Law of Person Soft

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The Law of Persons in South Africa
Print ISBN: 978-0-19-598581-8
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Third impression 2015
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Acknowledgements
Publisher: Penny Lane
Development editor: Taryn Talberg
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Copy editor: Marguerite Lithgow
Source researchers: Rose Kuhn, Jenny Aitchison
Proofreader: Jeannie van den Heever
Indexer: Ethné Clarke
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The authors and publisher gratefully acknowledge permission to reproduce copyright material in this book. Every effort
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grateful for information that would enable any omissions or errors to be corrected in subsequent impressions.
Links to third party websites are provided by Oxford in good faith and for information only. Oxford disclaims any
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Hanneretha Kruger
To my husband, Casper, and my children, Janco, Elisbé and Herko
Ann Skelton
To my colleagues at the Centre for Child Law
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Publisher’s acknowledgements
Thanks are due to the following academic reviewers:
Professor Julia Sloth-Nielsen, Dean of Law, University of the Western Cape
Mr Kenneth Mould, Lecturer in Private Law, University of the Free State.
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and religion on legal status. These are topics that are not dealt with in any detail, if at all, in
most of the existing textbooks on the law of persons.
In my view, this book is an excellent teaching and learning tool, which will also be useful to
legal practitioners. The authors are to be congratulated on achieving the aims which they set for
themselves. In so doing, they have produced a book which will inspire and equip new generations
of lawyers to apply the legal principles governing this area of the law with sensitivity and creative
understanding.
Justice Belinda van Heerden

Bloemfontein
September 2010
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List of authors
Professor Hanneretha Kruger

B Iuris LLB (University of the Free State) LLD (Unisa)
Hanneretha Kruger is a Professor in the Department of Private Law at the University of South
Africa, and currently Chair of the Department of Private Law. Her fields of interest include child
law and the law of persons.
Doctor Ann Skelton

BA LLB (University of Natal, Pietermaritzburg) LLD (University of Pretoria)
Ann Skelton is the Director of the Centre for Child Law at the University of Pretoria. She has
published work extensively in the field of child law and has assisted the South African Law
Reform Commission in its investigations relating to family law and child law. She is an admitted
Advocate of the High Court of South Africa and appears regularly in the superior courts to
represent cases involving children’s rights. Her special areas of interest include child law, family
law, constitutional law and restorative justice.
Professor Marita Carnelley

BA LLB (Stellenbosch University) LLM (Unisa) PhD (University of Amsterdam)
Marita Carnelley is a Professor at the University of KwaZulu-Natal, where she lectures as a
specialist in family law. She has researched and published work extensively in the fields of the
law of persons and family law, and is a co-editor of the South African Law Journal. Professor
Carnelley is an admitted Attorney of the High Court of South Africa.
Professor Sonia Human

BMil LLB (Stellenbosch) LLM (Unisa) LLD (Stellenbosch)
Sonia Human is a Professor in the Faculty of Law at the University of Stellenbosch. Her fields of
interest include family law and the law of persons, with a particular focus on children’s rights.
Ms Helen Kruuse
BA LLB LLM PGDHE (Rhodes)
Helen Kruuse is a senior lecturer at Rhodes University where she teaches family law and legal
ethics. She has contributed to these fields in her work for inter alia the Family Law Service and
The Legal Ethics Project in Legal Education, and she is a notes editor for the South African Law
Journal. Ms Kruuse is an admitted Attorney of the High Court of South Africa.
Mr Lesala Mofokeng
BA LLB (Natal) LLM (Georgetown)
Lesala Mofokeng is a senior lecturer at the University of KwaZulu-Natal and an Advocate of the
High Court of South Africa. His teaching and research interests include legal diversity, legal
reasoning and legal pluralism. He also teaches customary law at the Durban School for Legal
Practice.
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Professor J.A. Robinson

BJuris LLB LLD (University of Potchefstroom for CHE)
Robbie Robinson is a Professor of Law at North West University (Potchefstroom Campus). His
fields of interest include family law and the law of persons.
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About this book
The Law of Persons in South Africa is a pedagogically rich learning resource. This book is
designed to form a strong foundation of understanding, to develop the skills to engage
independently and judiciously with legal principles, and to create skilled and proficient lawyers.
Brief description of the features
Pause for Reflection boxes: These boxes may consider the policy ramifications of the law, how it
works in practice, its logic and consistency with other principles, possible alternatives, and other
key issues.
This feature instils a broader and deeper understanding of the subject matter. It stimulates
discussion, supports independent thinking, and develops the ability to engage meaningfully with
relevant issues.
Counterpoint boxes: These boxes highlight specific criticisms of the law just described and
identify reform options. They emphasise areas of controversy, problems with current law and
possible alternatives.
This feature supports the ability to think critically and flexibly. It assists students to
conceptualise legal issues from various perspectives, develops skills in formulating legal
argument, and builds an awareness of various opinions about a particular principle.
Explanations of legal terminology: Whenever a legal term is used for the first time, the legal
technical meaning of that word is emphasised in the main text and explained in the margin.
Diagrams: These provide overviews and explain key concepts visually.

This feature reinforces understanding, helps to clarify key concepts, and shows more clearly
the interrelationship between distinct legal concepts and processes.
Tables: These are used to distinguish content, and to assist with information management and
conceptualisation.
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Chapter 1
An introduction to the law of persons

1.1 Introduction
1.2 Recent developments in the law of persons

1.2.1 The Constitution of the Republic of South Africa, 1996
1.2.2 The Children’s Act 38 of 2005
1.2.3 The Child Justice Act 75 of 2008
1.2.4 The nasciturus fiction
1.3 An overview of the contents of this book
1.1 Introduction
This book is about the law of persons. It essentially provides an overview of the most important
legal principles in this area of South African law, and how they are or should be interpreted and
applied in court. Although the book is merely an introduction to the law of persons, aimed at
undergraduate students, it could most certainly prove useful to practitioners.
A law student’s first encounter with the law of persons is extremely important. Not only is the
study of the law of persons often his or her very first encounter with the study of law, but is also
the first time that a specific branch of law is studied in detail. This introductory nature of the study
of the law of persons is reflected in this book. Readers are guided to a great extent, perhaps more
so than in other private-law textbooks.
This textbook follows a traditional approach, in the sense that it focuses on the concept ‘legal
subject’. It first answers the question of which entities are recognised as legal subjects, and when
legal subjectivity begins and ends. It then explains what is understood by the concept ‘status’, and
what effect various factors have on a person’s legal status.
Why is it important to study the law of persons? All human beings are recognised as legal
subjects, regardless of their age and capacity to act. Every human being can therefore have rights,
duties and capacities, although the content of these rights, duties and capacities may vary
depending on certain factors, such as the person’s age or domicile. Further, every human being’s
legal subjectivity commences and ends at a certain stage. The law of persons is thus, truly, a
branch of law that affects each and every human being.
1.2 Recent developments in the law of persons
1.2.1 The Constitution of the Republic of South Africa, 1996
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The Bill of Rights contained in Chapter two of the Constitution of the Republic of South Africa,
1996 has had a profound effect on the common law and legislation dealing with the law of
persons. These changes are clearly noticeable in early cases like J v Director General, Department
of Home Affairs1 (placing 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, for purposes of registration of birth) and Du Toit v Minister of Welfare and Population
Development 2 (allowing for same-sex partners to adopt jointly, so that their children can benefit
from the legally recognised guardianship and care of both adoptive parents).
Section 28(2) of the Constitution has become a key principle in Bill of Rights jurisprudence. It
provides that ‘[a] child’s best interests are of paramount importance in every matter concerning
the child’. Since the commencement of the Constitution, courts have considerably refined their
interpretation of the paramountcy principle contained in section 28(2). Section 28(2) is not an
‘overbearing, unrealistic trump’ that will automatically override other rights. The fact that the best
interests of the child are paramount does not mean that they are absolute.3 Section 28(2) is a right
in itself,4 and as a right in a non-hierarchical system of rights, it is itself capable of limitation.
1.2.2 The Children’s Act 38 of 2005

An even more fundamental change in the traditional law of persons landscape was brought about
by the commencement of the Children’s Act 38 of 2005.5
The Children’s Act takes the protection of the best interests of the child even further than
section 28(2) of the Constitution. It is framed in stronger terms, and it specifies certain factors to
be taken into account when considering what is in a child’s best interests.6 The Act further
replaces a concept that was previously termed ‘parental authority’ with the concept ‘parental
responsibilities and rights’.7
Section 17 lowered the age of majority to 18 years. The Age of Majority Act 57 of 1972 was
repealed in its entirety,8 doing away with the statutory framework for applications to court for the
declaration of majority.
Another substantial change brought about by the Children’s Act is that relating to the parental
responsibilities and rights of unmarried fathers.9 These fathers now acquire full parental
responsibilities and rights in respect of their children in certain specified circumstances.10 The Act
further makes provision for the unmarried father, who does not qualify for automatic parental
responsibilities and rights, to conclude and have registered a parental responsibilities and rights
agreement with the mother of the child or any other person that has such responsibilities and rights
over the child.11 Further, the unmarried father may acquire parental responsibilities and rights
through an order of court.12
The question arises as to whether the law still distinguishes between children born of
unmarried parents and those born of married parents. The answer to this question remains a topic
of debate. Boezaart is of the view that South African private law has reached the stage where birth
to unmarried parents can no longer be identified as a factor that affects the status of children.13
Heaton, however, points out that the law still does not treat married and unmarried parents in the
same way, although the law no longer labels the children.14 The approach in this book is that
although the legal distinction between children born in and out of marriage is considerably
diminished, the law does make a distinction between married and unmarried parents in the
acquisition of parental responsibilities and rights, in consent to adoption and other situations, and
thus the children’s status is indirectly affected.
The Children’s Act contains provisions dealing with consent to medical treatment, operations
and HIV testing for children.15 Previously, the Child Care Act 74 of 1983 regulated this issue,
providing that children over the age of 14 years could consent to their own or their children’s
medical treatment and that a child over the age of 18 could consent to an operation.16
The Children’s Act regulates the capacity of minors to consent to medical treatment or
operations.17 In terms of the Act a minor over the age of 12 may consent to medical treatment to
himself or herself or his or her child, provided that the minor is sufficiently mature and has the
mental capacity to understand the benefits, risks, and social and other implications of the
treatment. If the minor does not have the required maturity and mental capacity, his or her
guardian’s consent is required. With regard to surgery, the child must be assisted by his or her
guardian. The Act contains detailed provisions to provide for what happens if there is an inability
or refusal to consent. HIV testing is dealt with in some detail and the rules in this regard are
similar to the rules concerning consent to medical treatment.18 Access to contraceptives is also
regulated, with parental consent not required if a child is 12 years or older, although medical
practitioners must be involved with regard to contraceptives other than condoms.19
The Children’s Act regulates surrogacy for the first time in South African law.20 It also contains
a new set of provisions dealing with adoption.21
1.2.3 The Child Justice Act 75 of 2008

In terms of common law, children below the age of 7 years were presumed to lack criminal
capacity. This presumption could not be rebutted. A child of 7 years or older but under the age of
14 years was rebuttably presumed to lack criminal capacity, meaning that the child might be found
responsible if the prosecution could prove beyond a reasonable doubt that the child had the
required capacity.
The Child Justice Act 75 of 2008 changed the common-law position regarding children’s
criminal capacity. According to the Act, the minimum age of criminal accountability is now 10
years. Children below the age of 10 years are completely unaccountable for their crimes, whereas
children between the ages of 10 and 14 years are rebuttably presumed to be unaccountable.22
1.2.4 The nasciturus fiction

Another important development that changed the face of the law of persons is the decision of the
Supreme Court of Appeal in Road Accident Fund v Mtati,23 where the Supreme Court of Appeal
found that it was unnecessary to extend the nasciturus fiction to the law of delict. This decision
settled a long-standing debate in the law of persons, and brought to an end the relevance of the
decision in Pinchin v Santam Insurance Co Ltd 24 which was for decades one of the first decisions
encountered by students of private law.25
1.3 An overview of the contents of this book

As previously indicated, the law of persons is concerned with the concept ‘legal subject’. The
second chapter explains what a legal subject is, and what the different kinds of legal subjects are,
in our law.
Chapter 3 deals with birth as the moment of origin of legal subjectivity. It indicates which
requirements should be complied with for birth to be considered to be the moment when legal
subjectivity commences. The protection of the interests of the unborn child by means of the
nasciturus fiction is dealt with next. This section carefully sets out the possible applications of this
fiction. The next issue we deal with is the protection of the interests of the unborn child by means
of certain common-law and statutory measures. The chapter also deals with sterilisation, the
termination of pregnancy, and registration of birth.
Chapter 4 deals with the end of legal subjectivity. First, it is explained how death can be
proven. Second, presumption of death in terms of both common law and certain statutory
provisions is dealt with. Third, we look at the problems surrounding persons who die more or less
simultaneously in the same disaster. Next, registration of death and the duty to bury the deceased
are considered, followed by a brief overview of anatomical donations.
The fifth chapter is an introductory chapter on the concept ‘status’. The concept is defined,
looking specifically at the following capacities: legal capacity, capacity to act, capacity to litigate,
and capacity to be held accountable for crimes and delicts.
The introductory chapter on status is followed by various chapters that look at the factors that
influence a person’s status in private law. First, the influence of domicile and citizenship is
considered in chapter 6. We provide a definition for domicile, and look at the significance of
domicile in various private-law fields. Next, the various kinds of domicile are discussed. The
chapter concludes with a discussion on citizenship.
Chapter 7 considers two aspects that influence a person’s status. The first of these is birth,
specifically birth to parents who are not married or partners in a civil union, birth by way of
artificial fertilisation and/or surrogacy. The second, adoption as a factor that influences a person’s
status, is then discussed.
In chapter 8, the influence of age on a person’s status is considered in detail. First, the private-
law status of an infans (a child below the age of 7 years) is discussed with reference to legal
capacity, capacity to act, capacity to litigate, and capacity to incur delictual and criminal liability.
Next, the legal status of a minor (a child below the age of 18 years) is discussed with reference to
the same capacities. A discussion on the termination of minority concludes the chapter.
Chapter 9 deals with the effect of insolvency and prodigality on a person’s status, as well as
with curatorship. Chapter 10 explains how mental illness, alcohol, drugs, and physical disability
influence a person’s status. The last chapter, chapter 11, deals with the influence of religion, race
and customary law on a person’s status.
The contents of the book are illustrated by means of a diagram in Figure 1.1.
Figure 1.1 The law of persons at a glance
1 2003 (5) BCLR 463 (CC). See 7.2.2 below.

2 2002 (10) BCLR 1006 (CC); 2003 (2) SA 198 (CC).
3 S v M (Centre for Child Law as Amicus Curiae) 2008 (3) SA 232 (CC); 2007 (2) SACR 539 (CC) para [26].
4 Minister of Welfare and Population Development v Fitzpatrick 2000 (7) BCLR 713 (CC); 2000 (3) SA 422
(CC) para [17].
5 The following sections of the Children’s Act came into force on 1 July 2007: ss 1-11, 13-21, 27, 30, 31, 35-
40, 130-134, 305(1)(b) & (c), 305(3)-(7), 307-311, 313-315, and items 2, 3, 5, 7 & 9 of Schedule 4 (GG
30030 of 29 June 2007). These sections deal primarily with key child care and protection principles. These
are sections for which no regulations are required before they can be operationalised. The remainder of the
Act deals with matters that must be implemented on a practical level, resulting in the need for regulations.
The remaining sections came into operation on 1 April 2010.
6 S 7(1).
7 Ch 3.
8 Sch 4.
9 See 7.2.5 below.
10 S 21.
11 S 22.
12 Ss 23 & 24.
13 Boezaart ‘Child law, the child and South African private law’ in Boezaart (ed) Child Law in South Africa
(2009) 19.
14 Heaton The South African Law of Persons 3 ed (2008) 49.
15 Ss 129-134. Sections 130 to 134 came into operation on 1 July 2007, and section 129 came into operation on
1 April 2010.
16 Child Care Act s 39(4).
17 S 129. See 8.3.2.5 below.
18 Ss 130 to 133. See 8.3.2.5 below.
19 S 134.
20 Ch 19. See 7.2.3 below.
21 Ch 15. See 7.3 below.
22 S 7. See 8.2.4 & 8.3.4 below.
23 2005 (6) SA 215 (SCA) (also reported as Road Accident Fund v M obo M [2005] 3 All SA 340 (SCA).
24 1963 (2) SA 254 (W).
25 See 3.2 below.
Chapter 2
A definition of concepts
2.1 Definition of the law of persons
2.2 Law in the objective sense and law in the subjective sense
2.3 Legal subject and legal object

2.3.1 Corporeal things
|
2.3.2 Immaterial property
2.3.3 Personality property
2.3.4 Performance
2.4 The different kinds of legal subjects

2.4.1 Natural persons
2.4.2 Juristic persons
This chapter in essence
2.1 Definition of the law of persons

The law of persons can be defined as that part of the objective law1 that regulates the coming into
being, private-law status and the coming to an end of a natural person (legal subject).2 The law of
persons in essence deals with the question of who has legal subjectivity, in other words who
qualifies as a legal subject, and what a legal subject is legally able to do. It is only a legal subject
who can conclude a contract, draw up a will, enter into a marriage, purchase property as a
company, et cetera.
The law of persons regulates the coming into being, private-law status and coming
to an end of a natural person.
2.2 Law in the objective sense and law in the subjective sense
The law of persons as a discipline forms part of the objective law. The objective law is also called
positive law and can simply be described as the norms and rules that prescribe the conduct of
persons. This includes, for example, prescriptions that determine that a car must be driven on the
left-hand side of the road, that one person may not unlawfully attack another, how a contract or a
marriage must be concluded, et cetera.3
It is important not to confuse the objective law (that is, a system of norms and rules) with the
law in a subjective sense (that is, a network of legal relationships among legal subjects). In the
latter case we are dealing with rights.4
A subjective right can be described as the claim that a legal subject has on a legal object.5 Here
we are concerned with two relationships:6
• First, the legal relationship between the bearer of the right and other legal subjects. This is the
subject-subject relationship. This relationship consists of a right and a corresponding
obligation. The legal subject’s right exists against all other legal subjects, and they are obliged
to respect it.
• Second, the legal relationship between the bearer of the right and the object of the right. This
is the subject-object relationship. After all, a right makes sense only if it relates to an object.
Figure 2.1 The dual legal relationship, that is the subject-subject relationship on the one hand,
and the subject-object relationship on the other hand
PAUSE FOR
REFLECTION
The subject-subject relationship and the subject-object relationship in context

Let us look at an example to illustrate this dual relationship (that is, the subject-subject
relationship on the one hand and the subject-object relationship on the other hand):
If I own a motor vehicle, I have a right to that motor vehicle. This is the subject-object
relationship. I am the subject and the motor vehicle is the object. All other legal subjects are
obliged to respect my right to the motor vehicle. This is the subject-subject relationship.
There are different ways in which the objective law can be subdivided. One such manner of
subdivision is to distinguish between private law and public law:7
• Public law broadly deals with those legal rules that apply when the state acts with state
authority.
•
Private law, in contrast, is a collection of legal rules that apply to a variety of legal
relationships in which the acting legal subject in the relationship is called a person.8
PAUSE FOR
REFLECTION
The classification of a legal interaction as a public-law or a private-law relationship

Consider the following relationships. Would you classify them as public-law or private-law
relationships?
• The relationship between contracting parties.

• The relationship between testator and heir.
• The family-law relationship between spouses.
In all of these relationships persons in the legal sense of the word play the central role. When a
person concludes a contract, enters into a marriage, or executes a will, it is said that he or she is
participating in legal interaction.
2.3 Legal subject and legal object

Against the background of the examples in the previous box, it is clear that the core concept in
private law is a person. The word ‘person’ is derived from the Latin word persona, which
originally indicated the mask that was worn by actors. Later the word was used for the role the
actor was playing. The role of the actor was eventually compared to the role played by a person in
legal interaction. From there, persona came to mean a person with reference to the role that he or
she played in legal interaction.9
In legal interaction, a person is called a legal subject. A legal subject is an entity that can have
rights, duties and capacities. The law confers legal subjectivity on legal subjects. Legal
subjectivity refers to the characteristic of being a legal subject in legal interaction.10
A legal subject is an entity that can have rights, duties and capacities.
The term legal object, however, refers to objects upon which the law has not conferred the
capacity to have rights, duties and capacities, and which cannot participate in legal interaction. A
legal object is something in respect of which a legal subject can have rights, duties and capacities,
but which cannot, in itself, be the bearer of rights, duties and capacities. Examples of legal objects
are animals, motor vehicles and immovable property.11
A legal object is anything in respect of which a legal subject may have rights,
duties and capacities.
COUNTER
POINT
Animal rights – legal subject versus legal object
As just indicated, animals are regarded as legal objects in our law. Labuschagne, however, is of
the view that animals (and even plants) have rights and can be regarded as legal subjects and
legal objects.12
It is true that animals are protected to some extent, for example by legislation prohibiting
cruelty to animals13 and legislation governing animal experimentation.14 However, this
protection merely protects the sensibilities of the community and does not afford animals any
rights.15
In short: a legal subject is a person and that to which a legal subject has a claim is a legal object. A
legal object is typically something with economic value in the sense that it is relatively scarce.
The term ‘relative’ generally refers to the relationship between supply and demand – something
has economic value if the supply thereof is scarce in comparison with the demand.16
Four categories of legal objects are usually distinguished, namely corporeal things, immaterial
property, personality property, and performance. The particular subjective right to which the legal
subject is entitled depends on the legal object concerned.17
Table 2.1 The different categories of legal objects that are traditionally distinguished in our law
and the corresponding subjective right
Legal object Subjective right

Corporeal thing (e.g. a pen) Real right (e.g. right of ownership)
Immaterial property (e.g. an invention) Immaterial property right (e.g. patent right)
Personality property (e.g. reputation) Personality right (e.g. the right to a good
reputation)
Performance (e.g. payment of the amount Personal right (e.g. the right to claim payment)
owing by the debtor)
COUNTER
POINT
Identifying the fifth and sixth categories of legal objects

Although only four categories of legal objects are traditionally distinguished, some authors
have identified a fifth and possibly a sixth legal object.
• Neethling, Potgieter and Visser identified a fifth category of legal object, namely personal
immaterial objects. These objects have elements of both personality property and
immaterial property. They list earning capacity and credit-worthiness as examples of these
objects.18
• Knobel suggests that trade secrets should be recognised as an independent right.19
2.3.1 Corporeal things
A corporeal thing is any tangible thing outside the person that is susceptible to human control and
of value to people.20 Examples of these objects are an animal, a pen, a residential stand, a car, et
cetera.
The right to a thing is called a real right. A practical example of a real right is the right of
ownership one has in respect of one’s residential stand.21
2.3.2 Immaterial property

These are immaterial products of the human mind; things that were, for example, thought of by a
person and are not corporeal.22
The right to immaterial property is called an immaterial property right. Practical examples of
immaterial property rights are 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. The first two examples are examples of
copyright, whereas the third example relates to a patent right.23
It is important to note that the object of this right is not the tangible painting, book or invention
itself, but the product of the human intellect. It is thus the idea or thought process contained in the
product and not the product itself that is the object of the right.
2.3.3 Personality property

Personality property is an aspect of a person’s own personality. Examples of these objects are the
integrity of a person’s body, his or her good name (that is, reputation) and dignity.24
The right to personality property is called a personality right.
2.3.4 Performance
Performance is an act by which something is given (dare), done (facere) or not done (non facere).
Examples of these objects are human acts or conduct such as delivery by the seller of the thing
sold, or payment of the amount owing by the debtor.25
The right to performance is a personal right or a claim. It is important not to confuse a personal
right with a personality right.
PAUSE FOR
REFLECTION
A personal right and its corresponding object

We just indicated that performance is an act by which something is given, done or not done.
Let us look at an example to illustrate this right and its corresponding object.
Suppose that Thandi and Tshepo agree that Thandi will sell her iPod to Thsepo for R500.
Tshepo has a personal right to performance by Thandi, in other words that Thandi must deliver
the iPod to him. Thandi also has a personal right to performance by Tshepo, in other words that
Tshepo must pay her R500. One can also say that Tshepo has a claim against Thandi for
delivery of the iPod and Thandi has a claim against Tshepo for payment of the R500.
In this example, the object of Thandi’s personal right is Tshepo’s action of paying her R500
and the object of Tshepo’s personal right is Thandi’s action of delivering the iPod to him.
2.4 The different kinds of legal subjects

There are two categories of legal subjects that can take part in legal interaction. We can
distinguish between natural persons and juristic persons. Both are legal subjects in the sense that
they possess the characteristic by reason of which they can take part in legal interaction as legal
subjects.26
Figure 2.2 The different kinds of legal subjects in our law
2.4.1 Natural persons

In South African law all human beings are legal subjects irrespective of their mental or intellectual
capacity. Every person is granted rights, duties and capacities, although the extent of these rights,
duties and capacities may vary depending on certain factors, such as the person’s age.27 Human
beings are known as natural persons.28
Legal subjectivity was not always awarded to all human beings. The following two types of
human beings were initially not regarded as legal subjects:
• In Roman and Germanic law slaves were not regarded as legal subjects, but as legal objects.
Consequently, they could not have rights, duties or capacities, and their owners could deal
with them as if they were mere property.29 Slavery was permitted in the East and West Indian
colonial territories in the seventeenth century, which included the Cape. Under Dutch30 and
later British rule,31 slaves in the Cape were legal objects, and not legal subjects. This is,
however, definitely no longer the position in South African law; slavery was abolished in the
Cape in 1834.32
• In Roman and Roman-Dutch law severely malformed children (also called monstra or
monsters) were not regarded as legal subjects. If these children were so malformed that they
did not have the human form and mind, they could be killed with a magistrate’s permission.33
In modern South African law all human beings, irrespective of malformation or disability, are
regarded as legal subjects.34
2.4.2 Juristic persons

The natural person is not the only legal subject recognised by South African law. Legal
subjectivity is also granted to certain associations of natural persons. A juristic person is a
community or an association of people that, according to law, has an independent right of
existence. Apart from the human beings who make up the association, a new legal subject comes
into existence, namely the association itself. This association is called a juristic person.35
A juristic person has a legal existence independent from that of its members. As such, the
juristic person can be the bearer of capacities, rights and obligations just like a natural person.
However, the juristic person must act through its functionaries. For example, in the case of a
company the directors or officers act on behalf of the juristic person (the company). 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.36
There are different types of juristic persons. The formalities for the establishment of a juristic
person depend on the type of juristic person concerned. With reference to these formalities juristic
persons are divided into the following three categories:
• Associations established in separate legislation: Certain associations may be established only

with the permission of the government. In these cases the government has such an extensive
interest in the establishment and functioning of the association that its existence and capacity
to act as a legal subject is regulated in separate legislation.37
Examples of associations like these are public corporations like Eskom,38 the SABC39 and
universities.40
• Associations incorporated in terms of special or enabling legislation: These associations are
also government controlled in the interest of society. However, the permission of the State is
not required for the creation of each individual association. These associations need register
only in terms of a general enabling statute.41
The nature of the association will determine under which legislation the association must
register. Companies will register in terms of the Companies Act 61 of 1973,42 close
corporations in terms of the Close Corporations Act 69 of 1984, banks in terms of the Banks
Act 94 of 1990 and mutual banks in terms of the Mutual Banks Act 124 of 1993.
• Associations that comply with the common-law requirements for the establishment of a juristic
person: In the case of juristic persons that are not dependent on government intervention, the
common-law requirements for the establishment of a juristic person need to be complied with.
These associations were known as universitates at common law.43
The common-law requirements for the establishment of a juristic person are simply that the
organisation must remain in existence irrespective of a change in membership; that it must
function as a bearer of rights, duties and capacities distinct from the rights, duties and
capacities of its individual members; and that the object of the entity may not be the
acquisition of gain.44
In applying these three requirements, courts have held that inter alia (among other things)
the following associations have legal personality:45 a church,46 a political party,47 and a trade
union.48
Trusts are, in general, not recognised as juristic persons.49 A partnership is not recognised as a
juristic person in our law. While partnerships are recognised as separate legal entities for certain
purposes,50 a trust is no more than an aggregate of the individuals who compose it. Individual
partners are, for example, responsible for partnership debts from their own private funds.51
PAUSE FOR
REFLECTION
An illustration of the legal liability of the individual trustees of a trust

An example that illustrates the situation of trustees is the case of Biowatch Trust v Registrar
Genetic Resources.52 In this case the trustees of a non-governmental organisation, Biowatch,
originally brought a case to obtain information about genetically modified foods. They brought
their application in the name of ‘The trustees for the time being of Biowatch’. Although they
were partially successful in the matter, costs were ordered against them. This matter went all
the way to the Constitutional Court on the issue of costs. If the trustees had lost their case, the
individual trustees would have been liable to pay the costs. The Constitutional Court found that
because the case raised constitutional issues, no costs order should have been made against the
trustees of Biowatch.
THIS CHAPTER IN ESSENCE

1. The law of persons is that part of objective law that regulates the coming into being and the
coming to an end of a person (legal subject), and that person’s private-law status. The law of
persons deals with the questions of who qualifies as a legal subject and what a legal subject is
legally able to do.
2. The law of persons as a discipline forms part of objective law (positive law) which is the
norms and rules that prescribe the conduct of persons.
3. Objective law is a system of laws and rules, while subjective law deals with the relationships
between legal subjects.
4. In the case of subjective rights, two different kinds of relationship are at stake, namely the
legal relationship between the bearer of the right and other legal subjects (subject-subject), and
the legal relationship between the bearer of the right and object of the right (subject-object).
5. Objective law can be subdivided in various ways, one of which is to distinguish between
public law (legal rules that apply when the state acts) and private law (rules that apply to legal
relationships between legal subjects (persons)).
6. In legal interaction a person is called a legal subject. A legal subject is an entity that can have
rights, duties and capacities. A legal object refers to objects upon which the law has not
conferred the capacity to have rights, duties and capacities.
7. Four categories of legal objects are usually distinguished, namely corporeal things, immaterial
property, personality property and performance.
8. There are two categories of legal subjects that can take part in legal interaction, namely natural
persons and juristic persons.
9. In modern South African law all human beings are regarded as legal subjects.
10. A juristic person has a legal existence independent from its members. A juristic person
acquires rights, duties and capacities, but it acts through its functionaries.
11.
There are three categories of juristic persons, namely associations established in separate
legislation, associations incorporated in terms of enabling legislation, and associations which
comply with the common requirements for the establishment of a juristic person.
1 On objective law, see 2.2.

2 Davel & Jordaan Law of Persons 4 ed (2005) 1. See also Van der Vyver & Joubert Persone- en Familiereg
(1991) 55.
3 Van der Vyver & Joubert 31-32.
4 Heaton The South African Law of Persons 3 ed (2008) 1; Davel & Jordaan 2.
5 The concept ‘legal object’ is described in 2.3 below.
6 Heaton 1; Davel & Jordaan 2.
8 Van der Vyver & Joubert 1.
10 Davel & Jordaan 3, 5.
11 Heaton 2.
12 Labuschagne ‘Regsubjektiwiteit van die dier’ 1984 THRHR 334; ‘Regsobjekte sonder ekonomiese waarde en
die irrasionele by regsdenke’ 1990 THRHR 557.
13 Animal Protection Act 71 of 1962.
14 South African Medical Research Council Act 58 of 1991 s 17.
15 Davel & Jordaan 6. See also Heaton 4 fn. 20 and the sources cited there.
16 Heaton 2.
17 See the comprehensive discussion in Van der Vyver & Joubert 8-31.
18 Neethling & Potgieter Neethling-Potgieter-Visser Law of Delict 6 ed (2010) 51; Neethling, Potgieter &
Visser Neethling’s Law of Personality (2005) 17-20.
19 Knobel ‘Trade secrets and the doctrine of subjective rights’ 2001 THRHR 572.
20 Davel & Jordaan 2; Heaton 3; Van der Vyver & Joubert 13.
21 Heaton 3.
23 Ibid.
24 Ibid.
25 Neethling, Potgieter & Visser Law of Delict 51. See also Davel & Jordaan 2; Heaton 4.
26 Davel & Jordaan 3; Van der Vyver & Joubert 38-39.
27 See chapter 5 regarding status.
28 Heaton 5; Van der Vyver & Joubert 38.
29 Hahlo & Kahn The South African Legal System and its Background (1968) 103.
30 Wessels History of the Roman-Dutch Law (1908) 412.
31 Cory The Rise of South Africa vol. III (1980) 2 et seq.
32 Cory 42 et seq. See also Davel & Jordaan 3; Heaton 5.
33 See e.g. D 1.5.14; Voet 1.6.13.
34 In Tjollo Ateljees (Eins) Bpk v Small 1949 (1) SA 856 (A) 865 the erstwhile Appellate Division of the
Supreme Court confirmed in an obiter dictum that the Roman-law rule relating to severely deformed persons
never formed part of South African law.
35 Webb & Co Ltd v Northern Rifles 1908 TS 462, 464-465. See also Heaton 5; Davel & Jordaan 4.
36 Ibid.
38 Established in terms of the Electricity Act 41 of 1987.
39 Established in terms of the Broadcasting Act 4 of 1999.
40 Established in terms of the Higher Education Act 101 of 1997.
42 The Companies Act 61 of 1973 will soon be replaced by the Companies Act 71 of 2008.
43 Heaton 6.
44 Any association of persons carrying on business and having the acquisition of gain as object must be
registered as a company in order to be recognised as a juristic person (Companies Act s 31 – soon to be
replaced by the Companies Act 71 of 2008). Non-profit organisations may be registered in terms of s 21 of
the Companies Act, whereafter they fall within the second category of juristic persons, namely associations
incorporated in terms of special or enabling legislation (Heaton 6); contra Pienaar Regsubjektiwiteit en die
Regspersoon (1997) 69, who lists the third common-law requirement for recognition as a juristic person as
follows: the entity should strive towards a predetermined principal goal, which principal goal must not be
illegal or contra bonos mores. See also Davel & Jordaan 5; Van der Vyver & Joubert 48.
45 Heaton 6.
46 De Vos v Die Ringskommissie van die Ring van die NG Kerk, Bloemfontein 1952 (2) SA 83 (O).
47 Wilken v Brebner 1935 AD 175.
48 Amalgamated Engineering Union of South Africa v Minister of Labour 1965 (4) SA 94 (W).
49 Certain Acts, such as the Income Tax Act 58 of 1962 s 1, confer legal personality on trusts for specific
purposes, such as taxation.
50 For example in terms of the Insolvency Act 24 of 1936 s 13 which contains a procedure for sequestrating a
partnership estate separately from the personal estates of the individual partners.
51 Sinclair ‘Introduction’ in Van Heerden et al. (eds) Boberg’s Law of Persons and the Family 2 ed (1999) 6;
Heaton 6.
52 2009 (6) SA 232 (CC)
Chapter 3
The beginning of legal subjectivity

3.1 Birth as the moment when legal subjectivity begins
3.2 Protection of the interests of the unborn child

3.2.1 Protection of the unborn child’s interests by means of the nasciturus fiction
3.2.1.1 Introduction
3.2.1.2 Requirements
3.2.1.3 Possible applications of the fiction
3.2.1.3.1 General
| 3.2.1.3.2 The law of succession
3.2.1.3.3 The law of delict
3.2.2 Protection of the unborn child’s interests in succession
3.2.2.1 Common-law measures
3.2.2.2 Statutory measures
3.2.2.2.1 Immovable Property (Removal or Modification of
Restrictions) Act 94 of 1965
3.2.2.2.2 The General Law Amendment Act 62 of 1955
3.2.2.2.3 The Administration of Estates Act 66 of 1965
3.3 Sterilisation
3.4 Termination of pregnancy

3.4.1 General
3.4.2 Circumstances under which a pregnancy may be terminated
3.4.3 Consent
3.4.4 Constitutional issues relating to termination of pregnancy
3.5 Registration of births
3.1 Birth as the moment when legal subjectivity begins

Legal subjectivity begins at birth. The meaning of the term ‘birth’ is regulated by common law.
Two requirements are set out in this regard:1
Legal subjectivity is the characteristic of being a legal subject in legal interaction.
• The first requirement is that the birth must be fully completed. It is required that the foetus
must be completely separate from the mother’s body.2 It is not a requirement for a completed
birth that the umbilical cord should have been cut. Completion of the birth is also not
influenced by the use of scientific aids or by the death of the mother.3
• Second, it is required that the foetus must have lived independently after separation from the
mother’s body.4 A stillborn foetus or a foetus that dies during birth does not acquire legal
subjectivity.5 Any sign of life, even if only for a moment, may serve as evidence of this. If it
can, for example, be proved that the child has breathed or cried, or that there has been a
perceptible heartbeat, the child will be deemed to have lived.6
Medical evidence will, naturally, be very important to prove whether the child lived for a period
of time. To determine whether a child has breathed, the hydrostatic test is used. This entails that
the child’s lungs are cut into small pieces and placed in water. If the pieces float, it can be
accepted that oxygen has been absorbed by the lungs, and that the child did breathe.7
It must be borne in mind that each legal discipline has its own definition of birth. Section 239
(1) of the Criminal Procedure Act 51 of 1977 sets out the following requirement for evidence in
respect of child murder:
At criminal proceedings at which an accused is charged with the killing of a newly born child,
such child shall be deemed to have been born alive if the child is proved to have breathed,
whether or not the child had an independent circulation, and it shall not be necessary to
prove that such child was, at the time of its death, entirely separated from the body of its
mother.
In the Criminal Procedure Act birth is thus given a restricted interpretation depending on the
presence or absence of this one sign of life. The Births and Deaths Registration Act 51 of 1992
creates an obligation to register the birth of a child born alive. There is no requirement that a
specific sign of life must be present and Davel and Jordaan therefore submit that any sign of life
should be sufficient to bring about a birth for purposes of registration.8 It is worth repeating that,
in this regard, the issue is not the granting of legal subjectivity to a newborn, but merely the duty
to register a birth.9
COUNTER
POINT
The requirement of viability

Certain authors also set a third requirement for birth, namely the requirement of viability.10
Viability means that the child must have reached such a stage of development within the
mother’s body that he or she could live independently, with or without aid, but without being
fed from the mother’s bloodstream. In essence, this requirement has to do with the stage of
development of the child’s most important organs. In South African law no grounds exist to
assume that a child has to be viable at birth in order to be considered a legal subject.11
PAUSE FOR
REFLECTION
The relevance of establishing the moment when legal subjectivity begins
To illustrate the relevance of birth and the consequent bestowal of legal subjectivity, let us look
at an example from the law of succession. Suppose a testator bequeaths an asset to a female
heir subject to the condition that she must, within a year, give birth to a child. Suppose the heir
does indeed give birth to a child within this period, but the child dies during the birth process.
Should it be proved that the child took a breath, the heir’s claim to the asset would be
indisputable. If this cannot be proved, the heir will not have complied with the condition and
she will therefore have no claim to the asset.12
3.2 Protection of the interests of the unborn child
3.2.1 Protection of the unborn child’s interests by means of the

nasciturus fiction
At birth a legal subject with legal subjectivity comes into existence. As a legal subject, a person
enjoys the protection of the law. It is, however, also true that the unborn child requires legal
protection in certain situations governed by private law. Protection of this nature was already
granted to unborn children in Roman law by virtue of the so-called nasciturus fiction. In Roman
law the fiction read as follows: nasciturus pro iam nato habetur quotiens de commodo eius agitur,
which means that if it is to the advantage of the unborn child (nasciturus), he or she is deemed to
have already been born and his or her interests are kept open. This fiction of the Roman law13 later
became part of Roman-Dutch law,14 where it was applied particularly in the field of the law of
succession. It still forms part of modern South African law.
A nasciturus is a conceived, but unborn, child.
Figure 3.1 The operation of the nasciturus fiction
Common law recognises three requirements for the application of the nasciturus fiction:
• The application of the fiction must be to the advantage of the nasciturus.15 If the nasciturus in
question will gain a benefit from the application of the fiction, it can be applied. The fiction
can also be applied if the nasciturus and a third person, for example the parent of the
nasciturus, will benefit by the application thereof. If, however, the application of the fiction
will be to the disadvantage of the nasciturus, or, if only a third person will gain advantage
from the application thereof, the fiction will not be applied.16
• The benefit must accrue to the nasciturus after the date of conception.17 This requirement will
be elucidated in the discussion of Ex parte Boedel Steenkamp18 later in this chapter.
• The nasciturus must eventually be born in the legal-technical sense as explained above.19
3.2.1.3 Possible applications of the fiction
3.2.1.3.1 General
Apart from the law of succession and the law of delict, some leading law of persons texts often
discuss maintenance after birth as one of the application possibilities of the nasciturus fiction.20
Shields v Shields21 is often quoted in this regard. In this case the divorcing parents wanted to
incorporate into their divorce order a settlement agreement which provided that the child’s father
would not be responsible for the child’s maintenance after birth. The court refused to do so,
stating that the agreement was contrary to good morals.
As Heaton22 correctly points out, this is not a true application of the nasciturus fiction, but
simply a common-sense approach to post-divorce maintenance based on expediency. Heaton
argues that if post-divorce child maintenance were based on the nasciturus fiction, the child would
have to be regarded as having already been born at the time of his or her conception, and would
therefore be entitled to maintenance from that date. As this would entitle the unborn child to
maintenance for a longer period than a child whose parents divorced on the day of his or her birth,
the equality clause in the Bill of Rights23 would be unjustifiably contravened.
3.2.1.3.2 The law of succession
(i) Definition of concepts

To understand the application of the nasciturus fiction in South African law, it is important to
distinguish between the law of intestate and testate succession. Intestate succession simply
involves those rules that apply if the deceased did not leave a legally valid will to determine who
would inherit his or her assets. In contrast, testate succession consists of those rules that apply
when the deceased expressed his or her will in the form of a legally valid will. The nasciturus
fiction is applied in both these divisions of the law of succession.24
The law of intestate succession determines who will inherit a person’s assets when
the person dies without leaving a valid will.
The law of testate succession determines who will inherit a person’s assets when
the person has left a valid will.
Figure 3.2 The basic difference between testate and intestate succession
(ii) Intestate succession

According to the rules of the law of intestate succession, an heir will benefit only if he or she is
alive at the time that the estate falls open. This usually occurs when the deceased dies, and is
called delatio. If this principle were strictly applied, a conceived but unborn child could not
qualify for intestate inheritance. This is, however, a typical situation in which the nasciturus
fiction will find application. In the case where a nasciturus has already been conceived when the
deceased dies (in other words, delatio occurs after the moment of conception), the nasciturus
fiction is applied to keep the interests of the nasciturus in abeyance. The division of the estate is
therefore postponed until the nasciturus is born in the legal-technical sense. If the child is born
alive, he or she will simply share in the estate as if he or she were living at the time of the death of
the deceased (delatio).25
PAUSE FOR
REFLECTION
Application of the nasciturus fiction

In cases where a nasciturus has already been conceived when the deceased dies, it is clear that
the three requirements for the application of the nasciturus fiction are present. First in question
here is a benefit according to the law of succession for the unborn child. The first requirement
is therefore met. Second, it is also clear that the child must have been conceived before the
deceased dies. The second requirement is therefore also met. Third, if the nasciturus is then
born alive at a later stage, the third requirement will also have been met. If, however, the
nasciturus is not born alive at a later stage, no benefit will be ascribed to the nasciturus and the
estate will be divided accordingly.
(iii) Testate succession

In the law of testate succession, the nasciturus fiction is sometimes used to secure a benefit for an
heir in a case where the testator has died prior to the birth of the heir, but after the latter’s
conception. This principle was expressly included in the Wills Act 7 of 1953 in 1992.26 Section 2D
(1)(c) introduced a rebuttable presumption that a testator not only wishes to benefit those children
or members of a class of persons (for example grandchildren) who are alive at the time of his or
her death, but also those who have already been conceived at that time, and are later born alive.
With this provision the nasciturus fiction became part of our statutory law.27
Should this presumption not correctly reflect the testator’s wishes, he or she must make such
contrary intention clear in his or her will.28 Just how important it is for the testator to state his or
her intention clearly was illustrated in Ex parte Boedel Steenkamp.29 This decision can be seen as a
precursor to the Law of Succession Amendment Act 43 of 1992. In this case, a testator provided
that his daughter and her children who were alive at the time of his death should inherit his assets.
On the date in question his daughter had two children and was pregnant with a third child who
was born at a later date. The question before the court was, consequently, whether or not the child
who was born after the death of the testator could also inherit.
The court solved the dispute by discussing the nasciturus fiction, and came to the conclusion
that in circumstances like these there exists a very strong natural presumption that the testator
intended that an unborn child must be seen as having already been born. The court went further
and found that the common-law authority relating to this dispute30 makes it clear that it must be
presumed that the testator would have had the natural impulse to favour an unborn grandchild in
the same way as he or she would want to favour grandchildren who had already been born. The
court found that the word ‘alive’ (in die lewe) which was used in the will must not be taken too
literally, but should rather be seen as an indication that the testator wanted to benefit the unborn
child.
PAUSE FOR
REFLECTION
A rebuttable presumption
We referred above to the rebuttable presumption in the Wills Act31 that a testator not only
wishes to benefit those children or members of a class of persons (for example grandchildren)
who are alive at the time of his or her death, but also those who have already been conceived at
that time, and are later born alive. This presumption is rebuttable, in other words it will not
operate if a contrary intention is expressed by the testator in his or her will. Examples of such a
clause are as follows:32
• Mr Ndlovu leaves his estate to his grandchildren Sipho, Boitumelo and Otishe. Thandi, who
had already been conceived at the time Mr Ndlovu’s death, but was born only after his
death, will not inherit. Only the heirs specifically appointed in the will will inherit as this
was clearly the testator’s intention.
• Mrs Naidoo leaves her estate to her daughter and her daughter’s children. At the time of
Mrs Naidoo’s death, her daughter has two children, Raheel and Riaz, and is expecting a
third, Divya. Divya will share in the inheritance if she is born alive, along with her mother
and siblings. This is a result of the rebuttable presumption created in section 2D(1)(c) of the
Wills Act.
3.2.1.3.3 The law of delict

