Case law LPLP 101

Law of Persons Cases

1.Ex parte Boedel Steenkamp
Facts: Testator left estate to his daughter and her children. At the time that
daughter was pregnant when the testator died.
Issue: Should the nasciturus inherit?
Ratio Decidendi/Held: Yes, A child already conceived will be regarded as already
born and will therefore inherit if it is subsequently born alive
2.Pinchin v Santam Insurance Co Ltd
Facts: A women who was six months pregnant was involved in a motor car
accident due to the negligent driving of another person, causing her child to be
born with cerebral palsy
Issue: Does a person have an action in respect of injury inflicted upon him while
he was still a foetus in his mothers womb?
Held: The court held that the nasciturus fiction has to apply so that he can claim
for damages.

3.Christian Lawyers Association of South Africa v The Minister of Health 1998

Facts: Christian Lawyers Association sought to declare the Choice of Termination
of Pregnancy Act 72 of 1996 unconstitutional on the basis that a foetus has a
right to life as contained in the bill of rights.
Issue: Is the Act constitutional?
Held: Yes, the Act was constitutional and women have the right to terminate
pregnancies in accordance to act.

4.Christian Lawyers Association v National Minister of Health 2004

Facts: A minor was pregnant and wanted to terminate her pregnancy.
Issue: Whether she could have an abortion without consent from her family
Held: The court held that she could terminate her pregnancy according to the
Choice on Termination of Pregnancy Act 92 of 1996, as long as she was able to
give her informed consent, which she did.
5.Re Beaglehole
Facts: A beneficiary to a will, had not been located in 15 years
Issue: Should an application for a presumption of death succeed?
Held: No, the court held that an application fro a presumption of death should be
left to the discretion of the judge (Roman-Dutch), hence the period of absence of
a person is not required to order a presumption of death.

6.Ex parte Pieters

Facts: The applicants father disappeared, and was unable to obtain the money
left to him by his wife despite having a rule nisi granted
Issue: Should the application for a presumption of death be successful?
Decision: No, however the court authorised the Master to distribute the money
equally between the applicant and his siblings without the necessity of their
providing security.
Ratio Decidendi: The presumption of death is refused, because the evidence
surrounding Mr. Pieters death is not conclusive.

7.J v Director General

Facts: Two applicants in a same sex life partnership, 2nd applicant gave birth to
twins via artificial insemination
Issue: Is a child born due to artificial insemination legitimate?
Held: Yes, Children born as a consequence of artificial insemination are covered
by the Childrens Status Act 82 of 1987, therefore the child was legitimate.
8.M v R
Facts: The applicant and the respondent met in July 1978, and from then on had
sexual intercourse regularly. Applicant claimed the respondent had another
boyfriend. Respondent informed applicant that she was pregnant + gave birth to
S. the applicant paid maintenance for 8 years. The respondent then wanted to
increase the amount of maintenance, thus the applicant applied for an order, for
the mother + the child to undergo blood test, to determine paternity.
Issue: Can the court order an adult to submit to a blood test?
Held: Yes, because the court is empowered to search + collect evidence, which is
a procedural matter.

9.S v L
Facts: Father of child wants a DNA test to be taken in order to prove paternity,
but the mother refused. Father claimed exceptio plurium concubentium
Issue: Should the mother and the child be compelled to take a DNA test?
Held: No, the court, as upper guardian of minors, doesnt have the power to
interfere with the decision of the childs parents not to submit the child to blood
tests, even if the court would have made a different decision.
10.B v P
Facts: The appellant was the father of an extra-marital child. When the child was
born the appellant and respondent were living together. In 1984 they stopped
living together and the child lived with her mother. Until February 1989 he was
allowed access to the child, since then he hasnt been allowed access to his

child, thus he has applied for an order declaring that he was entitled to
reasonable access to the child.
Issue: Should the father have access to his extra-marital child?
Held:

11. Van Erk v Holmer

Facts: Applicant and respondent in a relationship from Feb 1988- Jan 1991.
During Jan 1989 a child was conceived, things didnt work out so respondent left
applicant when the child was 2 years old and the respondent was denied access
to the child.
Issue: Whether father must be granted access to his illegitimate child?
Held: Yes, court held that there wasnt enough evidence except for the fact that
the mother kept the child from father because of her own personal vendetta,
thus father granted reasonable access to his child.

