2
in objective sense 1
in subjective sense 1
Law of persons
definition of 1
Legal capacity (see Capacity)
Legal norms 1-2
Legal object
categories of 3-4
meaning of 2
Legal personality 2, 3, 4, 5, 6
commencement of 7-8, 27-28
end of 28
viability of child as requirement for 7
Legal status
competencies and 35
meaning of 35, 37
(see also Status)
Legal subject
animal is not 4
capacities of 35
different kinds of 4-6
juristic person as 5-6
legal capacity ascribed to every 2, 35
meaning of 2
natural person is 4-5
Legitimatio per rescriptum principis 81
Legitimatio per subsequens matrimonium 80
Legitimation (see Child born of unmarried parents)
Lex loci domicilli 39
Locus standi in iudicio
meaning of 36
(see also Capacity to litigate)
Lucidum intervallum
meaning of 119
transactions during 119
M
Maintenance of child (see Child born of unmarried parents)
Majority

attaining
by emancipation 114-116
by marriage 113
by reaching prescribed age 112-113
by release from tutelage 113-114
by venia aetatis 113
not attained by entering into civil union 113
Marriage
civil 104-105
concept expanded 8-9
customary (see Customary marriage
of minor 104-107
of person incapable of administering own affairs 131
religious 8-9
(see also Child born of unmarried parents; Mentally ill person; Minor; Prodigal)
Mediation
by family advocate 70
regarding parenting plan 77
Mental health care user
apprehension of, who absconded 127
care, treatment and rehabilitation of 123-126
assisted 124-125
involuntary 125-126
voluntary 124
definition of 122
place of admission of 127
rights of 122-123
Mental health status
determination of
legitimate purpose of 123
meaning of 122
Mental illness
as ground for divorce 120
definition of 117
distinguished from mental disability and mental incapacity 129
proving 118
medical evidence for 118
Mentally ill person
admission of, to health establishment 123-126
arrest of person believed to be 127
capacity of
to act 117, 118-120
to incur delictual liability 120
to litigate 118
certification of 118, 119
onus of proof affected by 119
civil union
dissolution of 119
in community of property 119-120
out of community of property 120
curator ad litem for 121
curator bonis for 121
curator for
appointment of 121-122
curator personae for 122
domicile of 46
legal capacity of 35-36, 120
legal status of 118-120
liability of, based on
negotiorum gestio 118
unjustified enrichment 118

marriage of
dissolution of 119
in community of property 119-120
out of community of property 120
outpatient care for 126
parental responsibilities and rights of 120
prescription does not run against 120
property of
care and administration of 127-128
protection of, against exploitation 123
right to representation of 123
rights of 122-123
statutory measures regarding 118, 122-128
distinguished from legal principles governing legal status of 118
sterilisation of (see Sterilisation)
termination of pregnancy of (see Termination of pregnancy)
treatment, care and rehabilitation of
assisted 124-125
involuntary 125-126
voluntary 124
who is state patient 127
will of 121
Mentally ill prisoner 127
Minor
accountability of 111-112
acting as agent 95
agreement
extinguishing debt owed by minor 103
real 103
alienating or mortgaging immovable property belonging to 75, 93
as executor of deceased estate 110
as guardian 110
as member, depositor or director of mutual bank 96
blood or DNA test on 59-65 (see also Blood or DNA test; Paternity)
capacity of
to act 89-109
to consent to medical treatment 107-109
to consent to operation 107-109
to enter into civil union 106
to enter into contract 89-103
to incur delictual liability 111-112
to litigate 110-111
to make a will 83, 104
to marry 85, 104-105
to witness a will 83, 104
circumcision of 85-86
female 85
(see also Genital mutilation)
male 85-86
civil marriage of
consent to 104-105
by all guardians 104
by High Court 104
by Minister 104
by presiding officer of Children’s Court 104-105
effect of absence of 106
minimum age of 104
civil union of
prohibited 106
contraception by (see Contraceptives)
contract of 89-103
antenuptial 93, 96, 105