It is now clear that the nasciturus fiction found application in the law of succession in common
law, and that this was statutorily confirmed. This gives rise to the question whether the fiction can
be applied in disciplines other than the law of succession. This question was previously a point of
dispute which gave rise to much debate. The Supreme Court of Appeal had the opportunity to
solve this matter in Road Accident Fund v Mtati33 and found that it was unnecessary to extend the
fiction to the law of delict.
A delict is a wrongful and culpable act that causes harm to another person.
Before Mtati, the leading authority on the applicability of the nasciturus fiction in the law of
delict was Pinchin v Santam Insurance Co Ltd.34 In this case a woman, who was already six
months pregnant, was injured through the negligence of a driver who was insured by the
defendant. As a result of the accident the woman lost amniotic fluid, but the birth process
proceeded as normal. When the baby was four months old he was diagnosed with cerebral
paralysis and brain damage. According to the evidence of a medical expert the loss of amniotic
fluid caused the womb to contract, which gave rise to a shortage of oxygen to the nasciturus. The
question before the court was whether the child had a claim for injuries that he incurred before
birth as a foetus. The court applied the nasciturus fiction and came to the conclusion that the child
could indeed claim compensation for injuries suffered by him as a foetus. In this case, however, it
could not be proved that the injuries were caused by the negligence of the driver.
Upon consideration of the applicability of the nasciturus fiction, the court decided that:
[T]he point remains whether the fiction … 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.35 … 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.36
From the above excerpt it would appear as if the court extended the nasciturus fiction to the law
of delict. It is on the grounds of this decision that authors such as Van der Vyver and Joubert come
to the conclusion that the natural person’s legal subjectivity usually comes into existence at birth,
but that it can come into existence at conception if it is to the advantage of the nasciturus.37
COUNTER
POINT
Vigorous debate and criticism of the approach in Pinchin

• Some authors are of the view that the nasciturus fiction should not have been applied in this
case. Joubert,38 for example, supports the approach that the application of the fiction should
be limited to the law of succession. According to him the court can simply apply the normal
rules of the law of delict. Davel and Jordaan39 explain that, as Joubert sees it, a delict
typically consists of five elements, namely conduct, fault, loss, unlawfulness and causation.
These elements can be separated in time and space. Suppose a person suffers damage as a
result of another person’s negligent driving. The action which is to be instituted in these
circumstances is the actio legis Aquiliae. In order to succeed with this action all of the
elements of a delict must be proved, but it is not necessary that they all exist at the same
time. It can, for example, occur that the loss is experienced only six months after the
accident. In such a case the conduct (the driving of the motor vehicle) and the loss (one of
the other elements of a delict) are separated in time and space. Joubert is of the opinion that
the application of a similar argument will solve the problem of a nasciturus that is injured
before birth.40
• A counter argument is raised by some. Boberg, for example, argues that in the case of
injury before birth, the conduct and the loss actually occur at the same time, namely when
the injury is sustained. The injury does not cause harm only once the child is born. The
unborn child is already ‘irrevocably harmed’,41 and therefore already starts to suffer damage
before birth. After birth, the child simply continues to suffer the damage sustained before
birth.42 When the child started to suffer damage, he or she did not have legal subjectivity,
resulting in the need to apply the nasciturus fiction to award an action for pre-natal injury.43
The above two views gave rise to uncertainty in our law for a long time. The problem was finally
solved in Road Accident Fund v Mtati.44 In this case, the father of a child instituted an action
against the Road Accident Fund for damage suffered by the child in a motor vehicle accident. At
the time of the accident, the father’s wife was pregnant with the child. When the child was born, it
appeared that the child had suffered brain damage and was mentally disabled. The father alleged
that the injuries and disabilities of the child were a result of the mother’s injuries sustained in the
accident. The legal question specifically related to the provisions of the legislation in terms of
which the action was instituted (the Multilateral Motor Vehicle Accidents Fund Act 93 of 1989)
which prescribed that the Fund is under the obligation to compensate any ‘person’ for damage as a
result of injury. The question was therefore: Was the nasciturus a person (legal subject) for
purposes of the Act? In its discussion of this question, the court referred in detail to the viewpoints
of Joubert and other authors, as well as the decision in Pinchin. The court also referred to foreign
authority and quoted the following from De Martell v Merton and Sutton Health Authority 45 with
approval:
In law and in logic no damage can have been caused to the plaintiff before the plaintiff
existed. The damage was suffered by the plaintiff at the moment that, in law, the plaintiff
achieved personality and inherited the damaged body for which the defendants … were
responsible. The events prior to birth were mere links in the chain of causation between the
defendants’ assumed lack of skill and care and the consequential damage to the plaintiff.46
The Supreme Court of Appeal came to the conclusion that the ordinary rules of the law of delict
should be used in cases like these. It is clear that, in this decision, the Supreme Court of Appeal
agrees with the viewpoint of Joubert. The application of the nasciturus fiction in the field of the
law of delict was therefore unnecessary and incorrect.
3.2.2 Protection of the unborn child’s interests in succession

We have already discussed the protection of the unborn child’s interests in the law of succession
by means of the nasciturus fiction.47 Our law contains several other rules and provisions, apart
from the nasciturus fiction, by means of which the interests of unborn children, or even children
who have yet to be conceived, are protected.48
3.2.2.1 Common-law measures

When a not-yet-conceived or unborn child’s interests are at issue, the court will appoint a curator
ad litem for the child to protect its interests in specific legal proceedings.49 In Ex parte Barclays
National Bank Ltd50 assets were bequeathed to the testator’s wife and daughters and were to go to
the testator’s grandchildren in the event of their deaths. The assets included a stand on which a
hotel and other buildings had been erected. An application for the sale of these premises was
brought while one of the testator’s daughters was still alive. This meant that the grandchildren
were not yet entitled to inherit. The reason for the application was that the income derived from
the renting of the premises was much less than the income would have been if the properties were
sold and the proceeds of the sale invested. It was also evident from the report of the curator ad
litem acting on behalf of the minors and unborn children that there would be a much larger capital
growth if the assets were sold.
A curator ad litem is someone who acts on behalf of another person for the
purposes of litigation.
3.2.2.2 Statutory measures

Certain statutory measures exist to protect the interests in succession of the unconceived or unborn
child. It is important to deal with the different pieces of legislation separately.
3.2.2.2.1 Immovable Property (Removal or Modification of Restrictions) Act 94

of 1965
Section 2(1) of this Act provides the following:
If any beneficiary interested in immovable property which is subject to any restriction
imposed by will or other instrument … desires to have such restrictions removed or modified
on the ground that such removal or modification will be to the advantage of the persons, born
or unborn, certain or uncertain, who are or will be entitled to such property or the income
thereof under such will or instrument, such beneficiary may apply to the court for the
removal or modification of such restriction. (own emphasis)
This provision specifically deals with cases where those who are unborn, or even unconceived,
have an interest in immovable property as a result of, for example, a testamentary provision which
is subject to certain restrictions. Such a restriction can include a prohibition on alienation,51 a
usufruct or other servitude, or a fideicommissum. These legal concepts are typically limitations on
immovable property as they prevent beneficiaries from acting as they wish in respect of such
property. The aim of the Act, in cases where a beneficiary is prevented by one or more of these
legal concepts from dealing freely with the property, is to allow him or her to apply to the court
for the removal or modification of such limitation(s).52
Section 3(1) regulates the circumstances under which a court will remove or modify such a
limitation. A court will, for example, modify a limitation if, since a will placing a restriction on
immovable property has come into effect, circumstances have arisen which materially affect the
value of the property, and such circumstances were in the opinion of the court not foreseen by the
testator.53 The court can also order that the immovable property be sold as a whole or in part. In
such case the court can order that the proceeds be paid to a specified person that must use it to the
benefit of the persons named in section 2(1). In this way the unborn child is still protected.54
PAUSE FOR
REFLECTION
A simple example illustrating the operation of the Immovable Property (Removal or

Modification of Restrictions) Act
Suppose A, a testator, creates a fideicommissum in his will. This means that the will contains a
clause to the effect that, upon A’s death, his son B inherits the family farm and that, upon B’s
death, B’s eldest son (who will for the sake of convenience be called C) C inherits the farm. In
this example B is the fiduciarius and C the fideicommissarius. It is clear that when the will is
executed it is not necessary that the fideicommissarius must already have been conceived.
Suppose further that, while B is the owner, a developer offers him a very large amount of
money for the farm. The price that is offered for the farm is such that it would be advantageous
to sell. The Act now makes it possible for B to approach the court to remove or modify the
fideicommissum. As explained above, the court will see to it that the interests of C (and even
further fideicommissarii) are protected by, for example, giving specific instructions regarding
the investment of the proceeds of the sale of the farm.
The provisions of section 6 of the Act relating to fideicommissa must also be kept in mind. This
section provides that a fideicommissum created by a will or by another document is limited to two
successive fideicommissarii. Should a testamentary provision provide that the immovable property
be inherited by three or more fideicommissarii, section 6 will have the effect that when such
property is transferred to the second successive fideicommissarius it is done so free from the
fideicommissum. Should A, the testator in the above example, thus provide that the farm must
upon C’s death be inherited by C’s son, then C’s son (as the second successive fideicommissarius)
will receive the farm free of the fideicommissum.55
3.2.2.2.2 The General Law Amendment Act 62 of 1955

Section 33(1) of this Act is similar to the Immovable Property (Removal or Modification of
Restrictions) Act and provides that when an unborn child is entitled to an interest in immovable
property by virtue of a will or other instrument, such property being subject to certain restrictions
imposed by the will or other instrument, the High Court may grant permission to alienate (sell)
such property or to encumber it with a mortgage (bond), as if the unborn child were a minor who
has already been born.
This provision puts conceived and unconceived persons on an equal footing.56 The court will
give its consent only if the alienation or mortgage would be to the advantage of all the
beneficiaries, including those who have not yet been conceived.57
3.2.2.2.3 The Administration of Estates Act 66 of 1965

Section 44 of the Administration of Estates Act provides for cases where an unborn child will be
entitled to money or movable property after birth, and such money or property is subject to
someone else’s usufructuary or fiduciary rights. In such cases the sum of money or property may
not be delivered to the person in favour of whom the usufructuary or fiduciary rights exist unless
such person gives security to the satisfaction of the Master of the High Court for the payment of
the money or the delivery of the property to the unborn child when he or she becomes entitled to
it.
Section 94 of this Act allows the Master of the High Court to consent to the subdivision of land
on behalf of an unborn heir if the proposed subdivision is expedient and fair.
3.3 Sterilisation
COUNTER
POINT
The operation of the nasciturus fiction prevented by sterilisation and termination

The topics of sterilisation and termination of pregnancy have traditionally been included in
discussions of the nasciturus fiction in major law of persons textbooks. However, neither of
these topics properly belongs to a discussion of the nasciturus fiction. In the case of termination
of pregnancy the child will not be born. One of the requirements for the operation of the
nasciturus fiction, namely that the child must eventually be born alive, is therefore not
satisfied. In the case of a successful sterilisation the foetus will never even be conceived. The
requirement for the operation of the nasciturus fiction that the child must have been conceived,
is not satisfied.58 For these reasons, sterilisation and termination of pregnancy are not discussed
as part of the nasciturus fiction in this book. However, as both these topics are closely related
to birth as the moment of origin of legal subjectivity – in a sense both sterilisation and
termination of pregnancy prevent the beginning of legal subjectivity – they are discussed in this
chapter.
The Sterilisation Act 44 of 199859 permits the voluntary sterilisation of any person who has
reached the age of 18 years and is capable of consenting. The Act60 defines sterilisation as a
procedure by means of which a person could be permanently rendered incapable of fertilisation or
reproduction. Consent to sterilisation must be given freely and voluntarily and without any
inducement by the person to be sterilised. Such consent may be given only if the consenting
person has been given a clear explanation of the proposed procedure and its consequences, risks
and the reversible or irreversible nature thereof. A consenting person must also indicate that he or
she was advised that the consent may be withdrawn at any time before undergoing the procedure.61
Sterilisation is a procedure in terms of which a person could be rendered

permanently incapable of fertilisation or reproduction.
A person under the age of 18 years may be sterilised if failure to perform the sterilisation
would place such person’s life in danger or seriously impair his or her health.62 The sterilisation
may take place only with the consent of the person’s parent, spouse, civil union partner, guardian
or curator.63 An independent medical practitioner must consult the person and provide a written
report, indicating that the sterilisation is in the person’s best interests.64 Furthermore, the
desirability of the sterilisation must be evaluated by a panel consisting of a psychiatrist (or
medical practitioner if no psychiatrist is available), psychologist or social worker, and a nurse.65
The Act also contains special provisions regulating the sterilisation of persons who are
incapable of consenting, or incompetent to consent. Such a person may be sterilised only if he or
she is mentally disabled66 to such an extent that he or she is incapable of:67
• making his or her own decision about contraception or sterilisation;

• developing mentally to a sufficient degree to make an informed decision about contraception
or sterilisation;
• fulfilling the parental responsibilities associated with giving birth.
If these requirements are met, the consent of the person’s parent, spouse, civil union partner,
guardian or curator must be obtained.68 A panel consisting of a psychiatrist (or medical
practitioner if no psychiatrist is available), psychologist or social worker, and a nurse must concur
that the sterilisation may be performed.69 When considering its decision, the panel must take all
relevant facts into account, including:70
• the person’s age;

• whether other safe and effective alternatives to sterilisation exist;
• the person’s mental and physical health and well-being;
• the potential effect of the procedure on the person’s mental and physical health and well-
being;
• the nature of the sterilisation procedure to be performed;
• the likelihood that the person will become capable of consenting to sterilisation;
• whether the sterilisation is in the person’s best interests;
• the benefit the person may derive from the sterilisation.
Whenever a sterilisation is performed, the method posing the smallest risk to the patient’s health
must be used.71
3.4 Termination of pregnancy
3.4.1 General
The Choice on Termination of Pregnancy Act 92 of 1996 came into effect on 1 February 1997,
repealing the Abortion and Sterilisation Act 2 of 1975 to the extent that it was applicable to
abortion.
3.4.2 Circumstances under which a pregnancy may be terminated

In accordance with section 2 of the Choice on Termination of Pregnancy Act a pregnancy may be
terminated during the first 12 weeks of gestation at the request of the pregnant woman.72 During
this period, the termination may be carried out by a medical practitioner, a registered midwife or a
registered nurse who has completed the prescribed training course.73
From the thirteenth to the twentieth week of gestation the pregnancy may be terminated under
certain circumstances.74 The pregnancy may be terminated if a medical practitioner, after
consultation with the pregnant woman, is of the opinion that:
• the continued pregnancy would pose a risk of injury to the woman’s physical or mental health;
or
• there exists a substantial risk that the foetus would suffer from a severe physical or mental
abnormality; or
• the pregnancy resulted from rape or incest; or
• the continued pregnancy would significantly affect the social or economic circumstances of
the woman.
After the twentieth week of gestation the pregnancy may be terminated if a medical practitioner
after consultation with another medical practitioner, registered midwife or registered nurse is of
the opinion that the continued pregnancy:75
• would endanger the woman’s life; or76

• would result in a severe malformation of the foetus; or
• would pose a risk of injury to the foetus.
After the twelfth week of the gestation period, only a medical practitioner may perform a
termination of pregnancy.77
Figure 3.3 The various gestation periods at which pregnancies may be terminated, and the
health official who may terminate the pregnancies at the various stages
3.4.3 Consent
The termination of a pregnancy may take place only with the informed consent of the pregnant
woman.78 Unless a woman is incapable of giving consent, only her consent is necessary for the
termination of the pregnancy.79 In the case of a pregnant minor, a medical practitioner, registered
midwife or registered nurse must advise such minor to consult with her parents, guardian, family
members or friends before the pregnancy is terminated. The termination of the pregnancy may,
however, not be denied if the minor decides not to consult with any of these people.80
In Christian Lawyers’ Association v National Minister of Health (Reproductive Health Alliance
as Amicus Curiae)81 the plaintiff constitutionally challenged the provisions of the Act allowing a
minor independently to consent to the termination of her pregnancy, and merely requiring a
medical practitioner or a registered midwife, as the case may be, to advise the minor to consult
with her parents, guardian, family members or friends before her pregnancy is terminated.
In this case the plaintiff instituted an action in which it sought an order declaring sections 5(2)
and 5(3) read with the definition of ‘woman’ in sections 1 and 5(1) of the Choice on Termination
of Pregnancy Act to be unconstitutional. The plaintiff contended that these provisions are
unconstitutional because they permitted a woman under the age of 18 years to choose to have her
pregnancy terminated without parental consent or control. It was inter alia contended on behalf of
the plaintiff that a woman below the age of 18 years is incapable of giving informed consent, and
that she needed the assistance of her parent or guardian when deciding whether or not to terminate
her pregnancy. The plaintiff further argued that allowing a pregnant minor to decide whether or
not to have a termination without the assistance of her parent or guardian is in conflict with the
following provisions of the Bill of Rights:
• section 28(1)(b), which guarantees every child the right to family care or parental care, or
appropriate alternative care when removed from the family environment;
• section 28(1)(d), which provides every child with protection from maltreatment, neglect, abuse
or degradation;
• section 28(2), which provides that a child’s best interests are of paramount importance in
every matter concerning the child; and
• section 9(1), which guarantees every person the right to equality before the law and to equal
protection of the law.
The defendants raised an exception to the particulars of claim on the ground that they did not
disclose a cause of action. The Reproductive Rights Alliance was admitted as amicus curiae, and
supported the position of the defendants.
Amicus curiae means friend of the court.
The court considered the structure of the Choice on Termination of Pregnancy Act and
concluded that the legislature had not left the termination of a minor’s pregnancy totally
unregulated. Its cornerstone was the concept ‘informed consent’. No woman, regardless of her
age, could have her pregnancy terminated unless she was capable of giving her informed consent,
and in fact did so.
When considering the validity of an exception to the particulars of claim on the basis that such
particulars do not disclose a cause of action, the proper approach is that the allegations must be
accepted as true (for the purpose of the exception stage only). Therefore, the allegation in the
plaintiff’s particulars of claim to the effect that a woman below the age of 18 is not capable of
giving informed consent as required in section 5(1) of the Act has to be accepted as true. If this
statement is accepted as true, the implication of the particulars of claim is therefore that girls who
are less than 18 years old cannot have their pregnancy terminated under the Act unless they have
the assistance of their parents or guardians. It follows that the Act actually does not permit a
termination in the circumstances the plaintiff alleges, and the particulars of claim do not disclose a
cause of action. The court upheld the exception.
In spite of this decision, the court found it ‘both instructive and helpful to make some remarks’
about the right to termination of pregnancy. These remarks are, of course, obiter. After examining
foreign jurisdictions, the court held 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 the right to have access to reproductive health care, guarantee the right of
every woman to determine the fate of her pregnancy. In support of the decision 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. It follows that any
limitation upon the freedom of any woman, including any girl under the age of 18 years, to have
her pregnancy terminated constitutes a limitation of her fundamental rights which is valid only if
justified in terms of section 36(1).
One of the minimum requirements for justification is that the limitation must be rational.
According to Mojapelo J, the distinction made by the Act between those women who have the
capacity for informed consent and those who do not is a rational distinction, capable of
justification. The court concluded that it could not find that the legislation is unconstitutional.
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 consent to the termination, and the gestation period is less than 13 weeks,
her pregnancy may be terminated with the consent of her guardian, spouse or civil union partner.82
The same grounds must be present as in the case of terminations from the thirteenth up to the
twentieth week of the gestation.83 If the woman’s guardian, spouse or civil union partner cannot be
found, her curator personae may consent. In addition, two medical practitioners or a medical
practitioner and a registered midwife or nurse who has completed the required training course
must consent to the termination.
A curator personae takes care of the personal needs of a person.
A mentally disabled or continuously unconscious woman’s pregnancy may sometimes be

terminated even without the consent of her guardian, spouse, civil union partner or curator
personae. Up to the twentieth week of the gestation period, the pregnancy may be terminated
without the consent of these persons if two medical practitioners or a medical practitioner and a
registered midwife or nurse who has completed the required training course are of the opinion
that:84
• the continued pregnancy will pose a risk of injury to the woman’s physical or mental health; or
• there is a substantial risk that the foetus will suffer from a severe physical or mental
abnormality.
From the twenty-first 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 nurse who has
completed the required training course are of the opinion that the continued pregnancy:85
• would endanger the woman’s life; or

• result in a severe malformation of the foetus; or
• pose a risk of injury to the foetus.
3.4.4 Constitutional issues relating to termination of pregnancy

Even before the enactment of the Bill of Rights,86 our courts consistently held that a foetus is not a
legal subject, and that a foetus therefore does not have a right to life that can be enforced on its
behalf.87
After the enactment of the Choice on Termination of Pregnancy Act, it was challenged on
constitutional grounds in Christian Lawyers Association of South Africa v The Minister of
Health.88 The plaintiffs sought a declaratory order striking down the Choice on Termination of
Pregnancy Act in its entirety. They contended that the Act contravenes section 11 of the
Constitution of the Republic of South Africa, which guarantees the right to life, as human life
starts at conception. The defendants raised an exception to the plaintiff’s particulars of claim. One
of the grounds for the exception was that it did not disclose a cause of action as section 11 of the
Constitution does not confer any right on a foetus. The court upheld the exception, finding that the
Constitution does not award legal personality to the foetus.
The decision in Christian Lawyers is clearly correct. The law grants rights and obligations
(including constitutional rights and obligations) to legal subjects. As the unborn child is not a legal
subject, the Constitution does not confer any rights on unborn children. Alleging that human life
begins at conception is not sufficient ground on which to base an argument that a foetus has a
right to life as ‘human life’ does not determine legal personality.89
COUNTER
POINT
Certain limitations imposed by the Choice on Termination of Pregnancy Act

There is a view that although human life does not start at conception, and the foetus does not
have a right to life, this does not mean that human life is not worthy of protection. Heaton
points out that state and community interests may be considered constitutionally justifiable
limitations on the pregnant woman’s rights in respect of termination of pregnancy. For
example, the Choice on Termination of Pregnancy Act allows termination of pregnancy by
choice until the twelfth week of the gestation period only, and imposes certain limitations on
terminations after the twelfth week. According to Heaton, these limitations are probably
justifiable on the basis of the state and community’s interests in protecting human life once it
has developed beyond a certain stage.90
When there is a conflict between a pregnant woman and the father of her unborn child on whether
or not to terminate the pregnancy, a constitutional challenge by the father of the provisions of the
Choice on Termination of Pregnancy Act providing that only the pregnant woman’s consent is
necessary for the termination of the pregnancy will probably fail. The Constitution entrenches
every person’s right to security in and control over his or her body, which includes the right to
make decisions relating to reproduction. The woman thus has the final say about whether or not to
terminate her pregnancy, be sterilised, et cetera. We agree with Heaton that any limitation on the
father’s right to make these decisions would be justifiable. The rights to dignity, privacy and
gender equality strengthen the argument that a woman should have the final say in this regard.91
3.5 Registration of births

The Births and Deaths Registration Act 51 of 1992 regulates registration of births. It provides that
the Director-General of Home Affairs (or any other person to whom the Director-General has
delegated his or her powers and duties)92 must be notified of the birth of every child born alive.93
The duty to register a birth rests on the child’s parents. If neither parent is able to give notice,
notice must be given by the person who has charge of the child, or the person requested to do so
by the person having charge of the child.94 In the case of abandoned children, notice is given by a
social worker or authorised officer.95
No birth may be registered unless a forename (first name) and a surname have been assigned to
the child.96 Notice of the birth of children born to parents who were married to each other at the
time of the child’s conception, birth, or any intervening time is given under the surname of either
parent or both parents’ names joined together as a double-barrel surname.97 This applies regardless
of whether the child’s parents entered into a civil, customary or religious marriage.98 It also applies
if the child’s parents were civil union partners at the time of his or her conception, birth, or any
intervening time, as civil unions and civil marriages are on an equal footing.99
Notice of the birth of a child born of parents who are neither married to each other, nor civil
union partners at the time of the child’s conception, birth, or any intervening time is given under
the surname of the child’s mother.100 Notice of birth may be given under the name of the natural
father only if both he and the mother jointly request this, and if the father acknowledges his
paternity in writing in the presence of the person to whom the notice of birth is given and enters
his particulars on the notice of birth.101 If the father wants to acknowledge paternity and enter his
particulars on the notice of birth after the child’s birth has been registered, he may do so with the
consent of the child’s mother.102 If the mother refuses to consent, the father may approach the High
Court for a declaratory order confirming his paternity and dispensing with the mother’s consent.103
However, a gamete donor and the father of a child who was conceived as a result of rape or incest
may not have the child’s birth registration amended to identify him as the father.104
If unmarried parents of a child enter into a civil marriage or civil union after the registration of
the child’s birth, the birth registration will be amended after application to the Director-General,
and the birth will be registered as if the parents were legally married to each other or were partners
in a civil union at the time of the child’s birth. This application may be brought by either of the
child’s parents, or by the child’s guardian if the child is a minor, or by the child personally if he or
she is already a major.105
Before the enactment of section 40 of the Children’s Act 38 of 2005, notice of the birth of a
child born as a result of artificial fertilisation of a lesbian partner in a same-sex life partnership
was given under either the birth mother’s surname or her same-sex life partner’s surname, or both
of their surnames joined together as a double-barrel surname. This position was the result of the
decision in J v Director-General, Department of Home Affairs.106 In this case, a woman who was
living with another woman in a same-sex life partnership gave birth to twins. However, the Births
and Deaths Registration Act provided for the registration of one male and one female parent only.
Therefore, only the second applicant, the twins’ birth mother, could be registered as the twins’
parent. As both applicants wished to be registered and recognised as the twins’ parents, they
challenged the constitutionality of section 5 of the Children’s Status Act 82 of 1987.
Section 5 treated children 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 if his or her birth mother was married, but not if she were a party to a same-sex life
partnership. The court found that this section discriminated unfairly against same-sex life partners
on the ground of their sexual orientation, and that this discrimination was unjustifiable.
Consequently, section 5 of the Children’s Status Act was declared unconstitutional.
After this decision, the Children’s Act repealed the Children’s Status Act in its entirety, but
section 40 of the Children’s Act re-enacted the unamended section 5 of the Children’s Status Act.
For partners in civil unions, this is not a problem as the Civil Union Act equates civil unions with
civil marriages.107 Therefore, a child born as a result of the artificial fertilisation of a civil union
partner is a child born of married parents. However, as far as same-sex couples are concerned who
are partners in a union that falls outside the scope of the Civil Union Act, section 40 of the
Children’s Act applies. This provision is subject to the same constitutional attack as section 5 of
the Children’s Status Act. As Heaton correctly points out, it might be argued that because same-
sex couples now have the option of entering into a legally recognised civil union, their
fundamental rights and those of their children born as a result of artificial fertilisation are not
infringed by section 40 of the Children’s Act, or that this infringement is justified by the couple’s
choice not to enter into a civil union.108
Section 25 of the Births and Deaths Registration Act deals with the change of a minor’s
surname.109 Upon dissolution of a civil marriage or civil union by means of the death of the child’s
father, the child’s surname may be changed to the mother’s surname.110 The same applies if the
marriage or civil union is dissolved by divorce and the mother has sole guardianship, or the
child’s father consents to the change of surname. The court may dispense with the father’s
consent.111 If the child’s mother enters into a new marriage or civil union, she may apply to have
the child’s surname changed to correspond with her surname. For this, 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.112 A mother who has sole guardianship does not
need the father’s consent.113 A widow who enters into a new marriage or civil union may also
apply to have her child’s surname changed to correspond with hers,114 with the consent of her new
husband or civil union partner, unless the court dispenses with consent.115
If an unmarried mother marries someone other than the child’s father or enters into a civil
union with someone other than the child’s father, she may apply to have the child’s surname
changed to correspond with hers, with the written consent of her husband or civil union partner.116
If the child is registered under his or her father’s surname, the mother also needs the written
consent of the child’s father, unless the mother has sole guardianship or the court dispenses with
the father’s consent.117
The Births and Deaths Registration Act allows for the change of a person’s forename and/or
surname for good and sufficient reason.118 In the case of the forename or surname of a minor, the
application for the change must be made by either of the child’s parents or by the child’s
guardian.119 An adult personally applies for the change of his or her forename or surname.120

1. This chapter deals with the beginning of legal subjectivity.
2. Birth is the moment when legal subjectivity begins.
3. There are requirements to be met for purposes of legal subjectivity and other legal disciplines
have their own definitions for birth. However, there are situations when an unborn child also
requires legal protection and in this respect the nasciturus fiction was discussed.
4. This fiction does not bestow legal subjectivity on the unborn child, but provides that if it is to
the advantage of the unborn child, he or she will be deemed as already born by keeping his or
her interest open.
5. This fiction also applies specifically in the law of succession.
6. In Road Accident Fund v Mtati it was held that it was unnecessary to extend the fiction to the
law of delict.
7. Various statutory measures exist to protect the interests of the unborn child.
8. Sterilisation and termination of pregnancy were also discussed, even though these topics bear
no relevance to the nasciturus fiction.
9. In the last instance attention was paid to the statutory obligation of the registration of the birth.
1 Van der Vyver & Joubert Persone- en Familiereg 3 ed (1991) 59 et seq.

2 D 25.4.1.1, 35.2.9.1; Voet 1.5.5.
4 D 50.16.129.
7 Davel & Jordaan Law of Persons 4 ed (2005) 12; Van der Vyver & Joubert 60.
8 Davel & Jordaan 11.
9 S 9(1) of the Act provides that in the case of a child born alive, any one of his or her parents, or if the parents
are unable to do so, the person who has charge of the child, must give notice of the birth within 30 days after
the birth. See 3.5 below.
10 Van Zyl & Van der Vyver Inleiding tot die Regswetenskap 2 ed (1982) 385.
11 Heaton 7-8; Davel & Jordaan 12; Van der Vyver & Joubert 60-61.
12 Davel & Jordaan 12-13.
13 D 1.5.7, 1.5.26, 5.4.3, 50.16.231.
14 Voet 1.5.5.
15 Voet 1.5.5.
17 Inst 3.1.8.
18 1962 (3) SA 954 (O). See 3.2.1.3.2 below.
19 See 3.1 above. See also Voet 1.5.5.
21 1946 CPD 242.
22 Heaton 15.
23 Constitution of the Republic of South Africa, 1996 s 9.
25 Davel & Jordaan 15; Heaton 12.
26 Added by s 4 of the Law of Succession Amendment Act 43 of 1992.
27 Jamneck ‘MJ De Waal, MC Schoeman and NJ Wiechers Law of Succession Students’ Handbook’ 1994
THRHR 174.
28 S 2D(1)(c) expressly provides that unless the opposite inference can be drawn from the will as a whole, a
benefit which is due to a person’s children, or to members of a class of persons (for example, grandchildren)
mentioned in the will, vests in the children or other persons if they are alive, or have at least been conceived
and are later born alive. (The requirements for the application of the nasciturus fiction are italicised.)
29 1962 (3) SA 954 (O).
30 Voet 1.5.5.
31 S 2D(1)(c).
32 Adapted from Heaton 13.
34 1963 (2) SA 254 (W). Long before Pinchin, it was held in Chisholm v East Rand Proprietary Mines Ltd 1909
TH 297 that a child whose father was killed before his or her birth as a result of another person’s delict has a
dependant’s action for loss of support against the person who committed the delict. The child has to be put in
the position in which he or she would have been had the child’s father not been killed, at least as far as
maintenance is concerned. Chisholm was the first South African case in which the nasciturus fiction was
applied in the law of delict.
35 At 259D.
36 At 260B.
38 Joubert ‘Pinchin & Ano NO v Santam 1963 (2) SA 254 (W)’ 1963 THRHR 295. See also Davel & Jordaan 18
et seq; Heaton 16 et seq; Knobel & Kruger ‘The nasciturus fiction and delictual liability for pre-natal injuries
– Road Accident Fund v M obo M, Road Accident Fund v Mtati’ 2006 THRHR 517.
40 Joubert 1963 THRHR 296-297.
41 Boberg The Law of Persons and the Family (1977) 16 n. 11.
42 Boberg 16-17 fn. 11. Also see Boberg’s Persons and Family 36 fn. 15.
43 Heaton 17.
45 [1992] 3 All ER 820 (QBD).
46 Para [31].
47 See 3.2 above.
49 Ex parte Barclays National Bank Ltd 1972 (4) SA 667 (N); Du Plessis v Strauss 1988 (2) SA 105 (A).
50 1972 (4) SA 667 (N).
51 See discussion of Ex parte Barclays National Bank Ltd 1972 (4) SA 667 (N) above.
53 S 3(1)(c).
54 Davel & Jordaan 23; Van der Vyver & Joubert 74.
56 Heaton 14.
57 Ex parte Blieden 1965 (1) SA 474 (W).
58 Heaton 19.
59 S 2.
60 S 1.
61 S 4.
62 S 2(3)(a).
63 Sterilisation Act s 2(3)(b) read with ss 2(3)(c)(i) and 3(1)(a), and with the Civil Union Act 17 of 2006 s 13
(2).
64 S 2(3)(c)(ii).
65 S 2(3)(b) read with s 3(2).
66 Mental disability is defined in s 3(7) 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’.
67 S 3(1)(c).
68 Sterilisation Act s 3(1)(a) read with the Civil Union Act s 13(2).
69 S 3(1)(a), 3(1)(b) & 3(2).
70 S 3(1)(b).
71 S 3(5).
72 S 2(1)(a). S 1 of the Act defines ‘woman’ as meaning ‘any female person of any age’.
73 S 2(2).
74 S 2(1)(b).
75 S 2(1)(c).
76 The ‘or’ is omitted here in the Act. This is presumably due to an oversight as the ‘or’ is used each time in the
preceding s 2(1)(b).
77 S 2(2).
78 S 5(1).
79 S 5(2).
80 S 5(3).
81 2005 (1) SA 509 (T) (also reported as Christian Lawyers’ Association v Minister of Health [2004] 4 All SA
31 (T); 2004 (10) 1086 BCLR (T)).
82 Choice on Termination of Pregnancy Act s 5(4) read with Civil Union Act s 13(2).
83 See 3.4.2 above.
84 S 5(5)(a).
85 S 5(5)(b).
86 Constitution of the Republic of South Africa Ch 2, which came into operation on 4 February 1997.
87 Christian League of Southern Africa v Rall 1981 (2) SA 821 (O); Van Heerden v Joubert 1994 (4) SA 793
(A). See also Heaton 23.
88
1998 (11) BCLR 1434 (T); 1998 (4) SA 1113 (T). Note that this is not the same case that is cited above in fn.
81.
89 Heaton 24.
90 Heaton 24 fn. 143.
91 Heaton 25. See also fn. 146 and the sources cited there.
92 In terms of s 4(1) of the Act.
93 S 1(1).
94 S 9(1).
95 S 12.
96 S 9(6).
97 S 9(2) read with s 1(1).
98 Births and Deaths Registration Act s 1(2)(a); Recognition of Customary Marriages Act 120 of 1998 s 2(1) &
2(2).
99 Civil Union Act s 13.
100 S 10(1).
101 S 10(1)(b).
102 S 11(4). See also Children’s Act s 26(1).
103 Births and Deaths Registration Act s 11(5).
104 Children’s Act s 26(2).
105 Births and Deaths Registration Act s 11(5) read with Civil Union Act s 13(2). See also Children’s Act s 38
(1).
106 2003 (5) BCLR 463 (CC).
107 S 13.
108 Heaton 9.
109 See Heaton’s clear and succinct discussion of this complicated section (Heaton 10-11).
110 S 25(1)(b).
111 S 25(1)(b) & 25(1A).
112 S 25(1A).
113 S 25(1A).
114 S 25(1)(b).
115 S 25(1).
116 S 25(1).
117 S 25(1)(c) & 25(1A).
118 Ss 25(2) & 26(2).
119 S 25(2).
120 Ss 24(1) & 26(2).
Chapter 4
The end of legal subjectivity

4.1 General
4.2 Proof and consequences of the death of a legal subject

4.2.1 Death certificate
4.2.2 Direct evidence
|
4.3 Presumption of death
4.3.1 Introduction
4.3.2 Presumption of death in terms of common law
4.3.2.1 Background
4.3.2.2 Factors considered by the court
4.3.3 Order of presumption of death in terms of the Inquests Act 58 of 1959
4.3.4 Consequences of an order of presumption of death
4.4 Problems surrounding commorientes
4.5 Registration of deaths
4.6 Duty to bury the deceased
4.7 Anatomical donations
4.1 General
The natural person’s legal subjectivity is terminated by his or her death. While this sounds
obvious, it is not always so simple. It is not clear what criteria should be applied to determine
whether or not a person is dead.1 Courts rely on medical evidence to determine whether someone
has died, and at what moment the person died.
Various medical theories exist about the precise moment that death occurs. Traditionally, death
is associated with the permanent cessation of the vital functions of the brain. This is called
somatic death. Somatic death occurs with the permanent cessation of the functions of the vital
nerve centres of the brainstem, and the individual ceases to exist as a functional whole.2
PAUSE FOR
REFLECTION
Somatic death and molecular death

After somatic death other cells in the body, such as the heart and eyes, can continue functioning
but they will gradually undergo irreversible changes until molecular death sets in.3 Acceptance
of somatic death as the moment of cessation of legal subjectivity allows for organ transplants to
take place. Surgeons would, under these circumstances, be allowed to remove an organ
intended for transplant from a body in which the heart is still beating. However, if molecular
death is regarded as the moment of death, organ transplants would not be possible as the organs
would already have undergone changes that would make it impossible for them to function
normally again.4
In spite of the uncertainty in this regard, no legal definition for death has been formulated in our
law yet. This issue was considered by the Appellate Division (now known as the Supreme Court
of Appeal) in S v Williams.5 The facts of this case related to a charge of murder. The accused
entered the home of the deceased with the intention of stealing from her. He entered her bedroom
and shot her in the neck. The deceased was still breathing when she was admitted to hospital. Two
days later, however, the doctors reported that the deceased showed no sign of brain activity and
was, according to them, dead – in other words, her brainstem had ceased functioning. Two days
later, after a thorough neurological examination, the ventilator was disconnected. Ten minutes
later, she no longer registered any heart activity.
In defence to a charge of murder, the accused argued that the cause of death of the deceased
had been the doctor’s act of switching off the life support system. This act constituted a novus
actus interveniens, essentially making it the doctor who should be held liable for the death of the
deceased. Both the court a quo (trial court) and the Appellate Division (as it was then) rejected
this defence. The trial court found that the moment of death was the moment when the brain
stopped functioning. From this decision, it follows that the deceased was already dead when the
ventilator was disconnected.
A novus actus interveniens is a new, intervening act.
The Appellate Division, however, found that it was unnecessary to decide on the correctness of
this view for legal purposes. Instead, the court decided the issue on the basis of the ‘traditional
view of the community’ that death occurs once the person stops breathing, and his or her heart
stops beating. The court emphasised that its silence on the issue of brain death should not be
regarded as an indication that the trial court’s approach should be accepted. The question of which
approach to death is legally acceptable was therefore left open.
Similarly, the legislature has declined to provide a legal definition for death. The Human
Tissue Act 65 of 1983, which provides, inter alia, for organ donation from deceased persons, does
not define ‘death’ or ‘deceased person’. Instead, the Act expressly leaves the determination of
death to the medical profession by providing that the death of the person concerned must be
established by at least two medical practitioners, neither of whom may be involved in
transplanting the donated tissue.6
As death is a juristic fact with legal consequences, the importance of formulating a legal
definition for death can hardly be over-emphasised. As legal subjectivity is terminated by death, a
dead body has neither rights nor obligations and is a thing. Even so, the law protects the
deceased’s body and regulates its handling and disposal.7 This is done to protect interests such as
public health, respect for the feelings and sensibilities of the deceased’s relatives, and respect for
the dead.8
4.2 Proof and consequences of the death of a legal subject

The death of a natural person has important legal consequences. These consequences set in as
soon as it is proved that a person is dead. Should any person allege that somebody is dead, he or
she must prove this. The death of a person can essentially be proved in the following two ways.
4.2.1 Death certificate

Usually, a person’s death is proved by means of a death certificate. A death certificate is issued by
a medical practitioner. If the death was due to natural causes, the certificate indicates the cause of
death.9 If the death was due to unnatural causes, or if there is a suspicion that the death was due to
unnatural causes, an inquest is held.10 In the latter case, the cause of death is not stated.11
Once the death has been reported to the Director-General of Home Affairs and registered,12 an
official death certificate is issued by the Director-General. 13 The death certificate is prima facie
proof of the death of the person identified therein. This means that the death certificate can be
accepted as proof of death,14 unless the contrary is proved.
Prima facie means ‘at first sight’.
4.2.2 Direct evidence

Usually, death certificates are issued by medical practitioners who have seen the body of the
deceased. However, it is not always possible to take a medical practitioner to the body of a
deceased to issue a death certificate. In cases like these, the death of the deceased person is proved
by the direct evidence of another person. The High Court can be approached for an order
certifying that the person concerned is dead. The evidence of a person who saw the body of the
deceased may be presented as direct evidence to prove that the body was in fact that of the
deceased.15
In private law, proof of death is important for the following two reasons: First, once death has
been proved, the deceased’s estate may be administered and distributed among the heirs. Second,
the surviving spouse or civil union partner, if any, may enter into a new marriage or civil union.16
4.3 Presumption of death
4.3.1 Introduction
The above paragraph deals with situations in which a person has died and there is evidence to this
effect. A thorny issue, however, arises when a person simply disappears and there is no evidence
that he or she is in fact dead. In other words, there is no body in respect of which a doctor can
issue a death certificate, and nobody can testify that the missing person is actually dead. This
could be problematic as the missing person’s estate cannot be administered, his or her insurance
policies and pension cannot be paid out, and the missing person’s spouse or civil union partner
cannot enter into a new marriage or civil union.17
Figure 4.1 The basic differences between presumptions of death ordered in terms of common law
and statutory provisions
In cases like these an application must be made to the High Court for an order that the missing
person is presumed dead. It is vitally important to note that a court does not declare a person dead.
It merely makes an order presuming that the person is dead.18
A presumption of death can either be ordered in terms of common law, or in terms of statutory
provisions. The statutory procedure is an alternative procedure which can be used to obtain an
order of presumption of death in cases where a person died of unnatural causes. The statutory
procedure does not, however, exclude the common-law procedure and any interested person can
approach the court in terms of the common-law procedure.19
4.3.2 Presumption of death in terms of common law
4.3.2.1 Background
Any person who has an interest in the death of a missing person can apply to the High Court that
has jurisdiction over the area where the missing person was domiciled at the time of his or her
disappearance for an order presuming the death of the missing person.20 The interested person (the
applicant)21 must convince the court on a balance of probabilities that the missing person is dead.22
The fact that the applicant must convince the court on a balance of probabilities means that the
court must be convinced that it is more probable that the missing person is dead than that he or she
is alive.
In practice, courts usually set a return date on which the final order will be made. The applicant
is ordered to serve the rule nisi to certain 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 gives interested parties the opportunity to object to the granting
of the order, or to submit evidence to either rebut the presumption or strengthen it.23 If no such
evidence is presented, the court will grant a final order on the return date of the rule nisi.
A rule nisi is an interim order.
4.3.2.2 Factors considered by the court

Initially, South African law followed the English rule in terms of which a person is presumed dead
if he or she has been missing for an uninterrupted period of seven years.24 This was later replaced
by the rule that no fixed period of absence is required.25
Each case is judged on its own merits in order to determine the likelihood of the missing person
being dead. The length of the person’s absence is one of the factors to be taken into account in this
regard and it can even be the decisive factor, but it is not the only factor. Other factors are also
relevant.26
The following are typical factors that will be considered by the court in an application for a
presumption of death order:
• The circumstances in which the person disappeared
In this regard, the court considers whether the circumstances in which the missing person was last
seen are of such a nature as to make it seem more probable that he or she is dead than that he or
she is still alive.
PAUSE FOR
REFLECTION
A presumption of death order for a missing person

As we have indicated, each application is judged on its own merits and it is, as a result, very
difficult to predict what the outcome of a particular case will be. To illustrate this, courts have
been prepared to issue a presumption of death order in cases in which the missing person went
for a walk on the beach on his own,27 in which the missing person went on a hunting
expedition,28 in which the missing person was on a ship that was sunk by an enemy submarine,29
and in which the missing person’s car was found near a waterfall and there had been evidence
of financial and emotional problems.30
However, the court refused to grant a presumption of death order in a case where a ship and
all its crew had already been missing for a period of six months.31 In Ex parte Govender32 a wife
applied for a presumption of death order after her husband had disappeared approximately eight
years previously. At the time of his disappearance he was 56 years old. He was in good health
and had a good relationship with his family. The court granted a rule nisi (provisional order) on
grounds of which interested parties were to lodge their objections to a final order on the return
date. On the return date, a suicide note found in a pocket of his clothing ten days after his
disappearance, and which had been written some five months before his disappearance, was
submitted to the court as evidence of his having committed suicide. The court held that suicide
was an inherent possibility. Another possibility might, however, have been that the financial
difficulties that troubled the applicant’s husband could have provided him with a reason to
evade his creditors by pretending that he had committed suicide.
• The length of the missing person’s absence
A long absence is in itself not necessarily sufficient reason for an order of presumption of death. It
is, however, an important factor to consider and it can, in certain circumstances, be the decisive
factor. There are reported cases where the courts were not prepared to make such orders even
where persons were missing for periods of longer than thirty years.33 In contrast, such orders have
also been granted after relatively short periods of absence, sometimes only months after the
missing person’s disappearance.34 This will obviously be the situation in circumstances in which
the probability of death is very high.
PAUSE FOR
REFLECTION
The importance of the circumstances surrounding a missing person’s death

We have already indicated that the length of a person’s absence is one of the factors to be taken
into account when deciding whether that person is probably dead. We also indicated that in
some cases courts were prepared to grant a presumption of death order after a short absence.
An example of this is the case of a thirty-eight-year-old dentist on holiday on the south coast of
Natal who did not return after taking an early morning swim.35 In this case the court granted a
presumption of death order two months after the disappearance. In another case a woman went
for a swim in the sea at Fish Hoek.36 The court granted a presumption of death order five
months after she had disappeared.
These examples illustrate the fact that the length of a person’s absence is only one of the
factors taken into account by the court. In these examples another factor, namely circumstances
that point to a high probability of death, were considered to be of more significance than the
length of absence.
• The age of the missing person
If the missing person was already of an advanced age at the time of his or her disappearance, the
court will be more inclined to grant a presumption of death order. For example, the court was
prepared to grant a presumption of death order in respect of an 84-year-old woman who had not
claimed her pension for four years.37
• The health of the missing person
If the missing person was not in good health at the time of his or her disappearance, the court will
more readily grant a presumption of death order.38 In one case a presumption of death order was
granted when the person had been missing for 18 years.39 Evidence showed that the missing
person had suffered severely from asthma, and was in poor health.
4.3.3 Order of presumption of death in terms of the Inquests Act 58

of 1959
It often occurs that a person dies under circumstances which raise doubt as to whether or not such
death was due to natural causes. While the person’s body is usually available for a post-mortem
examination, it can also happen that no body can be found. The provisions of the Inquests Act are
applicable to both of these situations, and in both situations the State plays the leading role. In
both of these situations a police official must investigate the circumstances of the death and report
the matter to the magistrate of the district concerned.40
If the body of the person who appears to have died of unnatural causes is available, it must be
examined by the district surgeon or another medical practitioner in order to ascertain the cause of
death.41 Following this, a police official must submit a report to the public prosecutor42 who must,
in turn, submit the report to the magistrate.43 If the magistrate is of the opinion that the death was
due to unnatural causes, he or she must hold an inquest to determine the circumstances and cause
of the deceased’s death.44
An inquest can also be held in respect of a person who has disappeared and has presumably
died of unnatural causes, and no body is available. In cases where no body can be found, or where
the body has been destroyed, and the evidence proves beyond reasonable doubt that a death has
occurred, the magistrate holding the inquest can record his or her findings as to the identity of the
deceased, the cause or probable cause of death, and whether or not such death was caused by
actions or omissions that prima facie point to an offence by anyone.45 If the magistrate is unable to
record such a finding, this fact must be recorded.46
If a finding has been recorded regarding the deceased’s identity and date of death, the record of
the inquest, along with any comments the magistrate wishes to make, are submitted for review to
the High Court that has jurisdiction in the area where the inquest was held.47 If this finding is
confirmed, this confirmation has the same effect as a presumption of death order.48
It should be emphasised that, because an unnatural death is suspected, the State takes the
initiative to initiate proceedings in terms of the Inquests Act. It is therefore not necessary for a
private person to approach the court in this regard.49 However, the statutory procedure does not
prevent an interested person from approaching the court for a common-law order of presumption
of death.50 For example, this can occur if no proof of the missing person’s death can be found
during the inquest.51
COUNTER
POINT
The burden of proof