12. B v S
Facts: Appellant + Respondent lived together for most of 1988 + 1989 but
separated when respondent was pregnant (son was born in July 1990). Some
months before the birth they again started living again but separated again after
babys birth. The respondent agreed that appellant could have access to his
child. Their relationship soured + respondent refused appellant access to child
thus appellant stopped paying maintenance. He approached the court for an
order granting him access to his son, the application was dismissed in the court a
quo but an appeal against this decision was successful.
Issue: Should the father have access to his extra-marital child?
Held:
13. Fraser v Childrens Court, Pretoria North
Facts: Ex-girlfriend tried to give unborn child up for adoption. Fraser tried to stop
adoption asking for child to be given to him instead.
Issue: Do both parents of an illegitimate child need to give consent to adoption?
Held: Yes, court declared Child Care Act to be unconstitutional, Child Care Act
amended to require the consent of both parents of an illegitimate if paternity is
acknowledged and the fathers whereabouts are known.

14. Petersen v Maintenance Officer

Facts: A single mother (the applicant), received inadequate maintenance
contributions from the father of the extra-marital child, launched an application
for an order directing the Maintenance Officer (1st respondent) to summon the
paternal grandparents to the maintenance court to establish their ability to pay
maintenance.

Held: the common-law rule, as interpreted by Motan v Joosub, constitutes unfair

discrimination on the ground of birth + amounts to an infringement of the dignity
of the extra-marital child, it is also contrary to the best interest of the extramarital child, thus paternal grandparents of child have a legal duty to support
the extra-marital child.

15. Government of South Africa V Grootboom

Facts: Mrs. Grootboom + 510 children lived in a squatter camp, on privately
owned property. When evicted they applied to high court for an order requiring
the govt. to provide adequate basic housing/shelter until permanent
accommodation obtained.
Issue: Are section 26 + section 28(1)(c) of the constitution valid?
Held: No, these 2 sections have to be read together. The CC held that the rights
enshrined in these sections doesnt create separate + independent right for
children + doesnt entitle them to shelter on demand. CC warned, that the
constitutional scheme for progressive realisation of socio-economic rights would
make little sense if it could be trumped in every case by the rights of children to
get shelter from the state on demand + children could become stepping stones
to housing for their parents, instead of being valued for who they are.

16. Jooste v Botha

Facts: Plaintiff was born out of wedlock + his father (defendant) refused to admit
that the plaintiff was his child, and didnt provide any love/interest towards him.
The plaintiff alleged that his father had a legal duty to give him love +
recognition, due to constitutional provisions. Due to emotional stress + loss of
amenities he claimed damages for R. 450 000, however the boys claim was
rejected as it had no legal foundation.;
Issue: Do the best interests of the child demand an environment of love,
affection +consideration legally enforceable?
Held: No, there rests no legal duty on defendant to afford the plaintiff love,
affection + consideration. According to s28 (1)(b) of the constitution, envisages:
A child in care of somebody who has custody over them + the word parental
must necessarily be read as pertaining to a custodian parent. According to this
approach a legitimate childs non-custodian parent +biological father of an extramarital child fall outside the scope of the section, + a child isnt entitled to
parental care by such parents.
17. Louw v MF & H Trust
Facts: Minor had bought a motorcycle from an adult with the assistance of his
guardian + wanted to reclaim the purchase price, he fraudulently represented
himself as an adult.
Issue: Could he reclaim his money + rely on restutio in integrum?

Held: No, court held that because he misrepresented himself he couldnt reclaim
his money + also the contract was void + unenforceable, thus he couldnt
reclaim his money by means of restutio in integrum.

18. Edelstein v Edelstein

Facts: The appellant (minor) entered into an ante nuptial contract without the
necessary consent.
Issue: Was the contract valid?
Held: No, court held than an ante nuptial contract concluded by a minor without
assistance is void + cannot be ratified by the minor or her guardian after
marriage.

19. Dickens v Daley

Facts: Respondent (minor) entered into a contract of lease with the appellant,
and a cheque was issued to the appellant, but was dishonoured as payment had
been stopped by the respondent.
Issue: Whether there was an effect of emancipation on the minors capacity to
act.
Held: Yes, the minors parents had given him complete freedom of action with
regard to his mode of living + earning his livelihood, he is emancipated for all
purposes