application of estoppel to 99
assistance by guardian regarding 92-95
defence when being sued under 91, 103
effect of misrepresentation on 97-100
employment 93-94
(see also Child labour)
engagement 85
guardian’s liability under 94-95
insurance 94
misrepresentation by minor 97-100
nature of 90-91
prejudicial 102
ratification of 95-96
application of ignorantia iuris haud excusat to 96
by guardian 95
express 95
tacit 95
when minor gains majority 95-96
restitutio in integrum
by emancipated minor 102-103, 116
in respect of 102-103
statutory exceptions regarding 96-97
unjustified enrichment of 100-102
curator ad litem for 86, 103, 110
customary marriage of
consent to 105
by Minister 105
effect of absence of 106-107
delictual liability of 111-112
donation to 90
emancipated (see Emancipation)
emancipation of (see Emancipation)
employment of 93-94
(see also Child labour)
extinguishing debt of 103
genital mutilation of 85
guardian of
acting as surety for minor’s performance 95
and minor’s interests clash 93, 110
assistance by 92-95
liability of, based on negotiorum gestio 95
parent as 88, 110
health of
access to information on 86
status of 86
HIV
status of 108-109
disclosure of 108-109
test on 108
counselling after 108
counselling before 108
inheritance by
loss of, due to guardian’s failure to protect minor’s interests 102
insurance policy of 94
legal status of 89-112
liability of, based on benefit theory 100
limited capacity to act of 83, 89-109
medical treatment of 107-109
misrepresentation by 97-100
contractual liability based on 97-99
delictual liability based on 99-100
tacit 100
performance by, without guardian’s assistance 104

prescription does not run against 103, 112-113
recovering money by condictio 91
recovering property by rei vindicatio 91
sterilisation of 26
suretyship for debt of 92, 95, 103
termination of pregnancy of (see Termination of pregnancy)
transfer of real right by 103
unjustified enrichment of 100-102
venia agendi granted to 111
virginity testing of 85
Minority
termination of (see Majority)
Misrepresentation
by minor (see Minor)
by prodigal (see Prodigal)
N
Nasciturus (see also Unborn child)
meaning of 12
Nasciturus fiction
generally 12-13
application of, to claim for loss of support 16-17
application of, to delict 16-19
application of, to guardianship and care 19-20
application of, to maintenance after birth 15
application of, to pre-natal injury 17-19
application of, to sterilisation 25-27
application of, to succession 13-15
application of, to termination of pregnancy 20-25
distinguished from nasciturus rule 27-28
effect of application of 12-13
requirements for application of 12
Nasciturus rule
distinguished from nasciturus fiction 27-28
Natural child (see Child born of unmarried parents)
Natural obligation
of minor 90
Natural person
meaning of 4-5
Negotiorum gestio
liability based on
of guardian who is child’s parent 95
of infans 89
of mentally ill person 118
P
Pacta sunt servanda 1
Parent
exclusion from definition of 53-54
Parental responsibilities and rights
acquisition of 49-50, 51-52, 65-67, 69-75
automatic, by unmarried father 70
by adoption 74-75, 80-81
by appointment in will 68, 76
by both unmarried parents 70-74
by court order 73-75
by giving birth 66
by parental responsibilities and rights agreement 71-73
(see also Parental responsibilities and rights agreement)
in case of artificial fertilisation (see Artificial fertilisation)
in case of surrogate motherhood (see Surrogate motherhood)
agreement (see Parental responsibilities and rights agreement)
assignment by court 73-74
circumscription of
78-79
co-holders of
consent of 75
exercise of responsibilities and rights by 75-78
parenting plan by 77-78
(see also Parenting plan)
views and wishes of 76
extension of 78-79
of minor mother 66
of mother 66-68
of person who has been declared
mentally ill 120
of prodigal 139
of unmarried father 69-75
surrender of 76-77
suspension of 78-79
termination of 78-79
transfer of 76-77
Parental responsibilities and rights agreement 71-73
amendment of 73
content of 72
court order regarding 71-73
requirements for 71-72
termination of 73
Parenting plan
amendment of 78
assistance in preparing 77
content of 77
court order regarding 77
formal requirements for 77
meaning of 77