Note that the Inquests Act provides that the magistrate 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.52 However, a presumption of death may be granted in terms of the common-
law procedure if it is proved on a balance of probabilities that the person is dead.53
As a result of this difference in the onus of proof, it will be easier to obtain a presumption of death
in terms of the common-law procedure.54
4.3.4 Consequences of an order of presumption of death

It must once again be emphasised that the court does not declare a missing person dead. The order
of the court merely creates a rebuttable presumption that the person is dead. This means that
should it transpire that the missing person is, in fact, still alive, an application can simply be made
to the court that made the presumption of death order to have the order set aside. This application
may be brought by any interested party, or by the interested person personally.55
The first consequence of an order of presumption of death is that the estate of the missing
person is divided among his or her heirs. The heirs are, however, sometimes required to give
security for the return of the inherited goods or the value thereof should the missing person
reappear. Such security is called cautio de restituendo.56 In the case of Berger v Aikin57 the facts
before the court related to the fact that an order of presumption of death was made in respect of
heirs. It was presumed that they had died in Russia during the Second World War when Germany
invaded Russia. It later appeared that they were, in fact, alive and entitled to inherit from the estate
of the testator. They therefore claimed payment of the amount with which the other heirs were
unjustifiably enriched at their expense with the condictio indebiti.
A practice of administering and dividing the missing person’s estate (subject, of course, to the
provision of security) despite the fact that the court is not willing to grant an order of presumption
of death appears to have developed.58 The court may also appoint a curator bonis to administer the
missing person’s affairs without granting a presumption of death order.59
A curator bonis administers another person’s property.
A second consequence of a presumption of death order is that the life policies of the missing
person are paid out to the beneficiaries on condition that cautio de restituendo is provided.60
The third consequence of presumption of death relates to the marriage of the missing person.
The marriage of the missing person is not automatically dissolved by a presumption of death
order. The Dissolution of Marriages on Presumption of Death Act 23 of 1979 regulates the
remarriage of the surviving spouse. Should the surviving spouse wish to remarry, he or she must
bring an application for an order dissolving the marriage or civil union of the missing person.
Such an order will dissolve the marriage or civil union from a date determined by the court. This
application can be brought along with the application for the order of presumption of death or any
time thereafter. The court will not grant such an order mero motu but only upon application by the
spouse or civil union partner of the missing person. The consequence of a successful application
in terms of the Dissolution of Marriages on Presumption of Death Act is that the marriage or civil
union is for all purposes deemed to have been dissolved by death. The necessary implication of
this is that even if the missing person were to reappear, the marriage or civil union will remain
dissolved.61
Mero motu means of its own accord.
COUNTER
POINT
A presumption of death order in terms of statutory procedures

We have just indicated that in the case of presumption of death orders granted in terms of
common law, the marriage of the missing person is not terminated automatically, but only after
an application by the remaining spouse. This differs from the position in terms of statutory
procedures. If an inquest was held and a finding was made in terms of the Inquests Act, which
finding was confirmed by the High Court, the missing person’s marriage or civil union is
deemed to have been automatically dissolved as from the date determined by the court as the
date on which the person died.62 It is clear that in these cases no special application need be
made for the dissolution of the marriage or civil union.
4.4 Problems surrounding commorientes

Commorientes are persons who die more or less simultaneously in the same disaster.63 In certain
circumstances it may become necessary to determine the sequence in which two or more persons
died. This will be the case where it has to be determined whether one person inherited from the
other. A person can only inherit from another person if the former person is alive at the time of the
latter person’s death.64
PAUSE FOR
REFLECTION
The court’s decision in the case of Ex parte Graham 65

Let us look at a case example to illustrate this. In Ex parte Graham, a woman bequeathed her
estate in her will to her adopted son. In her will she also stipulated that her whole estate was to
go to her mother should her adopted son predecease her. The testatrix and her adopted son
travelled to London by air. The aircraft crashed and all passengers and crew were killed. The
executrix allocated the entire estate of the testatrix to the testatrix’s mother but the Registrar of
Deeds refused to transfer the immovable property to the mother without a court order declaring
that the son had died before or simultaneously with the testatrix. The executrix applied for a
declaratory order that the testatrix and her son died simultaneously. The court granted the order.
The problems involved in determining who died first were solved with the use of presumptions in
both English and Roman-Dutch law.66 These presumptions are not part of modern South African
law. The current position is that in cases where the sequence of death cannot be proved on a
balance of probabilities, there is no presumption of either survival or simultaneous death.67
Davel and Jordaan correctly indicate that the moment of death of commorientes is a question of
fact and that in the event of a lack of evidence to prove the contrary, a court will make an order
that the persons died simultaneously.68 It has become practice for spouses who appoint each other
as heirs in their wills to provide for the division of their estates should they die simultaneously or
in the same disaster.69
4.5 Registration of deaths

The Births and Deaths Registration Act70 imposes a duty on certain persons to notify the Director-
General of Home Affairs, or a person duly authorised by the Director-General, of a death. This
applies irrespective of whether the death was due to natural or unnatural causes.71 The Director-
General or his or her duly appointed representative must also be notified of a stillbirth.72
In the case of a death due to natural causes, this duty rests on any person present at the death,
or who became aware of the death, or who is in charge of the deceased’s funeral.73 If there is a
suspicion that the death was a result of unnatural causes, the Director-General, or the medical
practitioner who attended to the deceased before his or her death or examined the body, must
report the matter to the police,74 whereafter an inquest will be held in terms of the Inquests Act.75
After the inquest has been held and the body is no longer needed for examination, the death may
be registered and a burial order issued. However, the cause of death will not be stated in the death
register.76
There is a similar duty to report the death of a stillborn child. The medical practitioner who was
present at the stillbirth or examined the stillborn child’s body must notify the Director-General of
the stillbirth. If no medical practitioner was present at the stillbirth or examined the child’s body,
anyone who was present at the child’s stillbirth must notify the Director-General.77
4.6 Duty to bury the deceased

No deceased person may be buried or cremated before a burial order has been issued in terms of
the Births and Deaths Registration Act. The burial order is issued once the prescribed notice of
death or stillbirth has been given.78
The deceased’s written, or even verbal, instructions relating to his or her funeral, cremation
and/or burial place must be carried out as far as possible and permissible.79 Clear proof must be
provided of verbal instructions, especially if they contradict the deceased’s written instructions
given at a different time.80 In Mabulu v Thys the verbal wishes of the deceased as to the place
where she was to be buried as alleged by the respondent were disputed by the applicant. The court
held that the wishes a deceased person expressed verbally during his or her lifetime concerning his
or her funeral arrangements should be acceded to where there is clear proof of such wishes. In the
absence of instructions by the deceased, his or her heirs have the right and duty to make the
funeral or cremation arrangements and to determine the deceased’s burial place.81
It has been held that in the case of conflict between the heirs on the funeral or cremation
arrangements or burial place, the surviving spouse has a ‘paramount’ right to decide on these
issues.82 However, this principle is not applied consistently. In some divisions it has been held that
the court should consider various factors, including the deceased’s family relationships and the
wishes of the surviving spouse.83 In Mahala v Nkombombini a dispute arose between the surviving
customary-law wife of the deceased and his mother as to who was to bury his body. Due to
procedural considerations the court held that where there are multiple heirs, there should not be
hard and fast rules. Each case must be decided according to its own particular circumstances and
common sense should dictate the decision of the court. The court should have regard to the family
relationships of the deceased as well as to other relevant circumstances which may include
practical considerations. The court concluded therefore that in view of constitutional provisions
recognising and giving effect to the status of women in society, the wishes of the deceased’s
widow carried great weight. Some weight has also been attached to the wishes of the broader
family. In other divisions the dispute was resolved by applying principles of fairness and
propriety.84
4.7 Anatomical donations

The Human Tissue Act regulates the use of parts of the human body for therapeutic and scientific
purposes – a subject not covered by Roman-Dutch authorities.85
A person over 16 years of age (the donor) may, during his or her lifetime, consent to the use of
his or her body, or tissue from his or her body, for specific purposes86 after his or her death.87 Such
consent must comply with certain requirements. It must have been given by a person who is
competent to make a will, either in his or her will, or in a document signed by the donor and at
least two competent witnesses, or in an oral statement made in the presence of at least two
competent witnesses who are over the age of 14.88
Where such a donation was not made by the deceased, his or her spouse, major child, parent,
guardian, major brother or sister may do so.89 If the deceased’s family cannot be traced and the
district surgeon is convinced that reasonable steps were taken to trace them, the district surgeon
can consent to the use of the tissue. In a case like this, two other doctors must declare in writing
that the use of the tissue is immediately necessary to save the life of the recipient or, in the case of
eye tissue, to restore his or her sight.90
Neither the donor, nor any other person, may receive any compensation for making his or her
body, or tissue from his or her body, available. The donor may (but does not have to) expressly
state the purpose for which his or her body, or tissue from his or her body, may be used. Should
the purpose of the donation, as specified by the donor, not comply with the requirements as set out
in the Act, the donation will be void (‘of no force and effect’).91
A donation may be revoked prior to death. It must be revoked in the same way it was made. An
oral donation must thus be revoked by oral revocation before two witnesses. A donation by will or
other document must be revoked by the destruction of the will or document.92

1. This chapter focuses on the termination of legal subjectivity.
2. It is clear that the death of a legal subject will terminate his or her legal subjectivity. To date,
there is no legal definition for death, yet the death of a legal subject has very important legal
consequences which set in as soon as it has been proven that the legal subject has died.
3. It may happen that a person disappears without any evidence that such person has died. In
cases where that person’s spouse or civil union partner wishes to remarry, or where the
missing person’s estate needs to be administered for whatsoever reason, then application may
be made, in terms of the common law, by a person having an interest in the death of the
missing person to a court for a presumption of death order.
4. A presumption of death order does not terminate the legal subjectivity of the missing person as
the court merely finds on a preponderance of probabilities that the missing person is presumed
dead.
5. An order may also be given in terms of statutory law in circumstances which raise doubt as to
whether a person’s death was due to natural causes, or where a person’s body cannot be found.
6. In terms of a statutory order, the State takes the initiative and the court must find, beyond all
reasonable doubt, that the person is dead before it will record a finding that the person is
presumably dead.
7. An order granted in terms of the common law does not automatically terminate the marriage
of the missing person and a separate application must be brought, subsequent to the
presumption of death order, by the missing person’s spouse or civil union partner in terms of
the Dissolution of Marriages on Presumption of Death Act to dissolve the marriage.
8. Upon an order being granted, the estate of the missing person may be divided among his or her
heirs on condition that the heirs provide security for the return of the inherited goods, or the
corresponding value thereof, should the missing person reappear.
9. In the event of a simultaneous death, the legal position is that the moment of death of
commorientes (persons who die more or less simultaneously in the same disaster) is a question
of fact. Should evidence be lacking that the people did not die simultaneously, a court will
simply find that they did die simultaneously.
10. The Director-General of Home Affairs must be notified of the death of a person.
11. No person may be buried or cremated before a burial order has been issued in terms of the
Birth and Deaths Registration Act.
12. In terms of the Human Tissue Act a person over the age of 16 years may consent to the use of
his or her body, or tissue from his or her body, for specific purposes after his or her death
(organ donation). Neither the donor, nor any other person, may receive any compensation for
making his or her body, or tissue from his or her body, available.
13. A donation made in terms of the Human Tissue Act may be revoked by the donor prior to his
or her death in the same way in which it was made.
1 Heaton The South African Law of Persons 3 ed (2008) 28; Davel & Jordaan Law of Persons 4 ed (2005) 182.
2 Gordon, Turner & Price Medical Jurisprudence 3 ed (1953) 406.
3 Davel & Jordaan 183
4 Heaton 28-29; Davel & Jordaan 183.
5 1986 (4) SA 1188 (A). See, in general, Keightley ‘The beginning and end of legal personality: birth and
death’ in Van Heerden et al. (eds) Boberg’s Law of Persons and the Family 2 ed (1999) 50-52 fn. 59.
6 S 7(2).
7 In terms of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 s 14, sexual
intercourse with a corpse is a crime. Violating a grave and violating a corpse are crimes (Snyman Criminal
Law 5 ed (2008) 445-446).
8 See e.g. R v Sephuma 1948 (3) SA 982 (T). See also Keightley in van Heerden et al. 52.
9 Births and Deaths Registration Act 51 of 1992 s 15(1) & 2.
10 See 4.3.3.
11 Heaton 29.
12 Births and Deaths Registration Act ss 14, 15 & 17. See 4.5 below on the registration of deaths.
13 Births and Deaths Registration Act s 22; Identification Act 68 of 1997 s 13(1).
14 Births and Deaths Registration Act s 28(2); Identification Act s 13.
16 Heaton 29; Keightley in Van Heerden et al. 52-54.
17 Davel & Jordaan 186; Van der Vyver & Joubert Persone- en Familiereg 3 ed (1991) 422.
18 Ibid.
19 Inquests Act 58 of 1959 s 18(3).
20 Ex parte Maclean 1968 (2) SA 644 (C).
21 Examples of interested persons are creditors of the missing person, the missing person’s heirs, or the missing
person’s surviving spouse or civil union partner.
22 Re Beaglehole 1908 TS 49.
23 Ex parte Parker 1947 (3) SA 285 (C). See also Heaton 31; Davel & Jordaan 31.
24 In re Booysen 1880 Foord 187 at 189.
25 Re Beaglehole 1908 TS 49.
26 Ex parte Estate Russell 1926 WLD 118 120. See also Heaton 30.
27 Dempers and Van Ryneveld v SA Mutual Life Assurance Society (1908) 25 SC 162.
28 In re Labistour 1908 NLR 227.
29 Ex parte Parker 1947 (3) SA 285 (C).
30 Ex parte Holden 1954 (4) SA 128 (N).
31 Ex parte Thesen’s Steamship Co Ltd 1944 CPD 165. See further Heaton 30, Davel & Jordaan 189-190.
32 1993 (3) SA 721 (D).
33 See for example Ex parte Volckers 1911 CPD 101; Ex parte Estate Russel 1926 WLD 118.
34 Ex parte Dorward 1933 NPD 17; Ex parte Williams 1937 CPD 391; In re Labistour 1908 NLR 227.
35 Ex parte Dorward 1933 NPD 17.
36 Ex parte Williams 1937 CPD 391.
37 Ex parte Rungasamy 1958 (4) SA 688 (D).
38 See for example Ex parte Rungasamy 1958 (4) SA 688 (D).
39 In re Kirby (1899) 16 SC 245.
40 S 3(1).
41 S 3(2).
42 S 4.
43 S 5(1).
44 S 5(2).
45 S 16(1) & (2).
46 S 16(3).
47 S 18(1).
48 S 18(2).
49 Heaton 31; Davel & Jordaan 195-196.
50 S 18(3).
52 S 16(1).
53 See 4.3.2.1 above.
54 Heaton 32.
55 Heaton 32; Davel & Jordaan 192-193.
56 See for example Ex parte Holden 1954 (4) SA 128 (N).
57 1964 (2) SA 396 (W).
58 In re Kannemeyer: Ex parte Kannemeyer (1899) 16 SC 407.
59 In re Widdicombe (1929) 50 NLR 311.
60 Ex parte Verster 1956 (1) SA 409 (C).
61 Heaton 33; Davel & Jordaan 194; Van der Vyver & Joubert 425.
62 Dissolution of Marriages on Presumption of Death Act s 2.
64 Heaton 33.
65 1963 (4) SA 145 (D).
66 Law of Property Act of 1925 s 184; Voet 34.5.3, 36.1.16.
67 Ex parte Graham 1963 (4) SA 145 (D). See also Heaton 34; Davel & Jordaan 185.
69 Greyling v Greyling 1978 (2) SA 114 (T).
70 S 14(1).
71 Ss 14, 15 & 17.
72 S 18.
73 S 14(1).
74 Ss 14(3), 14(4) & 15(3).
75 Births and Deaths Registration Act s 16; Inquests Act ss 2(1) & 3. See also 4.3.3 above.
76 Births and Deaths Registration Act s 17.
77 S 18(2).
78 S 20(1).
79 See e.g. Mabulu v Thys 1993 (4) SA 701 (SEC). See further Heaton 35 fn. 221 and the sources cited there.
80 Mabulu v Thys 1993 (4) SA 701 (SEC).
81 Voet 11.7.7.
82 Tseola v Maqutu 1976 (2) SA 418 (Tk).
83 Mahala v Nkombombini 2006 (5) SA 524 (SEC).
84 See e.g. Trollip v Du Plessis 2002 (2) SA 242 (W).
85 Keightley in Van Heerden et al. (eds) 59.
86 The use must be for educational, research, scientific or therapeutic purposes.
87 S 4.
88 S 2(1).
89 S 2(2)(a).
90 S 2(2)(b).
91 S 4(2).
92 S 5.
Chapter 5
Status: An introduction
5.1 Introduction
5.2 Legal capacity
5.3 Capacity to act
5.4 |
Capacity to litigate
5.5 Capacity to be held accountable for crimes and delicts
5.1 Introduction
A large part of the law of persons is concerned with the status of a legal subject. To understand the
law of persons properly, it is therefore important to have a proper understanding of the concept
‘status’.
The word ‘status’ is derived from the Latin word stare, a verb that means ‘to stand’. ‘Status’
therefore refers to a person’s ‘standing’ in the legal world.1 Status is determined by the qualities a
person has or the condition in which the person finds himself or herself, to which the law attaches
certain consequences.2 When we describe status as a person’s standing in the legal world it should
be borne in mind that in terms of the law, status is not concerned with a person’s income,
possessions or social standing.3
A person’s status is influenced by several factors or attributes, including domicile and
citizenship, birth outside marriage, age, certain impediments based on economic considerations
(such as prodigality and insolvency), physical and mental incapacity, intoxication, custom and
religion.4 Previously, under the apartheid regime, race was an important factor influencing status.
For example, under apartheid a person’s race affected his or her rights to own and occupy
immovable property, to marry, and to have sexual intercourse.5 The Constitution of the Republic
of South Africa, 1996 entrenches the right to equality and prohibits discrimination on the ground
of, among other things, race.6 The laws that perpetuated inequality and a racially divided legal
system in South Africa have all been repealed.7 We therefore agree with Heaton8 that it is no
longer tenable to regard race as a factor influencing a person’s legal status. However, race may
still play a significant role in the private-law sphere, particularly in relation to the application of
African customary law in the fields of marriage and succession. However, these provisions are
under constant constitutional scrutiny.9
A person’s status is closely related to his or her own legal subjectivity. The status of a person
determines to what extent he or she can participate as a legal subject in the legal sphere.10 The
nature and extent of the capacities allocated to a legal subject by the law in the objective sense11
determine the legal subject’s status. Put differently, in order to determine the status of an
individual it is necessary to determine the nature and extent of his or her capacities while
ascertaining the effect that the factors, mentioned in paragraph 3 above, have on him or her.12
Legal subjectivity is the characteristic of being a legal subject in legal interaction.
COUNTER
POINT
The terms ‘competence’ and ‘capacity’

As mentioned above, a person’s status is determined by the capacities allocated to that person
by the law in an objective sense. It is important to note that these capacities are sometimes
called ‘competences’. The term ‘competence’ is preferred over the term ‘capacity’ by some
authors,13 as it clearly encapsulates the distinction between:
• a person’s competences derived from the law in an objective sense, and

• a person’s capacities, that is, the powers that the holder of a right has in respect of the
object of the right14 such as the entitlement of the owner of property to use, enjoy and
dispose of the property.
In spite of the purists’ views on the preferred terminology, the term ‘capacity’ to denote the
capacities derived from the law in an objective sense is used by most South African authors on
the law of persons15 and will also be used in this book. As Heaton correctly points out,
differences of terminology should not be allowed to obscure the essential similarity between
the different analyses of the concept of status. After all, both analyses seek to describe the same
legal concept.16
Traditionally, the following capacities are distinguished: legal capacity, capacity to act, and
capacity to litigate. In broad terms, legal capacity denotes the capacity to have rights and duties,
capacity to act denotes the capacity to perform juristic acts, and capacity to litigate denotes the
capacity to enforce rights and duties in a lawsuit (locus standi in iudicio). A fourth capacity is
added by some authors,17 namely the capacity to be held accountable for crimes and delicts. We
will now discuss these capacities.
Figure 5.1 The four capacities that are distinguished
5.2 Legal capacity

Legal capacity is the capacity to have rights and duties.18 Heaton describes legal capacity as the
‘hallmark of a person’.19 It is the very characteristic that defines a legal subject.
COUNTER
POINT
How to distinguish between passive legal capacity and active legal capacity
Some authors on the law of persons use the term ‘passive legal capacity’ to denote the capacity
to have rights and duties.20 Heaton distinguishes between the capacity merely to have rights and
duties (passive legal capacity) and the ability to acquire rights and duties by one’s own,
unassisted,21 act (active legal capacity).22 Most South African authors on the law of persons
prefer the term ‘capacity to act’ instead of ‘active legal capacity’.23
Another notable distinction made by some authors of the law of persons is the distinction
between ‘legal capacity in the broad sense’ and ‘legal capacity in the narrow sense’. In this
regard, Wille distinguishes between the extent to which a person has the ability to participate as
a legal subject in the ‘life of the law’ (that is, a person’s status or legal capacity in the broad
sense), and the capacity to have rights and duties (legal capacity in the narrow sense).24
Every person has legal capacity regardless of his or her age and status. Legal capacity flows from
legal subjectivity. As no person is without legal subjectivity, just so is no person without legal
capacity.25 For example, newborn babies and mentally ill persons therefore have legal capacity.26
One has to distinguish carefully between the capacity to have rights and duties (legal capacity)
and the rights and duties a person has at a particular time. Although all persons have legal
capacity, the extent of this capacity and the particular rights and duties a person has at a particular
moment may vary from one person to the next.27 Put differently, although all persons have legal
capacity, their legal capacity does not necessarily extend equally.28
Some legal subjects cannot have certain rights or duties at a specific moment. The legal
capacity of these legal subjects is restricted but this does not mean that they have no legal
capacity at all. Although their legal capacity is restricted, they are still capable of having rights
and duties. No person is entirely without legal capacity.29
PAUSE FOR
REFLECTION
Examples illustrating these principles30

(1) While one person might have a larger estate than the next person, and consequently more
rights, there is nevertheless no difference in the status of these two persons.
(2) There is a difference in the status of two persons only if one person has rights that the
other does not. For example, children below the age of seven cannot marry, and
consequently cannot have the rights that arise from a marriage. As children below the age
of seven have limited or restricted legal capacity (this does not mean that they have no
legal capacity), their legal capacity (and status) differs from that of persons who may
marry.
It is very important not to confuse restricted legal capacity (as in (2)) with a situation where a
particular person has fewer rights than another person (as in (1)).
5.3 Capacity to act

Capacity to act refers to the capacity to perform valid juristic acts. As pointed out in the previous
section some authors call capacity to act ‘active legal capacity’.31 A juristic act can be defined as 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 is therefore the result of the law attaching
consequences to a person’s declaration of intent.32
As legal transactions can have serious consequences for the persons concerned, a person must
have achieved a certain level of intellectual development before the law confers capacity to act on
that person. For example, children below the age of seven years and mentally ill persons have no
capacity to act in South African law. For their own protection, the law does not attach any validity
to these persons’ expressions of will. However, minors between the ages of seven and 18 years
have limited capacity to act. As minors below the age of 18 years are considered not to have the
necessary maturity of judgment, they must be protected by the law – hence the limitation of their
capacity to act.33
PAUSE FOR
REFLECTION
Legal capacity is common to all but capacity to act is not common to all
Let us reflect on the differences between legal capacity and capacity to act (or the other
capacities discussed below). First, we have pointed out that legal capacity is the only capacity
common to all persons, and that no person can be without legal capacity. However, not all
persons have capacity to act (or capacity to litigate, or capacity to be held accountable for
crimes and delicts). For example, children below the age of seven years have no capacity to
act.34
We have pointed out that legal capacity is sometimes called ‘passive legal capacity’,
whereas capacity to act is sometimes called ‘active legal capacity’. Therein lies the second
difference between legal capacity and capacity to act:
• As legal capacity is the capacity merely to have rights and duties, the person assumes an
inactive role when rights simply attach to him or her.
• Capacity to act is the capacity to perform an act which affects one’s rights and duties. The
person concerned thus assumes an active role.35
5.4 Capacity to litigate

Capacity to litigate is the capacity to bring and defend an action at law. The Latin equivalent is
locus standi in iudicio.36 There is a close correlation between capacity to act and capacity to
litigate. As is the case with capacity to act, a person has either no capacity to litigate at all, a
limited capacity to litigate, or full capacity to litigate. As children below the age of seven years
(infantes) and mentally ill persons totally lack this capacity, they cannot sue or be sued in their
own name. Persons who have limited capacity to litigate (for example minors between the ages of
seven and 18 years) may sue or be sued with the assistance of a parent or guardian, or the parent
or guardian may litigate on behalf of the minor.37
COUNTER
POINT
An alternative viewpoint on who has the capacity to act

Some authors maintain that all persons have capacity to act and capacity to litigate (in addition
to legal capacity). Although children below the age of seven and mentally ill persons cannot
perform certain juristic acts (for example marry) at all, some acts (for example entering into an
ordinary commercial contract) can be performed on their behalf by their parents or guardians.
Van der Vyver and Joubert maintain that, in cases like these, it is the children or mentally ill
persons themselves who act whereas the parents or guardians act as their organs or
functionaries. According to these authors it is incorrect to say that the infans or mentally ill
person has no capacity to act. What the person lacks is not the capacity to perform the act, but
the capacity to perform the act by himself or herself. The same argument applies to capacity to
litigate.38 We suggest that this approach should not be followed.39
5.5 Capacity to be held accountable for crimes and delicts

Some authors add a fourth capacity, namely the capacity to be held accountable for crimes and
delicts, to the traditional capacities.40 This capacity is sometimes called accountability.
Fault in the form of intent (dolus) or negligence (culpa) is a requirement for both criminal and
delictual liability. The basis of, and most important requirement for, fault is accountability (in
criminal law the term ‘criminal capacity’ is used). The general test for criminal capacity in
criminal law is the following: first, does the person have the mental ability to appreciate the
difference between right and wrong; and second, if that is indeed the case, is the person capable of
acting in accordance with that appreciation?41
The test for accountability in the law of delict corresponds to that used in criminal law: a
person is accountable (culpae capax) if he or she first, has the necessary mental ability to
appreciate the difference between right and wrong, and second, if he or she indeed has that ability,
can act in accordance with that appreciation.42
It is clear that if a person cannot have fault because he or she is, for example, too young or
mentally ill, that person cannot incur contractual or delictual liability. Accountability is closely
related to capacity to act and capacity to litigate.

1. Status refers to a person’s standing in the legal world.
2. A person’s status is influenced by several factors, including domicile and citizenship, birth
outside marriage, age, certain impediments based on economic considerations (such as
prodigality and insolvency), physical and mental incapacity, intoxication, custom and religion.
3. A person’s status is determined by the capacities allocated to that person by the law in an
objective sense. These capacities traditionally include legal capacity, capacity to act and
capacity to litigate.
4. A fourth capacity, the capacity to be held accountable for crimes and delicts, is added by some
authors.
5. Legal capacity is the capacity to have rights and duties.
6. Capacity to act is the capacity to perform valid juristic acts.
7. Capacity to litigate is the capacity to bring and defend an action at law.
8. A person is accountable for crimes and delicts if that person has the necessary mental ability to
appreciate the difference between right and wrong, and act in accordance with that
appreciation.
1 Van der Vyver & Joubert Persone- en Familiereg 3 ed (1991) 53.

2 Andreae Rechtsgeleerd Handwoordenboek (1979) defines ‘status’ as the ‘[t]oestand, hoedanigheid waaraan
bepaalde rechtsgevolgen verbonden zijn’ (‘condition, quality to which certain legal consequences are
attached’). See also Heaton The South African Law of Persons 3 ed (2008) 37.
3 Davel & Jordaan Law of Persons 4 ed (2005) 7.
4 The factors listed here will be dealt with in more depth in the chapters that follow.
5
See Heaton ‘The concepts of status and capacity: a jurisprudential excursus’ in Van Heerden et al. (eds)
Boberg’s Law of Persons and the Family 2 ed (1999) 75 fn. 34 and Du Bois (ed) Wille’s Principles of South
African Law (2007) 147 fn. 13 in this regard.
6 S 9.
7 The Black Land Act 27 of 1913, the Group Areas Act 36 of 1966, the Population Registration Act 30 of
1950, and the Prohibition of Mixed Marriages Act 55 of 1949, to name but a few.
8 Heaton in Van Heerden et al. (eds) 75 fn. 34.
9 See e.g. Bhe and Others v Magistrate, Khayelitsha, and Others (Commission for Gender Equality as Amicus
Curiae) 2005 (1) SA 80 (CC), where the Constitutional Court declared s 23 of the Black Administration Act
38 of 1927 and the rule of male primogeniture, which is central to the indigenous law of succession, to be
unconstitutional to the extent that it excludes women and extramarital children from inheriting property.
10 Wille’s Principles 146.
11 The distinction between the law in the objective sense (law) and the law in the subjective sense (rights) is
discussed in chapter 2 above.
12 Davel & Jordaan 7; Heaton 37; Van der Vyver & Joubert 54.
13 Van der Vyver ‘Regsubjektiwiteit’ 1973 THRHR 268; Van Zyl & Van der Vyver Inleiding tot die
Regswetenskap 2 ed (1982) 414. See in general Van Heerden et al. (eds) Boberg’s Law of Persons and the
Family 2 ed (1999) 67 fn. 10, 69 fn. 14.
14 Heaton in Van Heerden et al. (eds) 69 fn. 14; Van der Vyver 1973 THRHR 269.
15 Heaton ‘The concept of capacity’ in Van Heerden et al. (eds) ch 20; Davel & Jordaan 6-9; Heaton 37-39.
16 Heaton in Van Heerden et al. (eds) 73.
17 See Heaton 39; Van der Vyver & Joubert 7; Van der Vyver in Strauss (ed) Huldigingsbundel vir WA Joubert
(1988) 201, 210; Wille’s Principles 146.
18 Heaton 37.
20 See e.g. Heaton in Van Heerden et al. (eds) 66, 74; Wille’s Principles 146.
21 Heaton calls the capacity to acquire rights and duties by an assisted act ‘limited active legal
capacity’ (Heaton in Van Heerden et al. (eds) 66). See chapter 8 on minority for the capacity of a minor to
contract.
22 Heaton in Van Heerden et al. (eds) 66. See also Wille’s Principles 146.
23 Heaton 38 fn. 5.
24 Wille’s Principles 146.
25 Heaton in Van Heerden et al. (eds) 66, 71; Van der Vyver & Joubert 54.
26 Heaton 37.
27 Heaton in Van Heerden et al. (eds) 70-71; Wille’s Principles 146.
28 Heaton 38.
29 Heaton in Van Heerden et al. (eds) 70-71.
30 These examples are taken from Heaton 38. See also Heaton in Van Heerden et al. (eds) 71 fn. 19.
31 Heaton in Van Heerden et al. (eds) 66, 73-74; Wille’s Principles 146.
32 Heaton 38; Van Zyl & Van der Vyver 378.
33 Heaton in Van Heerden et al. (eds) 71 fn. 20; Heaton 38.
34 Heaton in Van Heerden et al. (eds) 73-74; Wille’s Principles 146.
35 Heaton in Van Heerden et al. (eds) 73-74.
38 Van der Vyver & Joubert 54-55; Van Zyl & Van der Vyver 378-381; Van der Vyver ‘Regsubjektiwiteit’
1973 THRHR 271-272; ‘Verskyningsbevoegdheid van minderjariges’ 1979 THRHR 129. See also Davel &
Jordaan 8 fn. 36, but compare Heaton 39 fn. 7.
39 Van Rensburg ‘Regsubjektiwiteit en die regsubjek se kompetensies’ 1974 THRHR 94. See also Heaton in
Van Heerden et al. (eds) 71-72; Heaton 39; Heaton & Pretorius ‘Minors as the payees of cheques’ 2007 SALJ
120.
40 See Keightley ‘Capacity to be held accountable for wrongdoing’ in Van Heerden et al. (eds) 855; Heaton 39;
Van der Vyver in Strauss (ed) Huldigingsbundel vir WA Joubert (1988) 201, 210; Van der Vyver & Joubert
7; Wille’s Principles 146; contra Van Zyl & Van der Vyver 381.
41 Snyman Criminal Law 5 ed (2008) 158-159, 176-177.
42 Neethling & Potgieter Neethling-Potgieter-Visser Law of Delict 6 ed (2010) 125.
Chapter 6
Domicile and citizenship

6.1 Introduction
6.2 Meaning of domicile
6.3 Significance of domicile

6.3.1 Matrimonial property system
|
6.3.2 The law of succession
6.3.2.1 Intestate succession
6.3.2.2 Testate succession
6.3.3 Jurisdiction
6.4 Kinds of domiciles

6.4.1 Domicile of choice
6.4.1.1 General
6.4.2 Domicile by operation of law
6.4.2.1 Domicile of origin
6.4.2.2 Domicile of a minor
6.4.2.3 Domicile of a mentally incapacitated person
6.5 Citizenship
6.5.1 General
6.5.2 Acquisition of South African citizenship
6.5.2.1 Citizenship by birth
6.5.2.2 Citizenship by descent
6.5.2.3 Citizenship by naturalisation
6.5.3 Loss, renunciation and deprivation of South African citizenship
6.5.4 Citizenship and nationality under the Constitution
6.1 Introduction
In most continental legal systems, a person’s private-law status is determined by the law of the
country of which the person is a citizen (the lex patriae).1 However, in South African law a
person’s status in private law is generally determined by the law of the place where the person is
domiciled (the lex loci domicilii or domiciliary law).2
Uncertainty in the South African law of domicile resulted in an investigation by the then South
African Law Commission into this field of law3 with a view to reforming the law of domicile.4
This investigation and the subsequent recommendations led to the adoption of the Domicile Act 3
of 1992 on 1 August 1992. Although the Domicile Act has modified the common law of domicile,
it cannot be seen as a comprehensive code of domicile for South African law. To the extent that
the common law has not been amended by the Act, it will remain a secondary source of the law of
domicile.5
The Domicile Act is not retrospective in operation. It does not affect any right, capacity,
obligation or liability that was acquired, accrued or incurred by virtue of the domicile a person had
at any time before 1 August 1992. Furthermore, it does not affect the legality of any act performed
before that date.6 Therefore, the domicile that a person had at any time before 1 August 1992 will
be determined as if the Act had not come into operation, whereas the domicile that a person has at
any time after 1 August 1992 will be determined as if the Act had always been operative.
6.2 Meaning of domicile

A definition of domicile is elusive.7 Domicile has been referred to as a person’s home for legal
purposes,8 and as a person’s ‘centre of gravity’, where rights, duties and capacities can be imputed
on him or her.9 The most comprehensive definition of domicile is provided by Heaton, who
defines domicile as 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 when that person
is factually absent from that place.10 This definition takes into account that a domicile can
sometimes be ascribed to a person at a place where that person does not have his or her home or
residence. It also takes into account that a person can sometimes acquire a domicile by operation
of law, a process in which choice plays no role.
Although the word ‘domicile’ is derived from the Latin noun domicilium, which means ‘home’
or ‘dwelling place’,11 domicile is not the same as residence. Although a person’s domicile is
usually also his or her permanent residence, residence in the ordinary sense of the word (that is,
the place where a person eats and sleeps) is not necessarily the same as domicile in the legal
sense. In order to acquire a domicile in the legal sense of the word, the person must have the
intention to settle at the particular place for an indefinite period.12
6.3 Significance of domicile

A person’s domicile plays a significant role in many fields of private law. As pointed out above in
chapter 5, a person’s status in private law is determined by the law of the place where that person
is domiciled. Whether a person is a minor will, for example, be determined with reference to the
law of the place where the person is domiciled. Furthermore, if it has to be determined whether or
not a person has the capacity to marry or enter into contracts, the law of the place where the
person is domiciled when entering into the relevant act will apply.
The following are the most important aspects of private law where a person’s domicile plays a
significant role. However, bear in mind that these are not necessarily the only areas where
domicile is relevant.
Figure 6.1 The most important aspects of private law where domicile plays a role
6.3.1 Matrimonial property system

The lex domicilii of the husband (that is, the law of the husband’s domicile) at the time of his
marriage13 determines what the matrimonial property system of the marriage will be.14 This
principle is immutable, which means that it remains unchanged even if the husband’s domicile
subsequently changes.15 In Frankel’s Estate v The Master16 the Appellate Division (now known as
the Supreme Court of Appeal) held that this rule applies even if the parties had agreed at the time
of the marriage that they would settle elsewhere.
PAUSE FOR
REFLECTION
An example of the lex domicilii 17

A South African man marries an English woman while studying at Oxford without entering
into an antenuptial contract. A year later, the question arises whether their marriage is in or out
of community of property. In terms of South African law, their marriage is in community of
property, and according to English law, it is out of community of property. Which system
applies?
In terms of South African law, the matrimonial property system of the marriage is
determined by the law of the husband’s domicile at the date of marriage, which is South
African law. 18 The marriage is thus in community of property.
COUNTER
POINT
The constitutionality of discrimination on the ground of sex

There are strong arguments that the rule that the matrimonial property system of the marriage
should be determined with reference to the husband’s domicile amounts to unjustifiable, unfair
discrimination on the ground of sex, and should be declared unconstitutional.19
The rule that the lex domicilii of the husband determines the matrimonial property system of the
marriage also applies to heterosexual civil unions.20 However, the rule does not cater for same-sex
civil union partners. In the case of same-sex civil union partners, there are either two men or two
women, and not ‘a man’ whose lex domicilii can be used.21
COUNTER
POINT
The constitutionality of discrimination on the ground of sexual orientation

It can be argued that the aforementioned position, namely that the rule applies to heterosexual
civil unions but not to same-sex civil union partners, unjustifiably limits the right to equality.22
Heaton23 correctly argues that the position unfairly discriminates against same-sex civil union
partners on the ground of their sexual orientation. She argues that the rule should be declared
unconstitutional. However, as South African private international law does not currently have a
replacement for the rule, the legislature should urgently enact a suitable and constitutionally
acceptable rule.
6.3.2 The law of succession

Figure 6.2 The basic difference between testate and intestate succession
6.3.2.1 Intestate succession

In cases where somebody dies intestate (that is, without leaving a valid will), the law of intestate
succession of the place where the deceased was domiciled at his or her death will determine how
the testator’s movable property devolves. Where immovable property is concerned, the law of the
place where the property is situated (the lex rei sitae) will determine how the property devolves. 24
PAUSE FOR
REFLECTION
An example illustrating the principle of intestate succession25

Hilda emigrated from country X to South Africa, where she acquired a domicile and later
married. When she was 50 years old, she died while on holiday in country Y. She was survived
by her husband and one son, and died leaving no will.
Her estate consisted of the following:
• valuable immovable property in country X;

• stocks and shares in country Y; and
• cash, furniture and cars in South Africa.
In terms of the law of country X the child inherits the whole estate, whereas in terms of the law
of country Y the surviving spouse inherits the whole estate. In terms of South African law,
when a person dies intestate leaving only a surviving spouse and child, the surviving spouse
inherits R125 000 or a child’s share, whichever is the greater, and the child inherits the residue
of the estate, if any.26 How will the estate devolve?
In terms of South African law, movable property devolves according to the law of the place
where the deceased was domiciled at the date of her death, while immovable property is
distributed in terms of the law of the place where it is situated. Therefore, the immovable
property in country X will go to the son alone, while all the remaining property (stocks and
shares, cash, furniture and cars – all movable assets) will be shared between the son and the
husband.
6.3.2.2 Testate succession

The law of the domicile of the testator at the time of executing a will determines whether the
testator has the capacity to dispose of his or her movable property27 by means of that will.28
Domicile is also relevant when it has to be determined whether someone has the capacity to
inherit, and whether the formalities for the execution of a valid will have been complied with.29
Domicile further determines which legal system will govern the interpretation of a will – if the
testator did not indicate a specific system of law, the law of the testator’s domicile at the time of
execution of the will prevails.30
PAUSE FOR
REFLECTION
A will can specify according to which legal system it should be interpreted

Suppose that Mr Ndlovu made a will while he was domiciled in England. In his will, he did not
indicate according to which legal system his will should be interpreted. He dies years later
while domiciled in South Africa. If a dispute should then arise as to the interpretation of his
will, the will should be interpreted according to English law.
Suppose, however, that Mr Ndlovu expressly provided in his will that the will should be
interpreted according to South African law. In this case, the will should be interpreted
according to South African law.
6.3.3 Jurisdiction
In general, the plaintiff must sue the defendant in the court having jurisdiction in the area where
the defendant is domiciled or resident. Matters involving a person’s status must in general be
heard by the court having jurisdiction in the area where the person concerned is domiciled.31
At common law, the only court with jurisdiction to grant a divorce was the court with
jurisdiction in the area where the parties were domiciled at the time when the action was
instituted.32 As will be shown below,33 at common law a woman accepted the domicile of her
husband after marriage, and followed it for the duration of the marriage. Therefore, as long as the
marriage existed, a woman who wanted to sue her husband for divorce had to do so in the place
where he was domiciled, even if she had never set foot in that place.34 The legislature intervened
in this unsatisfactory state of affairs, and section 2(1) of the Divorce Act now provides that a court
has jurisdiction in a divorce action if the parties, or either of them,:
• are domiciled in the court’s area of jurisdiction on the date when the action is instituted, or
• are ordinarily resident in the court’s area of jurisdiction on that date, and have been ordinarily
resident in South Africa for at least a year immediately prior to that date.
The domicile of a child is also a ground upon which a court has jurisdiction to make an order for
the custody or guardianship of that child, although this jurisdiction is shared with the court where
the child is resident or merely physically present at the time of the institution of the action.35
6.4 Kinds of domiciles

Two groups of persons are distinguished by the Domicile Act, namely those persons who are
competent to choose their own domicile (the so-called domicile of choice),36 and those persons
who are not competent to choose their own domicile (the so-called domicile by operation of
law).37
Figure 6.3 The different kinds of domiciles
6.4.1 Domicile of choice
6.4.1.1 General
A domicile of choice is the domicile a person with capacity to act has chosen for himself or
herself by the exercise of his or her free will.38 The Domicile Act provides that every person of 18
years or older, and every person under the age of 18 years who legally has the status of a major, is
competent to acquire a domicile of choice.39 A minor (that is, a person below the age of 18 years)40
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.41 Since a minor may not enter into a civil union,
he or she cannot acquire the status of a major by concluding a civil union.42 The Domicile Act
further requires that in order to acquire a domicile of choice, that person must have the mental
capacity to make a rational choice.43
Before the commencement of the Domicile Act on 1 August 1992, a married woman took her
husband’s domicile when they married, and followed it for the duration of the marriage,
irrespective of whether she was present at the particular place, or whether she had the intention of
residing there permanently (this was called the ‘unity principle’).44 Section 1(1) of the Domicile
Act abolished this principle by providing that as far as the acquisition of domicile of choice is
concerned, there may be no discrimination based on sex or marital status. Married women are thus
now capable of acquiring a domicile of choice.
The Domicile Act provides that a domicile of choice is acquired by a person who is lawfully
present at a particular place (known as the factum requirement at common law) with the intention
of settling there for an indefinite period (known as the animus requirement at common law).45
Figure 6.4 The requirements for domicile of choice
The first requirement for the acquisition of a domicile of choice is lawful presence. From this it
follows that prohibited immigrants cannot acquire a domicile of choice in South Africa while their
presence is unlawful, despite having the intention of settling here permanently.46 However, it has
been held that a prohibited immigrant who is openly permitted by the authorities to reside in South
Africa could acquire a domicile of choice here.47
If a person has lived in South Africa and is later deported, that person’s domicile of choice is
terminated the moment he or she is deported as the residence then becomes unlawful.48
In order to determine whether a person’s residence meets the factum requirement, the situation
is viewed objectively. Although a specific period of physical residence is not required, a mere
visit to the particular place is not sufficient.49 Once it has been established that the person was
indeed physically present at a specific place, and that the residence was lawful, the duration of the
residence is irrelevant. However, the duration of a person’s stay could be an indication of the
person’s intention to remain at that specific place.50
PAUSE FOR
REFLECTION
Cases that illustrate the factum principle

Let us consider some examples to illustrate the relevance of the factum requirement. In Erskine
v Chinatex Oriental Trading Co,51 for example, the appellant spent 18 months in the United
Kingdom. However, this 18-month residence was for business purposes and he did not break
his ties with his country of birth during this period. It was held that he regarded South Africa as
his place of domicile and that he was never domiciled in the United Kingdom.
In Toumbis v Antoniou52 the respondent had been in South Africa for less than eight months.
However, since his return to South Africa he married a South African citizen, acquired a share
in a business in South Africa, and applied for a permanent residence permit. The court held that
the respondent had the intention to remain in South Africa and had acquired a domicile in
South Africa.
Once a domicile of choice has been established at a particular place, the person does not have to
be continuously present there.53
The second requirement for the acquisition of a domicile of choice was known as animus
manendi at common law.54 The requirement of animus manendi indicates the intention of
remaining at a particular place for an indefinite period.55
Animus manendi means the intention of remaining.
The interpretation of the requirement of animus manendi gave rise to problems prior to the
commencement of the Domicile Act.56 Initially, our courts required the intention of remaining
‘permanently’, stating that ‘… the intention necessary for acquiring a domicile of choice excludes
all contemplation of any event on the occurrence of which the residence would cease.’57
This strict test was later abolished by the Appellate Division in Ley v Ley’s Executors58 in
which it was held that only existing uncertainty in the mind of the person would exclude the
animus requirement for the acquisition of a domicile of choice. In Eilon v Eilon59 the Appellate
Division had another opportunity to define the meaning of animus manendi. It was held that
animus manendi required a ‘fixed and deliberate intention to abandon his previous domicile, and
to settle permanently in the country of choice’. The court held that the necessary intention is not
present if any certain or foreseeable future event is contemplated that would bring residence to an
end. Nor is the necessary intention present if the person has any doubt as to whether he or she will
remain or not.
Certainty came with the commencement of the Domicile Act on 1 August 1992. In terms of the
Act, animus manendi involves the intention to settle at the particular place for an indefinite period
of time.60 This definition is similar to the approach followed in the minority decision in Eilon v
Eilon.61 The definition of the animus requirement in the Domicile Act is more flexible as it
requires to a lesser extent that the intention is to live in a country permanently.62 To determine
whether a person complies with the animus requirement, a subjective test is applied.63 The test
question consists of whether the person has the intention of settling at the particular place for an
indefinite period.
In terms of common law, the requirement of freedom of will prevented certain persons from
acquiring a domicile of choice at a particular place.64 Persons whose presence at a particular place
was determined not by their own free will but by their employers or the State, could not acquire a
domicile of choice there. At common law, military staff, diplomats, public servants, employees of
foreign governments or businesses, and prisoners were considered to be incapable of acquiring a
domicile of choice at the place where they were stationed, posted or imprisoned.65
The Domicile Act contains no provision that expressly deals with the acquisition of a domicile
of choice by a person who is not free to decide where he or she wishes to reside.
COUNTER
POINT
Two alternative interpretations of this omission in the Domicile Act

• The Act contains no provision expressly excluding a person, whose presence at a particular
place is not by choice, from acquiring a domicile of choice there. It could thus be argued on
the one hand that such a person is capable of establishing a domicile of choice in terms of
section 1 of the Act just like any other person over the age of 18 who has the required
mental capacity.66
• On the other hand, it could be argued that since the Act does not expressly exclude persons
whose presence at a particular place is not by choice from acquiring a domicile of choice
there, the common law still applies in this respect.67
Like Heaton,68 we prefer the former interpretation. However, as the courts have yet to decide on
this issue, the common-law position will be set out briefly below.
It was formerly accepted that foreign military staff could not establish a domicile of choice in
South Africa as their presence here was not voluntary but was prescribed by a foreign power.69
The Appellate Division later held that soldiers could acquire a domicile of choice where they were
not stationed.70 This decision did not bring the matter any further as the court declined to rule on
the question of whether soldiers could acquire a domicile of choice where they were stationed.71
COUNTER
POINT
The case of Baker v Baker

In spite of the Appellate Division’s ruling that soldiers could acquire a domicile of choice
where they were not stationed, the Transvaal72 and Cape73 courts later interpreted the judgment
as being authority for the view that soldiers could acquire a domicile of choice where they were
stationed. Heaton correctly points out that these decisions were based on obiter dicta in Baker v
Baker.74
Obiter dicta (singular obiter dictum) is a remark in passing, not strictly relevant
to the issue at hand.
In Baker v Baker75 the plaintiff, an officer in the Indian Army, decided in 1939 to resign and
settle in South Africa. He was in England at the time of this decision. Shortly afterwards,
immediately before the Second World War broke out, he was recalled to India. When he went
on active service he sent his wife and child, with their possessions, to South Africa. The
intention was that his wife would buy a house in Cape Town. In 1943 the plaintiff spent his
leave of three weeks with his wife in Cape Town. In 1945 he again returned to Cape Town for
his leave. The court held that it had been proved that the plaintiff had acquired a domicile in the
Cape Province.
As the plaintiff was never stationed in South Africa it was not necessary for the court to
decide the question whether soldiers could acquire a domicile of choice where they were
stationed. In spite of this, the court did consider this question and held in an obiter dictum that
there was a ‘body of weighty opinion in favour of the view that a soldier or sailor’ could
establish a domicile of choice in the country where he is stationed.76
Diplomats, public servants and employees of foreign businesses were initially denied a domicile
of choice in South Africa while in the service of the foreign government or business.77 However, it
was decided in Naville v Naville78 that a foreign diplomat may acquire a domicile of choice in
South Africa while in the service of a foreign government. The same should apply to public
servants and employees of foreign businesses.79 Whether a person has indeed established a
domicile of choice at a particular place should be decided in light of the circumstances of a
particular case.80
It has been reasoned that a prisoner cannot acquire a domicile of choice at the place where he
or she is incarcerated as his or her presence there is not voluntary.81 However, it was held in Nefler
v Nefler82 that a prisoner who had been imprisoned for life automatically acquired a domicile of
choice in prison. In our view, there is no reason why prisoners cannot establish a domicile of
choice in the place where they are imprisoned, provided they decide to settle there indefinitely
after their release.83
6.4.2 Domicile by operation of law

Before the commencement of the Domicile Act, this kind of domicile was sometimes called
‘domicile of dependence’, an appropriate term because the domicile of the persons involved was
dependent upon other persons.84 The Domicile Act has moved away from domicile of dependence,
providing that persons who do not have the capacity to acquire a domicile of choice (minors and
mentally incapacitated persons) are domiciled in the place with which they are most closely
connected.85
6.4.2.1 Domicile of origin

Prior to the commencement of the Domicile Act every person automatically acquired a domicile
of origin at birth.86 A child born of married parents acquired his or her father’s domicile at the time
of the child’s birth87 whereas a child born of unmarried parents,88 or a child born after his or her
father’s death (a posthumous child),89 took his or her mother’s domicile.
Domicile of origin fulfilled two functions at common law: first, it ensured that every person
started life with a domicile which lasted until replaced by a domicile of dependence or choice and,
second, it revived when a domicile of dependence or choice was lost without a new one being
acquired.90
The Domicile Act has now drastically limited the operation of the common-law domicile of
origin. As indicated earlier, the doctrine of revival of domicile of origin was formerly followed in
South African law. Accordingly, a person’s domicile of origin revived if that person abandoned
his or her domicile of choice without acquiring a new domicile. The status of the person
concerned was determined by the law of his or her domicile of origin until he or she established a
new domicile of choice.91
The Domicile Act now provides that no one loses his or her domicile until he or she has
acquired another domicile, whether by choice or by operation of law.92 Further, the Act expressly
abolishes the doctrine of revival of domicile of origin by providing that a person’s domicile of
origin does not revive except within the meaning of section 1 or 2.93 In practical terms, the latter
provision means the following:
• a person can establish a domicile where his or her domicile of origin was if that person
acquired a domicile of choice there;94 or
• if the person did not have the capacity to acquire a domicile of choice, the law can assign a
domicile to the person at the place of the domicile of origin because the person is most closely
connected with that place.95
As mentioned above, the Domicile Act has drastically limited the operation of the common-law
domicile of origin. A person’s domicile of origin is still relevant to determine whether the person
qualifies as a child born of married parents. A person’s domicile of origin is merely the first
domicile the law assigns to the person and, accordingly, it is simply an example of domicile by
operation of law.96
6.4.2.2 Domicile of a minor

A minor is domiciled at the place with which he or she is most closely connected.98 Section 2(2)
97
of the Domicile Act contains a 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 term
‘parents’ includes a child’s adoptive parents and parents who are not married to each other.99
A minor acquires a domicile by operation of law only if he or she is unmarried.100 When the
minor attains majority, or if he or she acquires majority status by getting married, the minor
retains the domicile he or she had by operation of law until he or she establishes a domicile of
choice.101
6.4.2.3 Domicile of a mentally incapacitated person

Formerly, our courts held that mentally incapacitated persons retained the last domicile they had
when they became mentally incapacitated.102 However, some authors were of the opinion that
these persons followed the domicile of their natural or legal guardians, and only if they had no
guardians did they retain their last domicile.103
The Domicile Act has cleared up this issue. It provides that persons who do not have the
mental capacity to make a rational choice cannot acquire a domicile of choice,104 but can acquire a
domicile at the place with which they are most closely connected.105 Persons who regain their
mental capacity would probably retain the domicile which they had during their incapacity until
they acquire a new domicile of choice.106
6.5 Citizenship
6.5.1 General
It has been pointed out107 that in most continental legal systems a person’s private-law status is
determined by the law of the country of which the person is a citizen (the lex patriae).108 However,
in South African law, a person’s status in private law is generally determined by the law of the
place where the person is domiciled (the lex loci domicilii or domiciliary law).109
The concept ‘domicile’ should be distinguished from the concept ‘nationality’ (or
citizenship).110 Both these concepts are of importance when determining a person’s status.
Nationality, on the one hand, is the point of departure when a person’s status in terms of public
law must be established, whereas domicile is of importance when determining a person’s status in
terms of private law.111 As this textbook deals mainly with private law, nationality will be dealt
with only briefly.
Nationality is of little importance in private law, which generally treats citizens and non-
citizens equally. Non-citizens are also subject to the law of the land,112 and cannot plead ignorance
of the law for disobeying it. However, in the sphere of public law a person’s status as citizen or
non-citizen becomes relevant. This is reflected in the extent to which matters relating to
citizenship and nationality are included in the Constitution of the Republic of South Africa,
1996.113
6.5.2 Acquisition of South African citizenship

South African citizenship is regulated by the South African Citizenship Act 88 of 1995.
Citizenship is acquired by birth, descent or naturalisation.
6.5.2.1 Citizenship by birth

The basic principle is that a person born in South Africa on or after the commencement of the Act
on 6 October 1995 will be a citizen by birth. Anyone who was a citizen by birth immediately prior
to 6 October 1995 will remain a citizen by birth. A person who was born outside South Africa, but
who qualifies as a citizen by descent, will be regarded as a citizen by birth if one of his or her
parents (or mother in the case of a child born of unmarried parents) was at the time of his or her
birth:114
• in the service of the government; or

• the representative or employee of a person or association resident or established in South
Africa; or
• in the service of an international organisation of which the government was a member.
In some cases a person will not be a citizen by birth even though he or she was born in South
Africa on or after 6 October 1995:
• where a parent of the person was a diplomat or a career representative of another State, or
employed in a foreign embassy or career representative’s office, or a member of the household
or an employee of a foreign diplomat or career representative;115 or
• where one of the parents of the person had not, at the time of that person’s birth, been lawfully
admitted to South Africa for permanent residence.116
In both the aforementioned circumstances, the restriction on the acquisition of citizenship by birth
will not apply if the other parent was a South African citizen. Persons who fail to acquire
citizenship by birth because of these restrictions may still acquire citizenship if they are adopted
by South African citizens,117 or if they do not have the citizenship or nationality of another country
or the right to such citizenship or nationality.118
6.5.2.2 Citizenship by descent

Citizenship by descent attaches to persons born outside South Africa119 who fall into the following
three categories:120
• One parent was or is a South African citizen at the time of the person’s birth, and the birth was
registered in accordance with the Births and Deaths Registration Act.
• The person’s birth was registered within a year (or such longer period approved by the
minister) after a certificate of resumption of previous South African citizenship was issued to
his or her responsible parent, and the person entered South Africa for permanent residence
before attaining majority.
• The person is adopted by a South African citizen and the birth is registered in accordance with
the Births and Deaths Registration Act.
A person who was a citizen by descent immediately before the commencement of the Act remains
a citizen by descent.
6.5.2.3 Citizenship by naturalisation

This type of citizenship is for those who desire citizenship, but cannot acquire it by birth or
descent. A certificate of naturalisation may be granted by the Minister of Home Affairs if he or
she is satisfied that the applicant:121
• is not a minor;
• was lawfully admitted to South Africa for permanent residence;
• is ordinarily resident here, has been continuously resident here for the preceding year and has
resided here for at least four of the past eight years;
• is of good character;
• intends to continue residing here, or work for the government, an international organisation of
which the government is a member, or a person or association resident or established here;
• is able to communicate in any of the official languages to the satisfaction of the minister; and
• has adequate knowledge of the responsibilities of South African citizenship.
A minor who is permanently and lawfully resident in South Africa may, on application by the
responsible parent or guardian, be granted a certificate of naturalisation without fulfilling the
aforementioned requirements.122 The minister has a general discretion, which discretion must be
exercised under exceptional circumstances, to grant naturalisation to an applicant who does not
meet the prescribed residence requirements.123 A non-citizen does not acquire citizenship by
marrying a South African citizen. In certain circumstances, residence for two years may be
sufficient for acquiring citizenship by naturalisation without satisfaction of the other
requirements.124
A person who was a citizen by naturalisation immediately prior to the commencement of the
Act remains a citizen by naturalisation.125
6.5.3 Loss, renunciation and deprivation of South African

citizenship
According to the South African Citizenship Act citizenship is lost by a citizen who:126
• by some voluntary and formal act (other than marriage) acquires citizenship of another
country; or
• being also a citizen of another country, serves in the armed forces of that country while it is at
war with South Africa.
Loss of citizenship on these grounds can be avoided by applying to the minister for an order of
retention of citizenship.127
A citizen who has accepted the citizenship of another country, or intends to accept such
citizenship, may renounce his or her South African citizenship by making a formal declaration to
that effect.128 Minor children of the person concerned lose their citizenship too, unless the other
parent is and remains a citizen.129
The minister may deprive a citizen by naturalisation of his or her citizenship if the certificate of
naturalisation:
• was obtained by means of fraud, false representation or concealment of a material fact;130 or

• was granted contrary to the Act or other prior law.131
Any citizen who is also a citizen of another country may be deprived of South African citizenship
if:
• he or she has been sentenced to a period of imprisonment of at least 12 months for an offence
which, if it was committed outside South Africa, would also have constituted an offence in
South Africa;132 or
• the minister is satisfied that it is in the public interest to deprive such person of citizenship.133
If the responsible parent of a minor child loses, or is deprived of, his or her citizenship, the
minister may also deprive the minor of South African citizenship, provided the minor was born
outside South Africa.134 This section does not apply to the child of a parent who has renounced
citizenship. As indicated earlier, such a child automatically loses his or her South African
citizenship in terms of section 7(3) unless the other parent has, or retains, citizenship.
If a naturalised South African loses, renounces or is deprived of his or her citizenship, that
person may be removed from the country.135 Loss, renunciation or deprivation of citizenship does
not, however, result in the person being released from any obligation, duty or liability arising out
of an act performed while he or she was a citizen.136
A person who has ceased to be a South African citizen can resume such citizenship in the
following circumstances:
• where the minister withdraws an order depriving a dual citizen of his or her citizenship for
making use of the citizenship of his or her other country;137 or
• where a minor who was deprived of citizenship under section 10 of the Act makes a
declaration of resumption of citizenship, provided the minor resides in South Africa or has
returned here for permanent residence;138 or
•
where a person who lost, renounced or was deprived of citizenship applies for and is granted
permission by the minister to resume his or her citizenship.139
6.5.4 Citizenship and nationality under the Constitution

A number of provisions of the Constitution of the Republic of South Africa, 1996 deal with
citizenship and nationality.
Section 3(2), one of the founding provisions of the Constitution, provides for a ‘common South
African citizenship’ and for all citizens to be ‘equally entitled to the rights, privileges and
benefits … and … equally subject to the duties and responsibilities of citizenship’.140
Certain rights are reserved for citizens. These include political rights, such as the right to form,
participate in and campaign for political parties, the right to free, fair and regular elections, and
the right to vote and to stand for election to public office.141 Citizens also have the right to enter,
remain and reside in South Africa, and the right to a passport.142
The Constitution protects the right of citizens to choose their trade, occupation or profession
freely.143 The Constitution affords every child the right to ‘a nationality from birth’.144 Apparently,
the aim of this section is to guard against statelessness, rather than to operate as a direct means of
acquiring South African citizenship.145

1. In South African law, a person’s status in private law is generally determined by the law of the
place where the person is domiciled.
2. A person’s domicile plays a significant role in many fields of private law.
3. Domicile can be defined as 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 when that person is factually absent from that place.
4. The lex domicilii of the husband (that is, the law of the husband’s domicile) at the time of his
marriage determines what the matrimonial property system of the marriage will be. This
common-law rule may be unconstitutional.
5. In cases where somebody dies intestate (that is, without leaving a valid will), the law of
intestate succession of the place where the deceased person was domiciled at his or her death
will determine how the movable property of the deceased devolves. Where immovable
property is concerned, the law of the place where the property is situated (the lex rei sitae) will
determine how the property devolves.
6. The law of the domicile of the testator at the time of executing a will determines whether the
testator has the capacity to dispose of his or her movable property by means of that will,
whether someone has the capacity to inherit, and whether the formalities for the execution of a
valid will have been complied with. Domicile further determines which legal system will
govern the interpretation of a will. In the absence of clear instructions by the testator
indicating a specific system of law, the law of the testator’s domicile at the time of execution
of the will prevails.
7. In general, the plaintiff must sue the defendant in the court having jurisdiction in the area
where the defendant is domiciled or resident. Matters involving a person’s status must, in
general, be heard by the court having jurisdiction in the area where the person concerned is
domiciled.
8.
In terms of the Divorce Act a court has jurisdiction in a divorce action if the parties, or either
of them, are domiciled in the court’s area of jurisdiction on the date that the action is
instituted, or is ordinarily resident in the court’s area of jurisdiction on that date, and has been
ordinarily resident in South Africa for at least a year immediately prior to that date.
9. A domicile of choice is the domicile a person with capacity to act has chosen for himself or
herself by the exercise of his or her free will. The Domicile Act provides that every person
who is 18 years or older, and every person under the age of 18 years who legally has the status
of a major, is competent to acquire a domicile of choice.
10. The Domicile Act provides that a domicile of choice is acquired by a person who is lawfully
present at a particular place (known as the factum requirement at common law) with the
intention of settling there for an indefinite period (known as the animus requirement at
common law).
11. The Domicile Act now provides that no one loses his or her domicile until he or she has
acquired another domicile, whether by choice or by operation of law.
12. A minor is domiciled at the place with which he or she is most closely connected. The
Domicile Act contains a 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.
13. Persons who do not have the mental capacity to make a rational choice cannot acquire a
domicile of choice but acquire a domicile at the place with which they are most closely
connected.
14. The concept ‘domicile’ should be distinguished from the concept ‘nationality’ (or citizenship).
Nationality, on the one hand, is the point of departure when a person’s status in terms of
public law must be established, whereas domicile is of importance when determining a
person’s status in terms of private law.
15. South African citizenship is regulated by the South African Citizenship Act. Citizenship is
acquired by birth, descent or naturalisation.
1 Heaton The South African Law of Persons 3 ed (2008) 41; Van der Vyver & Joubert Persone- en Familiereg
3 ed (1991) 83-84. Citizenship will be dealt with below (see 6.5 below).
2 Heaton 41; Du Bois (ed) Wille’s Principles of South African Law 9 ed (2007) 153.
3 Now known as the South African Law Reform Commission.
4 Project 60 Domicile.
5 Clark ‘Domicile’ in Van Heerden et al. (eds) Boberg’s Law of Persons and the Family 2 ed (1999) 90.
6 S 8(2).
7 Kahn The South African Law of Domicile of Natural Persons (1972) 4-5.
8 Clark in Van Heerden et al. (eds) 91; Wille’s Principles 152.
9 Bisonboard Ltd v K Braun Woodworking Machinery (Pty) Ltd 1991 (1) SA 482 (A) 500E. See also Clark in
Van Heerden et al. (eds) 91.
10 Heaton 41.
11 Kahn 2; Van der Vyver & Joubert 84.
12 Ibid (see 6.4.1.2 below).
13 This is also known as the lex domicilii matrimonii, the law of the matrimonial domicile or the matrimonial
domiciliary law (see Forsyth Private International Law 3 ed (1996) 260; Schoeman ‘The South African
conflict rule for proprietary consequences of marriage: learning from the German experience’ 2004 TSAR
116.
14 Frankel’s Estate v The Master 1950 (1) SA 220 (A).
15 Sperling v Sperling 1975 (3) SA 707 (A) 716H.
16 1950 (1) SA 220 (A).
17 Clark in Van Heerden et al. (eds) 91-92.
18 Frankel’s Estate v The Master 1950 (1) SA 220 (A).

19 For criticism of the rule, see Forsyth 259 fn. 126; Heaton & Schoeman ‘Foreign marriages and section 7(3) of
the Divorce Act 70 of 1979 – Esterhuizen v Esterhuizen 1999 (1) SA 492 (C)’ 2000 THRHR 146; Schoeman
2004 TSAR 117-118, 140.
20 Civil Union Act 17 of 2006 s 13(2).
21 See the minority judgment in Fourie v Minister of Home Affairs 2005 (3) BCLR 241 (SCA); 2005 (3) SA
429 (SCA) paras [124]-[125]. Also see Heaton 42.
22 Constitution of the Republic of South Africa, 1996 s 9.
23 Heaton 42.
24 Estate Baker v Estate Baker (1908) 25 SC 234.
25 Adapted from Clark in Van Heerden et al. (eds) 92-93.
26 Intestate Succession Act 81 of 1987 s (1)(1)(c).
27 In the case of immovable property, the determining factor is the law of the place where the immovable
property is situated (Kahn 1956 ‘Choice of law in succession in the South African conflict of laws’ SALJ
313).
28 Kahn 312-313.
30 Davel & Jordaan Law of Persons 4 ed (2005) 36-37; Heaton 42.
31 Ex parte Kaiser 1902 TH 165. An exception to this rule is found in s 2(1)(b) of the Divorce Act 70 of 1979.
32 Clark in Van Heerden et al. (eds) 93; Davel & Jordaan 37.
33 See 6.4.1.1 below.
35 Clark in Van Heerden et al. (eds) 94; Davel & Jordaan 38.
36 Domicile Act s 1.
37 S 2.
38 Heaton 44.
39 S 1(1).
40 Children’s Act 38 of 2005 s 17.
41 See also ch 8 below on a minor’s capacity to marry.
42 Civil Union Act 17 of 2006 s 1. See further 8.3.2.4 below.
43 S 1(1).
44 Clark in Van Heerden et al. (eds) 99; Davel & Jordaan 39-40; Schoeman ‘The abolition of the wife’s
domicile of dependency: a lesson from history’ 1995 THRHR 488.
45 S 1(2).
46 Smith v Smith 1962 (3) SA 930 (FC). See also Van der Vyver & Joubert 109.
47 Van Rensburg v Ballinger 1950 (4) SA 427 (T).
48 Ex parte Macleod 1946 CPD 312; Drakensbergpers Bpk v Sharpe 1963 (4) SA 615 (N).
49 Chinatex Oriental Trading Co v Erskine 1998 (4) SA 1087 (C).
50 Cook v Cook 1939 CPD 314; Erskine v Chinatex Oriental Trading Co 2001 (1) SA 817 (C).
51 2001 (1) SA 817 (C).
52 1999 (1) SA 636 (W).
54 Clark in Van Heerden et al. (eds) 102.
55 Domicile Act s 1(2).
56 For a historical overview of the animus requirement, see Schoeman ‘Domicile of choice and animus: How
definite is indefinite?’ 1999 THRHR 272-284; Van der Vyver & Joubert 101-105.
57 Johnson v Johnson 1931 AD 391 398-399, adopting the test formulated by Lord MacNaghten in Winans v
Attorney-General [1904] AC 287 292.
58 1951 (3) SA 186 (A).
59 1965 (1) SA 703 (A) 721.
60 Curiously, no reference was made to the Domicile Act in Sukovs v Van der Walt [1998] 3 All SA 664 (O),
and the strict common-law test for animus manendi was followed. One can come to no other conclusion than
that Wright J was unaware of the Act.
61 1965 (1) SA 703 (A) 709.
62 Clark in Van Heerden et al. (eds) 102-103; Davel & Jordaan 43; South African Law Commission Domicile
Working Paper 20 Project 60 (1987) para 3.43.
64 Ex parte Quintrell 1922 TPD 14 15 18.
65 Clark in Van Heerden et al. (eds) 103; Heaton 47.
66 Davel ‘Wet op Domisilie 3 van 1993’ De Jure 403; Forsyth 127; Davel & Jordaan 46 48.
67 Heaton 47.
68 Heaton 47.
69 McMillan v McMillan 1943 TPD 345.
70 Baker v Baker 1945 AD 708.
72 Moore v Moore 1945 TPD 407; Ex parte Glass et Uxor 1948 (4) SA 379 (W).
73 Nicol v Nicol 1948 (2) SA 613 (C); Ex parte Readings 1958 (4) SA 432 (C).
74 Heaton 47.
75 1945 AD 708.
76 Baker v Baker 1945 AD 708, 714.
77 Ibid.
78 1957 (1) SA 280 (C).
79 Heaton 48.
81 Kahn 53.
82 1906 ORC 7. For criticism of this decision, see Van der Vyver & Joubert 105.
83 Clark in Van Heerden et al. (eds) 103; Davel & Jordaan 47; Van der Vyver & Joubert 105.
84 Davel & Jordaan 43; Van der Vyver & Joubert 94 (they use the Afrikaans term ‘gedetermineerde domisilie’).
85 Ss 1(1) & 2.
86 Ex parte Donelly 1915 WLD 29; Hutchison’s Executor v The Master (Natal) 1919 AD 71.
87 Govu v Stuart (1903) 24 NLR 440 442.
88 Ibid 441.
90 Ex parte Donelly 1915 WLD 29. See also Clark in Van Heerden et al. (eds) 97.
91 Ex parte Donelly 1915 WLD 29; Hutchison’s Executor v The Master (Natal) 1919 AD 71; Grindal v Grindal
1997 (4) SA 137 (C).
92 S 3(1).
93 S 3(2).
94 In terms of s 1 of the Act.
95 In terms of s 2 of the Act.
96 Davel 1993 De Jure 405.
97 An (unmarried) person below the age of 18 (Children’s Act s 17) (see 6.4.1.1 above).
99 S 2(3).
100 See 6.4.1.1 above.
102 Henning’s Executor v The Master (1885) 3 SC 235.
103 Clark in Van Heerden et al. (eds) 100; Kahn 98-99.
104 S 1(1).
105 S 2(1).
107 See 6.1 above.
108 Heaton 41; Van der Vyver & Joubert 83-84.
109 Heaton 41; Wille’s Principles 153.
110 The terms ‘nationality’ and ‘citizenship’ are often used as synonyms. However, Clark points out that these
terms have different connotations (Clark in Van Heerden et al. (eds) 79).
112 With the exception of the immunity enjoyed by foreign diplomats and similar officials from the civil and
criminal jurisdiction of South African courts (Diplomatic Immunities and Privileges Act 74 of 1989).
114 S 2 of the Act.
115 S 2(2)(a).
116 S 2(2)(b).
117 S 2(4)(a).
118 Provided that the birth is registered in accordance with the Births and Deaths Registration Act 51 of 1992 (s 2
(4)(b) of the South African Citizenship Act).
119 It is immaterial whether they were born before or after the commencement of the Act.
120 S 3(1)(b).
121 S 5(1).
122 S 5(4).
123 S 5(9).
124 S 5(5).
125 S 4(1)(a).
126 S 6(1).
127 S 6(2).
128 S 7(1).
129 S 7(3).
130 S 8(1)(a).
131 S 8(1)(b).
132 S 8(2)(a).
133 S 8(2)(b).
134 S 10.
135 In terms of s 11, such person is regarded as an alien who is not in possession of the permits necessary under
the Aliens Control Act 96 of 1991 for entering, residing and remaining in South Africa. The Aliens Control
Act, in turn, provides for the removal from South Africa of persons who are here without the relevant permit
(s 27).
136 S 12.
137 S 13(1).
138 S 13(2).
139 S 13(3).
140 The provision was necessitated by the fact that prior to the first democratic elections in South Africa in 1994,
black South Africans were subject to a citizenship regime different from that governing the other population
groups. See in general Clark in Van Heerden et al. (eds) 80 fn. 11.
141 S 19 of the Constitution.
142 S 21.
143 S 22.
144 S 28(1)(a).
Chapter 7
Birth and adoption

7.1 Birth and adoption
7.2 Children born of unmarried parents

7.2.1 Introduction
7.2.2 Artificial fertilisation
7.2.3| Surrogacy
7.2.3.2 Forms of surrogacy
7.2.3.3 The surrogacy agreement
7.2.3.4 The relationship between the child, the commissioning parent(s)
and the surrogate mother
7.2.3.5 Termination of the surrogacy agreement
7.2.4 Proof of parentage
7.2.4.2 Presumptions of paternity
7.2.4.3 Relevant factors in paternity disputes
7.2.4.4 Scientific paternity testing
7.2.5 Legal relationship between a child and his or her unmarried parents
7.2.5.1 Parental responsibilities and rights in respect of the child
7.2.5.1.1 Introduction
7.2.5.1.2 Parental responsibilities and rights of a mother
7.2.5.1.3 Parental responsibilities and rights of a father
7.2.5.1.4 Maintenance
7.2.5.1.5 Termination of parental responsibilities and rights
7.2.5.2 Succession rights
7.3 Adoption
7.3.1 Conditions under which paternal consent is required for adoption
7.3.2 Conditions under which paternal consent is not necessary for adoption
7.3.3 Legal effects of adoption
7.1 Birth and adoption
In this chapter we will discuss two aspects that influence the status of a person. The first of these
is birth, specifically: birth to parents who are not married or partners in a civil union; birth by way
of artificial insemination; and/or surrogacy. The second is adoption. Although neither of these
aspects influence the general status of a person within the community, they do affect the legal
rights and duties between the person and members of his or her family.1
7.2 Children born of unmarried parents 2
7.2.1 Introduction
There are differing legal views on whether the law continues to distinguish between children born
of married parents and those of unmarried parents. Clearly there are differences in the status of the
parents, but does this affect the children? Boezaart3 argues that the South African private law has
reached the stage where birth out of wedlock can no longer be identified as a factor that affects the
status of children. Heaton4 points out that the law still does not treat married and unmarried
parents in the same way, although the law no longer labels the children. In our view, for as long as
a difference is made in law between the responsibilities and rights of married parents and those of
unmarried parents, the status of the child remains affected to some extent. Although the instances
of differentiation between these two groups have considerably lessened, some differences still
exist.5 Because of these differences it is necessary to make a distinction between children born of
married parents and children born of unmarried parents.
Children are regarded as children born of married parents where the biological parents of the
child were married to each other (or were partners in a civil union) at the time of conception or
birth of the child or at any stage in between these dates.6 In this category are also included children
whose parents subsequently married each other – irrespective of whether they could have married
each other at the time of conception or birth of the child,7 as well as children born of a putative or
voidable marriage.8 An adopted child is regarded as the child of the adoptive parents.9 If the
adoptive parents are married, or in a civil union, the child would be regarded as the child of
married parents. If the adoptive parent is single, the child will be regarded as a child of unmarried
parents and only the adoptive parent has parental responsibilities and rights towards that child.
A putative marriage is a void marriage in which one or both of the parties are, in
good faith, unaware of the defect rendering the marriage void.
A voidable marriage is a valid marriage in which there were circumstances

existing at the time of the marriage that allow one of the parties to have the
marriage annulled in court.
As the marital status of the parents is of importance, it is essential to determine who the parents
of the child are.10 In most instances the determination of the biological parents is not problematic
or controversial. Two problem areas do however exist, namely artificial fertilisation and
surrogacy, where the biological parents are not necessarily the legal parents.
7.2.2 Artificial fertilisation
Artificial fertilisation is defined in the Children’s Act to mean the introduction, by means other
than natural means, of a male gamete11 into the internal reproductive organs of a female person for
the purpose of human reproduction. This can include the bringing together of a male and female
gamete outside the human body with a view to placing the product of a union of such gametes in
the womb of a female person.12
The rules relating to the status of a child born as a result of artificial fertilisation are specific:
• Where a child is born of a married woman with the gametes of her husband,13 the child is
regarded as having been born of married parents.14
• Where the married woman is impregnated with the gametes of a third party donor, with the
consent of her spouse or partner, the child will also be regarded as having been born of
married parents.15
• A child born of a single woman with the use of artificial fertilisation is regarded as a child
born of unmarried parents.16
Table 7.1 The status of various classes of children born as a result of artificial fertilisation
Child born of … Method of reproduction Status of child

Married woman Gametes of her husband Child regarded as child born of
married parents
Married woman Gametes of third party donor Child regarded as child born of
with the consent of her spouse married parents
or partner
Single woman Artificial fertilisation Child regarded as child born of
unmarried parents
No right, responsibility, duty or obligation arises between a child born of a woman as a result of
artificial fertilisation and the person whose gametes were used for the artificial fertilisation.17 The
exception to this is where that donor is also the woman who gave birth to that child, or the
husband or civil union partner of such woman at the time of such artificial fertilisation.18
Heaton highlights an anomaly created by section 40 of the Children’s Act in light of the
Constitutional Court decision of J v Director General, Department of Home Affairs.19 In the
judgment the court found that the now repealed20 section 5 of the Children’s Status Act 82 of 1987
was unconstitutional and amended it to provide for a child born as a result of artificial fertilisation
to a same-sex life partner to be regarded as a child born of married parents. However, the
Children’s Act re-enacted the same provision in its pre-J format.
Subsequent to the judgment, the Civil Union Act 17 of 2006 was enacted that made provision
for the legalisation of inter alia same-sex civil unions. Where a same-sex couple enters into a civil
union and a child is born to one of them as a result of artificial fertilisation, the child will be
regarded as a child born of married parents if there was agreement about the procedure.21 In terms
of the Children’s Act a child born as a result of artificial fertilisation of a partner in a same-sex
cohabitation relationship is regarded as a child born of unmarried parents, which is contrary to the
decision in J. However, it is submitted that in light of the fact that same-sex couples now have a
choice in terms of the Civil Union Act to formalise their relationship, the position of same-sex
couples who choose not to enter into a civil union should legally be the same as the position of
heterosexual couples choosing not to get married: in other words, children born from all life
partners, regardless of whether it is a heterosexual or same-sex couple, are regarded in the same
light, namely as children born of unmarried parents.
PAUSE FOR
REFLECTION
Artificial fertilisation
Sam is born as a result of artificial fertilisation with donor gametes. His birth mother, Ann, is
married to Dan. If Dan consented to the artificial fertilisation, Sam is regarded as a child born
of married parents even though he is not genetically related to them. However, if Dan does not
consent to the artificial fertilisation, Sam will be regarded as a child born of unmarried parents.
• Compare the above with the situation in which Sam’s birth mother is a partner in a civil
union with Mia. If Mia agreed to the artificial fertilisation with donor gametes, Sam will be
regarded as a child born of married parents, but if she did not, he will be regarded as a child
born of unmarried parents.
• Compare the above with the situation where Sam’s birth mother is unmarried but
cohabiting with her life-partner, John. Regardless of whether the partner consents to the
artificial fertilisation, Sam will be regarded as a child born of unmarried parents.
• Compare the above with the situation where Sam’s birth mother is unmarried but
cohabiting with her same-sex life partner, Rose. Regardless of whether the partner consents
to the artificial fertilisation, Sam is, in terms of the Children’s Act, regarded as a child of
unmarried parents. This is different from the outcome of the Constitutional Court decision
in J.
7.2.3 Surrogacy
The Children’s Act contains a chapter on surrogate motherhood.22 These sections focus on the new
provisions set out in the Act. Apart from the provisions in the Children’s Act, regard must also be
had to the Constitution, specifically, the right to parental care23 and the fact that the best interests
of the child are of paramount importance in all matters relating to the child.24 What would be in
the best interests of the child would depend on the facts of each matter as interpreted in light of
the Children’s Act25 and judicial precedent.
7.2.3.2 Forms of surrogacy

Surrogacy, through artificial fertilisation, generally comes in two forms: first, traditional or partial
surrogacy, where the surrogate mother’s own gamete is used for fertilisation and she is
simultaneously the genetic, gestating and birth mother of the child; and, second, gestational or full
surrogacy where the pregnancy is a result of foreign gametes. In this case the surrogate mother is
not genetically related to the child although she is the gestational and birth mother.26
Figure 7.1 The two forms of surrogacy
7.2.3.3 The surrogacy agreement

The issue of surrogacy becomes especially problematic legally when the surrogacy arrangement
does not proceed according to plan, that is, where the birth mother refuses to hand the child over
to the commissioning parents after birth, according to the agreement. The main question is
whether the surrogacy agreement should be enforceable by the court according to contractual
principles of specific performance and claims for damages, or whether the contract should be
unenforceable for public policy reasons. It should be emphasised that enforceability of the
contract implies that the child is removed from his or her birth mother and handed to the
commissioning parents who may or may not be his or her biological parents. The crux of a
surrogacy arrangement is thus the issue of parenthood.
The basis of the regulation of surrogacy in Chapter 19 of the Children’s Act is a prescribed
surrogate motherhood agreement that must be confirmed by the High Court prior to the
commencement of the procedure.
Commercial surrogacy, that is, surrogacy for profit, is prohibited by the Act.27 The surrogate
mother may not use surrogacy as a source of income and she may enter into the agreement only
for altruistic or selfless reasons and not for commercial purposes.28 Some compensation in cash or
kind relating to a lawful surrogacy agreement is allowed and enforceable, but this is limited to the
compensation provided for in the Act, and must be contained in the agreement itself.29
The Act allows for the following compensation: first, the expenses that relate directly to the
artificial fertilisation and the pregnancy itself, the birth of the child and the confirmation of the
surrogate motherhood agreement;30 second, any loss of earnings suffered by the surrogate mother
as a result of the agreement;31 and third, insurance to cover the surrogate mother for anything that
may lead to her death or disability brought about by the pregnancy.32 Apart from the above, no
person may give or promise to give to any person, or receive from any person a reward or
compensation in cash or kind.33 Any compensation or promise to compensate, in contravention of
this provision, amounts to a criminal offence.34
One of the key features of the provisions is that for a surrogacy arrangement to fall within the
parameters of the Act, the child must be genetically related to both the commissioning parents,
except where for biological, medical or other valid reasons this is not possible. In such a case, the
gametes of at least one of the commissioning parents must be used,35 so that there is always a
genetic link between the child born through a surrogate mother and the commissioning parents.
Where the commissioning parent is a single person, the use of the gamete of that person is
obligatory.36 There is no prohibition on the use of the gamete of the surrogate mother (as long as
the male gamete used is that of the commissioning husband), thus making both partial (traditional)
surrogacy and full (gestational) surrogacy a legal possibility.37
The Act is formulated in such a manner that a single parent as well as spouses, civil union
couples and cohabitees, be they heterosexual or same-sex, all qualify as commissioning parents as
long as one or both of the parties can provide the requisite gametes.38
Where the commissioning parent or the surrogate mother is married or in a permanent
relationship, the other spouse or partner must give written consent to the agreement and must
become a party to the agreement.39 The court may, however, confirm the agreement where the
husband or partner of a surrogate mother, who is not the genetic parent of the child, unreasonably
withholds consent.40
For the court to confirm a surrogate motherhood agreement, several requirements relating to
the parties must be met regarding infertility, competency, suitability, understanding and the
reasons for entering into the agreement: First, the commissioning parent(s) must be unable to give
birth to a child and the condition must be permanent and irreversible.41 Surrogacy must be the sole
manner in which a couple can give birth to a child that is biologically related to at least one of
them. Second, the commissioning parent(s) and the surrogate mother must be competent to enter
into the agreement.42 Third, the commissioning parent(s) must be suitable persons to accept
parenthood43 and the surrogate mother must be suitable to act as the surrogate mother.44 Fourth, the
commissioning parent(s) and the surrogate mother must understand and accept the legal
consequences of the agreement, the Act as well as their rights and obligations in terms thereof.45
Fifth, the surrogate mother may not use the surrogacy as a source of income, but must enter into it
for altruistic reasons.46 The surrogate mother must have a documented history of at least one
pregnancy and viable delivery and a living child of her own.47 This requirement is linked to the
surrogate mother’s understanding and experience of pregnancy and childbirth and to ensure that
the surrogate mother, as a woman, is aware of the degree of care required when being pregnant. It
would be more unlikely for the surrogate mother to change her mind about the child after birth
where she is also the biological parent.48
The Act provides detailed provisions for a valid agreement. These provisions deal not only
with the requirements for the various sets of parents and the child as set out above, but also with
the agreement itself. The agreement is valid only if it is entered into in the Republic, is in writing,
and signed by all the parties.49 The court may not confirm the agreement unless it includes
adequate provisions for the contact, care, upbringing and general welfare of the child. It must
confirm that the child is to be born into a stable home environment. Moreover, the agreement must
include provisions on the child’s position in the event of the death of the commissioning parents
or one of them, or their divorce or separation before the birth of the child.50
The agreement must be confirmed by the High Court.51 There is a duty by the High Court not to
confirm the agreement where the requirements of the Act have not been met. The High Court
must, before confirmation, have regard to the personal circumstances and family situations of all
the parties concerned and above all the interests of the child.52 This requirement is a confirmation
of the duties of the High Court as upper guardian of all minor children as well as its constitutional
duties in terms of section 28(2) of the Constitution.
The artificial fertilisation of the surrogate mother may take place only after confirmation by the
court of the agreement, but before the lapse of 18 months from the date of confirmation.53 It is
prohibited for a person to artificially fertilise a woman in the execution of a surrogate motherhood
agreement or render assistance in such artificial fertilisation, unless that artificial fertilisation is
authorised by a court.54 Contravention of this section is a criminal offence.55
7.2.3.4 The relationship between the child, the commissioning parent(s) and
the surrogate mother
The effect of a valid surrogate motherhood agreement is that any child born of a surrogate mother
in accordance with the agreement is for all purposes the child of the commissioning parent(s) from
the moment of the birth.56 The surrogate mother is obliged to hand the child over to the
commissioning parent(s) as soon as is reasonably possible after the birth.57 Neither the surrogate
mother nor her husband, partner, or relatives have the right to parenthood or care of the child.58
Further, neither the surrogate mother nor her husband, partner or relatives have the right to contact
with the child unless provided for in the agreement between the parties.59 The child will have no
claim for maintenance or of succession against the surrogate mother or her husband, partner or
any of their relatives.60 These consequences follow regardless of who provided the genetic
material for the child.
Where the agreement does not comply with the Act it is invalid and any child born in execution
of such an (invalid) arrangement would be deemed to be the child of the woman who gave birth to
it, namely the surrogate mother.61
7.2.3.5 Termination of the surrogacy agreement

The agreement may not be terminated after the artificial fertilisation of the surrogate mother
except as provided for in the Act.62 The Act makes provision for the termination of the agreement
in limited instances. The surrogate mother, who is also a genetic parent of the child, may
terminate the surrogate motherhood agreement by filing written notice with the court within sixty
days after the birth of the child.63 This termination is possible only where the surrogate mother
provided the genetic material for the child. Where the surrogate (genetic) mother chooses to
terminate the agreement, the court must confirm the termination of the agreement.64 The court may
issue any other appropriate order in the best interest of the child.65 Such an order could
theoretically include an order affording rights to the commissioning parents where the child is
genetically related to one of them, presumably the commissioning father.66
PAUSE FOR
REFLECTION
Termination of the surrogacy agreement after artificial fertilisation

Compare the legal situation of a surrogate mother, who is also the gamete donor, to a surrogate
mother who is not genetically related to the child. In the first instance, she has the right to
terminate the agreement up to sixty days after the birth of the child. In the latter instance, this
right does not exist. She may, however, terminate the pregnancy in terms of the Choice on
Termination of Pregnancy Act 92 of 1996.
The effect of the termination of the agreement, before or after the child is born, in terms of section
298, is that parental rights vest in the surrogate mother and her husband or partner. If she is single,
the parental rights vest in the surrogate mother and the commissioning father.67 The surrogate
mother and her husband or partner, if any, or if none, the commissioning father, are obliged to
accept the obligation of parenthood.68 In this scenario the commissioning parents have no rights of
parenthood and the child has no claim for maintenance or of succession against the
commissioning parents or any of their relatives69 unless the parental rights vest in the
commissioning father as set out above, or unless the child is adopted.70 The implication hereof is
that the commissioning father (where the surrogate mother has no husband or partner) would be
liable for maintenance of a child by a woman who is not his wife or partner.
A surrogate motherhood agreement can also be terminated by a termination of the pregnancy
carried out in terms of the Choice on Termination of Pregnancy Act 92 of 1996.71 The decision to
terminate the pregnancy lies with the surrogate mother, but she must inform the commissioning
parents of her decision and consult with them before the termination is carried out.72 It should be
noted that they do not have to consent to the termination of the pregnancy. They merely have to be
consulted.73
If the surrogacy is not performed in terms of the Children’s Act, it would be unlawful and the
surrogate mother would be regarded as the legal parent of the child with her husband or partner,
unless she is single. In this instance the commissioning father would legally be regarded as the
father of the child.
Although there is no statutory register of information regarding surrogacy procedures, a child
born as a result of artificial fertilisation or surrogacy, or the guardian of such child, is entitled to
have access to any medical information concerning that child’s genetic parents and any other
information concerning that child’s genetic parents but not before the child reaches the age of 18
years.74 However, this information may not reveal the identity of the person whose genetic
material was used for such artificial fertilisation, or the identity of the surrogate mother.75
COUNTER
POINT
The practice of surrogacy is controversial76