mediation in preparing 77
registration of 77
termination of 78
Partnership 6
Pater est quem nuptiae demonstrant
application to same-sex civil union partners 56
meaning of 54
rebuttal of presumption 55
Paternity
exclusion from, of rapist and person who committed incest with mother 67
motherless test for 60
presumption of 54-56
in respect of persons who are not spouses or civil union partners 56
in respect of spouses and civil union partners 54-56
proof of
cautionary rule in respect of 57
corroboration of mother’s evidence in respect of 57
use of results of blood and tissue tests as 59-65
constitutional rights involved in 63-64
(see also Blood or DNA test)
rebuttal of presumption or allegation of
on ground of absence of sex 57
on ground of contraceptive use 59
on ground of exceptio plurium concubentium 58-59
on ground of gestation period 57-58
on ground of physical features 59
on ground of results of blood tests 59-65
constitutional rights involved in 63-64
on ground of sterility 58
Performance
meaning of 3
Persona iuris 2-3
Personality property
meaning of 4
Pregnancy
termination of (Termination of pregnancy)
Prescription
against mentally ill person 120
against minor 103, 112-113
Prisoner
mentally ill 127
Prodigal
application to declare person to be 135-136
capacity of
to act 136-139
to litigate 139
civil union of 138
compared to minor 136-137
constitutional implications of interdiction as 139-140
court order interdicting 136-137
disregard of 137
rights of third party affected by 136, 137
transaction prior to 137
curator ad litem for 136
curator bonis for 135-136
definition of 135
delictual liability of 139
discharge of, from curatorship 136
distinguished from mentally ill person 137
engagement by 138
estate of 135, 136, 139
legal capacity of 136
liability of, based on unjustified enrichment
137
marriage of 136, 138
misrepresentation by 137
parental responsibilities and rights of 139
status of, restricted by court order 135
will of 138-139
Prodigality
meaning of 135
R
Ratification (see Minor)
Real right 3, 103
Registration
of birth 8-12
of death 33-34
(see also Artificial fertilisation; Birth; Child born of married parents; Child born of
unmarried parents; Death; Incestuous relationship)
Rei vindicatio
by minor 91, 98
Restitutio in integrum
by emancipated minor 102-103, 116
by minor who has committed misrepresentation 97-98, 102
in Roman-Dutch law 97
meaning of 91
purpose of 102
regarding loss of inheritance 102
regarding minor’s contract 97-98, 102-103
Rights
law distinguished from 1-2
S
Same-sex civil union partner
child born from artificial fertilisation of 9, 49

Same-sex life partner
child born from artificial fertilisation of 9-10, 49
Sexual offences
cautionary rule in respect of 57
State patient
confinement 127
meaning of 121
official curator ad litem for 121
Status
capacities encompassed by 35, 37
meaning of 35
(see also Legal status)
Sterilisation
consent to 25-26
of civil union partner 25
of mentally disabled person 26
of minor 26
of spouse 25-26
Still-birth 8, 34
Still-born child 7
Suretyship
for minor’s debts 92, 95, 103
if restitutio in integrum obtained 103
minor’s natural obligation may serve as object of 92
Surname
change of 11
of child born of civil union partners 9
of child born of married parents 8-9
of child born of unmarried parents 10
of child of same-sex parents 9-10
Surrogacy (see Surrogate mother; Surrogate motherhood)
Surrogate mother
artificial fertilisation of 50-51
(see also Artificial fertilisation)
definition of 48
duties of 51-52
termination of pregnancy by (see Termination of pregnancy)
Surrogate motherhood
agreement 50-53
consequences of invalidity of 52
requirements for validity of 50-51
termination of 52-53
consequences of 52-53
meaning of 48
relationship between child born as result of
and commissioning parent 51-52
and surrogate mother 51-52
and surrogate mother’s civil union partner 51-52
and surrogate mother’s husband 51-52
and surrogate mother’s partner in permanent relationship 51-52
and surrogate mother’s relations 51
T
Termination of pregnancy
application of nasciturus fiction to 20
circumstances for legal 20-23
consent to 21-23
counselling in respect of 20
on demand 20
on mentally disabled woman 22-23
on minor 21-22
on surrogate mother 21, 53

on unconscious woman 22-23
Trusts 6
U
Unborn child (see also Nasciturus; Nasciturus fiction; Nasciturus rule)
agency on behalf of 19
alienating or mortgaging land belonging to 14, 15
as beneficiary under will 13-15
as legal subject 7, 23-24
contract on behalf of 19-20
divorce of parents of 15-16
interests of 12-28
maintenance for 15-16
parental responsibilities and rights in respect of 16
right to life of 23-25
Universitates 6
Unjustified enrichment
liability based on
of infans 89
of minor 100-102
of prodigal 137
V
Venia aetatis 113
Venia agendi 111
Vicarious liability
of infans 89

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THE SOUTH AFRICAN

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ISBN 978 0 409 05265 7

First Edition 1999

Editor: Elaine Smit

Printed and bound by Interpak Books Pietermaritzburg

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I wish to thank the team at LexisNexis and, in particular, Corné

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1.1 Definition of the law of persons

1.2 Law and rights

1.3 Legal subject and legal object

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1.4 Different kinds of legal subjects

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2.1 The beginning of legal personality

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2.2 Registration of births

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2.3 The interests of the unborn child

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2.4 The end of legal personality

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2.5 Presumption of death

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2.6 Presumptions regarding sequence of death

2.7 Registration of deaths

2.8 Duty to bury the deceased

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3.2 Legal capacity

3.3 Capacity to act

3.4 Capacity to litigate

3.5 Capacity to be held accountable for crimes

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1 Fockema Andreae Rechstsgeleerd Handwoordenboek sv “status” defines status

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4.2 Definition of domicile

4.3 Importance of domicile

4.4 General principles governing domicile

4.5 Kinds of domicile

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