Some jurisdictions such as Germany, France and Norway regard surrogacy as illegal, unlawful
and unethical,77 while others such as the United Kingdom accept the possibility.78 The
controversy arises from the fact that surrogacy is a radical departure from the way society
understands and values motherhood:
… it allows … parenthood to be fragmented, creating … relationships among people bound together
by contractual obligation rather than by … kinship … and alters deep-rooted social and moral
assumptions about the relationship between parents and child.79
Moreover, it challenges the age-old legal rules relating to motherhood by combining it with
contractual issues. Furthermore, in South Africa, it incorporates constitutional issues that
require a balance of the rights of the child with the rights of the various sets of parents.
The arguments for and against surrogacy have been succinctly summarised by Herring.80 He
explains the arguments against surrogacy as follows:81
• Commercial surrogacy arrangements treat children as possessions that can be bought and sold.
• Surrogacy has the potential to harm a child psychologically as such children could be confused
as to their identity and even feel rejected.82 Furthermore, it is undesirable for a child to be born
in circumstances that are likely to result in a dispute between adults, which may well harm the
child.
•
Concerns have been expressed that the child might be rejected by both the gestational mother
and commissioning parents after birth, especially if the child is born disabled.
• Surrogacy can be seen as being demeaning and exploitative towards women because they are
used as little more than walking incubators.83 Moreover, concerns have been expressed
especially about poorer women who might be forced to offer themselves as surrogate mothers
because of poverty.84
• It has been argued that some areas of life are too intimate to be the subject of a contract and
any decision to give up a child is such a complex one that it cannot validly be made until after
the birth of the child and that pre-birth consent should be regarded as non-informed consent.85
• Another argument against surrogacy is that it does not challenge the attitude of society
towards infertility which means that resources are not directed towards the discovery of the
causes of infertility.
• Added hereto, some negative public attitudes still exist with ethical and religious doubts
having been expressed,86 especially by some churches. In this regard the Roman Catholic
Church specifically regards surrogacy as analogous to adultery because it brings a third party
into the marriage.87
The arguments in favour of surrogacy, highlighted by Herring,88 are the following:
• Surrogacy is an aspect of a woman’s procreation freedom and a woman should be allowed to

do with her body as she wishes.89
• Surrogacy gives the opportunity to a man to conceive his own genetic child where his wife or
partner is unable to conceive and is as such more appropriate than other forms of infertility
treatment. Schultz puts it as follows: ‘…surrogacy enhances the individual freedom, fulfilment
and responsibility of the commissioning parents’.90
• The practice of surrogacy is inevitable with its history dating back to biblical times and is thus
best regulated by law. To prohibit surrogacy would only create an unregulated black market.
• Surrogacy, for altruistic reasons, should not only be tolerated but even admired.91
• Added to the arguments by Herring, is the possibility that surrogacy encourages a wide variety
of family forms especially for gay partners who cannot together conceive a child.
The South African constitutional protection of these families has been confirmed by several
Constitutional Court judgments, most notably in Minister of Home Affairs v Fourie:92
… South Africa has a multitude of family formations that are evolving rapidly as our society
develops, so that it is inappropriate to entrench any particular form as the only socially and
legally acceptable one.
7.2.4 Proof of parentage
Determining who the legal parents of a child are, is, in general, dependent on knowledge about
whose biological material (gametes) resulted in the conception of the child.93 As the birth mother
is mostly also the biological mother,94 the issue of disputed parenthood in the courts deals mostly
with disputed fatherhood.
7.2.4.2 Presumptions of paternity
Fatherhood was traditionally more difficult to determine with certainty. In terms of the common
law, two presumptions have been created to assist with the determination of fatherhood. The first
presumption, dealing with a married woman, is conveyed by the Latin maxim pater est quem
nuptiae demonstrant95 (the father is determined by the marriage). Where a child is conceived or
born to a woman who is married (or a partner in a heterosexual96 civil union), the spouse or civil
union partner is presumed to be the father of the child and the child is regarded as being a child of
married parents. The presumption is rebuttable and the husband or civil union partner may bring
evidence, on a balance of probabilities,97 that he is not the father of the child, resulting in the child
being a child of unmarried parents.98 Our courts are hesitant to declare a child, born or conceived
during a marriage, to be of unmarried parents.99
Difficulty arises where the child was conceived while the mother was married to one man, but
divorced him and married another before the child was born. The question arises of who would be
regarded as the legal father of the child as, in terms of the presumption, both men would qualify.
Modern writers seem to be of the opinion that it would be the second (new) husband.100
The second rebuttable presumption regarding paternity deals with a child who is born to a
woman who is unmarried and not a partner in a civil union.101 Section 36102 of the Children’s Act
provides that when it is necessary to prove paternity and it is proved that the person had sexual
intercourse with the mother of the child at any time when that child could have been conceived,
that person is, in the absence of evidence to the contrary that raises a reasonable doubt, presumed
to be the biological father of the child. The use of the term ‘reasonable doubt’ by the legislature is
unfortunate as the usual burden of proof in civil matters is proof on a balance of probabilities.103
Heaton argues that this discrepancy in the burden of proof between the two presumptions is
unconstitutional.104
7.2.4.3 Relevant factors in paternity disputes

Various factors have crystallised into being relevant in paternity disputes:
• sterility;105
• inability or absence of sexual intercourse during the time of conception;106
• the gestation period – especially in light of modern medical advances regarding the
determining of the date of conception;107
• the physical features of the child;108 and
• the medical testing of blood or DNA.
For the sake of completeness it should be mentioned that the use of contraceptives during
intercourse is not legally recognised as a relevant factor during a paternity dispute,109 neither is the
fact that the woman had more than one sexual partner at the time of conception. Modern writers
seem to be in agreement that the common-law defence of exceptio plurium concubentium110 is no
longer part of the South African law.111 This is problematic in light of the fact that it seems as if
the mother can ‘choose’ who the father of the child is in a case in which she had intercourse with
more than one man at the time of conception. The courts have found that her choice is
‘presumably irrevocable’.112 To give such a ‘choice’ to one parent is unsatisfactory – especially
since it can be established medically, with a high degree of certainty, who the biological father of
the child is. It has been argued that this ‘right to choose’ is unconstitutional as it infringes the
equality rights of the father. In addition, it could also be in contravention of the best interests of
the child principle as well as the right of the child to parental care and as such the law should be
reconsidered.113
Exceptio plurium concubentium is the defence of multiple lovers.
7.2.4.4 Scientific paternity testing

The issue of scientific medical testing to determine paternity has not yet been finally settled in
South African law. There are three types of medical tests that have been used in paternity disputes
that have assisted the court in determining paternity: one, a red blood cell test that could at most
exclude paternity; two, the HLA tissue type testing that was used to prove paternity to a much
more certain degree; and three, the more definitive DNA testing.114
Where the parties voluntarily agree to submit to scientific tests there is no problem as the
courts accept the results of these tests.115 Legal acceptance of these tests is also evident from the
Maintenance Act 99 of 1998 which makes provision for orders relating to scientific tests regarding
paternity.116 In LB v YD117 the court confirmed that judicial notice may be taken of the existence of
these tests and that it was unnecessary for medical evidence to be adduced regarding their nature
and accuracy before an order could be granted subjecting the parties to the tests – with the caveat
that this does not exclude any challenge to the reliability of any particular test in litigation once
the test had been performed.
Caveat means caution.
In instances where there is no court order and a party refuses to submit himself or herself to
paternity testing, section 37 of the Children’s Act provides that the court must warn the person
refusing to submit to such a test of the effect which such refusal might have on the credibility of
that person.118 This presumption may be helpful, but it does not finally resolve the main issue,
namely the truth about the paternity of the child.
The obtaining of physical material for scientific testing to exclude (or prove) paternity has been
fraught with legal difficulty, mainly because there has been no consistency in the courts as to the
court’s power to compel such tests in paternity disputes against the wishes of one of the parties.
There are two groups of cases: on the one hand, some courts have been of the view that they do
have the power to order a (possible) parent and/or the child to undergo such testing in instances
where it would be in the best interests of the child.119 In M v R the court found it to be in the
interests of the child to compel his mother (and him) to undergo testing.120 The court stated that it
had the inherent power to regulate its own procedures and as the search for and collection of
evidence was a procedural matter,121 an order to compel was possible. It noted that it would be in
the best interests of the child to know the truth122 and that the tests are a reliable aid in resolving a
paternity dispute.123 The interests of the child thus outweighed the right to privacy of the mother.
The court specifically rejected the argument that it would not be in the interests of the child to be
submitted to tests where it could prove that the man who is paying maintenance is not the father
with the result that the child loses maintenance. Money wrongly taken from a man who is not the
father is not a ‘benefit’ that should be taken into account and protected by the court.124
On the other hand, other courts have refused to make an order compelling a person to be
subjected to testing.125 In these cases the courts were reluctant to compel a party to submit to such
testing against his or her will, notwithstanding the fact that it could reveal the truth about
paternity. The main arguments were: one, that the power of the court as upper guardian related
only to questions of custody and not the day-to-day parental power and control issues;126 two, that
the compelling of a person to submit to testing is not a procedural matter as argued in M v R as it
could affect the principles of the substantive law;127 and three, that compelling a person to undergo
such testing would be an infringement of the (interim) constitutional right to bodily integrity and
privacy.128
LB v YD and the appeal in YM v LB

In the 2009 case of LB v YD, however, the court followed the first set of cases. The
court argued that our origins as persons are, for most people, questions within the realm
of the sacred and that truth is a primary value in the administration of justice that should
be pursued because it invariably is the best means of doing justice.129 Murphy J noted
that to exclude reliable scientific evidence because it involves a relatively minor
infringement of privacy harms the legitimacy of the administration of justice.130 He
concluded that there is ‘no overriding reason in principle or policy impeding the
exercise of their inherent power and authority, as upper guardian or otherwise, to order
scientific tests in the interests of discovering the truth and doing complete justice to all
parties involved in a suit’.131 He agreed that the discovery of truth should prevail over
the idea that the rights of privacy and bodily integrity should be respected – also
because it would most often be in the best interests of a child to have any doubts about
paternity resolved and put beyond doubt by the best available evidence.132
The court noted the opposing fundamental constitutional principles of children’s
rights versus privacy and dignity. The stipulation that a child’s best interests are of
paramount importance in every matter concerning the child is a strong indication that
where the competing interests of a parent’s privacy or dignity and the child’s interests
are at stake, the latter should trump the former unless there are compelling reasons to the
contrary.133 Furthermore, there is a duty on the court to ensure that the common law
conforms to the rights and duties conferred in the Bill of Rights and reflects the
changing social, moral and economic make-up of society.134 The court accepted the
approach in M v R as in line with constitutional principles and could thus depart from a
pre-constitutional decision of a higher court based on public policy considerations as the
precedent no longer reflected the boni mores.135
The boni mores are the legal convictions of the community.
The court also noted the changes brought about by the Children’s Act, specifically
the greater flexibility in the award of different aspects of care and contact to unmarried
fathers.136 In terms of section 21 the unmarried biological father can automatically
acquire the same parental responsibilities and rights as the child’s mother provided he
meets certain requirements. The court found that given the automatic extended rights
and obligations of unmarried fathers the court regarded it in the interests of justice that
the truth be established before burdening a party with responsibilities that might not be
his to bear. The court determined that the best interests of the child become
relevant only with the eventual precise determination of the extent of his responsibilities
and rights by the various methods envisaged in the statute.137
However, the mother of the child appealed against this decision and the SCA, in YM
v LB, overturned some aspects of the judgment. The SCA found that on the facts of the
case there was no actual dispute about paternity, thus there was no need for scientific
tests. The court found that where paternity could be determined on a balance of
probabilities the father did not have an entitlement to scientific proof. Regarding the
principles on which the High Court made its order, the SCA said that in cases where
paternity is genuinely in dispute, and if it was in the best interests of the child to know
the truth, such testing could be ordered by a court. Indeed, the SCA observed s 37 of the
Children’s Act anticipates the use of scientific method. However, it should not be
assumed that it will always be in a child’s best interests to know the truth. Furthermore,
rights to privacy and bodily integrity can be limited on the basis that it is the best
interests of the child to do so, but the SCA was of the view that the High Court had
placed too much emphasis on the discovery of truth.
The SCA judgment may be criticised as being less progressive than the High Court judgment it
overturned. Unmarried fathers now cannot demand scientific certainty in every situation, despite
the fact that biology is the basis from which their rights flow. Nevertheless, the central principle
remains the best interests of the child. If there is genuine uncertainty about paternity and the
child’s best interests will be promoted by paternity being determined, the courts are empowered to
make an order for the appropriate scientific tests.
7.2.5 Legal relationship between a child and his or her unmarried

parents
7.2.5.1 Parental responsibilities and rights in respect of the child
7.2.5.1.1 Introduction
The common law has traditionally recognised three types of children born of unmarried parents:
natural children,138 adulterine children139 and incestuous children.140 This differentiation is not of
much importance today, except that an incestuous child will not be able to become a child of
married parents since the parents of such a child will not be able to enter into a legal marriage.141
With the distinction between children of married and unmarried parents established, the
question remains as to how the relationship between a parent and the child of unmarried parents
differs from the relationship between a parent and the child of married parents. The differences
relate to parental responsibilities and rights vis-à-vis the child as defined in section 18 of the
Children’s Act.142 Parental responsibilities and rights include the responsibility and the right to
care for the child,143 the right to maintain contact with the child,144 to act as guardian of the child145
and to contribute to the maintenance of the child.146 The duties of guardians are set out in the Act:
the guardian must administer and safeguard the child’s property and property interests, assist or
represent the child in administrative, contractual and other legal matters, or give or refuse any
consent required by law in respect of the child. This includes consent to the child’s marriage,
consent to the child’s adoption, consent to the child’s departure or removal from the Republic,
consent to the child’s application for a passport, and consent to the alienation or encumbrance of
any immovable property of the child.147
The Children’s Act places some limitation on the exercising of parental responsibilities and
rights by co-holders in that due consideration must be given to the views and wishes of all co-
holders before taking any significant decisions.148 The surrender or transfer of parental
responsibilities and rights is prohibited.149
7.2.5.1.2 Parental responsibilities and rights of a mother

The Children’s Act confirms the common-law position that the biological mother150 of a child,
whether married or unmarried, has full parental responsibilities and rights in respect of the child.151
Where the biological mother of a child is an unmarried child herself, she does not have
guardianship in respect of the child and if the biological father of the child also does not have
guardianship in respect of the child, the guardian of the child’s biological mother is also the
guardian of the child.152 The child is registered in the name of the mother unless the parents jointly
apply for the surname of the father to be used.153
Where the unmarried mother is the sole guardian of the child, she has the right to appoint in her
will a guardian for her child after her death.154
7.2.5.1.3 Parental responsibilities and rights of a father

The rights of the unmarried father in respect of his children have been substantially amended by
the Children’s Act. Section 21(1) determines that the biological father155 of a child156 who does not
have parental responsibilities and rights in respect of the child because he is not married to (or is
not in a civil union with) the mother of the child, acquires full parental responsibilities and rights
in respect of the child in the following instances:
• if at the time of the child’s birth he is living with the mother in a permanent life-partnership; or
• if he, regardless of whether he has lived or is living with the mother, consents to be identified
or successfully applies to be identified as the child’s father157 or pays damages in terms of
customary law;158 and contributes159 to the child’s upbringing for a reasonable period;160 and
contributes161 towards expenses in connection with the maintenance of the child for a
reasonable period.162 The unmarried father, as in common law, retains the duty to contribute
towards the maintenance of the child.163
The Act further makes provision for the unmarried father, who does not qualify for automatic
parental rights and responsibilities, to conclude and have registered a parental responsibilities and
rights agreement with the mother of the child or any other person that has such responsibilities and
rights over the child.164
In addition hereto, the unmarried father may acquire parental responsibilities and rights through
an order of court.165 The High Court remains the upper guardian of all minor children with the
inherent right to confer parental responsibilities and rights on any person, including the unmarried
father, where it is in the best interests of the child.166 In addition, sections 23 and 24 of the Act,
once they become operational, will empower the High Court, a divorce court in divorce matters or
the children’s court to make an order in respect of care, contact or the guardianship of a child, on
application by any person having an interest in the care, well-being or development of a child, on
such conditions as the court may deem necessary.167
7.2.5.1.4 Maintenance
Although section 18(2)(d) of the Children’s Act includes the maintenance duty of a parent as part
of parental responsibilities and rights, it is highlighted separately because of its practical
importance. With regard to the reciprocal duty of support or the right to maintenance, there is also
no distinction between the duties of parents and their blood relations towards a child born of
married and unmarried parents, and vice versa. Parents have the duty to support their children
according to their respective means.168 If they die, the duty falls on their respective estates.169 If the
parents are unable to support a child, the duty falls on the maternal as well as the paternal
grandparents.170
PAUSE FOR
REFLECTION
Payment of school fees

The South African Schools Act171 provides that ‘a parent is liable to pay the school fees
determined in terms of section 39 unless and to the extent that he or she has been exempted
from payment in terms of the Act’.172 This provision prima facie confirms the common-law
duty on all parents to maintain their child. The Act, however, goes further than the common
law when it defines a ‘parent’ as:
(a) the parent or guardian of the child; (b) the person legally entitled to custody of the learner; or
(c) the person who undertakes to fulfil the obligation of a person referred to in paragraphs (a) and
(b) towards the learner’s education at school.173
This definition was narrowly interpreted in the Northern Cape High Court in Bestuursraad van die
Laerskool Sentraal, Kakamas v Van Kradenburg.174 The court found that with regard to the
payment of school fees, the term ‘parent’ in the SASA referred only to the custodian parent and
not both parents. The court based its decision on the earlier decision of the Cape High Court in
Bestuursliggaam van Gene Louw Laerskool v Roodtman,175 where it was found that the term
‘parent’ in the (now repealed) Education Affairs Act (House of Assembly)176 should be interpreted
to mean only the custodian parent.177
The practical implication of these cases was that a school could not, where the parents were
living separately,178 claim any outstanding school fees from the non-custodian parent, unless he or
she either contracted directly with the school or there was another foundation for the claim.179
Although the custodian parent remained solely liable for the fees, he or she could, in terms of the
common law, claim from the non-custodian parent any amount paid in excess of his or her share
of the maintenance of the child in general.
Fish Hoek Primary School v GW

The Supreme Court of Appeal, in the case of Fish Hoek Primary School v GW,180 took a
different view from Roodtman and Van Kradenburg. The SCA found that the definition
of a ‘parent’ in the SASA is wide enough to include any parent of the child – regardless
of the relationship between the parents of the child and regardless of whether the parent
has any parental authority over the child. At issue in casu was the payment of school
fees for a child born of unmarried parents in instances where the father did not have any
parental authority over the child.181 Consequently, a school could claim payment of
outstanding school fees from both parents, including the non-custodian parent,
regardless of the relationship or the marital status of the parents.
In casu means in this case.
7.2.5.1.5 Termination of parental responsibilities and rights

Section 28 of the Children’s Act makes provision for the termination, extension, suspension or
restriction of parental responsibilities and rights by the court for a certain period or permanently.182
7.2.5.2 Succession rights
There is no difference in the succession rights of a child – whether it is a child of married or

unmarried parents – and his or her parents. The Intestate Succession Act 81 of 1987 provides that
the fact that a child is born of unmarried parents does not affect the capability to inherit intestate
from a blood relation.183 Similarly, the Wills Act 7 of 1953 notes that in the interpretation of a will,
a reference to children will include all children, including children born of unmarried parents.184
7.3 Adoption
Adoption is an important status-determining factor as it creates new relationships between a child
and his or her adoptive parents that did not exist prior to the adoption, and it also obliterates the
parental responsibilities and rights between the child and his or her biological parents.185
The Children’s Act contains a new set of provisions dealing with adoption. Section 18(3) (c)(ii)
provides that a parent or other person who acts as guardian of a child must consent to the child’s
adoption. This is applicable to any person, also an unmarried father of a child born of unmarried
parents, who has full parental responsibilities and rights, including guardianship, of a child. This is
confirmed in section 233.
7.3.1 Conditions under which paternal consent is required for

adoption
In terms of the Children’s Act, consent is required by both parents of the child, regardless of
whether the child is of married or unmarried parents.186 The biological father of a child who does
not have guardianship in respect of the child, or the foster parent of a child has the right to be
considered as a prospective adoptive parent when the child becomes available for adoption.187
In terms of section 236(4) a natural father can acknowledge that he is the biological father of a
child by giving a written acknowledgment that he is the biological father of the child either to the
mother or the clerk of the children’s court before the child reaches the age of six months, by
voluntarily paying maintenance in respect of the child or by paying damages in terms of
customary law, or by causing particulars of himself to be entered in the registration of birth of the
child. Where he fails to acknowledge paternity his consent is not required.
7.3.2 Conditions under which paternal consent is not necessary for

adoption
Consent is not necessary if, first, the biological father is not married to the child’s mother or was
not married to her at the time of conception or at any time thereafter, and has not acknowledged
that he is the biological father of the child;188 second, the child was conceived from an incestuous
relationship between the biological father and the mother;189 or third, the court, following an
allegation by the mother of the child, finds on a balance of probabilities that the child was
conceived as a result of the rape of the mother, provided that such a finding shall not constitute a
conviction for the crime of rape.190
7.3.3 Legal effects of adoption

The effect of an adoption order is that all the parental responsibilities and rights and obligations
existing between the child and any person who was his or her parent, and that parent’s relatives,
are terminated immediately prior to such adoption.191 An adopted child is, for all purposes
whatsoever, deemed in law to be the child of the adoptive parent as if he or she were born of that
parent during the existence of a lawful marriage as the adoption confers on the adoptive parent full
parental responsibilities and rights.192 An order of adoption, unless otherwise provided, confers the
surname of the adoptive parent on the adopted child.193 Such an order of adoption does not permit
marriage or sexual intercourse between the child and another person that would have been
prohibited had the child not been adopted. 194

1. This chapter deals broadly with the influence of birth and adoption on the status of a person.
2. The Children’s Act brought about a shift in terminology away from ‘children born out of
wedlock’ or ‘illegitimate children’. This chapter refers to ‘children born of married/unmarried
parents’.
3. Children are regarded as born of unmarried parents when their biological parents were neither
married to each other, nor partners in a civil union, at the time of conception or birth or at any
stage between these dates.
4. A child born as a result of artificial fertilisation of a married woman with the gametes of her
husband is regarded as having been born of married parents. When a married woman is
impregnated with the gametes of a third party donor with the consent of her spouse or partner,
the child will also be regarded as having been born of married parents. A child born of a single
woman with the use of artificial fertilisation is regarded as a child born of unmarried parents.
5. The Children’s Act contains a chapter on surrogate motherhood. Surrogacy is legally
recognised in certain circumstances. It may take place only for altruistic reasons. The parties
must enter into a valid surrogate motherhood agreement, and this agreement must be
confirmed by the High Court. Surrogate motherhood is permitted only if the child is
genetically related to the commissioning parent if he or she is single or to at least one of the
commissioning parents if they are parties to a marriage, civil union, or permanent relationship.
6. In a paternity dispute, there is a presumption that where a child is born to a woman who is
married (or a partner in a heterosexual civil union), her spouse or civil union partner is
presumed to be the father of the child. This presumption is rebuttable and the husband or civil
union partner may prove on a balance of probabilities that he is not the father of the child.
7. There is still uncertainty in our law on the question whether the courts can compel adults and
children to undergo blood tests in order to determine paternity.
8. The chapter delineates the conditions in which paternal consent for adoption is – or is not –
required.
9. The biological mother of a child, whether married or unmarried, has full parental
responsibilities and rights in respect of her child (Children’s Act section 19(1)).
10. The biological father has full parental responsibilities and rights in respect of the child if he is
married to the child’s mother, or he was married to her at the time of the conception or birth or
any date in between these two dates.
11. Unmarried fathers acquire full parental responsibilities and rights in respect of their children in
the circumstances set out in section 21(1) of the Children’s Act.
12. Adoption is an important factor determining status as it creates new relationships between a
child and his or her adoptive parents, and terminates the parental responsibilities and rights
between the child and his or her biological parents.
Heaton ‘Miscellaneous factors’ in Van Heerden et al. (eds) Boberg’s Law of Persons and the Family (1999)
218.
2 The Children’s Act 38 of 2005 refers to children traditionally called children born out of wedlock or
illegitimate children as children born of unmarried parents – placing the emphasis on the marital status of the
parents.
3 Boezaart (ed) Child Law in South Africa (2009) 19.
5 Children’s Act s 20 compared with s 21; Heaton 49. See 7.2.5 below with regard to the parental rights of
unmarried fathers.
6 Van Heerden ‘Legitimacy, illegitimacy and the proof of parentage’ in Van Heerden et al. (eds) 327; Davel &
Jordaan Law of Persons 4 ed (2005) 102.
7 Children’s Act s 38.
8 Van Heerden in Van Heerden et al. (eds) 328-329; Davel & Jordaan 102.
9 See 7.3 below.
10 Van Heerden in Van Heerden et al. (eds) 333.
11 A gamete is one of either of the two generative cells essential for human reproduction (s 1).
12 S 1. Although the definition is wide enough to incorporate surrogacy (Heaton 50), the issue of surrogate
motherhood is discussed separately at 7.2.3.
13 The same rule applies to the male civil union partner (Heaton 51).
14 In light of the case of V v R 1979 (3) SA 1006 (T) this will be the case whether the husband (or male civil
partner) has consented to the procedure or not.
15 S 40(1). S 40(1)(b) creates a rebuttable presumption that consent was given by both spouses/partners.
16 S 40(1)(a).
17 Or the blood relations of that person.
18 S 40(3).
19 2003 (5) BCLR 463 (CC).
20 The Children’s Status Act was repealed by the Children’s Act (s 313 read with Schedule 4).
21 The consequences of a marriage are applicable to civil unions (Civil Union Act (s 13)).
22 Chapter 19. Prior to this statute there was no specific South African legislation dealing with the issue of
surrogacy, although other statutes affected these types of arrangements (the now repealed Children’s Status
Act 82 of 1987 and the Regulations Regarding Artificial Insemination of Persons and Related Matters issued
to the Human Tissue Act 65 of 1983). For a discussion of the issue of surrogacy, see Louw A ‘Surrogate
Motherhood’ in Davel & Skelton (eds) Commentary on the Children’s Act (2007) chapter 19 and Carnelley
& Soni ‘A tale of two mummies. Providing a womb in South Africa: surrogacy and the legal rights of the
parents within the Children’s Act 38 of 2005. A brief comparative study with the United Kingdom’ 2008
Speculum Juris 36.
23 S 28(1)(a).
24 S 28(2).
25 S 7.
26 Lupton ‘Surrogate Motherhood’ in Schäfer Family Law Service Loose leaf (2006 service) J134; Lupton ‘The
right to be born: surrogacy and the legal control of human fertility’ 1988 De Jure 36 37. See also Strauss
Doctor, Patient and the Law (1991) 188 and Garrity ‘A comparative analysis of surrogacy laws in the US and
Great Britain – a proposed model statute for Louisiana’ Spring 2000 Louisiana Law Review 809.
27 S 301(1). There is a prohibition on advertising for potential surrogate mothers for a reward (s 303(2). To do
so would be an offence in terms of s 305(1)(b) that could result in a fine or imprisonment not exceeding 20
years or both (s 305(7)).
28 S 295(c)(iv)-(v).
29 S 301(2).
30 S 301(2)(a).
31 S 301(2)(b).
32 S 301(2)(c). Moreover, any person who renders a bona fide professional legal or medical service relating to
the agreement is entitled to reasonable compensation (s 301(3)).
33 S 301(1).
34 S 305(1)(b). Upon conviction of contravention of the provision, a person may be liable for payment of a fine
or imprisonment not exceeding 20 years or both (s 305(7)).
35 S 294.
36 S 294.
37 Carnelley & Soni 39 argue that there is no provision made for the scenario where both the commissioning
parents are unable to provide gametes for biological, medical or other valid reasons. These couples, where
both parties are infertile, are thus excluded from making use of surrogacy. This stipulation raises
constitutional questions. It seems to be prima facie unconstitutional for equality reasons as the differentiation
between the scenario where both spouses are infertile, as opposed to the scenario where only one spouse is
infertile, could be regarded as unfair discrimination on the basis of inter alia disability (s 9(3) of the
Constitution). A challenge that the differentiation amounts to unfair discrimination in terms of the Promotion
of Equality and Prevention of Unfair Discrimination Act 4 of 2000 is thus possible, as is a constitutional
challenge of the relevant sections of the Children’s Act. Whether this differentiation would fall within the
limits of the limitation clause is debatable.
38 The Children’s Act provides that at least one of the commissioning parents and the surrogate mother and her
husband/partner must be domiciled in the Republic (s 292(1)(c)-(d)). The court may dispose of this
requirement upon good cause being shown (s 292(2)).
39 S 293(1)-(2).
40 S 293(3).
41 S 296(a).
42 S 295(b)(i) and s 296(c)(i).
43 S 295(b)(ii).
44 S 295(c)(ii).
45 S 295(b)(iii) and s 296(c)(iii).
46 S 295(c)(iv)-(v).
47 S 295(c)(vi)-(vii).
48 1992 SALRC Report 2.6.1.
49 S 292(1)(a)-(b).
50 S 295(d).
51 The relevant High Court is the one within whose area of jurisdiction the commissioning parent(s) are
domiciled or habitually reside (s 292(1)(e)).
52 S 295(e).
53 S 295(1). The artificial fertilisation itself must be done in terms of the relevant health law provisions (s 296
(2)).
54 S 303(1).
55 S 305(1)(b). Parties found guilty in terms of this section may be liable for payment of a fine or imprisonment
not exceeding 20 years, or both (s 305(7)).
56 S 297(1)(a).
57 S 297(1)(b).
58 S 297(1)(c).
59 S 297(1)(d).
60 S 297(1)(f).
61 S 297(2).
62 S 297(1)(e). This is subject to ss 292 and 293.
63 S 298(1).
64 However, this termination may be effected only after notice has been given to the parties that the surrogate
mother has voluntarily terminated the agreement and that she understands the effects of the termination and
after a hearing has taken place (s 298(2)).
65 S 298(2).
66 The surrogate mother incurs no liability to the commissioning parents for exercising her rights of termination,
except to reimburse them for any payments made in terms of s 301 (s 298(3)).
67 S 299(a)-(b).
68 S 299(c).
69 S 299(d)-(e).
70 S 299(d).
71 S 300(1).
72 S 300(2).
73 The surrogate mother incurs no liability to the commissioning parents for exercising her right to terminate a
pregnancy except to reimburse them for any payments made in terms of s 301 where the decision to terminate
was taken for any reason other than on medical grounds. If the termination was made on medical grounds,
there is no obligation on her to reimburse the commissioning parents for any payments made (s 300(3)).
74 S 41(1).
75 S 41(2).
76 See in general Carnelley & Soni 36 onwards.
77 McEwen ‘So you’re having another woman’s baby: economics and exploitation in gestational surrogacy’
1999 Vanderbilt Journal of Transnational Law 271 282.
78 See discussion below; McEwen 284.
79 New York State Task Force on Life and the Law Surrogate parenting (1988) 297.
80 Family Law (2004) 341-345.
81 Ibid at 343-344.
82 See also Lupton 1988 De Jure 39.
83 See also Larkey ‘Redefining motherhood: determining legal maternity in gestational surrogacy arrangement’
2003 Drake Law Review 605 614 and Munyon ‘Protectionism and freedom of contract: the erosion of female
autonomy in surrogacy decisions’ 2003 Suffolk University Law Review 717.
84 See also Capron & Radin ‘Choosing family law over contract law as a paradigm for surrogate motherhood’
1988 Journal of Law, Medicine & Ethics 34 62; and McEwen 292-296.
85 See also Larkey 614. See, however, Snyder & Byrn ‘The use of pre-birth parentage orders in surrogacy
proceedings’ 2005 Family Law Quarterly 633 636.
87 For the South African legal perspective, see the 1992 SALRC Report 2.2.6 – 2.2.16.
88 344.
89 See also Shalev Birth Power: The Case for Surrogacy (1989) 145, Larkey 616 and Lupton 1988 De Jure 38.
90 Schultz ‘Reproductive technology and intent-based parenthood: an opportunity for gender neutrality’ (1990)
Wisconsin Law Review 297 303; and 1992 SALRC Report 2.2.3.
92 2006 (3) BCLR 355 (CC) para [59].
93 The exceptions hereto are artificial fertilisation and surrogacy.
94 There are exceptions such as where the baby was abandoned, abducted or switched in hospital (Heaton 55).
95 Van Heerden in Van Heerden et al. (eds) 354; Heaton 55; Davel & Jordaan 108; Van Lutterveld v Engels
1959 (2) SA 699 (A); Fitzgerald v Green 1911 EDL 432.
96 There is some uncertainty as to whether the presumption would also be applicable to same-sex civil partners.
Although the Civil Union Act (s 13) provides that the legal consequences of a civil marriage are also
applicable to civil unions with such changes as may be required by the context, it is uncertain whether in this
instance the legal consequences would be the same or whether it is an instance that requires a change in light
of the context of the provision. Heaton argues that the application of the presumption to same-sex civil
unions would not be viable (Heaton 57).
97 Van Lutterveld v Engels 1959 (2) SA 699 (A).
98 Van Heerden in Van Heerden et al. (eds) 357; Heaton 56; Davel & Jordaan 110. The husband or civil union
partner may, for example, bring evidence to prove his sterility, impotence or sexual abstinence during the
possible period of conception.
99 B v E 1992 (3) SA 438 (T); F v L 1987 (4) SA 525 (W). For a critique on the reasoning of the court in F v L,
see Heaton 56 and Davel & Jordaan 109-110.
100 Heaton 56; Davel & Jordaan 109; Van Heerden in Van Heerden et al. (eds) 354 fn. 98. The basis for this
opinion is Voet 1.6.9., although on a closer reading of the passage, he referred only to the instance where the
first husband died and the widow married another before the birth of her child (Heaton 56).
101 In terms of the common law, corroboration of the mother’s evidence was required (Wiehman v Simon 1938
AD 447). This is no longer a requirement as the rule was rejected by the highest court at the time (Mayer v
Williams 1981 (3) SA 348 (A)). The court described the caution that was required when scrutinising a
woman’s evidence as a cautionary rule similar to that in criminal matters. In light of the Criminal Law
(Sexual Offences and Related Matters) Amendment Act 32 of 2007 (s 60) rejecting the cautionary rule in
criminal matters, it is presumed that the rule will also fall away in disputed paternity matters (Heaton 58).
102
The predecessor of this section was s 1 of the Children’s Status Act. See Van Heerden in Van Heerden et al.
(eds) 367 for a general discussion of this provision.
103 Heaton 57.
104 Heaton 57.
106 Fitzgerald v Green 1911 EDL 432.
107 Although there is no fixed period of gestation, the courts have been generous in their interpretation of the
possible period of gestation (Williams v Williams 1925 TPD 538; Mitchell v Mitchell 1963 (2) SA 505 (D);
Gradidge v Gradidge 1948 (1) SA 120 (D)).
108 This factor will be used only in conjunction with other factors. In itself not much weight will be attached to it
(Davel & Jordaan 118; M v R 1989 (1) SA 416 (O); Van der Harst v Viljoen 1977 (1) SA 795 (C) 797).
109 Davel & Jordaan 119; S v Jeggels 1962 (3) SA 704 (T).
110 The defence of multiple lovers, specifically that as the mother had more than one lover, it is impossible to
determine who the father is, resulting in a successful defence for the identified man against a paternity claim.
111 Van Heerden in Van Heerden et al. (eds) 368; Cronjé LAWSA 20(1) Persons para 356; Heaton 59.
112 F v L 1987 (4) SA 525 (W) 528.
113 Heaton 60.
115 Ranjith v Sheela 1965 (3) SA 103 (D); Van der Harst v Viljoen 1977 (1) SA 795 (C). See also Mathlare v S
[2000] JOL 7529 (A) for the use of medical tests in a criminal matter of statutory rape.
116 S 21.
117 2009 (5) SA 463 (T). Although the SCA subsequently upheld an appeal from this judgment in YM v LB
(465/09) [2010] ZASCA 106 (17 Sept 2010), this aspect of Murphy J’s judgment was not dealt with by the
appeal court.
118 Unlike its predecessor, this section is merely ‘a procedural safeguard for, or evidential warning’ that the
refusal might lead to a negative inference being drawn regarding credibility (Schwikkard & Van der Merwe
Principles of Evidence 3 ed (2009) 506).
119 In M v R 1989 (1) SA 416 (T) the court ordered that blood samples be taken from both the mother and the
child against the express wishes of the mother. In Seetal v Pravitha 1983 (3) SA 827 (D) and O v O 1992 (4)
SA 137 (C) the courts noted the principle, but declined to uphold it as it was not in the best interests of the
child. See also Ex parte Emmerson 1992 (3) SA 987 (W) where the court granted an urgent order to obtain
DNA testing materials from an unmarried, deceased man to determine the paternity of a conceived child. See
also the criticism of the case by Heaton 63.
120 429B-C.
121 427I-J.
122 426B-C.
123 423E-F.
124 422H-I.
125 Nell v Nell 1990 (3) SA 889 (T); S v L 1992 (3) SA 713 (E); D v K 1997 (2) BCLR 209 (N).
126 S v L 721I-J.
127 S v L 719H-I; D v K 220.
128 D v K 1997 (2) BCLR 209 (N) 208-209.
129 Para [21].
130 Para [21].
131 Para [22].
132 Para [23].
133 Para [34].
134 Para [34].
135 Para [36].
136 Para [37].
137 Para [42].
138 The parents of natural children were not married to each other at the time of conception or birth of the
children, although there was no impediment to their marriage.
139 Either one or both parents of adulterine children were married to another person at the time of conception or
birth of the children.
140 As the relationship of the parents of an incestuous child falls within the prohibited degrees of relationship,
they could not marry each other at any time.
141 Heaton 50.
142 S 1.
143 S 1(1) defines care to include, where appropriate: (a) within available means, providing the child with (i) a
suitable place to live; (ii) living conditions that are conducive to the child’s health, well-being and
development; and (iii) the necessary financial support; (b) safeguarding and promoting the well-being of the
child; (c) protecting the child from maltreatment, abuse, neglect, degradation, discrimination, exploitation
and any other physical, emotional or moral harm or hazards; (d) respecting, protecting, promoting and
securing the fulfilment of, and guarding against any infringement of, the child’s rights set out in the Bill of
Rights and the principles set out in Chapter 2 of the Act; (e) guiding, directing and securing the child’s
education and upbringing, including religious and cultural education and upbringing, in a manner appropriate
to the child’s age, maturity and stage of development; (f) guiding, advising and assisting the child in
decisions to be taken by the child in a manner appropriate to the child’s age, maturity and stage of
development; (g) guiding the behaviour of the child in a humane manner; (h) maintaining a sound
relationship with the child; (i) accommodating any special needs that the child may have; and (j) generally,
ensuring that the best interests of the child are the paramount concern in all matters affecting the child.
144 Contact in relation to a child means (a) maintaining a personal relationship with the child; and (b) if the child
lives with someone else (i) communication on a regular basis with the child in person, including visiting the
child; or being visited by the child; or (ii) communication on a regular basis with the child in any other
manner, including through the post; or by telephone or any other form of electronic communication (s 1(1)).
145 S 18(3).
146 S 18(2). These rights and responsibilities were previously called custody, access and guardianship.
147 S 18(2).
148 S 31(2). Regard should also be given to parenting plans if applicable. See Heaton 80.
149 S 30(3).
150 This is in line with the common-law philosophy that ‘een moeder maakt geen bastaard’ (Van der Keessel Th
345; Green v Fitzgerald 1914 AD 88, 99). The Act does not define the term ‘biological mother’. This creates
an anomaly in instances of artificial fertilisation in a non-surrogacy arrangement. See Heaton 67.
151 S 19(1). Section 19 does not apply in respect of a child who is the subject of a surrogacy agreement (s 19(3)).
152 S 19(2).
153 Births and Deaths Registration Act 51 of 1992 (s 10).
154 Children’s Act s 27(1)(a).
155 The term ‘biological father’ is not defined in the Act.
156 Section 21 applies regardless of whether the child was born before or after the commencement of the Act (s
21(4)).
157 See s 26.
158 S 21(1)(b)(i).
159 Or has attempted in good faith to contribute.
160 S 21(1)(b)(ii).
161 Or has attempted in good faith to contribute.
162 S 21(1)(b)(iii).
163 S 21(2). If there is a dispute between the biological father and the biological mother of a child with regard to
the fulfilment by that father of the conditions set out above, the matter must be referred for mediation to a
family advocate, social worker, social service professional or other suitably qualified person (s 21(3)(a)).
Any party to the mediation may have the outcome of the mediation reviewed by a court (s 21(3)(b)).
164 S 22.
165 Heaton 73.
166 T v M 1997 (1) SA 54 (A) as read with s 28(2) of the Constitution and s 7 of the Children’s Act.
167 S 23(1) and s 24(1) respectively.
168 Maintenance Act 99 of 1998 s 15(3)(a)(ii).
169 Heaton 68 fn. 148 and the sources referred to, as well as 78.
170 Gliksman v Talekinski 1955 (4) SA 468 (W) as read with Petersen v Maintenance Officer 2004 (2) BCLR
205 (C).
171 84 of 1996 (hereinafter referred to as the ‘SASA’).
172 S 40(1).
173 S 1.
174 [2008] JOL 21631 (NC) para [13] (hereinafter referred to as Van Kradenburg).
175 [2003] 2 All SA 87 (C) (hereinafter referred to as Roodtman).
176 70 of 1988 (96).
177 The court based its decision on the interpretation of the term throughout the statute (Roodtman 96).
178 In both these matters the parents of the children were divorced and the court had made a care (custody) order.
179 Where the non-custodian parent contracted with the school for payment of the fees, he or she would be liable
in terms of the contract. See discussion below.
180 2010 (2) SA 141 (SCA) (hereinafter referred to as Fish Hoek Primary School).
181 The father was neither the guardian nor the custodian of the child and there was no access or contact order.
182 S 28(3) sets out who may apply for such an order and s 28(4) the factors that the court must consider.
183 S 1(2).
184 S 2D(1)(b).
186 S 233(1)(a)-(b). A parent or person referred to in s 236 is excluded from this requirement and a child may be
adopted without the consent of such parent or person (s 233(2)).
187 S 231(7)(a). Such a person must be regarded as having elected not to apply for the adoption of the child if
that person fails to apply for the adoption of the child within 30 days of a notice calling on that person to do
so that has been served on him or her by the sheriff (s 231(7)(b)). Similarly, a family member of a child who,
prior to the adoption, has given notice that he or she is interested in adopting the child has the right to be
considered as a prospective adoptive parent when the child becomes available for adoption (s 231(8)).
188 S 236(3)(a).
189 S 236(3)(b).
190 S 236(3)(c).
191 S 242(1)(a).
192 S 242(2)(a).
193 S 242(2)(b).
194 S 242(2)(c).
Chapter 8
Minority
8.1 Introduction
8.2 The legal status of an infans

8.2.1 Legal capacity
8.2.2 Capacity to act
8.2.2.1 The guardian’s role on behalf of the infans
8.2.2.2 The contractual rights and duties of the infans
8.2.2.3 The limits of the guardian’s capacity
8.2.3 Capacity to litigate
8.2.4 Capacity of the infans to incur delictual and criminal liability
8.3 The legal status of a minor

8.3.1.1 Limits to the legal capacity of a minor
8.3.1.2 Limits to the emancipation of a minor
8.3.1.3 Legal capacity of a married minor
8.3.2.1 Contracts
8.3.2.1.1 General
8.3.2.1.2 Assisted contracts
8.3.2.1.3 Unassisted contracts
8.3.2.2 Agreements other than contracts
8.3.2.3 Wills
8.3.2.4 Marriages and civil unions
8.3.2.4.1 Consent to the marriage or civil union
8.3.2.4.2 The effect of absence of consent
8.3.2.5 Medical treatment, operations, HIV tests, and contraceptives
8.3.2.5.1 Medical treatment and operations
8.3.2.5.2 HIV testing
8.3.2.5.3 Access to contraceptives
8.3.4 Capacity to incur delictual and criminal liability
8.4 Termination of minority

8.4.1 Attainment of the prescribed age of majority
8.4.2 Effect of marriage on minority status
8.4.3 Declaration of majority by a court
8.4.4 Emancipation of a minor
8.1 Introduction
A juristic act reflects the will of the author of the act. It thus makes sense that only those persons
who have a reasonable understanding and judgment should be afforded capacity to act.1 As
juristic acts may have far-reaching consequences for their authors, the law confers capacity to act
on only those persons who can understand the nature and consequences of their acts.2
The capacity to act is the capacity to perform valid juristic acts.
Youth has a major influence on a person’s powers of judgment. Consequently, the capacity of
immature persons to perform juristic acts is restricted. The purpose of this restriction is to protect
these persons ‘against their own immaturity of judgment’.3
PAUSE FOR
REFLECTION
The purpose of imposing restrictions on a minor’s capacity

The Constitution of the Republic of South Africa, 1996 section 94 protects the right to equality,
and prohibits, among other things, unfair discrimination on the ground of age. The question
arises whether restrictions on a minor’s5 capacity violate the minor’s constitutional right to
equality. In view of the purpose of these restrictions to protect the minor against his or her own
immaturity of judgment, it seems that the minor’s right to equality is not violated.6
Whether a person has the understanding and judgment necessary to perform valid juristic acts is,
in the legal world, a question of fact. As it would be inconvenient and lead to legal uncertainty if
individual understanding and judgment were to be assessed on a case-by-case basis, the law
prescribes a general age limit for the attainment of full capacity to act.7 In terms of the Children’s
Act 38 of 2005 section 17 every person reaches the age of majority at the age of 18.
Although, generally speaking, a minor acquires full capacity to participate in legal interaction
when he or she turns 18, several earlier ages are of legal importance. Some examples include the
following:8
• The Child Justice Act 75 of 2008 came into operation on 1 April 2010. This changed the
common-law position regarding children’s criminal capacity.9 According to the Child Justice
Act the minimum age of criminal accountability is 10 years. Children below the age of 10
years are completely unaccountable for their crimes, whereas children between the ages of 10
and 14 years are presumed to be unaccountable.10
• Children below the age of 7 (infantes) can never be delictually liable. Children between the
ages of 7 years and puberty are rebuttably presumed to be delictually unaccountable. Children
between the age of puberty and 18 years are rebuttably presumed to be delictually
accountable.11
The age of puberty is 14 years of age for boys and 12 years of age for girls.
• Children below the age of 7 (infantes) have no capacity to act whatsoever. Between the ages
of 7 and 18, minors have limited capacity to act. This means that they can generally enter into
contracts with the assistance of a guardian only.12
• A child must give consent to his or her own adoption if he or she is 10 years or older, or is
under the age of 10 years but is of an age, maturity and stage of development to understand the
implications of such consent.13
• Children below the age of puberty may not enter into civil marriages at all.14
• Girls between the ages of 12 and 15, and boys between the ages of 14 and 18, must obtain the
consent of the Minister of Home Affairs to enter into a civil marriage.15
• From the age of 14 years, minors may witness a will.16
• When they turn 16, children may make a will17 and be a depositor at a mutual bank.18
8.2 The legal status of an infans

Figure 8.1 The capacities of the infans that will be dealt with below

All persons, including infantes, have legal capacity,19 irrespective of their personal qualities.20 An
infans, however, has limited legal capacity. Although the infans is capable of being the bearer of
rights21 and duties,22 this capacity may be limited. As children below the age of 7, for example,
cannot marry, they cannot have the rights that arise from marriage.23

An infans has no capacity to act whatsoever. An infans cannot enter into any agreement
whatsoever.24 He or she cannot conclude even a contract which confers rights only and no
obligations.25 Further, an infans cannot act as someone’s agent.26 The reason for this position is
that the law attaches no consequences to the expressions of will of an infans.27
8.2.2.1 The guardian’s role on behalf of the infans

An infans cannot conclude a juristic act even with the assistance of his or her guardian.28 The
guardian must act for the infans and on his or her behalf. The infans is not even capable of
accepting a donation. The donation must be accepted on behalf of the infans by the guardian, court
or Master of the High Court. If the donor is the guardian, the donation must be accepted by the
guardian on behalf of the infans. The guardian must make it clear that the donation is accepted on
behalf of the infans. No specific form of acceptance is required – acceptance can occur tacitly and
can be inferred from the behaviour of the guardian.29
8.2.2.2 The contractual rights and duties of the infans

If the guardian enters into a contract on behalf of the infans, the rights and duties flowing from the
contract are the rights and duties of the infans, not the guardian. This is so because the infans has
legal capacity and can thus have rights, duties and capacities.30
8.2.2.3 The limits of the guardian’s capacity

There are certain transactions that cannot be concluded by the guardian on behalf of the infans at
all, for example an engagement.31 Although a guardian may take out life insurance on the life of
the infans, the benefits that may be paid out in terms of the life insurance policy are limited.32
PAUSE FOR
REFLECTION
The law does not concern itself with trivialities

In reality, infantes enter into contracts, for example to buy icecream or sweets, all the time. In
view of the rule that the infans has no capacity to act whatsoever, the question arises whether
transactions like these are void. As a result of the operation of the maxim de minimis non curat
lex it is unlikely that these transactions will be regarded as void.33
De minimis non curat lex means that the law does not concern itself with
trivialities.

In terms of common law, a child below the age of 7 cannot be a party to a lawsuit even if the child
is assisted by his or her guardian. The guardian must litigate on behalf of the infans.34 Although
the infans is the litigating party, the pleadings cannot be issued in the name of the infans.35
COUNTER
POINT
Interpretation of the Children’s Act section 14

Before the Children’s Act it was clear that an infans could be cited as follows in civil
proceedings:36
The plaintiff is JOHN BUSH, in his capacity as guardian of TINY BUSH, a child of five years and
three months old.
However, since the inception of the Children’s Act the law is less clear in this regard.
The Children’s Act section 14 provides that ‘every child’ has a right to bring, or to be
assisted in bringing, a matter to court. Heaton points out that the word ‘every’ suggests that this
provision ‘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’.
She adds that it could not have been the legislature’s intention to confer limited capacity to
litigate on the infans, while leaving the incapacity to act of the infans unchanged.37
The question remains: if this was not the legislature’s intention with section 14, then what
was the intention? Surely section 14 must mean something. Practitioners would be well advised
to continue to bring litigation in the parent’s or curator’s name for children under 7 until there
is a clear indication from the courts on the interpretation of section 14.
8.2.4 Capacity of the infans to incur delictual and criminal liability

• Liability based on fault
An infans is completely unaccountable and cannot incur criminal and delictual liability based on
fault.38
• Liability not based on fault
However, an infans may incur delictual liability if the liability is not based on fault, and, therefore,
if an infans is the owner of a domestic animal that has caused damage, the infans can be sued
under the actio de pauperie.39
• Liability based on unjustified enrichment and negotiorum gestio (unauthorised administration)
An infans can also be liable on the ground of unjustified enrichment and negotiorum gestio as
these forms of liability are not based on capacity to act or capacity to incur delictual or criminal
liability.40
8.3 The legal status of a minor
8.3.1.1 Limits to the legal capacity of a minor

A minor has limited legal capacity. Because of his or her minority, a minor is incapable of
holding some of the offices of a legal subject. For example, a minor cannot hold the office of
manager or principal officer of a friendly society,41 trustee of an insolvent estate,42 director of a
company,43 or director of a mutual bank.44
Legal capacity is the capacity to have rights and duties.
Figure 8.2 The capacities of minors that will be dealt with below
However, as an agent does not bind himself or herself but, rather, his or her principal, a minor
can act as someone else’s agent without the consent of his or her guardian.45
8.3.1.2 Limits to the emancipation of a minor

There is uncertainty in our law on the question whether a minor can be the executor of a deceased
estate. Various authors submit that a minor cannot be appointed as executor of a deceased estate.46
We agree with this view. As emancipation does not terminate minority,47 an emancipated minor
should be disqualified from holding this office. However, a minor who has attained majority status
through entering into a valid marriage48 should not be disqualified.49
8.3.1.3 Legal capacity of a married minor

A married parent who is still a minor qualifies as his or her child’s guardian.50 However, a married
parent who is still a minor cannot be appointed as the guardian of anyone other than his or her
own child.51 The guardianship of an unmarried minor mother’s child rests with the mother’s
guardian only in those cases where neither the mother nor the child’s biological father has
guardianship of the child.52

In general, minors between the ages of 7 and 18 years have limited capacity to act.
Capacity to act is the capacity to perform valid juristic acts.
8.3.2.1 Contracts
8.3.2.1.1 General
A minor can generally incur contractual liability only if assisted by his or her guardian when the
contract is made.53 However, if the contract improves the minor’s position without imposing duties
on him or her, the minor may enter into an unassisted contract.54 In other words, if the other party
incurs duties, whereas the minor acquires rights only, the assistance of the minor’s guardian is not
necessary. A minor may thus accept a donation without assistance, or enter into an agreement in
terms of which the minor is released from a debt without imposing any duties on him or her.55
8.3.2.1.2 Assisted contracts

(i) The rule and its exceptions
We have already referred to the general rule that minors cannot incur contractual liability without
the assistance of their guardians. The objective of this rule is to protect the minor against his or
her immaturity of judgment.56 If the minor acts with the guardian’s assistance, this consideration
falls away.57 A minor who acts is liable ex contractu as if he or she were a major.58
Ex contractu means in terms of contract.
The following are examples of statutory exceptions to this general rule:59
• A minor over the age of 16 years may be a member or depositor with any mutual bank, unless
the articles of the particular bank provide otherwise. The minor may execute all necessary
documents, give all necessary acquittances and cede, pledge, borrow against and generally
deal with the share or deposit as he or she thinks fit.60
• Deposits in the Postbank made by or for the benefit of a minor, and any national savings
certificate issued in favour of a minor of any age, may be repaid to him or her.61
(ii) The guardian’s assistance

The guardian’s assistance to the minor’s contract may take one of the following forms. First, the
minor’s guardian can enter into a contract on the minor’s behalf.62 Second, the minor may
personally enter into the contract with the consent of the guardian.63 Third, the guardian may ratify
the contract after it has been concluded.64
The guardian’s consent (or ratification) may be supplied either expressly or tacitly.65 For
example, tacit consent will be inferred if the guardian raises no objection to a contract of which he
or she is aware.66
PAUSE FOR
REFLECTION
The case of Dreyer v Sonop Bpk

Let us look at an example from case law of this type of tacit consent by the guardian. In Dreyer
v Sonop Bpk67 a minor bought a school blazer without the assistance of his guardian. The tacit
ratification of his father was inferred from the fact that he failed to repudiate the transaction
while being aware of it. The court held the minor’s father liable for the purchase price of the
blazer.
The guardian’s consent may apply to a specific contract only, or it may be general authority for
the minor to enter into all contracts within a certain category or arising from a certain situation.68
PAUSE FOR
REFLECTION
Examples of general consent

Examples of this type of general consent to enter all contracts within a certain category, or
arising from a certain69 situation, include the following:70
• If, for example, a student’s guardian sends her to a residential university, it must be
assumed that the guardian authorised the minor to enter into all contracts of the kind
normally concluded by persons in that position.
• If a guardian allows his son to carry on a public trade or profession, the son has authority to
enter unassisted into all transactions connected to such trade or business.
Whether or not a minor has the required consent depends on the circumstances of each particular
case.71 It is not required that the guardian should be aware of every single provision of the
agreement. However, he or she should at least be aware of the nature of the agreement and its
essential terms.72 A guardian who has consented to a minor’s transaction may withdraw consent at
any time before conclusion of the transaction.73
The guardian is obliged to assist the minor to enter into transactions which are to the minor’s
benefit, or to conclude such transactions on behalf of the minor. If the guardian is unable or
unwilling to do this, the court may intervene and order the guardian to do so, or it may give the
required consent itself.74 The court will also intervene in cases where the guardian’s own interests
in a transaction are in conflict with his or her duty to further the minor’s interests,75 or where the
guardian’s consent is insufficient (for example in respect of alienating or mortgaging the minor’s
immovable property).76
The guardian may not enter into an agreement on behalf of a minor if the agreement will come
into effect only after the minor reaches majority. For example, a father may not lease his minor
child’s property in such a way that the lease agreement would come into effect only after the
child’s majority.77 It is, however, permissible for an agreement that came into effect during
minority to continue after majority.78
Further, some agreements are of such a personal nature that they cannot be entered into on
behalf of a minor. An example of such an agreement is an antenuptial contract.79 Heaton submits
that a guardian may also not conclude an employment contract that contravenes the Basic
Conditions of Employment Act 75 of 1997 section 43 on behalf of the minor, or consent to the
minor’s entering into such a contract.80 Section 43 inter alia prohibits employment of a minor who
is below the age of 15 years. Heaton argues that although a contract concluded in contravention of
a statutory provision is not necessarily void, a contract that contravenes section 43 ought to be
illegal and void. Nullity of the contract, combined with the imposition of a criminal sanction on
the employer, would constitute an appropriate penalty and sanction in terms of various
international instruments, including the United Nations Convention on the Rights of the Child
(1989) and the African Charter on the Rights and Welfare of the Child (1990). We agree with
Heaton’s views in this regard.
A guardian may conclude an insurance contract on the minor’s life, or assist the minor in
entering into such a contract. However, if the minor is below the age of 14 years, the benefits that
may be paid in terms of the policy are limited.81
(iii) The effect of the minor’s assisted contract

As a general rule, a guardian is not personally liable in respect of the minor’s contract regardless
of whether the guardian assisted the minor or acted on his or her behalf.82 The other party can
therefore not claim performance of the minor’s obligations from the minor’s guardian.83 A
contract entered into by a minor with the assistance of his or her guardian, or a contract entered
into by a guardian on behalf of a minor, is fully binding and enforceable against the minor.84
PAUSE FOR
REFLECTION
Two different ways in which to conclude a minor’s assisted contract

Normally, a contract entered into by a minor with the assistance of his or her guardian will
make provision for two signatures, that of the minor and that of the guardian. The words ‘duly
assisted by’, or words to that effect, will be used. If the guardian concludes the contract on
behalf of the minor, the guardian will act in his or her own name, but it will be indicated that
the guardian is acting on behalf of his or her minor child. The minor child’s name will be
provided, but the minor will not co-sign the contract with the guardian as in the former
example.
However, if the minor acted as the guardian’s agent, or if the guardian ratified a contract
concluded by the minor as his agent, the guardian is liable in terms of the contract.85
PAUSE FOR
REFLECTION
When the guardian ratifies a contract concluded by a minor as the guardian’s agent, the
guardian will be liable
Let us consider an example of a contract concluded by a minor as the guardian’s agent. In
Dreyer v Sonop86 a minor bought a school blazer from a dealer. The minor’s father ignored
several notices requesting payment. The court held that the father of the minor had tacitly
ratified the contract because he neglected to repudiate his son’s actions while being fully aware
of them. He was therefore liable with regard to the contract concluded by his son as his agent.
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.87
A guardian may also incur liability on the basis of negotiorum gestio if he or she is the minor’s
parent. As parents are obliged to support their children, the parent may be liable on the basis of
negotiorum gestio if a third party fulfils the parental duty of support by providing necessaries like
food and clothing to the child. This liability is not contractual in nature, but quasi-contractual.88
Negotiorum gestio is the administration of another’s affairs to his or her advantage,

but without his or her knowledge
It has already been pointed out that an agreement concluded by a minor with the assistance of
his or her guardian is generally enforceable against the minor. In exceptional circumstances the
minor may escape liability by relying on a remedy called restitutio in integrum.89
Restitutio in integrum means return to the previous position.
Restitutio in integrum is available to a minor who can satisfy the court of the following:
• The contract was entered into with the guardian’s consent or assistance, or by the guardian on
behalf of the minor. It is also available if the parent or guardian ratified a contract concluded
by the minor without the necessary assistance.90 A minor may also rely on this remedy where
the court consented to the minor’s contract.91
• The contract was prejudicial to the minor at the moment it was concluded.92 Prejudice arising
at a later stage is irrelevant.93
COUNTER
POINT
Examples of contracts that were prejudicial to the minor

Let us look at some examples from case law of contracts that were regarded as prejudicial to
the minor:94
• The purchase of land in circumstances where the minor had no cash in hand.95
• The purchase of a house at a price in excess of its value, payable in instalments continuing
after majority.96
However, the remedy was not allowed in the case of a policy of endowment insurance where
the minor’s inability to pay the premiums was due to his extravagant tendencies.97
The purpose of restitutio in integrum is to restore the previous position. Complete restitution from
both sides must take place, placing the 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 in terms of
the contract, as well as the proceeds, or any advantage derived from the contract. Further, each
party must compensate the other party for any damage suffered as a result of the contract.98 It is,
however, not always easy to accomplish complete restitution. Consequently, the courts sometimes
allow restitution by means of a sum of money in order to restore the previous position.99
Restitutio in integrum is necessary only if the minor is indeed contractually liable. If the minor
did not have the required consent or assistance when entering into the contract, he or she is not
contractually liable and does not need restitutio in integrum.100
Restitutio in integrum is available not only in the case of contracts. The minor may use the
remedy whenever he or she has suffered prejudice, for example where the minor has lost his or her
inheritance as a result of the guardian’s failure to protect his or her interests.101 However, the
remedy cannot be used to set aside a marriage or escape criminal or delictual liability.102
Restitution is not available to a minor who misrepresented himself or herself as a major or an
emancipated minor, or as having the required consent to conclude the contract, thereby persuading
the other party to contract with him or her.103 There is no consensus on the question whether an
emancipated minor can rely on restitutio in integrum. Most authors submit that the remedy should
indeed be available to the emancipated minor. They submit that it should make no difference
whether the guardian consented to a specific agreement, or to a series of agreements relating to the
minor.104
The minor may invoke restitutio in integrum himself or herself with the assistance of his or her
guardian before attaining majority, or the guardian may invoke the remedy 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.105 The minor can also invoke the remedy himself or herself after majority.106
A curator ad litem acts on behalf of another for the purpose of litigation.
In a case like this, prescription of the claim should be considered. The remedy prescribes three
years after the conclusion of the contract concerned.107 However, if this three-year-period expires
before, on, or within one year of the attainment of majority, the period of prescription is
completed only after one year of majority. In other words, prescription cannot take place within
the first year after majority.108 Restitution cannot be invoked if a minor has ratified the contract
after majority.109 Restitutio in integrum does not release a person who has bound himself or herself
as surety for the minor.110
8.3.2.1.3 Unassisted contracts
(i) General
In the words of Cockrell, ‘[the] minor’s unassisted contract discriminates between the parties’.111
The minor’s unassisted contract creates a natural obligation112 on the part of the minor, and a civil
obligation on the part of the other party. This means that the contract is not enforceable against the
minor and his or her guardian,113 whereas it is enforceable against the other party.114 In other
words, although the minor is not contractually liable to perform under the contract, the other party
is.
The minor’s unassisted contract is not void as the other party must honour his or her part of the
agreement. One can therefore stipulate that the minor’s unassisted contract is partially valid.
Cockrell calls this transaction a ‘limping transaction’.115
As the minor’s unassisted contract creates only a natural obligation, it can be ratified by the
guardian or by the minor after reaching majority. Ratification has the effect of rendering the
contract fully enforceable against both parties with retrospective effect.116 It thus converts a
natural obligation into a civil obligation. The guardian (or the minor after reaching majority117)
may choose to repudiate or honour the contract.118 The other party to the contract does not have
this option. He or she must abide by the minor’s decision and act accordingly. Put differently, the
other party cannot rely on the minor’s minority to avoid his or her contractual obligations.119
A civil obligation is legally enforceable while a natural obligation is

unenforceable.
In practice, the minor who is sued for performance in terms of the contract normally raises his
or her minority as a defence. However, nothing precludes the minor from applying for an order
declaring him or her to be not contractually liable.120 The minor will not be able to sue the other
party for performance in terms of the contract while withholding his or her own performance. The
reason for this is that the minor would need his or her guardian’s consent for the litigation,121
which consent will obviously amount to ratification of the contract.122
Since the minor’s unassisted contract creates only a natural obligation, the minor cannot be
sued for performance in terms of the contract.123 If the minor has already performed without the
guardian’s authority, and the contract is repudiated, the minor may recover property other than
money by the rei vindicatio and money by a condictio.124 The value of the minor’s performance
will be reduced by the amount by which the minor has been unjustifiedly enriched as a result of
the other party’s performance.125 As the unassisted minor’s contract cannot be enforced against
him or her, the minor does not need to apply for restitutio in integrum126 to recover his or her
performance.127 Restitutio in integrum applies to a contract that was concluded with the required
assistance, and which was to the minor’s detriment when it was concluded.128
The minor’s natural obligation may serve as the object of an effective suretyship,129 and it can
be novated130 or ceded.131
Ratification of the contract by the minor after majority renders the contract fully enforceable
against the minor with retrospective effect.132 Consequently, the minor loses the right to repudiate
the contract and recover performance.133 Ratification may take place expressly or tacitly.134 The
intention to ratify the contract will be inferred where the former minor acts in a way that amounts
to adoption of the contract, such as making or accepting payment or delivery.135
In principle, a person cannot validly ratify a contract if he or she does not have full knowledge
of his or her rights, including knowledge of the right to repudiate the contract.136
COUNTER
POINT
Ignorance of the law is no excuse

It could be argued that ratification should be assumed and that the minor should be
contractually liable in accordance with the maxim that ignorance of the law is no excuse
(ignorantia iuris haud excusat).
However, in view of a decision of the Appellate Division of the Supreme Court (now known
as the Supreme Court of Appeal),137 the rule that ignorance of the law is no excuse no longer
applies without qualification. It is therefore submitted that if it can be proven that there was
reasonable and excusable ignorance on the part of the minor, ratification should not be
assumed.
An antenuptial contract that was concluded without the necessary consent is void and cannot be
ratified by the minor (or his or her guardian) once the marriage has taken place as this would
amount to an impermissible alteration of the matrimonial property regime.138
(ii) Liability for unjustified enrichment

In Roman and Roman-Dutch law, a minor incurred contractual liability if he or she entered into an
unassisted contract and benefited from it.139 This was called the benefit theory, and was introduced
into our law in Nel v Divine, Hall & Co,140 where it was held that once a contract is in its entirety
to a minor’s benefit, the minor is contractually liable. Our courts consistently applied this
incorrect rule for decades until it was authoritatively rejected by the Appellate Division of the
Supreme Court (now known as the Supreme Court of Appeal) in Edelstein v Edelstein.141 In this
case, Van den Heever JA correctly held that a minor is not liable in terms of an unassisted contract
merely because the contract is to his or her benefit, but because the minor may be held liable ex
lege on the basis of unjustified enrichment.142
Unjustified enrichment is enrichment at the expense of another person in the

absence of a legal ground.
Liability on the basis of unjustified enrichment arises if one person obtains a patrimonial
benefit (in other words, the person is enriched) at the expense of another person in the absence of
a legal ground that justifies the enrichment.143
PAUSE FOR
REFLECTION
Unjustified enrichment and the unassisted minor

Let us look at an example to illustrate this form of liability in the case of the unassisted minor.
A is 16 years old, and concludes a contract with B, a major, without the necessary assistance or
consent, in terms of which B sells A a computer for R5,000. The actual value of the computer
at the time of the conclusion of the contract is R4,000. The parties have agreed that A will pay
a deposit of R500 before B delivers the computer to him. A pays the deposit, and B delivers the
computer. A now refuses to pay the rest of the contract price on the basis of his minority. On 20
March, B institutes a claim for unjustified enrichment against A.
Figure 8.3 The transaction
In this example A is enriched at the expense of B by the amount of the value of the computer.
As A acted without the required assistance or consent, he is not contractually liable. Therefore,
there is no legal ground that justifies the enrichment and A is liable to B on the basis of
unjustified enrichment.
The following principles are used to determine the amount of the other party’s enrichment claim.
First, the amount of the claim is determined on the date on which the enrichment action is
instituted.144
Second, the enrichment claim is limited to the amount by which the other party’s estate
remains enriched at the date of institution of the action, or the amount by which the minor’s estate
remains impoverished at that date, whichever amount is the smaller.145
Third, when determining the amount of the enrichment, the contract price is ignored and the
actual value of the asset at the time of institution of the action is used. If the value of the asset has
decreased at the time of institution of the action, the decreased value is used. If the asset was lost
prior to institution of the action, the impoverished party cannot claim anything. If the minor traded
the asset, the value of the trade-in is used.146
If the asset was sold prior to the date of institution of the action, the following rules apply: The
minor is liable for as much of the purchase price as remains in his or her possession at the date of
institution of the action.147 However, if the minor used the proceeds to buy necessaries such as
food, clothing, accommodation or medical treatment, the minor is liable for the cost of those
necessaries even if nothing remains of them. The reason for this rule is that the minor is regarded
as having been enriched through saved expenses. Were it not for the asset or its proceeds, the
enriched party would have had to pay for these expenses out of his or her own pocket.148
In a case like this it is important to determine whose money has been saved. If the minor is
self-supporting, the minor has saved. However, if the necessaries would otherwise have been paid
for by a parent whose duty it was to support the minor, it is the parent who has saved, not the
minor, and it is therefore the parent who is liable to the other party, either on the basis of
unjustified enrichment or negotiorum gestio.149
If, however, the minor used the proceeds to purchase luxury articles, the rule is that the minor
is liable for only as much as remains. Say, for example, the minor used the proceeds to go on
holiday, and returned with R50 in his pocket, his or her estate is enriched by R50. However, if the
proceeds were used to buy an asset, albeit a luxury asset, the minor is liable for the value of the
asset.150
PAUSE FOR
REFLECTION
Returning to the example of A and B above to illustrate these principles

(1) For example, if the computer was stolen on 10 March, B would not be able to claim
anything. However, if it was stolen on 30 March, A would be liable on the basis of
unjustified enrichment for the actual value of the computer on 20 March, which is R4,000.
(2) If, for example, A sells the computer for R3,000 on 5 March, and uses the proceeds to pay
her rent, she would be liable on the basis of unjustified enrichment for R3,000. She is
deemed to have been enriched as she would have had to pay her rent out of her own pocket
anyway.
(3) If, in the example in (2) above, A uses the proceeds to buy refreshments for a party, she
would not be liable for anything.
(4) If, in the example in (2) above, A uses the proceeds to go on holiday, and returns with R200
in her pocket, she would be liable on the basis of unjustified enrichment for R200.
(5) If, in the example in (2) above, A uses the proceeds to buy a hi-fi system valued at R4,000,
she would be liable on the basis of unjustified enrichment for R4,000 (the value of the
asset).
As correctly pointed out by Heaton, the difference between liability on the basis of unjustified
enrichment and contractual liability can involve a great deal of money.151 In the case of contractual
liability the minor is liable for the contract price, irrespective of when the action is instituted.
However, in the case of liability on the basis of unjustified enrichment the minor is liable for only
the value of the asset at the time when the action is instituted, which could be much less than the
contract price.
(iii) The fraudulent minor

It sometimes happens that a minor misrepresents himself or herself to be a major, or to be
emancipated, or to have the necessary assistance, and in doing so misleads another person to
conclude a contract with him or her. There seems to be agreement that the fraudulent minor
should incur some form or liability152 although there is no consensus on what the basis of this
liability should be. There are two possible grounds on which the minor could be liable in these
circumstances: the minor could be liable in contract, or the minor could be liable for delictual
damages.
Supporters of contractual liability for the fraudulent minor give various reasons for their view.
The first and main reason is the fact that the fraudulent minor was denied restitutio in integrum in
Roman-Dutch law.153 The argument is that since these minors could not obtain restitutio in
integrum, they must be bound to the contract.
The problem with this argument is that the unassisted minor’s contract does not require setting
aside by restitutio in integrum. An unassisted minor is not contractually liable, and therefore does
not need to rely on restitutio in integrum. The minor can simply use the rei vindicatio or condictio
to recover performance rendered in terms of the unenforceable contract.154
The rei vindicatio is an action to recover things other than money.
PAUSE FOR
REFLECTION
An illustration of condictio
A condictio is an action to recover monetary performance.
Say, for example, that Vusi purchased a motorcycle from his uncle, Thabang, without the
assistance of his guardian. Vusi pays a deposit of R500, and Thabang delivers the motorcycle
to him.
Due to Vusi’s minority, the contract is void. He therefore does not need to rely on restitutio
in integrum to set aside the contract. He can use a condictio to recover the deposit he paid in
terms of an unenforceable contract.
Louw v MJ & H Trust (Pty) Ltd

An important decision in this context is Louw v MJ & H Trust (Pty) Ltd.155 In this case a
minor misrepresented himself to be emancipated and bought a motorcycle from a major
without the necessary assistance. When he was later sued for the balance of the purchase
price he raised his minority as a defence. The court held that as a result of the
misrepresentation, the minor could not recover the part of the purchase price he had
already paid. The court further held that the fact that the minor is denied restitutio in
integrum does not mean that the minor is contractually bound because of his
misrepresentation. Eloff J held that because the minor is not contractually bound, he
cannot be ordered to pay the remainder of the contract price. Consequently, the minor’s
misrepresentation does not result in the contract being enforced against the minor. It
simply results in the minor being denied restitutio in integrum.
This judgment was the object of much criticism.156 Eloff J was correct in holding that
denying the fraudulent minor restitutio in integrum does not result in the minor
becoming contractually liable. First, a minor who is not contractually liable does not
need restitutio in integrum. The minor can simply recover his or her performance with
rei vindicatio or condictio. The court was thus wrong in holding that denying the minor
restitutio in integrum resulted in barring him from recovering the part of the contract
price he had already paid. The court should have allowed the minor to recover the
payments he had already made with a condictio.
Second, those who advocate contractual liability as an appropriate basis for liability for the
fraudulent minor rely on the doctrine of estoppel.157 They argue that if someone enters into a
contract with a minor on the strength of the minor’s misrepresentation, the minor is precluded
from raising his or her minority as a defence. The minor is thus held bound to his or her
misrepresentation, and is held liable as if he or she was a major when the contract was concluded.
This argument cannot be supported as it allows the minor to alter his or her capacity to act by
committing a misrepresentation, and this is unacceptable. The purpose of limiting a minor’s
capacity to act is to protect the minor against his or her immaturity of judgment, and holding a
fraudulent minor contractually liable defeats that purpose.158
We agree with the view that a fraudulent minor ought to be held liable in delict to the other
party for the loss caused by the fraudulent misrepresentation.159 In contrast to capacity to contract,
capacity to be held delictually liable depends on the minor’s actual level of maturity.160
Consequently, the objections to holding the fraudulent minor contractually liable do not apply
here.
The other party does not have the duty to enquire into the truth of the minor’s statement unless
he or she has good cause to believe that he or she is, in fact, dealing with a minor.161
Depending on the circumstances, a minor’s conduct could amount to tacit misrepresentation. If,
for example, a minor knows that the other party thinks that he or she is a minor, or emancipated,
or has the necessary assistance, and does nothing to clear up this erroneous belief, then the minor
commits misrepresentation.162 A minor would not be delictually liable if he or she were not old
enough to be reasonably mistaken for a major.163
Once misrepresentation has been established, the onus rests on the minor to prove that the other
party was not misled, or in other words that it was not the misrepresentation that induced the other
party to contract with the minor.164 The other party must also have suffered loss.165
PAUSE FOR
REFLECTION
Capacity of a minor to be delictually liable

Let us look at some examples to illustrate these principles:
• A, a 16-year-old minor, buys a motorcycle from B for R6,000. A convinces B to contract

with him by showing him a forged identity document. B delivers the motorcycle after
receiving a R600 deposit from A. A then refuses to pay the remainder of the contract price
on the basis of his minority.
As there is no duty on B to enquire into the truth of A’s statement, A will be delictually liable
to B.
• A, a 15-year-old minor, buys a motorcycle from B. A tells B that he is 18 years old, but it is
obvious to B that he is dealing with a minor.
In this case B has good cause for believing that he is dealing with a minor, the requirements for
delictual liability are not complied with, and A will not be delictually liable.
8.3.2.2 Agreements other than contracts

The general rule that a minor may enter into an unassisted contract if it improves his or her
position without imposing duties on him or her applies also to other agreements. A minor may, for
example, enter into a real agreement in terms of which a right is transferred to him or her without
the required assistance.166 However, a real agreement in terms of which a minor attempts to
transfer a real right to another person, without the assistance of his or her guardian, is invalid.167
A minor can further enter into an unassisted agreement which extinguishes his or her debt to
another person but if the agreement extinguishes another person’s debt to the minor, the assistance
of the minor’s guardian is needed.168
A person who entered into a contract with a minor may not validly perform in terms of that
contract unless the minor is assisted by his or her guardian. If the other party does perform, that
party is not released from his or her duty to perform. However, if the minor is enriched by the
performance, then he or she may incur liability on the basis of unjustified enrichment.169 If a minor
renders performance in terms of a contract without his or her guardian’s assistance, that
performance is then invalid and can be recovered.170
8.3.2.3 Wills
A minor who has reached the age of 14 may witness a will.171 A minor of 16 years or older may
make his or her own will and in it dispose of his or her property as he or she sees fit.172
A minor’s guardian cannot make a will on the minor’s behalf, or assist the minor in making the
will. A will is too personal an act to be performed through the guardian’s intervention. A will is
either performed by the testator himself or herself, or the deceased person will die intestate.173
8.3.2.4 Marriages and civil unions
8.3.2.4.1 Consent to the marriage or civil union

(i) Civil marriages
All the guardians of a minor must consent to the minor’s civil marriage, unless a competent court
orders otherwise.174 If the minor is a boy below the age of 18 or a girl below the age of 15, the
written consent of the Minister of Home Affairs must supplement the guardians’ consent.175 In the
case of civil marriages, the minister’s consent applies only to boys between the ages of 14 and 18
years, and to girls between the ages of 12 and 15 years. The reasoning behind this principle is that
children below the age of puberty cannot enter into civil marriages at all.176
Figure 8.4 Consent required by minors to conclude a civil marriage at the different ages
If the guardian is absent or in any other way incompetent to consent to the minor’s marriage, the
commissioner of child welfare may consent.177 If the commissioner determines that it is in the
minor’s best interests to conclude an antenuptial contract, he or she must ensure that the
antenuptial contract is entered into before the marriage and assist the minor in executing the
contract.178 If the commissioner refuses consent, the High Court may be approached for consent.179
If one or more of the minor’s guardians withholds consent, the minor may also approach the
High Court for consent. The High 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.180
If the High Court grants consent, it may also order that a particular matrimonial property
system be applicable to the marriage. If an antenuptial contract must be entered into, the High
Court may appoint a curator to assist the minor.181 A minor who has been married before does not
require consent to remarry.182
(ii) Customary marriages

A minor may not enter into a customary marriage unless he or she has the written consent of the
Minister of Home Affairs or a duly authorised officer in the public service.183
(iii) Civil unions

The Civil Union Act restricts civil unions to persons above the age of 18 years.184 A minor
therefore cannot enter into a civil union even with the assistance of his or her guardian.185
8.3.2.4.2 The effect of absence of consent
(i) Civil marriages

If the consent of the Minister of Home Affairs was needed but not obtained, the minor’s marriage
is null and void. However, the Minister of Home Affairs may 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.186
If a minor fails to obtain the required consent from his or her parents, guardians, or the
commissioner of child welfare, the marriage is voidable. The marriage may be dissolved by the
court on application by:187
• the minor’s parents or guardian, before the minor attains majority and within six weeks of the
date on which they become aware of the existence of the marriage, or
• the minor, before attaining majority or within three months thereafter.
The Matrimonial Property Act 88 of 1984 section 24 regulates the patrimonial consequences of a
marriage concluded by a minor without the necessary assistance. 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 that it deems just.188 If the marriage is not dissolved, the patrimonial consequences are the
same as if the minor were of age when the civil marriage was entered into. Any antenuptial
contract in terms of which the accrual system is included and which was executed with a view to
the marriage is regarded to be valid.189
(ii) 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.190 If such a declaration is not obtained, the marriage is null and void.191
8.3.2.5 Medical treatment, operations, HIV tests, and contraceptives
8.3.2.5.1 Medical treatment and operations

The Children’s Act regulates the capacity of minors to consent to their medical treatment or
operations. In terms of the Act, a minor over the age of 12 may consent to medical treatment to
himself or herself or his or her child, provided that the minor is sufficiently mature and has the
mental capacity to understand the benefits, risks, and social and other implications of the
treatment.192 If the minor does not have the required maturity and mental capacity, his or her
guardian’s consent is required.193
A minor over the age of 12 may also consent to an operation on him or her or his or child if the
minor is sufficiently mature and has the mental capacity to understand the benefits, risks, social
and other implications of the treatment. The minor must be ‘duly assisted’ by his or her
guardian.194 If the minor does not have the required maturity and mental capacity, his or her
guardian’s consent is required.195
In terms of the Children’s Act, a minor’s guardian may not refuse to assist the minor in respect
of an operation, or withhold consent to medical treatment purely on the ground of religious, or
other, beliefs unless the guardian can show that there is a medically acceptable alternative to the
operation or treatment.196 If the parent or guardian unreasonably refuses to consent to medical
treatment or an operation, or to assist the child in giving consent, the Minister may give consent.197
The same applies if the child unreasonably refuses to consent to treatment or an operation.198 The
Minister may also consent if the guardian is incapable of giving consent or assisting the child in
giving consent, cannot readily be traced, or is deceased.199
If the Minister, guardian or child refuses or is unable to give consent, the High Court or
children’s court may consent to the medical treatment or operation.200 If the treatment or operation
is necessary to preserve the child’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
deferred for the purpose of obtaining the required consent, the superintendent of the hospital, or in
his or her absence, the person in charge of the hospital may consent to it.201
8.3.2.5.2 HIV testing

HIV testing on children is regulated separately in the Children’s Act. The relevant provisions are
contained in sections 130 to 133 of the Act. Children may be tested for HIV in the following
circumstances only:202
• if the test is necessary in order to establish whether a health care worker may have contracted
HIV due to contact, in the course of a medical procedure, with any substance from the child’s
body that may transmit HIV;
• if any other person may have contracted HIV due to contact with any substance from the
child’s body that may transmit HIV, and the court has authorised the test;
• if the test is in the child’s best interests and the necessary consent has been given for the test.
If the child is over the age of 12, or under the age of 12 and of sufficient maturity to understand
the benefits, risks and social implications of the test, the child may consent to the HIV test.203 If
the child is under the age of 12, and not of sufficient maturity to understand the benefits, risks and
social implications of the test, then the consent of his or her parent or caregiver, the provincial
head of social development, or the designated child protection organisation arranging the child’s
placement is required.204 If the child has no parent or caregiver and no designated child protection
organisation is arranging his or her placement, the superintendent or person in charge of the
hospital may consent to the test.205 If the child or his or her parent or caregiver is incapable of
giving consent, or the child, parent, caregiver, provincial head or child protection organisation
unreasonably withholds consent, the children’s court may give consent.206
If the child is of sufficient maturity to understand the benefits, risks and social implications of
the test, the test may be performed only after proper counselling by an appropriately trained
person.207 Post-test counselling must also be provided to the child by an appropriately trained
person if the child is sufficiently mature to understand the implications of the test result.208 If the
child’s parent or caregiver knows about the test, he or she must also receive pre- and post-test
counselling.209
If a child is HIV positive, this fact may not be disclosed unless the child gives his or her
consent if he or she is over the age of 12, or under the age of 12 but sufficiently mature to
understand the benefits, risks and social implications of the disclosure.210 If the child is below the
age of 12 and not of sufficient maturity 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 arranging his or her placement must be obtained.211 If the child is below the age of 12,
insufficiently mature to understand the benefits, risks and social implications of the disclosure, but
has no parent or caregiver, and no designated child protection organisation is arranging the child’s
placement, the superintendent or person in charge of the hospital may consent to the disclosure.212
If the child or his or her caregiver is incapable of consenting, or if the child, parent, caregiver or
designated child protection organisation unreasonably withholds consent, and disclosure is in the
best interests of the child, the children’s court may consent to the disclosure.213
A child’s HIV status may be disclosed without consent only in the following circumstances:214
• if the person disclosing the child’s status acts within the scope of his or her powers and duties
in terms of the Children’s Act or any other law;
• if the disclosure is necessary for carrying out the provisions of this Act;
• if the disclosure takes place for the purpose of legal proceedings;
• if the disclosure is made in terms of a court order.
8.3.2.5.3 Access to contraceptives

The Children’s Act section 134 regulates access to contraceptives by children. No person may
refuse to sell condoms to a child over the age of 12, or refuse to provide a child over the age of 12
with condoms on request where the condoms are provided or distributed free of charge.215
If a child is over the age of 12, proper medical advice is given to the child, and the child is
medically examined to determine whether there are any medical reasons why contraceptives
should not be provided to the child, contraceptives other than condoms may be provided to the
child on his or her request without the consent of the child’s parent or caregiver.216 A child who
obtains condoms, contraceptives or contraceptive advice is entitled to confidentiality.217

In general, a minor has limited capacity to litigate in civil proceedings. The minor’s guardian may
sue or be sued on behalf of the minor, or the minor may sue or be sued with the guardian’s
assistance.218 The guardian’s assistance may be given by way of ratification.219 It should be noted
that the Children’s Act entitles a minor to assistance in bringing a matter to court.220
PAUSE FOR
REFLECTION
Examples of how a minor may cite or be cited

Van der Vyver and Joubert give the following examples of how a minor may cite or be cited in
civil proceedings:221
• the plaintiff/defendant is X, in the capacity as guardian of Y, a minor, or

• the plaintiff/defendant is Y, a minor, duly assisted by X, his or her guardian.
Sometimes it may be necessary for the court to appoint a curator ad litem to represent a minor in
legal proceedings. Traditionally, a curator ad litem is appointed in the following circumstances:
• the minor has no guardian;222 or

• the guardian cannot be found;223 or
• the guardian unreasonably refuses to assist the minor;224 or
• the interests of the minor are in conflict with those of the parent;225 or
• the litigation is against the guardian.226
The courts have recently shown a trend towards appointing curatores ad litem in cases where the
children are not litigating themselves, but are affected by ongoing litigation,227 and even in cases
where there is no pending litigation, but the legal rights of children need to be protected.228
The High Court, as the upper guardian of minors, may even step in and act on behalf of minors
in litigation.229
In some civil proceedings a minor may litigate without assistance:230
• A minor may litigate without assistance if the High Court grants him or her venia agendi. In
Ex parte Goldman,231 for example, a minor within three months of reaching majority was
granted venia agendi to sue for personal injuries.
Venia agendi is the leave to litigate.
• An inquiry in terms of the Maintenance Act 23 of 1963 is a sui generis procedure which is not
subject to the common-law rule that a minor must be assisted by his or her guardian in civil
proceedings.232 However, if special circumstances make it clear that the minor may be
prejudiced by the absence of a guardian, there is a duty on the maintenance officer or
magistrate to ensure that the guardian attends the maintenance court enquiry.233
Sui generis means of its own kind.
• If the minor applies for permission to get married without the guardian’s consent.234
In cases where the minor litigates with the required assistance or consent of his parent or
guardian, the minor is the party to the lawsuit before the court, and he or she is liable for the costs
order.235 In exceptional cases the court may order the minor’s guardian to pay the costs either out
of his or her own pocket, or jointly and severally with the minor. This is an exceptional order that
results not from the guardian’s failure in the action, but from the court’s disapproval of the
guardian’s conduct in instituting or defending the litigation. The order will not be granted unless
the court finds that the guardian acted mala fide, unreasonably or negligently, or if the guardian
instituted or defended the litigation in a frivolous or reckless fashion.236
Mala fide means in bad faith.
The question arises as to what the legal consequences are of a lawsuit in cases where a minor
sues or is sued in his or her own name without the required assistance or consent. In Yu Kwam v
President Insurance Co Ltd237 it was held that proceedings like these are void. However, we agree
with Van der Vyver and Joubert,238 and Davel and Jordaan239 that this decision does not reflect
current South African law. The proceedings are not necessarily void. A judgment in favour of a
minor is valid and enforceable, but a judgment or bill of costs against the minor is not.240 This
view is in accordance with the general principle that a minor can improve his or her position, but
not burden it without the assistance of his or her guardian.241
COUNTER
POINT
The Children’s Act section 14: an area requiring interpretation by the courts
As previously indicated,242 the Children’s Act section 14 provides that ‘every child’ has a right
to bring, or to be assisted in bringing, a matter to court. The Act does not specify who must
assist children. The obvious choice would, of course, be the child’s guardian. However, the
question arises what happens in cases where the child is litigating against his or her parents, or
where the child is an orphan. Would it be possible for the child to be assisted by an
organisation (for example an organisation involved in child advocacy)? This would certainly
avoid the onerous process of first appointing a curator and then bringing a second application
or action. Be that as it may, the position is unclear and this is another area where interpretation
by the courts is needed.
8.3.4 Capacity to incur delictual and criminal liability

Fault is a requirement for both delictual and criminal liability. The basis of, and most important
requirement for, fault is accountability. The general test for accountability is the following:243
• does the person have the mental ability to appreciate the difference between right and wrong;
and
• if so, is the person capable of acting in accordance with that appreciation?
In criminal law the issue of criminal accountability is set out in the Child Justice Act 75 of
2008.244 The Act changed the lower age of criminal accountability from 7 years to 10 years, and
codified the common-law presumptions that had previously operated. The law now states that a
child who commits an offence while under the age of 10 years does not have criminal capacity
and cannot be prosecuted for that offence.245 A child who is 10 years or older but under the age of
14 years and who commits an offence is presumed to lack criminal capacity, unless the State
proves that he or she has criminal capacity.246 The State must prove beyond a reasonable doubt the
capacity of a child who is 10 years old or older, but under 14 years, to appreciate the difference
between right and wrong at the time of the commission of an alleged offence and to act in
accordance with that appreciation.247
Figure 8.5 The criminal accountability of minors
Figure 8.6 The delictual accountability of minors
Children between the ages of 7 years and puberty are rebuttably presumed not to be
accountable for their delicts. Evidence may be presented to prove that a boy between the ages of 7
and 14, and a girl between the ages of 7 and 12, is indeed accountable for the delict he or she
committed. Boys between the ages of 14 and 18, and girls between the ages of 12 and 18 years,
are rebuttably presumed to be delictually accountable. They are thus considered accountable until
the contrary is proved.248
PAUSE FOR
REFLECTION
An example from case law illustrating these principles

In Weber v Santam Versekeringsmaatskappy Bpk 249 Mr T and his wife were on their way out in
their car when she noticed that she had left her knitting at home. They returned to their flat, and
Mr T parked on the lawn in front of the flat, switched off the car and waited for his wife to
fetch her knitting. During this time, a child of seven years and two months started playing in
the sand behind the car. When his wife returned, Mr T started the car, put it in reverse and hit
the child. On behalf of his child, the child’s father instituted a claim against the insurers of the
vehicle based on Mr T’s alleged negligence.
The trial court found that Mr T was negligent, but that there was contributory negligence on
the side of the child, and that the child’s claim had to be reduced. On appeal, the Appellate
Division looked at the evidence and found on the facts that the child in question was not
accountable for his unlawful acts, and that the amount claimed should not be reduced. The
court held that the child was so absorbed in his ‘road-making’ that this crowded out any
consideration of the warnings given by his mother to be aware of his surroundings.
COUNTER
POINT
Legislation that potentially condones unjustifiable discrimination based on sex

The Constitution section 9(3) and (4) prohibits unfair discrimination on the ground of sex. We
agree with Heaton, who points out that the different ages at which boys and girls are presumed
to acquire the capacity to be delictually accountable may well amount to unjustifiable
discrimination based on sex.250
8.4 Termination of minority
8.4.1 Attainment of the prescribed age of majority

In terms of the Children’s Act the age of majority is set at 18 years.251 A person attains majority at
the beginning of the day of the person’s eighteenth birthday, unless it is to the minor’s advantage
to extend the period of his or her minority to the precise moment in the day that coincides with his
or her time of birth.252 It is doubted whether this exception is ever applied in practice.253
8.4.2 Effect of marriage on minority status

A person who concludes a valid civil or customary marriage before reaching the age of 18
becomes a major for all purposes. If the marriage is dissolved by death or divorce before the
married person reaches the age of 18, then his or her minority does not revive.254
A void marriage does not terminate minority, and the annulment of a voidable marriage
restores the married person’s limited capacity to act with retrospective effect. The position is what
it would have been had the marriage never taken place.255
8.4.3 Declaration of majority by a court

Venia aetatis refers to the authority of the sovereign (i.e. the head of state) at common law to grant
a minor over the age of 18 a concession to act as a major. Its effect was to render the minor a
major with the exception that he or she could not alienate immovable property or burden it with a
mortgage unless this capacity was expressly granted.256 Venia aetatis was regulated by statute in
the Free State.257 Due to the insignificant role that venia aetatis played in South Africa during the
nineteenth century, some writers suggested that it had become obsolete through disuse.258 Others
suggested that it had been revoked by the Age of Majority Act.259
Venia aetatis was not available to minors under the age of 18.260 It could thus be used only in
the case of minors between the ages of 18 and 21 as the majority age was set at 21 at that time.261
However, on 1 July 2007 the Children’s Act repealed the Age of Majority Act and lowered the
age of majority to 18 years.262 Even if venia aetatis still existed in our law when the Children’s Act
came into operation, it is clear that the procedure became obsolete on that date.
In the Cape Province, courts in the past sometimes granted an order releasing a minor from
tutelage.263 The order had more or less the same practical effect as venia aetatis. In spite of this, it
was held that the court was merely emancipating the minor in its capacity as upper guardian of
minors.264 The High Court as upper guardian of all minors may still be willing to release a minor
from some or all of the parental responsibilities and rights his or her parents have. Release from
tutelage may thus still be possible.265
The Children’s Act section 28 empowers some courts to terminate, suspend or circumscribe a
person’s parental responsibilities and rights. This authority is granted to the High Court, a divorce
court dealing with a divorce matter, and the children’s court within whose area of jurisdiction a
child ordinarily resides.266 An application for such termination, suspension or circumscription may
be made by the child in respect of whom the parental responsibilities and rights operate, with the
court’s permission.267 Heaton is of the opinion that section 28 may well replace release from
tutelage in practice should the procedure still exist in our law.268
8.4.4 Emancipation of a minor

Emancipation refers to the freedom to contract independently granted to a minor by his or her
guardian.269 Emancipation is similar to a situation where a minor performs valid juristic acts with
the assistance of his or her guardian. Where a minor acts with the assistance of his or her guardian,
the guardian consents to a specific act. In the case of emancipation, however, the guardian
consents to a range of acts falling within a particular sphere. For example, emancipation takes
place where the minor participates in a business venture as an economically independent person.
270
Either parent may emancipate the child, provided the parent has guardianship of the child.271 If
a minor has no parents, the minor’s legal guardian may emancipate the child.272
A minor must have the guardian’s express or implied consent for an activity. Abandonment
resulting from parental indifference is not equivalent to emancipation.273 Whether or not a minor
has been emancipated is a question of fact to be decided after considering all the circumstances of
the particular case. Factors which must be considered include the minor’s age, the minor’s
relationship with his or her guardian, the nature of the minor’s occupation and the length of time
the occupation has been carried on. A residence that is separate from the guardian is not a
prerequisite for emancipation. It is merely one of the factors to be considered in deciding whether
emancipation has taken place. However, if a minor lives with his or her guardian, stronger
evidence will be needed to prove emancipation.274 The onus of proving emancipation rests on the
person who alleges that it has taken place, and it must be proven on a balance of probabilities.275
It is uncertain whether or not a guardian may revoke an emancipation previously granted. The
best view seems to be that the guardian is indeed entitled to revoke the emancipation.276
There is uncertainty in our law on the precise effect of emancipation. There is authority for
both the view that emancipation applies only to contracts relating to the minor’s business or
occupation,277 and the view that emancipation applies to all contracts,278 except that the minor may
not independently alienate immovable property or get married.279
Heaton correctly argues that as far as modern practice is concerned, the degree of legal
independence an emancipated minor has acquired is a question of fact depending on the particular
circumstances of the case.280 If the guardian gave the minor ‘complete freedom of action with
regard to his mode of living and earning his livelihood’,281 the minor is emancipated for all intents
and purposes.
PAUSE FOR
REFLECTION
The case of Dickens v Daley282

In Dickens v Daley a twenty-year-old minor had been employed as a clerk in a business for the
past three years. His parents were divorced. Apart from an affidavit made by his father that
enabled him to obtain a passport, he had no contact with his father. He lived with his mother
and stepfather and earned £70 per month, of which he paid £20 to his mother for his
accommodation. He operated his own bank account and had accompanied his employer
overseas twice for business. The court found that the minor had been tacitly emancipated and
was liable for the payment of a cheque issued by him for £17.
However, if the guardian emancipated the minor for purposes of a particular business only,
without relinquishing any of the other parental responsibilities and rights, the minor’s capacity to
act is restricted to contracts relating to the particular business.283 It should be kept in mind,
however, that even when emancipation is complete and comprehensive, the minor still needs the
assistance of his or her guardian to alienate immovable property or get married.284
As restitutio in integrum285 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.286
Although the courts seem to accept that an emancipated minor has locus standi in iudicio,287 we
agree with the authors who question the correctness of this view. Consent to a specific transaction
does not automatically include consent to engage in litigation regarding that transaction. It is
therefore not correct to assume that an emancipated minor automatically has locus standi in
iudicio in respect of all matters falling within the sphere of the emancipation.288

1. The law confers capacity to act on only those persons who can understand the nature and
consequences of their acts.
2. An infans has limited legal capacity. Although the infans is capable of being the bearer of
rights and duties, this capacity may be limited.
3. An infans has no capacity to act whatsoever. An infans cannot conclude a juristic act even
with the assistance of his or her guardian. The guardian must act for the infans and on his or
her behalf.
4. In terms of common law, a child below the age of 7 cannot be a party to a lawsuit even if the
child is assisted by his or her guardian. It is at this stage unclear whether the guardian must
litigate on behalf of the infans, but it would probably be safer to do so until the position is
clarified by the courts.
5. A minor has limited legal capacity. Because of his or her minority, a minor is incapable of
holding some of the offices of a legal subject, for example the trustee of an insolvent estate or
director of a company.
6. A minor can generally incur contractual liability only if assisted by his or her guardian when
the contract is made. However, if the contract improves the minor’s position without imposing
duties on him or her, the minor may enter into an unassisted contract.
7. A minor over the age of 16 years may be a member or depositor with any mutual bank, unless
the articles of the particular bank provide otherwise.
8. Deposits in the Postbank made by or for the benefit of a minor, and any national savings
certificate issued in favour of a minor of any age, may be repaid to him or her.
9. The guardian’s assistance to the minor’s contract may take one of the following forms. First,
the minor’s guardian can enter into a contract on the minor’s behalf. Second, the minor may
personally enter into the contract with the consent of the guardian. Third, the guardian may
ratify the contract after it has been concluded. The guardian’s consent (or ratification) may be
supplied expressly or tacitly.
10.
As a general rule, a guardian is not personally liable in respect of the minor’s contract,
regardless of whether the guardian assisted the minor or acted on his or her behalf. A contract
entered into by a minor with the assistance of his or her guardian, or a contract entered into by
a guardian on behalf of a minor, is fully binding and enforceable against the minor.
11. However, if the minor acted as the guardian’s agent or if the guardian ratified a contract
concluded by the minor as his agent, the guardian is liable in terms of the contract.
12. 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.
13. A guardian may also incur liability on the basis of negotiorum gestio if he or she is the minor’s
parent. As parents are obliged to support their children, the parent may be liable on the basis
of negotiorum gestio if a third party fulfils the parental duty of support by providing
necessaries like food and clothing to the child.
14. The minor who acted with the assistance of his or her guardian may escape liability by relying
on a remedy called restitutio in integrum if the contract was prejudicial to the minor at the
moment it was concluded.
15. The minor’s unassisted contract creates a natural obligation on the part of the minor, and a
civil obligation on the part of the other party. This means that the contract is not enforceable
against the minor and his or her guardian, whereas it is enforceable against the other party.
16. A minor who concluded an unassisted contract may be held liable on the basis of unjustified
enrichment for the value of the asset at the time the action was instituted.
17. A fraudulent minor ought to be held liable in delict to the other party for the loss caused by the
fraudulent misrepresentation.
18. The general rule that a minor may enter into an unassisted contract if it improves his or her
position without imposing duties on him or her also applies to other agreements.
19. A minor who has reached the age of 14 may witness a will. A minor of 16 years or older may
make his or her own will, and in it dispose of his or her property as he or she sees fit.
20. All the guardians of a minor must consent to the minor’s civil marriage unless a competent
court orders otherwise. If the minor is a boy below the age of 18 or a girl below the age of 15,
the written consent of the Minister of Home Affairs must supplement the guardians’ consent.
In the case of civil marriages, the minister’s consent applies only to boys between the ages of
14 and 18 years, and to girls between the ages of 12 and 15 years.
21. A minor may not enter into a customary marriage unless he or she has the written consent of
the Minister of Home Affairs or a duly authorised officer in the public service.
22. A minor cannot enter into a civil union even with the assistance of his or her guardian.
23. A minor over the age of 12 may consent to medical treatment on himself or herself or his or
her child, provided that the minor is sufficiently mature and has the mental capacity to
understand the benefits, risks, social and other implications of the treatment. If the minor does
not have the required maturity and mental capacity, his or her guardian’s consent is required.
24. A minor over the age of 12 may also consent to an operation on him or her, or his or her child,
if the minor is sufficiently mature and has the mental capacity to understand the benefits, risks,
and social and other implications of the treatment. The minor must be ‘duly assisted’ by his or
her guardian. If the minor does not have the required maturity and mental capacity, his or her
guardian’s consent is required.
25. HIV testing on children is regulated separately in the Children’s Act. Access to contraceptives
by children is also regulated in the Children’s Act.
26. In general, a minor has limited capacity to litigate in civil proceedings. The minor’s guardian
may sue or be sued on behalf of the minor, or the minor may sue or be sued with the
guardian’s assistance.
27. The minimum age of criminal accountability is 10 years. Children below the age of 10 years
are completely unaccountable for their crimes, whereas children between the ages of 10 and
14 years are presumed to be unaccountable.
28. Boys between the ages of 7 and 14, and girls between the ages of 7 and 12, are rebuttably
presumed to be delictually unaccountable. Boys between the ages of 14 and 18, and girls
between the ages of 12 and 18 years are rebuttably presumed to be delictually accountable.
29. In terms of the Children’s Act, the age of majority is set at 18 years.
30. A person who concludes a valid civil or customary marriage before reaching the age of 18,
becomes a major for all purposes.
31. A minor may be granted the freedom to contract independently by his or her guardian. This is
known as emancipation. The degree of legal independence an emancipated minor has acquired
is a question of fact depending on the particular circumstances of the case.
1 See 5.3 above.

2 Du Bois (ed) et al. Wille’s Principles of South African Law 9 ed (2007) 173; Heaton The South African Law
of Persons 3 ed (2008) 85; Davel & Jordaan Law of Persons 4 ed (2005) 53.
3 Edelstein v Edelstein 1952 (3) SA 1 (A) 15C. See also Heaton ‘The concept of capacity’ in Van Heerden et
al. (eds) Boberg’s Law of Persons and the Family 2 ed (1999) 749; Heaton 85; Wille’s Principles 173.
4 See also Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 s 6 read with s 1(1)
(‘prohibited grounds’).
5 The term ‘infans’ (plural: ‘infantes’) is used to denote children below the age of 7, whereas the term ‘minor’
is used to denote persons between the ages of 7 and 18. Strictly speaking, the term ‘minor’ also includes
children younger than 7. However, for lack of a better word, the term ‘minor’ will be used in this book to
denote persons between the ages of 7 and 18 (in general, Heaton in Van Heerden et al. (eds) 755 fn. 39).
6 Heaton 85.
7 Heaton in Van Heerden et al. (eds) 749; Davel & Jordaan 54.
8 In general, Heaton 85-86; Davel & Jordaan 52-53.
9 In terms of common law children below the age of 7 years were irrebuttably presumed to lack criminal
capacity, and a child of 7 years or older, but under the age of 14 years, was rebuttably presumed to lack
criminal capacity, meaning that the child might be found responsible if the prosecution could prove beyond a
reasonable doubt that the child had the required capacity. See 8.2.4 and 8.3.4 below.
10 S 7.
11 See 8.2.4 & 8.3.4 below.
12 See 8.2.2 & 8.3.2 below.
13 Children’s Act s 233(1)(c).
14 See 8.3.2.4.1 below.
15 Marriage Act 25 of 1961 s 26(1). See 8.3.2.4.1 below.
16 Wills Act 7 of 1953 s 1. See 8.3.2.3 below.
17 Wills Act s 4. See 8.3.2.3 below.
18 Mutual Banks Act 124 of 1993 s 88(1). See 8.3.2.1.2. below.
19 The capacity to have rights and duties.
20 See 5.2 above.
21 E.g. the right to claim maintenance, or the right of ownership to property inherited by the infans.
22 E.g. the duty to pay tax on the income derived from a sum of money inherited by the infans.
23 Davel & Jordaan 59-61; Van der Vyver & Joubert Persone- en Familiereg 3 ed (1991) 168.
24 Voet 26.8.9.
25 Weber v Santam Versekeringsmaatskappy Bpk 1983 (1) SA 381 (A) 403E.
26 De Wet & Van Wyk Kontraktereg 5 ed (1992) 98; Van der Vyver & Joubert 170.
27 Heaton 91; Davel & Jordaan 59; Van der Vyver & Joubert 142.
28 The term ‘guardian’ in this chapter refers to the minor’s natural guardian (i.e. parent), or to an appointed legal
guardian.
29 Buttar v Ault 1950 (4) SA 229 (T) 239; Ex parte Hulton 1954 (1) SA 460 (C) 466-467. See also Van Heerden
‘Personal and proprietary aspects of parental power’ in Van Heerden et al. (eds) 733-739; Heaton 91; Davel
& Jordaan 59.
30 Voet 26.9.2. See further Heaton 91; Davel & Jordaan 60; Van der Vyver & Joubert 142.
31 Children’s Act s 12(2)(a).
32 Long-term Insurance Act 52 of 1998 s 55. See further Heaton 91.
34 Voet 2.4.4. See further Davel & Jordaan 61; Heaton 92; Van der Vyver & Joubert 174.
36 Davel & Jordaan 61 fn. 73.
37 Heaton 92. See also Boezaart ‘Child law, the child and South African private law’ in Boezaart (ed) Child
Law in South Africa (2009) 22-23.
38 Voet 9.2.29; Van Oudtshoorn v Northern Assurance Co Ltd 1963 (2) SA 642 (A); Weber v Santam
Versekeringsmaatskappy Bpk 1983 (1) SA 381 (A) 389; Keightley ‘Capacity to be held accountable for
wrongdoing’ in Van Heerden et al. (eds) 879; Heaton 92; Davel & Jordaan 62; Van der Vyver & Joubert 192
et seq.
39 Keightley in Van Heerden et al. (eds) 893; Heaton 92.
40 Voet 26.8.2.
41 Friendly Societies Act 25 of 1956 s 16.
42 Insolvency Act 24 of 1936 s 55(c).
43 Companies Act 61 of 1973 s 218(1)(b). Upon its commencement, the Companies Act 71 of 2008, tabled in
Parliament in May 2008, will contain a similar provision in s 69(7)(b).
44 Mutual Banks Act s 38(a).
45 Heaton ‘Capacity to perform juristic acts: marriage and other acts’ in Van Heerden et al. (eds) 854; Heaton
112; Davel & Jordaan 63; Van der Vyver & Joubert 170.
46 Heaton in Van Heerden et al. (eds) 853 fn. 64; Heaton 111; Davel & Jordaan 63; Van der Vyver & Joubert
170-171.
47 See 8.4.4 below.
48 Note that a minor cannot conclude a civil union in terms of the Civil Union Act 17 of 2006 s 1.
50 Children’s Act ss 19(1), 19(2) & 20(a).
51 Dhanabakium v Subramanian 1943 AD 160.
52 Children’s Act s 19(2). The child’s father and the child’s unmarried mother can acquire guardianship of the
child in terms of ss 22 & 24. The child’s unmarried father automatically acquires guardianship of the child if
he qualifies in terms of s 21. See 7.2.5 above.
53 Voet 26.8.2-26.8.4; Edelstein v Edelstein 1952 (3) SA 1 (A) 12-13. See also Cockrell ‘Capacity to perform
juristic acts: contracts’ in Van Heerden et al. (eds). 781 fn. 68.
54 Voet 26.8.2.
55 Van Heerden in Van Heerden et al. (eds) 737; Cockrell in Van Heerden et al. (eds) 785 fn. 78; Heaton 93;
Davel & Jordaan 64.
56 See 8.1 above.
58 Wood v Davies 1934 CPD 250; Van Dyk v SAR & H 1956 (4) SA 410 (W).
59 Cockrell in Van Heerden et al. (eds) 781-786 for a complete list.
60 Mutual Banks Act s 88(1).
61 Postal Services Act 124 of 1998 s 52.
62 Voet 26.9.1; 26.9.2; Du Toit v Lotriet 1918 OPD 99; Skead v Colonial Banking and Trust Co Ltd 1924 TPD
497.
63 Voet 4.4.21, 26.8.3, 39.5.7; Wood v Davies 1934 CPD 250; Dhanabakium v Subramanian 1943 AD 160.
64 Baddeley v Clarke (1923) 44 NPD 306.
65 McCallum v Hallen 1916 EDL 74; Ex parte Blignaut 1963 (4) SA 36 (O).
66 Cockrell in Van Heerden et al. (eds) 788-789; Heaton 95; Davel & Jordaan 67.
67 1951 (2) SA 392 (O) 399-400.
68 Cockrell in Van Heerden et al. (eds) 789; Heaton 95.
69 This general consent is known as emancipation. See 8.4.4 below.

70 Hahlo & Kahn The Union of South Africa: The Development of its Laws and Constitution (1960) 379.
71 Du Toit v Lotriet 1918 OPD 99.
72 Van Dyk v SAR & H 1956 (4) SA 410 (W).
73 Schoeman v Rafferty 1918 CPD 485.
74 Voet 26.8.8.
75 Voet 26.8.6.
76 Heaton 95 fn. 104.
77 Du Toit v Lotriet 1918 OPD 99.
78 Wood v Davies 1934 CPD 250.
79 Ex parte Potgieter et Uxor 1943 OPD 4.
80 Heaton 96-97.
81 Long-term Insurance Act 52 of 1998 s 55.
82 Fouche v Battenhausen & Co 1939 CPD 228.
84 Skead v Colonial Banking and Trust Co Ltd 1924 TPD 497; Wood v Davies 1934 CPD 250.
85 McCallum v Hallen 1916 EDL 74; Dreyer v Sonop Bpk 1951 (2) SA 392 (O).
86 1951 (2) SA 392 (O).
87 Heaton 97; Davel & Jordaan 71; Van der Vyver & Joubert 158, 167.
88 Cockrell in Van Heerden et al. (eds) 798; Heaton 97; Wille’s Principles 1072-1073.
89 Voet 4.4.12-4.4.54; Du Toit v Lotriet 1918 OPD 99; Wood v Davies 1934 CPD 250.
90 Van der Byl & Co v Solomon 1877 Buch 25; Breytenbach v Frankel 1913 AD 390.
91 In re Nooitgedacht: Ex parte Wessels (1902) 23 NLR 81; De Wet v Bouwer 1919 CPD 43.
92 Van der Byl & Co v Solomon 1877 Buch 25; Wood v Davies 1934 CPD 250.
93 Voet 4.4.49.
94 Van Heerden in Van Heerden et al. (eds) 725-726.
95 Van der Byl & Co v Solomon 1877 Buch 25.
96 Wood v Davies 1934 CPD 250.
97 Skead v Colonial Banking & Trust Co Ltd 1924 TPD 497.
98 Voet 4.1.22, 4.4.36-4.4.37; Wood v Davies 1934 CPD 250.
99 Van Heerden v Sentrale Kunsmis Korporasie Bpk 1973 (1) SA 17 (A).
100 Wood v Davies 1934 CPD 250; Tjollo Ateljees (Eins) Bpk v Small 1949 (1) SA 856 (A).
101 Landers v Estate Thomas Landers 1933 NPD 415.
102 Voet 4.4.45.
103 Voet 4.4.43; Louw v MJ & H Trust (Pty) Ltd 1975 (4) SA 268 (T).
104 Van Heerden in Van Heerden et al. (eds) 731; Davel & Jordaan 75; Heaton 105; Van der Vyver & Joubert
153-154. See also 8.4.4 below.
105 Van Heerden in Van Heerden et al. (eds) 728 fn. 290; Heaton 105; Davel & Jordaan 74-75.
106 Opperman v Labuschagne 1954 (2) SA 150 (EC).
107 In other words, after three years, the claim may not be instituted.
108 Prescription Act 68 of 1969 s 13(1)(a) & (i).
109 Voet 4.4.44.
110 Voet 4.4.39.
111 Cockrell in Van Heerden et al. (eds) 799.
112 Voet 26.8.4, 44.7.3.
113 Voet 15.1.11; Marshall v National Wool Industries Ltd 1924 OPD 238.
114 Voet 26.8.3; Edelstein v Edelstein 1952 (3) SA 1 (A).
115 Cockrell in Van Heerden et al. (eds) 799, 830-834. See also Heaton 93; Davel & Jordaan 77-78; Van der
Vyver & Joubert 162 et seq.
116 Voet 26.8.4.
117 Voet 29.3.34; Edelstein v Edelstein 1952 (3) SA 1 (A).
118 Opperman v Labuschagne 1954 (2) SA 150 (E) 158A.
119 Cockrell in Van Heerden et al. (eds) 799-800; Heaton 93; Davel & Jordaan 79.
120 Rhode v Minister of Defence 1943 CPD 40.

121 See 8.3.3 below.
122 Edelstein v Edelstein 1952 (3) SA 1 (A).
123 Voet 15.1.11; Marshall v National Wool Industries Ltd 1924 OPD 238.
125 Baddeley v Clarke (1923) 44 NPD 306. See (ii) below.
126 See 8.3.2.1.2 (iii) above.
127 Voet 4.1.13, 4.4.21, 4.4.47, 4.4.52; Cockrell in Van Heerden et al. (eds) 802.
129 In other words, the surety for the minor’s obligation is bound even though the minor is not: Voet 4.4.39,
26.8.4, 44.7.3.
130 Voet 44.7.3. Novation means a new contract which extinguishes the original obligation between the parties
and replaces it with a new obligation.
131 Cockrell in Van Heerden et al. (eds) 785 fn. 78; Heaton 94. Cession refers to the transfer of a personal right.
A personal right flowing from a contract (the right to claim performance) can, for example, be transferred
from a creditor to a third party. See further 2.3 above.
132 Voet 4.4.44, 26.8.4; Breytenbach v Frankel 1913 AD 390.
133 Voet 26.8.4.
134 Voet 4.4.44; Skead v Colonial Banking & Trust Co Ltd 1924 TPD 497.
135 Voet 4.4.44. See also Cockrell in Van Heerden et al. (eds) 804 fn. 141.
136 De Beer v Estate De Beer 1916 CPD 125.
137 S v De Blom 1977 (3) SA 513 (A).
140 (1890) 8 SC 16.
141 1952 (3) SA 1 (A). The benefit theory was rejected by the Transvaal court in Tanne v Foggitt 1938 TPD 43
prior to the Edelstein decision.
142 12E-F.
143 Pretorius v Van Zyl 1927 OPD 226; Nortjé v Pool 1966 (3) SA 96 (A).
144 Edelstein v Edelstein 1952 (3) SA 1 (A); Van der Vyver & Joubert 166.
146 Ibid.
147 Ibid.
148 Edelstein v Edelstein 1952 (3) SA 1 (A). See also Heaton 103; Davel & Jordaan 81; Cockrell in Van Heerden
et al. (eds) 813.
151 Heaton 104.
152 Voet 4.4.43, 27.9.13; Fouche v Battenhausen & Co 1939 CPD 228; Louw v MJ & H Trust (Pty) Ltd 1975 (4)
SA 268 (T); Cockrell in Van Heerden et al. (eds) 817; Heaton 99; Davel & Jordaan 87; Van der Vyver &
Joubert 156.
153 Voet 4.4.43, 27.9.13; Pleat v Van Staden 1921 OPD 91; Louw v MJ & H Trust (Pty) Ltd 1975 (4) SA 268
(T); Van der Vyver & Joubert 156-157.
154 See 8.3.2.1.3 (i) above.
155 1975 (4) SA 268 (T).
156 Cockrell in Van Heerden et al. (eds) 819-822; Heaton 101; Davel & Jordaan 88-89.
157 Cockrell in Van Heerden et al. (eds) 823; Heaton 101; Van der Vyver & Joubert 157.
158 Louw v MJ & H Trust (Pty) Ltd 1975 (4) SA 268 (T) 273H; Cockrell in Van Heerden et al. (eds) 824, 826;
Heaton 101.
159 Cockrell in Van Heerden et al. (eds) 825-826; Heaton 102.
160 See 8.3.4 below.
161 Voet 4.4.43; Pleat v Van Staden 1921 OPD 91; Louw v MJ & H Trust (Pty) Ltd 1975 (4) SA 268 (T).
163 Pleat v Van Staden 1921 OPD 91; Louw v MJ & H Trust (Pty) Ltd 1975 (4) SA 268 (T).
164 Ibid.
166 Harvey v Reed 1879 OFS 48; Heaton in Van Heerden et al. (eds) 847; Van der Vyver & Joubert 171-172.
167 Voet 14.2.5, 41.1.35.
168 Voet 4.4.22.
169 Heaton 106.
170 Ibid.
171 Wills Act 7 of 1953 s 1.
172 Wills Act s 4.
173 Voet 28.1.31; Heaton in Van Heerden et al. (eds) 849.
174 Children’s Act s 18(3)(c) & (5).
175 Marriage Act s 26(1).
176 Heaton in Van Heerden et al. (eds) 835-836 fn. 2; Heaton 106; Davel & Jordaan 90; Van der Vyver &
Joubert 172, 486-487.
177 Marriage Act s 25.
178 Marriage Act s 25(2) & (3).
180 Ibid.
181 C v T 1965 (2) SA 239 (O).
183 Recognition of Customary Marriages Act 120 of 1998 ss 3(1)(a)(i) & 4(a).
184 See definition of ‘civil union’ in s 1 of the Act.
185 Heaton 107.
187 Marriage Act s 24A.
188 Matrimonial Property Act s 24(1).
189 Matrimonial Property Act s 24(2).
190 S 3(4)(c).
191 See Heaton 108 fn. 216 in this regard.
192 S 129(2).
193 S 129(4).
194 S 129(3). ‘Duly assisted’ is not defined in the Act, but Regulation 48(2) provides that a parent or guardian
who duly assists a child to consent to the performance of a surgical operation on such child must assent to
this in writing. Both the child and the parent or guardian will sign Form 34, annexed to the Regulations.
195 S 129(5).
196 S 129(10).
197 S 129(7)(a).
198 S 129(8).
199 S 129(7)(b)-(d).
200 S 129(9).
201 S 129(6).
202 S 130(1).
203 S 130(2)(a).
204 S 130(2)(b)-(d).
205 S 130(2)(e).
206 S 130(2)(f).
207 S 132(1)(a).
208 S 132(2)(a).
209 S 132(1)(b) & 132(2)(b).
210 S 133(2)(a).
211 S 133(2)(b)-(c).
212 S 133(2)(d).
213 S 133(2)(e).
214 S 133(1).
215 S 134(1).
216 S 134(2).
217 S 134(3).
218 Voet 2.4.4, 5.1.11; President Insurance Co Ltd v Yu Kwam 1963 (3) SA 766 (A).
219 See e.g. Perkins v Danford 1996 (2) SA 128 (C).
220 S 14.
222 Ex parte Visser: in re Khoza 2001 (3) SA 524 (T); Laerskool Middelburg v Departementshoof, Mpumalanga
Departement van Onderwys 2003 (4) SA 160 (T) 175H-J.
223 Ex parte Bloy 1984 (2) SA 410 (D).
224 Curator ad Litem of Letterstedt v Executors of Letterstedt 1874 Buch 42.
225 In re Hulley (1862) 1 Roscoe 52.
226 Wolman v Wolman 1963 (2) SA 452 (A).
227 The Constitutional Court has appointed curatores ad litem for children in four such instances, namely in Du
Toit v Minister of Welfare and Population Development (Gay and Lesbian Equality Project as Amicus
Curiae) 2003 (2) SA 198 (CC); J v Director General, Department of Home Affairs 2003 (5) SA 621 (CC); S
v M (Centre for Child Law as Amicus Curiae) 2008 (3) SA 232 (CC); AD v DW (Centre for Child Law as
Amicus Curiae; Department of Social Development as Intervening Party) 2008 (3) SA 183 (CC).
228 In Centre for Child Law v Minister of Home Affairs 2005 (6) SA 50 (T) a curator ad litem was appointed for
a group of unaccompanied foreign children who were facing deportation, but in respect of whom there was
no litigation before the courts. Similarly, in the unreported case of Aids Law Project v Minister of Social
Development and Others Case no. 52895/09 South Gauteng High Court a curator ad litem was appointed to
investigate the circumstances of unaccompanied children who had been living at the Central Methodist
church in Johannesburg.
229 Vista University, Bloemfontein Campus v Student Representative Council, Vista University 1998 (4) SA 102
(O) (also reported as Vista University (Bloemfontein Campus) v Student Representative Campus Vista 1998
(4) BCLR 514 (O).
230 In general, Cockrell ‘Capacity to litigate’ in Van Heerden et al. (eds) 908-911; Davel & Jordaan 92-93; Van
der Vyver & Joubert 175 et seq.
231 1960 (1) SA 89 (D). See also Cockrell in Van Heerden et al. (eds) 904-905.
232 Govender v Amurtham 1979 (3) SA 358 (N).
233 Govender v Amurtham 1979 (3) SA 358 (N) 362C-D.
234 Lalla v Lalla 1973 (2) SA 561 (D); De Greeff v De Greeff 1982 (1) SA 882 (O); B v B 1983 (1) SA 496 (N).
235 Davel & Jordaan 93-94; Heaton 113.
236 Ex parte Hodgert 1955 (1) SA 371 (D); Tshona v Principal, Victoria Girls High School 2007 (5) SA 66 (E);
Cockrell in Van Heerden et al. (eds) 911 et seq.; Heaton 113.
237 1963 (1) SA 66 (T).
240 Lasersohn v Olivier 1962 (1) SA 566 (T).
241 See 8.3.2 above.
243 Weber v Santam Versekeringsmaatskappy Bpk 1983 (1) SA 381 (A).
244 This Act commenced on 1 April 2010.
245 S 7(1).
246 S 7(2).
247 S 11(1). This test is similar to the test used under common law to rebut the presumption of doli incapax.
Section 7(3) of the Child Justice Act states that the common law pertaining to criminal capacity of children
under 14 years is amended to the extent set out in section 7. This may be interpreted to mean that previous
courts’ interpretation and guidelines in respect of the rebuttal of doli incapax is still relevant to the
determination of criminal capacity under the Act.
248 Jones v Santam Bpk 1965 (2) SA 542 (A); Weber v Santam Versekeringsmaatskappy Bpk 1983 (1) SA 381
(A). See also Keightley in Van Heerden et al. (eds) 880; Van der Vyver & Joubert 194; Davel & Jordaan 96.
However, compare Heaton 113 who correctly points out that ‘[i]n terms of the common law it is rebuttably
presumed that minors between the ages of 7 years and puberty are not accountable for their delicts’, but then
curiously stipulates: ‘[t]herefore, once a boy has turned 14 or a girl has turned 12, evidence may be presented
to show that the particular child is indeed accountable for a delict he or she committed.’ This is clearly
incorrect.
249 1983 (1) SA 381 (A).
250 Heaton 113. See also the obiter dictum in Eskom Holdings Ltd v Hendriks 2005 (5) SA 503 (SCA) 511G-H.
251 S 17.
252 Voet 4.4.1; S v Moeketsi 1976 (4) SA 838 (O).
253 Heaton 114.
254 Voet 4.4.6; Cohen v Sytner (1897) 14 SC 13.
255 Berning v Berning 1942 1 PH B26 (W).
256 Voet 4.4.5; Van der Vyver & Joubert 139.
257 Botha (trans.) Statute Book of the Orange River Colony 1901 396-398.
258 Cockrell ‘The attainment of majority or its equivalent: tacit emancipation’ in Van Heerden et al. (eds) 467;
Heaton 114.
260 Age of Majority Act s 7; Cockrell in Van Heerden et al. (eds) 469; Davel & Jordaan 98; Van der Vyver &
Joubert 139.
261 Age of Majority Act s 1.
262 Children’s Act s 17.
263 See e.g. Ex parte van den Hever 1969 (3) SA 96 (E).
264 Ex parte van den Hever 1969 (3) SA 96 (E) 99C-D.
265 Heaton 115.
266 S 28(1) read with s 29(1).
267 S 28(3)(c).
268 Heaton 115.
269 Dickens v Daley 1956 (2) SA 11 (N) 13D-E; Grand Prix Motors WP (Pty) Ltd v Swart 1976 (3) SA 221 (C)
224A-B.
270 Heaton 115.
271 S 18(4). See 8.7.2.5 above for a discussion of the ways in which an unmarried father can acquire parental
responsibilities and rights, including guardianship. An unmarried mother automatically has guardianship of
her child, unless she is a minor herself (Children’s Act s 19(1) & (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) &
20 read with Civil Union Act s 13(2)).
272 Pleat v Van Staden 1921 OPD 91.
273 Sesing v Minister of Police 1978 (4) SA 742 (W) 745H; Grand Prix Motors WP (Pty) Ltd v Swart 1976 (3)
SA 221 (CC) 224E.
274 Pleat v Van Staden 1921 OPD 91; Dickens v Daley 1956 (2) SA 11 (N).
275 Watson v Koen h/a BMO 1994 (2) SA 489 (O).
276 Ex parte Keeve 1929 OPD 19; Davel & Jordaan 85; Heaton 116. However, compare obiter dicta in Cohen v
Sytner (1897) 14 SC 13; Landmann v Mienie 1944 OPD 59.
277 See e.g. Ochberg v Ochberg’s Estate 1941 CPD 15.
278 Dickens v Daley 1956 (2) SA 11 (N).
279 Ex parte van den Hever 1969 (3) SA 96 (E).
280 Heaton 116.
281 Dickens v Daley 1956 (2) SA 11 (N) 16G.
282 1956 (2) SA 11 (N).
283 Heaton 117.
285 See 8.3.2.1.3 (i) above.
286 Heaton 117.
287 See e.g. Dickens v Daley 1956 (2) SA 11 (N).
288 Cockrell in Van Heerden et al. (eds) 910 fn. 32; Heaton 117; Davel & Jordaan 85; Van der Vyver & Joubert
155.
Chapter 9
Prodigality, curatorship and insolvency

9.1 Prodigality
9.1.1 Introduction
9.1.5 Capacity to be held accountable for crimes and delicts
9.2 Curatorship
9.2.1| Introduction
9.2.2 The curator personae
9.2.3 The curator bonis
9.2.4 The curator ad litem
9.3 Insolvency
9.3.1 Introduction
9.3.6 Rehabilitation
9.1 Prodigality
9.1.1 Introduction
A prodigal is a person with normal mental abilities who, as a result of some defect of character or
will, squanders his or her assets in an irresponsible and reckless way.1 Prodigality as such does not
affect a person’s status. The prodigal’s status will be affected only once he or she has been
declared a prodigal and prohibited from managing his or her own affairs.2 The court will also be
requested to appoint a curator bonis to administer the prodigal’s estate.
A curator bonis administers another’s property.
Any interested party, including the prodigal personally, may apply to the High Court for an
order declaring the person to be a prodigal.3 It appears from case law that it is usually the
prodigal’s spouse who takes the initiative to apply for the court order.4 The reason for the person’s
prodigality is not really important, and is very often related to alcoholism, drug addiction or
gambling.5
Note that the mere declaration as a prodigal is not sufficient in itself to limit such person’s
capacities.6 The declaration must be accompanied by an additional order prohibiting the prodigal
from managing his or her own affairs. Once this happens the prodigal’s status becomes similar to
that of a minor.7
A declaration of prodigality affects not only the status of the prodigal, but also the interests of
third parties who may contract with the prodigal.8 In Delius v Delius 9 Burne AJ emphasised the
necessity of publication and explained as follows: ‘There is, as far as I know, no way by which the
fact of prodigality can be made known to the public except by way of publication of the order. I
consider it is in the public interest that the court should do its utmost to see its declaration of
prodigality becomes known to the public. This can, I think, best be achieved by making provision
for publication in the order itself.’ Consequently, he ordered that the court order be published in
the Government Gazette and in a local newspaper.10
COUNTER
POINT
The value of publishing a court order in the Government Gazette

The effectiveness of publication in modern society is questionable. It is debatable whether
people read the Government Gazette and the legal notices in the local newspaper.
A prodigal’s status is not fully reinstated once his or her prodigal tendencies cease.11 A prodigal
regains full capacity only when the court order declaring him or her a prodigal and placing him or
her under curatorship is replaced by an order of the High Court.12

The limitations on an interdicted prodigal’s legal capacity are directed towards the suspension of
the prodigal’s participation in commercial activities and by excluding him or her from handling
finances.13 For example, a prodigal may not be a director of a company, an executor in a deceased
estate or a trustee in an insolvent estate.14
Legal capacity is the capacity to have rights and duties.

The interdicted prodigal’s capacity to act is similar to that of a minor.15 In other words, the
prodigal has limited capacity to act and may not independently enter into juristic acts whereby
obligations are incurred.16
The capacity to act is the capacity to conclude valid juristic acts.
In Phil Morkel Bpk v Niemand 17 the court explained that the interdicted prodigal’s capacity to
act is curtailed because he or she lacks the necessary judgment to determine which juristic acts he
or she should be party to. Consequently, a curator is appointed to protect the prodigal by entering
into a legal transaction on the prodigal’s behalf or assisting the prodigal in entering into a legal
transaction.
PAUSE FOR
REFLECTION
The similarity of the role of a guardian and the role of a curator

Keep in mind the analogy with a minor. The minor, like the interdicted prodigal, has the ability
to express his or her will or to participate in a juristic act but has an inability to assess a
situation.18 Therefore a guardian has a role similar to that of a curator and must enter a contract
on behalf of the minor or render assistance to the minor on entering into a contract.
Any transactions validly concluded by a prodigal before he or she has been interdicted remain
valid and must be honoured by the curator.19
An interdicted prodigal may enter into a contract with the permission of his or her curator.20
The curator may also enter into a contract on behalf of the interdicted prodigal.21
An interdicted prodigal may enter into a contract without the consent of his or her curator in
terms of which he or she only receives rights, but no obligations are incurred. For example, the
prodigal may receive a gift or an inheritance.22
COUNTER
POINT
The prodigal’s capacity in terms of the common law

Note that in Delius v Delius,23 the court interdicted the prodigal from entering into any contract.
Van der Vyver and Joubert24 are of the opinion that the order was drafted inaccurately and that
the common-law position was not altered. They base their opinion on the fact that in terms of
common law, the interdicted prodigal’s capacity to act is similar to that of a minor.
Should an interdicted prodigal enter into a contract contrary to the court order, he or she may be
prosecuted for contempt of court.25 The contract is regarded as voidable and the curator may
choose to ratify or repudiate it.26 If the curator chooses to ratify the contract, it is binding and
enforceable. Should the curator choose to repudiate the contract, each party will have to return
performance so as to place each other in the position they would have been in had the contract not
been concluded.27
PAUSE FOR
REFLECTION
A third party’s valid claim for enrichment

Bear in mind that where the interdicted prodigal entered into a contact without the assistance or
consent of the curator, the third party cannot take the initiative and ratify the contract or declare
it void. The third party will, however, have a claim for undue enrichment against the estate of
the prodigal.28
The situation can arise where the interdicted prodigal fraudulently represents himself or herself as
someone with full capacity to act, having his or her curator’s consent, or even fraudulently
creating the impression that the order interdicting him or her has been set aside.29 Holding the
interdicted prodigal liable under these circumstances defeats the purpose of the court order and
consequently the contract cannot be enforced against him or her.30
PAUSE FOR
REFLECTION
Defeating the object of limiting the prodigal’s capacity to deal with his or her estate
The question of whether an interdicted prodigal may become engaged without the curator’s
consent is somewhat controversial. Academic authors correctly point out that to hold the
prodigal liable would allow him or her, as a result of his or her fraudulent conduct, to extend
his or her limited capacity to act to full capacity. This would defeat the objective of prohibiting
the prodigal from dealing with his or her estate.31 Also consider once again the effectiveness of
publication of the court order interdicting the prodigal and to what extent it can be assumed that
third parties are aware of the order.
COUNTER
POINT
A difference of opinion regarding the requirement of a curator’s assistance

According to Voet,32 a curator’s consent is required as marriage may negatively impact on the
prodigal’s estate. Brouwer,33 however, argues that as the prodigal may marry without the
curator’s assistance, he or she may get engaged without the curator’s assistance. Modern
authors support the view that the curator’s assistance or consent is not a requirement.34
The modern viewpoint appears to be that a prodigal can enter into a marriage contract without the
curator’s consent.35
PAUSE FOR
REFLECTION
The antenuptial contract

The principle is qualified where an antenuptial contract is entered into as this is a contract with
a patrimonial basis. The point of departure would therefore be that the curator’s consent is
necessary for the antenuptial contract to be regarded as valid.36
There is a measure of uncertainty regarding the prodigal’s capacity to execute a valid will. What is
certain is that the curator cannot execute a will on behalf of the prodigal or assist the prodigal in
doing so.37 The common-law position is that the prodigal can make a valid will, provided that he
or she benefits his or her dependants or deals with his or her property equitably.38
COUNTER
POINT
Deciding which state body should assist a prodigal to make a will

One option is for the State to grant permission to the prodigal to make a will.39 It is unclear,
however, which state body must be involved. In Ex parte F 40 it was held that the High Court
would not be the appropriate body. The Wills Act 7 of 1953 does not solve the problem either.
Van der Vyver and Joubert suggest that a prodigal’s estate should be divided in accordance
with the law of intestate succession.41 The other possibility is to enact legislation depriving a
prodigal of the capacity to make a will without the consent of the court or the master, and
authorising the court or master to give such consent.42
An interdicted prodigal retains parental responsibilities and rights.43 This means that the prodigal
can consent to his or her child’s marriage and, as a parent, has the responsibility and right to
administer his or her child’s estate.44
PAUSE FOR
REFLECTION
An anomaly in the law

The fact that an interdicted prodigal retains parental responsibilities and rights is quite an
anomaly as the prodigal is prohibited from managing his or her own affairs, but still retains
control of his or her child’s estate.

Litigation may result in liability for costs, which will affect the prodigal’s estate. It therefore
appears that the interdicted prodigal may not litigate without his or her curator’s consent.45
COUNTER
POINT
Should a prodigal litigate unassisted?

Davel and Jordaan,46 as well as Van der Vyver and Joubert,47 are of the opinion that a prodigal
can litigate unassisted as prodigality does not result in a person not being able to understand the
nature and consequences of court proceedings. One must keep in mind that litigation has the
risk of resulting in an order for payment of costs, which will impact on the estate of the
prodigal. This explains why the curator should be required to consent to litigation.
An interdicted prodigal can, however, bring a divorce action without the assistance of his or her
curator. He or she can also apply for the setting aside of the court order declaring him or her to be
prodigal.48
An interdicted prodigal can be held accountable for the crimes and delicts he or she commits.49 It
can happen, however, that the prodigal does not understand the nature and consequences of his or
her acts at a given moment. In such a case, the prodigal will not be accountable.50
9.2 Curatorship
9.2.1 Introduction
A distinction can be drawn between three types of curators who can be appointed to represent a
person:51 a curator personae takes care of the personal well-being of the person under
curatorship,52 a curator bonis is appointed to administer the person’s property,53 and a curator ad
litem assists a person in bringing or defending legal action.54
Figure 9.1 The three types of curators and the function of each
9.2.2 The curator personae

A curator personae is appointed to take care of the personal needs of the person under
curatorship.55 The curator personae is someone who has to decide where the concerned person is
to live, whether he or she is to have particular treatment such as an operation, by whom it is to be
performed and, in general, who has control over the individual’s person.56
In Clarke v Hurst57 a patient had been in a vegetative state for four years. His wife successfully
applied to be appointed as curatrix to his person. Thirion J explained the role of the curator
personae as follows.58
The curator personae is not a mere agent to give effect to the directions given by the patient
while he was competent to do so. The curator personae is at all times under a duty to act in
the best interests of the patient and not necessarily in accordance with the wishes of the
patient; the well-being of the patient being the paramount consideration.
As the appointment of a curator personae involves a serious limitation of a person’s rights and
liberties, such an appointment should be made only if there is a strong case in favour thereof.59
In Hudson v Price 60 the court held that a curator personae can be appointed only for a person
who was declared mentally ill in terms of the Mental Disorders Act 38 of 1916. This approach
was quite correctly rejected in Ex parte Hill 61 by Van Winsen J who pointed out that section 68 of
the Mental Disorders Act very clearly preserved the court’s common-law power to appoint a
curator personae.
A curator personae can be appointed for a general or a specific purpose.62 In Ex parte Powrie 63
a curator personae was appointed with the power to agree to any medical or surgical treatment of
the patient or to his detention in or removal from any hospital or similar institution. In Ex parte
Dixie 64 the sole function of the curator personae was to decide whether or not an operation should
be performed on the patient.
It is clear from the discussion above that each case is decided on merit, and the duties and
responsibilities granted to a curator personae will differ from case to case. In other words, there is
no hard and fast rule pertaining to the powers granted to a curator personae.
9.2.3 The curator bonis

A curator bonis is appointed to look after the patrimonial interests of the person under
curatorship.65 A curator bonis can be appointed under the following circumstances:66
• where persons are unable to manage their affairs as a result of, for example, old age,67 serious
illness,68 physical disability,69 or mental disability;70
• where a person in respect of whom a presumption of death order has not been issued, has
disappeared;71 and
• where a court has declared a person insolvent.72
In Ex parte Geldenhuys,73 for example, a curator bonis was appointed for an 86-year-old man who
made the application himself. In Ex parte van Hasselt 74 a 77-year-old man suffered from cerebral
thrombosis and a curator bonis was appointed to manage his affairs. The old man had a large
stock portfolio and the curator bonis was authorised to trade on his behalf on the stock market.
The powers and duties of a curator bonis are defined in the Administration of Estates Act.75 A
court can also specify which powers should be conferred on a curator bonis.76 Once a court has
defined the powers of the curator bonis, it can only later be changed by a court order.77 The
Master of the High Court is compelled under the Administration of Estates Act to vest the curator
with such authority as may be required to give effect to the wording of the appointment by a court
or a judge.78
A curator bonis does not become owner of the assets that he or she administers79 and must
manage the estate like a prudent and careful person (bonus et diligens pater familias).80 The
curator bonis administers the estate of the person concerned under strict supervision of the
Master. This means, for example, that the curator must submit an inventory of the property to be
administered81 and annually submit a full account to the Master of the administration of the
estate.82 The curator bonis is entitled to compensation for services rendered, which is paid out of
the estate.83
Certain juristic acts are of such a personal nature that they cannot be entered into by a curator
bonis. The curator cannot, for example, institute divorce proceedings on behalf of the person
under curatorship,84 exercise parental responsibilities and rights,85 make a will86or request the
annulment of a marriage of a person under curatorship.87
9.2.4 The curator ad litem

A curator ad litem is appointed to assist someone in legal proceedings that the assisted person
cannot conduct himself or herself.88 It is preferable that the office of the curator ad litem be held
by an advocate of the High Court.89
In general, courts are hesitant to appoint a curator ad litem for a major.90 Before such an
appointment is made, it must be determined whether or not such a person is able to understand the
nature and consequences of the court proceedings.91 It follows that if that is not the case, a curator
ad litem should be appointed.
Where the appointment of a curator bonis is sought, the general principle appears to be that a
curator ad litem is appointed to assist the person concerned.92 This is a practice that is adhered to
quite strictly in Cape courts.93
COUNTER
POINT
Assistance by a curator ad litem with the application for a curator bonis

In other divisions, courts are willing to dispense with the requirement that a curator ad litem be
appointed in order to assist with the application for a curator bonis and this allows a greater
measure of flexibility.94 Examples95 of such circumstances would be where the person has
understood the meaning and consequences of the curatorship and agreed to the appointment of
a curator bonis,96 or where the estate of the person who was placed under curatorship is very
small.97
9.3 Insolvency
9.3.1 Introduction
A person is an insolvent if his or her liabilities exceed his or her assets. The fact that a person is
declared insolvent prohibits that person from performing certain juristic acts or from occupying
certain offices.98 The purpose of these limitations is not to punish the insolvent, but to protect
others.99
The High Court has jurisdiction to issue an insolvency order. The person is, in other words,
declared insolvent and his or her estate sequestrated. Once this happens, the insolvent is divested
of their estate, which then vests in the Master of the High Court until a trustee is appointed. When
this happens, the insolvent estate vests in the trustee.100
Furthermore, the point of departure is that all property acquired by the insolvent during
insolvency vests in the insolvent estate.101 There are, however, a number of assets which fall
outside the insolvent estate, such as:102
• the portion of the insolvent’s earnings the Master has allowed the insolvent to retain to support
himself or herself and his or her dependants;103
• pension money;104
• compensation the insolvent received for loss or damage as a result of defamation or personal
injury;105
• personal items such as clothes, bedding, household furniture and other essential means of
subsistence;106
• certain life insurance policies.107
Figure 9.2 Assets that fall outside the insolvent estate

An insolvent person’s legal capacity is influenced by the sequestration of his or her estate.108 He or
she may not hold certain offices, such as:109
• a membership of the National Assembly;110

• a membership of a provincial legislature;111
• the holder of a liquor licence;112 or
• a membership of a statutory council.113
Note that in accordance with the Insolvency Act,114 the insolvent may follow any profession or
occupation or enter into any employment. However, he or she may not, without the consent of his
or her curator, carry on, or be employed in any capacity, or have any interest in, the business of a
general dealer or manufacturer.

The sequestration order does not result in the insolvent losing all capacity to act.115 On the one
hand, the insolvent may still enter into juristic acts, provided he or she does not thereby purport to
dispose of property forming part of the insolvent estate.116 On the other hand, the insolvent needs
the written consent of the trustee to enter into the following juristic acts:
• a contract that is likely to have an adverse or seemingly adverse effect on the insolvent
estate;117 and
• a contract to carry on, be employed in, or have any interest in, the business of a trader who is a
general dealer or manufacturer.118
If the insolvent enters into a contract in breach of these provisions, the contract remains valid if
the following provisions are complied with:119
• the property the insolvent disposed of was acquired after sequestration;

• the disposition was for valuable consideration;
• the third party with whom the insolvent transacted was unaware and had no reason to suspect
that the estate was under sequestration.
Any other contracts entered into in breach of limitations are voidable at the instance of the
trustee.120

The sequestration of the insolvent’s estate has the result that all civil proceedings by, or against,
the insolvent are stayed until the appointment of the trustee.121 The following serve as examples
where the insolvent retains the capacity to litigate:122
• when the dispute has an effect on the insolvent’s status or on any right which does not affect
the insolvent estate;123
• when the insolvent recovers the pension to which he or she is entitled;124
• when an action is instituted for compensation in respect of defamation or personal injury that
he or she suffered;125
• when an insolvent institutes an action against the trustee of the insolvent estate on the grounds
of maladministration of the insolvent estate or the improper disposal of assets.126

The point of departure is that insolvency does not affect the insolvent’s capacity to be held
accountable for crimes and delicts.127 Should the insolvent not be capable of appreciating the
nature and consequences of his or her actions, he or she will not be regarded as accountable. Note
that if the insolvent commits a delict after sequestration, the compensation must be paid out of
those assets acquired by the insolvent after sequestration that fall outside the insolvent estate.128
9.3.6 Rehabilitation
An insolvent may approach the High Court to rehabilitate him or her,129 and is automatically
rehabilitated after ten years.130 Rehabilitation means that all the debts the insolvent incurred prior
to sequestration are discharged and the insolvent is no longer subject to any disabilities resulting
from the sequestration.131

Prodigality
1. A prodigal is a person with normal mental abilities but who, as a result of some defect of
character or will, squanders his or her assets in an irresponsible and reckless way.
2. The prodigal’s status is affected only once he or she has been declared a prodigal and
prohibited from managing his or her own affairs.
3. The court will also appoint a curator bonis to manage the estate of the prodigal.
4. Once a person is declared a prodigal and prohibited from managing his or her own affairs, the
prodigal’s status becomes similar to that of a minor.
5. A prodigal regains full capacity only when the court order declaring him or her a prodigal and
placing him or her under curatorship is replaced by another order.
6. As the interdicted prodigal’s capacity to act is similar to that of a minor, he or she may enter
into a contract only with the consent of the curator bonis.
7. The interdicted prodigal may receive a gift or an inheritance without the consent of the curator
bonis.
8. If the interdicted prodigal enters into a contract contrary to a court order, he or she may be
prosecuted for contempt of court.
9. A contract entered into without the consent of the curator bonis is regarded as voidable and
the curator may choose to ratify or repudiate it.
10. Litigation may result in liability for costs, which will affect the interdicted prodigal’s estate. It
therefore appears as if the interdicted prodigal may not litigate without the consent of his or
her curator bonis.
11. An interdicted prodigal may be held accountable for the crimes and delicts he or she commits.
Curatorship
1. A curator personae is appointed to take care of the personal needs of the person under
curatorship.
2. A curator personae can be appointed for a general or specific purpose.
3. A curator bonis is appointed to look after the patrimonial interests of the person under
curatorship.
4. The powers and duties of a curator bonis are defined in the Administration of Estates Act 66
of 1965, but a court can also specify which powers should be conferred on the curator bonis.
5. The curator bonis does not become owner of the assets which he or she administers and must
manage the estate like a careful and prudent person.
6. Certain acts are of such a personal nature that they cannot be entered into by a curator bonis.
7. A curator ad litem is appointed to assist someone in legal proceedings that the assisted person
cannot conduct himself or herself.
8. In general, courts are hesitant to appoint a curator ad litem for a major and will do so only if
the major is unable to understand the nature and consequences of court proceedings.
Insolvency
1. A person is insolvent if his or her liabilities exceed his or her assets.
2. The High Court has jurisdiction to issue an insolvency order.
3. Once a person is declared insolvent, he or she may not perform certain juristic acts or occupy
certain offices. The purpose of these limitations is to protect third parties.
4. A trustee is appointed who must manage the insolvent estate.
5. All property acquired by the insolvent during insolvency vests in the insolvent estate. There
are a number of assets which fall outside the insolvent estate.
6. The insolvency order does not mean that the insolvent loses all capacity to act. In general, the
insolvent needs the consent of the trustee to enter into certain juristic acts.
7. The insolvent still has the capacity to litigate.
8. Insolvency does not affect the insolvent’s capacity to be held accountable for crimes and
delicts.
9. An insolvent is automatically rehabilitated after ten years, but may approach the High Court to
rehabilitate him or her at an earlier stage.
1 For common-law definitions see Grotius 1.11.4; Voet 27.10.6; Van Leeuwen Rooms-Hollands-Regt 1.16.13;
Heaton The South African Law of Persons 3 ed (2008) 137; Davel & Jordaan Law of Persons 4 ed (2005)
155; Robinson et al. Introduction to the South African Law of Persons 2 ed (2008) 119.
2 Heaton 138; Davel & Jordaan 156; Robinson et al. 114. For relevant case law see Heaton ‘Mental and
physical disability: prodigality’ in Van Heerden et al. (eds) Boberg’s Law of Persons and the Family 2 ed
(1999) 147 fn. 168.
3 Heaton 137; Davel & Jordaan 156; Robinson et al. 114.
4 Lockwood v Lockwood 1935 EDL 1; Yared v Yared 1952 (4) SA 182 (T); Ex parte Wilding 1953 (1) SA 633
(C); Heaton 138; Robinson et al. 114.
7 Phil Morkel Bpk v Niemand 1970 (3) SA 455 (C) 460. Heaton 138-139; Davel & Jordaan 156; Robinson et
al. 115.
8 Heaton 138; Heaton in Van Heerden et al. (eds) 150; Davel & Jordaan 159.
9 1960 (1) SA 270 (N) 275.
10 At 275 B-E, 276 A.
12 Ex parte Mshlabani (1910) 20 CTR 185; Heaton 138; Davel & Jordaan 162; Robinson et al. 114.
15 Phil Morkel BPK v Niemand 1970 (3) SA 455 (C); Pienaar v Pienaar’s Curator 1930 OPD 171 174; Delius
v Delius 1960 (1) SA 270 (N) 273B; Heaton 139; Davel & Jordaan 157; Robinson et al. 115.
16 Phil Morkel Bpk v Niemand 1970 (3) SA 455 (C).
17 1970 (3) SA 455 (C) 460D.
19 Phil Morkel Bpk v Niemand 1970 (3) SA 455 (C); Heaton 139; Davel & Jordaan 157; Robinson et al. 115.
22
Phil Morkel Bpk v Niemand 1970 (3) SA 455 (C); Heaton in Van Heerden et al. (eds) 153; Davel & Jordaan
157; Robinson et al. 115.
23 1960 (1) SA 270 (N) 275G.
24 Van der Vyver & Joubert Persone- en Familiereg 3 ed (1991) 362.
25 S v Beyers 1968 (3) SA 70 (A); Heaton 139.
26 Phil Morkel Bpk v Niemand 1970 (3) SA 455 (C) 459-460; Heaton 139; Davel & Jordaan 157; Robinson et
al. 115.
27 Davel & Jordaan 160; Robinson et al. 115.
28 Heaton in Van Heerden et al. (eds) 154; Van der Vyver & Joubert 361; Heaton 139; Davel & Jordaan158-
159; Robinson et al. 115.
31 Heaton 139; Davel & Jordaan 159; Van der Vyver & Joubert 361; Heaton in Van Heerden et al. (eds) 154.
32 23.1.3.
33 1.14.18.
34 Heaton 140-141; Davel & Jordaan 157-158; Van der Vyver & Joubert 360.
35 Heaton 140; Davel & Jordaan 159-160; Robinson et al. 115; Heaton in Van Heerden et al. (eds) 156; Van der
Vyver & Joubert 362.
36 Davel & Jordaan 160; Robinson et al. 115; Heaton in Van Heerden et al. (eds) 155-156.
37 Heaton 140; Davel & Jordaan 160; Robinson et al. 116; Heaton in Van Heerden et al. (eds) 157-158.
38 See Ex parte F 194 WLD 27 and authorities cited there; Phil Morkel BPK v Niemand 1970 (3) SA 455 (C)
458G-H.
39 See Ex parte F 1914 WLD 27.
40 1914 WLD 27; Heaton 140; Heaton in Van Heerden et al. (eds) 158.
41 Van der Vyver & Joubert 364; Davel & Jordaan 160.
42 Heaton 140; Heaton in Van Heerden et al. (eds) 138.
43 Heaton 141; Davel & Jordaan 160; Heaton in Van Heerden et al. (eds) 157.
44 Heaton 141; Davel & Jordaan 160; Heaton in Van Heerden et al. (eds) 157.
45 Heaton 141; Robinson et al. 116; Heaton in Van Heerden et al. (eds) 157 and authority cited in fn. 204.
49 Heaton 141; Davel & Jordaan 161; Heaton in Van Heerden et al. (eds) 156-157.
50 Neethling, Potgieter & Visser Law of Delict 6 ed (2010) 121.
52 Heaton in Van Heerden et al. (eds) 137; Davel & Jordaan 172; Heaton 123.
56 Ex parte Hill 1970 (3) SA 411 (C) 412-413.
57 1992 (4) SA 630 (D).
58 At 638G-H.
59 Martinson v Brown; Gray NO v Armstrong 1961 (4) SA 107 (C) 109-110; Ex parte Powrie 1963 (1) SA 299
(W); Heaton in Van Heerden et al. (eds) 140-141; Davel & Jordaan 173; Heaton 123.
60 1933 CPD 367.
61 1970 (3) SA 411 (C) at 412 D; Davel & Jordaan 173; Heaton 123.
63 1963 (1) SA 299 (W) 303.
64 1950 (4) SA 748 (W).
65 Heaton in Van Heerden et al. (eds) 137-140; Davel & Jordaan 174; Heaton 122,137.
67 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 Maritz; Ex parte De Klerk 1968 (4) SA 130 (C).
68
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).
69 Ex parte Bell 1953 (2) SA 702 (O); Nkosi v Minister of Justice 1964 (4) SA 365 (W); Ex parte Tod 1965 (1)
SA 262 (D).
70 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).
71 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); Heaton 32, 131-132.
72 Insolvency Act 24 of 1936 ss 54, 56 & 57; Davel & Jordaan 174.
73 1941 CPD 243.
74 1965 (3) SA 553 (W).
75 66 of 1965. See Davel & Jordaan 174.
76 Ex parte Hulett 1968 (4) SA 172 (D).
78 S 76(2)(a). Also see Davel & Jordaan 174, 179-180. Rule 57 of the Uniform Rules of Court makes provision
for the procedure to be followed in bringing an application for a curator bonis/personae to be appointed.
79 Minister of the Interior v Cowley 1955 (1) SA 307 (N) 310G; Davel & Jordaan 175.
80 Davel & Jordaan and authority cited in fn. 299.
81 Administration of Estates Act 66 of 1965 s 78(1).
82 S 83.
83 S 84(1).
84 Ex parte AB 1910 TPD 1332.
85 Ibid.
86 Estate Watkins-Pitchford v Commissioner for Inland Revenue 1955 (2) SA 437 (A).
87 Mitchell v Mitchell 1930 AD 217.
89 Van der Vyver & Joubert 378; Davel & Jordaan 177.
90 Ex parte Kotze 1955 (1) SA 665 (C) 666G-H; Ex parte Klopper: In re Klopper 1961 (3) SA 803 (T) 805H;
Heaton in Van Heerden et al. (eds) 134-135; Davel & Jordaan 177.
91 Mitchell v Mitchell 1930 AD 217 224; Heaton in Van Heerden et al. (eds) 134, 142; Davel & Jordaan 177.
93 Ex parte Hartzenberg 1928 CPD 385; Ex parte Stewart Wynne: In re Mason 1944 EDL 176; Ex parte
Herzberg 1950 (2) SA 62 (C); Heaton in Van Heerden et al. (eds) 135 fn. 134; Davel & Jordaan 178-179;
Heaton 132-133.
94 Heaton in Van Heerden et al. (eds) 135 fn. 134; Davel & Jordaan 177-178; Heaton 132 fn. 17.
95 Heaton in Van Heerden et al. (eds) 135 fn. 134; Davel & Jordaan 178; Heaton 132 fn. 17.
96 Ex parte Blay 1942 OPD 73 74.
97 Ex parte Twycross 1936 EDL 389; Estate Eksteen v Eksteen 1938 OPD 53; Ex parte Blay 1942 OPD 73.
100 Insolvency Act 24 of 1936 s 20; De Villiers NO v Delta Cables (Pty) Ltd 1992 (1) SA 9 (A); Davel &
Jordaan 163-164; Heaton 143.
101 Insolvency Act s 20(2)(b).
102 See discussion in general in Heaton ‘Miscellaneous factors’ in Van Heerden et al. (eds) 220 fn. 62; Heaton
143-144.
103 Insolvency Act s 23(5).
104 S 23(7).
105 S 23(8).
106 S 82(6).
107 Long-term Insurance Act 52 of 1998 s 63(1).
108 See in general Heaton ‘Miscellaneous factors’ in Van Heerden et al. (eds) 219-223; Davel & Jordaan 165-
166; Heaton 144.
109 See in general Heaton in Van Heerden et al. (eds) 219-223; Davel & Jordaan 165-166; Heaton 144.
110 Constitution of the Republic of South Africa, 1996 s 47(1)(c).
111 S 106(1)(c).
112 Liquor Act 27 of 1989 s 25(1)(d).
113 Health Professions Act 56 of 1974 s 6(1)(a).
114 S 23(3).
116 Insolvency Act 24 of 1936 s 23(2).
117 S 23(2).
118 S 23(3).
119 S 24(1); Heaton 144.
120 WL Carroll & Co v Ray Hall Motors (Pty) Ltd 1972 (4) SA 728 (T); Davel & Jordaan 166-168; Heaton 144.
121 Insolvency Act s 20(1)(b).
122 Heaton in Van Heerden et al. (eds) 223-227; Davel & Jordaan 168; Heaton 144-145.
123 Insolvency Act s 23(6). Also see Grevler v Landsdown 1991 (3) SA 175 (T); Voget v Kleynhans 2003 (2) SA
148 (C).
124 Insolvency Act s 23(7).
125 S 23(8).
126 Heaton in Van Heerden et al. (eds) 224-225; Grevler v Landsdown 1991 (3) SA 175 (T); Davel & Jordaan
168; Heaton 145.
127 Heaton in Van Heerden et al. (eds) 228; Davel & Jordaan 168-169; Heaton 145.
129 Insolvency Act s 124 (1); Heaton in Van Heerden et al. (eds) 228; Heaton 145.
130 S 127A(1).
131 S 127A.
Chapter 10
|
Mental illness, physical disability, and the
influence of alcohol and drugs on capacity
10.1 Historical background
10.2 Mental illness

10.2.1 General principles
10.2.2 Definition of mental illness and a lucidum intervallum
10.2.3 The meaning of mental illness and lucidum intervallum in private law
10.2.4 The meaning of mental illness for purposes of care, treatment and
rehabilitation
10.2.5 The meaning of mental illness in criminal law
10.2.6 Influence of mental illness on legal status and capacity
10.2.6.2 Legal status of mentally ill persons
10.2.6.3 Capacity to perform juristic acts and enter into a marriage
10.2.6.4 Capacity to be held accountable for crimes and delicts
10.2.6.5 Locus standi in iudicio
10.2.7 Supplementing incapacity: the appointment of curators
10.2.7.1 Curator personae
10.2.7.2 Curator bonis
10.2.7.3 Curator ad litem
10.2.7.4 The Mental Health Care Act: the appointment of an
administrator
10.3 Alcohol and drugs

10.3.1 The influence of alcohol and drugs on capacity
10.3.2 The effect of a finding of incapacity due to alcohol or drug consumption
10.3.3 The capacity to be held accountable for the crimes and delicts of persons
influenced by alcohol and/or drugs
10.4 The influence of physical disability on capacity
10.1 Historical background
The treatment of those who are mentally ill has varied greatly over the years. Before the golden
age of Greece, the explanation for mental illness was that the person so afflicted was possessed by
demons. In order to exorcise these demons, brutal physical tortures were used, such as crushing
the victim’s body or removing sections of a disabled person’s skull to drive out, or let out, the evil
spirit.1 Persons with physical disabilities were treated in a similar manner.2 It was only during the
fourth century BC that Hippocrates, the great father of medicine, sought to classify mental illness
as a medical condition rather than a religious one. In turn, the law has been adapted and changed
in response to the effects of medical advances that have been made and, most significantly, to the
emphasis that the human rights movement has placed on the value of human dignity. However, we
still follow some basic principles as set out in Roman law3 and Roman-Dutch law4 relating to the
appointment of curators to protect the interests of mentally ill persons.
In terms of international law, the United Nations General Assembly has passed various
declarations relating to the recognition and protection of mentally and physically disabled
persons.5 For our purposes, the most important United Nations document is the Convention on the
Rights of Persons with Disabilities.6 In terms of Article 12 of the Convention, State Parties who
have signed and ratified the Convention (such as South Africa)7 must ‘recognise that persons with
disabilities enjoy legal capacity on an equal basis with others in all aspects of life’ and ‘take
appropriate measures to provide access by persons with disabilities to the support they may
require in exercising their legal capacity.’ The Constitution of the Republic of South Africa, 1996
recognises this commitment to the rights of mentally and physically disabled persons by explicitly
prohibiting unfair discrimination of persons on the ground of disability.8 Such prohibition must be
seen in light of many other constitutional rights such as the right to have one’s human dignity
respected and protected,9 the right to privacy,10 and the right not to be treated in a cruel, inhuman
or degrading way.11
In accordance with the international and constitutional protections set out above, the general
principle in our evolved common law is the need to protect persons from exploitation.12 Thus, the
common law will not attach any consequences to a legal transaction made by a person with a
disability where such disability prevents the person from understanding the nature and
consequences of such act. We will see how this translates into the various issues that arise in this
chapter, namely mental illness and physical disability. Given the similarities in our law, we will
also look at how the consumption and intake of alcohol and drugs affects a person’s capacity.
10.2 Mental illness
10.2.1 General principles

Depending on its severity, mental illness may have an effect on a person’s ability to make
informed decisions, manage his or her own affairs or appreciate the wrongfulness of his or her act
or omission. However, while it is tempting to speak of mental illness as constituting a ‘status’, it is
not technically correct to do so. It is better to discuss mental illness as a ‘factor’ that might negate
capacity. This is because mental illness is not necessarily permanent or constant (as we will see
below).13 In these circumstances then, the question should always be: ‘Is a person capable of
understanding a particular decision, action or transaction?’ rather than ‘is the person mentally
ill?’14
PAUSE FOR
REFLECTION
Pienaar v Pienaar’s Curator15

The Pienaar case is an excellent example of the above principle. In this matter, Mr Pienaar
married a Mrs Van der Merwe (then a widow) in community of property in January 1930. Mrs
Pienaar’s curator sought to argue that the marriage was invalid on the basis that the court had
declared Mrs Pienaar incapable of managing her own affairs and placed her under curatorship
in August 1926. Given the declaration, the curator argued that she could not marry without his
consent, even if she were able to understand the nature of the contract of marriage, and was
mentally and physically capable of entering into such contract. In rejecting this argument, the
court held (at 174) that ‘mental and physical incapacity may vary from day to day, but at all
times it remains a question of fact.’16
The law deals with mental illness in three main ways. First, the common law provides
mechanisms to protect and assist mentally ill persons in making decisions and managing their
affairs (where they lack the capacity to do so). Second, statutory and common law limits the
accountability of a mentally ill person under criminal law and the law of delict. Third, statutory
law provides for the care, treatment and rehabilitation of the mentally ill, including State patients
and prisoners. This chapter deals with the influence of mental illness on a person’s capacity in
private and criminal law. While statutory law relating to the care, treatment and rehabilitation of
the mentally ill is mentioned, it will be dealt with only insofar as it deals with the appointment of
administrators to assist mentally ill persons to manage their affairs.
10.2.2 Definition of mental illness and a lucidum intervallum

All persons are presumed to be mentally capable until the contrary is proven. Where people do not
understand the scope and nature of their actions, the law does not attach consequences to their
actions in order to protect them. As stated earlier, this is a protective rather than punitive measure.
However, what is ‘mentally ill’ in the legal sense? The Roman-Dutch writer, Voet, defined
mentally ill persons as furiosi, dementes or lunatici, that is, persons ‘bereft of their senses’.17
Today, mental illness has a wider meaning in our law. The question of whether a person has a
mental illness is a difficult one,18 and the law relies heavily on medical and psychological
evidence.19 The meaning or definition of mental illness varies depending on the area of law and
the purpose for which the definition is used.
PAUSE FOR
REFLECTION
Burden of proof
In whatever area of law, the question of whether a person is mentally ill is always one of fact
and must be determined on a balance of probabilities.20
10.2.3 The meaning of mental illness and lucidum intervallum in

private law
For purposes of determining capacity, a person is mentally ill if he or she cannot understand what
he or she is doing and is not able to appreciate the consequence of his or her legal actions.21 A
court will also find a person to be mentally ill where an action or decision is motivated or
influenced by delusions caused by mental illness. This was the case in Lange v Lange, where the
Appellate Division (as it then was) 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 consequence of his or her juristic acts but is motivated or influenced by delusions
caused by his or her mental illness.22
PAUSE FOR
REFLECTION
The case of Lange v Lange23

In this case, the question was whether a marriage between a man suffering from a mental
condition (which caused him to hear imaginary voices) and a woman was valid. Although the
man understood the nature of the juristic act (i.e., the wedding) at the time, the court held that
the marriage should be declared null and void since his motivation to conclude the marriage
was a delusion and an indication of his mental illness. The court’s crucial finding of fact was at
336-337 of the judgment which records that the mentally ill man, pausing on the steps of the
Magistrate’s Court, said: ‘Wait a little, I am listening.’ After standing a short while he
remarked: ‘All right, old girl, we can get married now. The voices say it is OK.’ Thus, the court
found that the ‘voices’ influenced him to enter into the marriage.
Where a person cannot understand or act accordingly, such person does not have capacity to enter
into juristic acts.24 However, the law does take note of the fact that a mentally ill person can have a
clear moment (lucidum intervallum) where he or she can understand and act accordingly. In these
situations, the legal acts of a mentally ill person will be ascribed to him or her. Where a person has
a delusion over time, such a person is regarded as having been mentally unsound during that
period and consequently all legal acts performed by such a person during that period are presumed
to be void. However, a person who alleges that the mentally ill person had a lucidum intervallum
during the period in which a legal act was performed, must prove so.25
A lucidum intervallum is a lucid interval.
In Estate Rehne v Rehne,26 examples of the person’s delusions included his belief that he was
being poisoned, that his breath was escaping through his toes, and that there were lumps of meat
in his bed. The question to be answered by the court was whether cheques signed by the person
having these delusions during this time were valid since they were allegedly signed during a
lucidum intervallum. The court held that the person did not have a lucidum intervallum and
therefore the cheques were found to be void.
In light of Estate Rehne, it can therefore be said that even if a person is mentally ill, he or she
retains capacity to act to the extent that he or she is able to exercise it from time to time.27
10.2.4 The meaning of mental illness for purposes of care, treatment

and rehabilitation
The Mental Health Care Act28 defines mental illness in this context as ‘a positive diagnosis of a
mental health-related illness in terms of accepted diagnostic criteria made by a mental health
practitioner authorised to make such diagnosis.’29 The Act deals mainly with the care, treatment
and rehabilitation of mentally ill persons and therefore should be clearly distinguished from issues
relating to capacity.30 The Act specifically requires that a person’s mental health status31 must not
be based on factors such as socio-economic status, cultural or religious background or affinity.32 In
summary, the purpose of defining mental illness in terms of the Act is to determine the care,
treatment and rehabilitation of persons, depending on whether a person is:
• a mental health care user who submits voluntarily to a health establishment for care, treatment
and rehabilitation services;33
• an assisted mental health care user;34
• a mental health care user without consent;35 or
• a mentally ill prisoner and state patient.36
10.2.5 The meaning of mental illness in criminal law

Sections 77 to 79 of the Criminal Procedure Act37 set out how mental illness and mental defects
are treated in criminal law. However, the Act does not provide a definition of a ‘mental illness’ or
a ‘mental defect’ as such. At most, the Act sets out the criteria for determining whether such
mental illness or mental defect affects a person’s criminal responsibility and ability to stand trial.38
It is clear that whether a person was suffering from a mental illness or mental defect at the time
must be determined with the aid of psychiatric evidence. Such evidence will usually refer to a
pathological disturbance of the mental faculties.39 The duration of the mental illness is irrelevant
but, of course, it must have been present at the time of the act.40 As is the case in private law, if a
person is found to be mentally ill but committed an unlawful act during a lucidum intervallum,
that person will have criminal responsibility in relation to the act in question.41
PAUSE FOR
REFLECTION
Snyman’s explanation of the difference between a mental defect and a mental illness
Although the Criminal Procedure Act makes use of the terms ‘mental illness’ and ‘mental
defect’, the Act does not define or explain the difference between them. Snyman42 offers a
possible explanation of the terms:
• A mental defect is normally characterised by an abnormally low intellect which is usually

evident at an early stage and is of a permanent nature.
• A mental illness usually manifests itself later in life and is not necessarily of a permanent
nature.
10.2.6 Influence of mental illness on legal status and capacity
It will be recalled that a person’s legal status is his or her legal position in relation to other persons
and the community.43 Legal status is determined by certain factors such as minority, domicile and
age and, as such, it varies from one person to another. Similarly, mental illness affects a person’s
legal capacity, his or her capacity to perform juristic acts and to litigate. It should therefore be
seen as a factor influencing status. It is important to note at this stage that tests for legal capacity
and the effect of mental illness on the capacity of a person are to be found in the common law, not
in statute law.44
10.2.6.2 Legal capacity of mentally ill persons

In this context, legal capacity (i.e. the capacity to have rights and duties) refers to a person’s
capacity to hold a particular office.45 Because of the fact that the law does not attach consequences
to the expressions of the will of a mentally ill person, the mentally ill person cannot occupy
certain offices such as being the curator of an insolvent estate,46 the executor of a will47 and the
director of a company.48 Mental illness does not terminate a person’s parental responsibilities and
rights automatically, but an application to court can alter this position.49
10.2.6.3 Capacity to perform juristic acts and enter into a marriage

A person lacks capacity if he or she cannot understand or appreciate the nature, scope and
consequences of his or her actions. As seen above, this applies equally where a person is
motivated (or influenced) to act by a delusion caused by mental illness.50 Where a juristic act (e.g.
a contract) or a marriage is purportedly concluded by a mentally ill person, such act cannot be
ratified even where the other party to the juristic act was not aware of the mental illness.51
Where a mentally ill person purports to perform legal acts, these acts are void and the status
quo ante should be restored (i.e., the parties should be put in a position prior to the purported legal
acts).52 This means that it is possible for each party to restore what he or she has received in terms
of the transaction on the principle of unjustified enrichment.53 Under certain circumstances, there
is also the possibility that a mentally ill person can be held liable on the basis of negotiorum
gestio.54
Status quo ante means the previous legal position.
Negotiorum gestio is the administering of another’s affairs to his or her advantage,

but without his or her knowledge.
Whether a person is mentally ill at the time the juristic act was entered into is a factual
question.55 Lack of capacity must be alleged and proved before a court in order that it might
decide the issue. Since all persons are considered to be mentally capable until the contrary is
proved, the onus lies on the person alleging the mental illness to prove (through medical and
psychiatric evidence) that the person does indeed suffer from a mental illness which negates his or
her capacity.56 In terms of the common law, a person would approach the court in terms of
Uniform Rule 57 of the High Court (the so-called De Lunatico Inquirendo rule) for a judicial
declaration of mental illness and the appointment of a curator. As we have seen previously, a
declaration by the court that a person is mentally ill or a person’s subjection to mental health
legislation is not conclusive proof of a person’s mental illness,57 but may be relevant to the onus of
proof.58 For example, where there is a declaration by the court there is a rebuttable presumption
that the person lacks the capacity to act, unless a party can prove otherwise.
PAUSE FOR
REFLECTION
A rebuttable presumption of mental illness

In Prinsloo’s Curators Bonis v Crafford and Prinsloo,59 the curators of Mr Prinsloo’s estate
claimed an order declaring his marriage to a Ms Crafford null and void or, in the alternative, to
set the marriage aside insofar as it affected his property. The curators made this claim on the
basis that two years before entering into the marriage (April 1905), the court had declared Mr
Prinsloo to be of unsound mind (July 1903). Given this order, the curators argued that Mr
Prinsloo had no capacity to enter into the marriage. The court found that the only effect of the
declaration by the court in 1903 was to shift the onus of proof. This effectively meant that
while there was a presumption that Mr Prinsloo was mentally ill (given the court order), he
could (and did) rebut the presumption by satisfying the court that he was sane at the time the
marriage was entered into. In the course of the judgment Solomons J reiterated the effect of
such a presumption as follows (at 672): ‘[T]here is no doubt a presumption that when a person
has been declared to be of unsound mind he continues to be of unsound mind, but it is open to
him to bring evidence to satisfy the Court that subsequent to the date of order he became sane,
and that subsequently a contract entered into by him after the order was a valid contract,
inasmuch as it was entered into [by] him at a time when he was in full possession of his
faculties.’
As is clear from the above case of Prinsloo’s Curators Bonis v Crafford and Prinsloo, a person is
incompetent to marry where he or she is, owing to a mental illness or defect, unable to understand
the nature of the marriage agreement and its attendant duties and responsibilities. As is clear from
Lange v Lange,60 a person is also incompetent to marry where he or she is influenced or motivated
to enter into the marriage by insane delusions.61
PAUSE FOR
REFLECTION
Specific limitations provided by legislation

It is important to note that in addition to the common-law rules on mental illness, many statutes
provide for specific limitations on the capacity to act of those who are mentally ill or
mechanisms to protect such persons and those close to them. For example, where it can be
shown that a person is mentally ill:
• the running of prescription against such person is delayed;62

• at the time of executing his or her will, such will is void;63
• such person will be incapable of consenting to a sexual act;64
• it may result in divorce as incurable mental illness is a ground for divorce.65
Many of these statutory mechanisms protect a spouse’s patrimony, in a marriage or civil union,
from his or her spouse. For example, where the parties are married in community of property a
court may, on application of the other spouse, suspend the power of the mentally ill partner to
administer the joint estate.66 The court may also order the immediate division of the joint estate
if the applicant spouse can satisfy the court that his or her interests will be seriously prejudiced
by the conduct or proposed conduct of the mentally ill spouse.67 Where a marriage is out of
community of property but subject to the accrual system a court may, on application of the
other spouse, make an order for the immediate division of the accrual. The court will make this
order only on the same terms as those relating to the division of the joint estate, that is, upon
proof of possible serious prejudice by the applicant spouse and proof that no other person will
be seriously prejudiced by the order.68
10.2.6.4 Capacity to be held accountable for crimes and delicts

A person is criminally and delictually accountable if he or she is mentally capable of
distinguishing right from wrong, and can plan his or her actions accordingly.69 Where mental
illness affects a person’s use of reason such person cannot be held accountable for crimes and
delicts committed by him or her. For a person to be accountable in criminal law and the law of
delict, he or she must have the required mental ability at the time of the commission of the act for
which the law wants to blame him or her.70 Without such mental ability, there can be no fault.
Without fault, there can be no liability. In other words, a person who is not accountable (culpae
capax) cannot bear any blame and therefore such person cannot incur any liability.71
COUNTER
POINT
Liability without fault

Not all legal systems require fault for liability and, hence, a mentally ill person who is culpae
incapax at the time of the commission of an act may still be held liable in these legal systems.
Paragraph 829 of the German Civil Code is an excellent example as it allows for so-called
‘fairness liability’, that is, liability without fault.72
Therefore, it is important that accountability for unlawful acts must be present at the time of the
act for which the law holds him or her responsible. Every person is presumed to be accountable in
a criminal matter. As a result, the onus is on the accused to rebut this presumption. Where mental
illness is in issue, sections 77 to 79 of the Criminal Procedure Act 51 of 1977 govern both the
ability of a person to be held accountable and his or her ability to stand trial.
In terms of section 78 of the Act a person cannot be held criminally responsible for his or her
act or omission where that person suffers from a mental illness or defect at the time of the alleged
offence that makes him or her incapable:
• of appreciating the wrongfulness of his or her act or omission; or

• of acting in accordance with an appreciation of the wrongfulness of his or her act or omission.
Mental illness is also relevant at the time of trial. If, at any stage of the trial proceedings, the court
believes that the accused might be currently suffering,73 or suffered at the time of the offence,74
from some sort of mental illness or defect, the court must order an investigation into the accused’s
condition.75 A panel of psychiatrists must then investigate and report on the validity of a suspected
or alleged mental illness or defect.76 If a person, by reason of mental illness or mental defect, is not
capable of understanding the proceedings so as to make a proper defence, then the court will find
the person unfit to stand trial.
10.2.6.5 Locus standi in iudicio

A person has no capacity to litigate where he or she cannot follow the nature and implications of
court proceedings. In most instances where a mentally ill person is involved in litigation, a curator
ad litem must be appointed prior to such litigation in a separate action instituted for the purposes
of his or her appointment.77
Once appointed, it should be noted that it is the mentally ill person who is the party to the
action and not the curator – the curator merely litigates for and on behalf of the mentally ill
person.78 Where a mentally ill person is experiencing a lucidum intervallum, and a person who
alleges this can prove that the mentally ill person can understand the nature and consequences of
the court procedures, the person undergoing the lucidum intervallum has the capacity to litigate
for the duration of the lucidum intervallum.79
10.2.7 Supplementing incapacity: the appointment of curators

Both the common law and statutory law provide measures and procedures dealing with lack of
decision-making capacity as a result of mental illness. These measures involve appointing another
person who will have the power to make decisions on behalf of persons with incapacity. In
common law, these persons can be divided into three types: a curator personae, a curator bonis
and a curator ad litem. It is expected that curators, when exercising their powers, act with the care
of a diligent and prudent person or, in other words, the bonus paterfamilias.80
10.2.7.1 Curator personae

A curator personae is appointed to care for the personal well-being of the mentally ill person. The
curator personae usually makes decisions on matters related to the mentally ill person’s personal
regimen, such as where the person should live (including the place and whether in or out of an
institution), his or her health, et cetera.81 With reference to these duties, it can be said that the
curator personae is responsible for all decisions where money is not directly involved.82 The
curator personae may be given general or specific powers when appointed.83 In other words, the
curator may be appointed for the specific purpose of giving permission for a specific operation to
be performed (and only that purpose) as opposed to a general power where the curator may make
decisions regarding all facets of the person’s personal life.84 In terms of consent to medical
treatment and/or an operation, it is important to note that the National Health Act85 creates a
specific order of those persons that can consent on behalf of the mentally ill person, starting with
those person(s) who have been authorised by any law or court order to give consent (such as a
curator personae) or, in their absence, the spouse or partner, a parent, grandparent, an adult child,
a brother or a sister (in that order).86
Figure 10.1 The three types of curators and the general function of each
10.2.7.2 Curator bonis

A curator bonis looks after the patrimonial interests of a person who lacks the ability to manage
his or her affairs, whether as a result of mental illness or not.87 Given that the functions of a
curator bonis are usually restricted to the patrimony of the person under curatorship, the curator
bonis cannot deal with acts of an intensely personal nature such as the institution of divorce
proceedings,88 the exercise of parental responsibilities and rights, the annulment of a marriage,89
and the making of a will.90 As with curatores personae, the curator bonis can be appointed by the
court for a specific purpose only,91 or in respect of a host of matters.92 While the specific duties of
a curator bonis depend on the circumstances of the mentally ill person, his or her usual duties
include the performance of any act related to the property of the person under curatorship. In
addition, the curator is usually tasked with carrying on the business or undertaking of the mentally
ill person, subject to any law applicable.93
Where the person under curatorship undergoes a lucidum intervallum,94 that person is fully
entitled to administer his or her own property and to perform juristic acts, without the curator’s
intervention.95 As such, it can be said that a curator bonis is, in effect, no more than a
superintending guardian who looks after a person’s property and supplements that person’s lack of
capacity to contract or litigate.96 The obvious question that must be asked in these instances is
whether the person is, in fact, mentally capable of managing his or her own affairs at the time in
question.97
PAUSE FOR
REFLECTION
Capacity of the mentally ill to manage their own affairs
De Villiers JP’s statement in Pienaar v Pienaar’s Curator 98 has been repeatedly approved in
many subsequent judgments regarding the mental capacity of a person while under curatorship.
It bears repeating here:
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.
10.2.7.3 Curator ad litem

A curator ad litem assists the mentally ill person in litigation once the procedure for his or her
appointment is followed.99 The High Court also has an inherent power to order that someone is
incapable of handling his or her own affairs, and of appointing a curator. This applies not only to
mentally ill persons but, also to those persons who are incapable of managing their own affairs as
a result of physical disability, prodigality, absence, et cetera.
While a curator bonis may have been appointed by the court, it does not automatically follow
that such curator has the power to assist the mentally ill person in litigation. Such power to litigate
must be specified in the appointment of the curator bonis, failing which, the court must be asked
to grant such powers or appoint another as a curator ad litem.100
As the name implies, a curator ad litem is responsible for litigation only and has no power over
the person or property of the person under his or her curatorship. The powers of the curator ad
litem (usually an advocate or an attorney) are therefore usually limited to managing the mentally
ill person’s interests in court in proceedings to which his or her appointment relates.101
10.2.7.4 The Mental Health Care Act: the appointment of an administrator

The Mental Health Care Act was brought into force in December 2004. In terms of the old Mental
Health Act102 a person could be declared or certified as mentally ill by means of a reception order
issued by a magistrate followed by the order of a judge in chambers. These measures largely
confirmed (or mirrored) the common-law position in that the Act provided for the appointment,
under certain circumstances, of a curator to the property of persons subject to the Act. In terms of
sections 32 and 36 of the new Mental Health Care Act, instead of ‘declaring’ and ‘certifying’, the
Act talks about ‘decisions’ regarding the ‘care, treatment and rehabilitation’ or ‘further
hospitalisation’ of a person.
The new Act does not use the common-law concept of curatorship but introduces a new and
more accessible measure by providing for an ‘administrator’ to care for and administer the
property on behalf of a mentally ill person. A Master of the High Court must make this
appointment where the person is ‘incapable of managing his or her property.’103
In terms of the Act, the powers and functions of the administrator are very similar to those of
the common-law curator bonis. He or she is appointed to ‘take care of and administer the property
of the person for whom he or she is appointed and perform all functions incidental thereto.’ In
addition, the administrator must also ‘carry on any business or undertaking of that person subject
to any other law.’104 The Act puts various limitations or safeguards on the administrator’s powers.
First, a court order or consent of the Master of the High Court is required before an administrator
may alienate or mortgage any immovable property of the person to whom he or she is
appointed.105 Second, an administrator or his or her spouse, child, parent, partner, associate or
agent is prohibited from purchasing or acquiring any property of the mentally ill person unless the
consent of the relevant Master is obtained or unless the mentally ill person legally authorised such
purchase or acquisition in writing before the administrator was appointed.106 Third, all monies
handled by the administrator on behalf of the mentally ill person must be paid to the Master of the
High Court unless such money is needed to pay immediate expenses such as outstanding debts,
expenses relating to the safe custody of the property of that person, the maintenance or education
needs of the person or his or her dependants, or payment for the current expenditure of the
business or undertaking of the person.107
PAUSE FOR
REFLECTION
The appointment of an administrator

The Mental Health Care Act provisions relating to the appointment of an administrator must be
seen as an addition to, rather than a replacement of, the common-law powers of courts to
appoint curators where a person is found to be mentally ill.
10.3 Alcohol and drugs
10.3.1 The influence of alcohol and drugs on capacity

Our law treats the influence of alcohol, drugs, and mental illness on a person’s capacity on a
similar footing.108 The general principle when considering the influence of alcohol and drugs is
whether such influence impaired the person’s ability to appreciate the consequences of his or her
actions. Such impairment is usually of a temporary nature due to the type of the substances
consumed or ingested and, as such, it is normally not necessary to place such a person under
curatorship.109
COUNTER
POINT
Ex parte Derksen110
As set out above, the normal rule is that it is not necessary to place persons affected by drugs
and/or alcohol under curatorship. However, in Ex parte Derksen a wife applied successfully for
her husband (who suffered from Berger’s Disease) to be placed under curatorship. The court
found that her husband was incapable of managing his own affairs due to the nature of his
prescription drugs.
The influence of alcohol and drugs on a person arises most often in the context of a person’s
capacity to act and in his or her capacity to be held criminally and delictually liable.111 For alcohol
to have any effect on his or her capacity to act, one has to establish that the consumption of the
alcohol must have deprived a person to such a degree that he or she either did not know that he or
she was entering into a transaction, or had no idea of its provisions.112 In these circumstances then,
the mere influence of drink in entering into a contract is not enough to negate capacity. As Dove-
Wilson J stated in Goodman v Pritchard:113
[O]ur law draws a distinction between men who are merely rendered reckless or thoughtless
by the influence of drink, and men who are incapable of entering into a contract at all
because they have been deprived of their minds by the influence of drink.
Only in the latter instance will alcohol or drugs have an effect on a person’s capacity to act and
the binding nature of the transaction.
10.3.2 The effect of a finding of incapacity due to alcohol or drug

consumption
Where a party can prove that the person affected by the alcohol was so deprived of his or her
senses, then the transaction is void ab initio and cannot be ratified.114 In case law this has been
justified on the basis that the person is non compos mentis and, therefore, there can be no such
thing as a valid contract.115 This principle applies even where the other party did not realise how
intoxicated the person was at the time of the transaction. It has even been submitted that where the
other party actively makes the person drink so as to agree to the transaction, the contract may be
voidable at the instance of the incapacitated party as a result of undue influence.116
Ab initio means from the outset.
Non compos mentis means not of sound mind.
The onus of establishing the effect of the alcohol or drugs on a person’s capacity to act rests
upon the party alleging it.117
PAUSE FOR
REFLECTION
The capacity to understand the nature and conditions of a transaction

Just because a person was drinking or taking drugs at the time of the transaction does not mean
that a court will find that the transaction is void. It has to be proved that a person was unable to
understand the nature of the transaction due to the consumption of alcohol or drugs. In
Manning and Wax v Heathcote’s Trustee118 the defence could not show that a party to a contract
of the sale of a vehicle was, at the time of signing it, non compos mentis through drunkenness.
Although the evidence showed that the party was liable to heavy drinking bouts and had been
drinking heavily about the time of the execution of the contract, the court was satisfied that, at
the time, he still understood the nature and conditions of the contract. In the same vein, as
stated in Van Metzinger v Badenhorst, even where drunkenness or drugs renders a party more
persuadable, it does not, by itself, nullify the contract.
Despite the contract being void ab initio due to a lack of capacity on the part of the intoxicated
person, as with mental illness, such person may be liable to the other party on the basis of
unjustified enrichment or negotiorum gestio.119
10.3.3 The capacity to be held accountable for crimes and delicts of

persons influenced by alcohol and/or drugs
As stated earlier, the excessive consumption of alcohol or the taking of drugs may deprive a
person of the capacity to appreciate the wrongfulness of his or her conduct or the capacity to act in
accordance with such appreciation.120 In S v Chretien121 the Appellate Division (as it then was)
decided that even voluntary intoxication may exclude criminal responsibility. However, in terms
of section 1 of the Criminal Law Amendment Act,122 the position of the intoxicated person has
been qualified: it sets out that a person who consumes or uses any substance which impairs his or
her faculties to appreciate the wrongfulness of his or her acts or to act in accordance with that
appreciation, while knowing that such substance has that effect and who commits an illegal act
while such faculties are thus impaired, is guilty of an offence punishable by the penalty which
may be imposed in respect of the commission of that act. Thus, even though a person is
intoxicated to such a degree that he or she did not know what he or she was doing, they may still
be liable in criminal law.123
In terms of delictual liability, the fact that a person is intoxicated to such a degree that he or she
did not know what he or she was doing will not usually excuse the person from delictual liability.
This is because negligence is usually sufficient to hold a person liable. In other words, if it can be
established that the person was negligent in performing the act in question while not in a fit state
to do so, he or she will be held liable.124
PAUSE FOR
REFLECTION
The accountability of the driver of a motor vehicle

A driver of a motor vehicle consumes liquor or takes drugs before her journey. She causes
damage and/or personal injury as a result of her consumption of alcohol or drugs. Even though
she could not distinguish between right and wrong, that is, between safe and unsafe conduct
(and act accordingly), she may still be liable. This is because the consumption of alcohol or the
taking of drugs may be seen as a negligent act performed at a time when the driver was
accountable.125
10.4 The influence of physical disability on capacity

If a physical disability or illness impacts on the ability of a person to manage his or her own
affairs, a curator may be appointed by the High Court to represent such a person,126 as it is in a
case where a person is mentally ill or a prodigal. As with the appointment of all curators (as seen
above), such appointment is necessary for the protection of the person subject to the curatorship
and should not be seen as a punitive measure.127 For example, the appointment of a curator may be
useful in this context where a person is so incapacitated that he or she cannot make arrangements
to pay the expenses for a retirement village, old-age home or frail-care centre where he or she is
staying.
PAUSE FOR
REFLECTION
Timeously assessing the need for a curator to be appointed
In Road Accident Fund v Mdeyide (Minister of Transport Intervening),128 the court warned legal
practitioners that where it appears that a client is vague and confused during consultations (i.e.
something is ‘seriously amiss’), such practitioner should address the question of the person’s
capacity and whether it is necessary for a curator to be appointed. This is important since if it is
subsequently shown that the person was indeed of unsound mind, he or she would without the
assistance of a curator ad litem have lacked locus standi. The possible consequence of this is
then that the entire proceedings in the trial court might be rendered void.129
Incapacity arising from physical disability or illness has resulted in the appointment of a curator in
a variety of circumstances, including:
• aged persons (with or without an additional condition);130

• deaf and mute persons;131
• persons suffering epileptic attacks;132
• disability resulting from a motor vehicle accident;133 and
• disability resulting from strokes and similar conditions.134
It is not necessary to lead evidence that a person in the above circumstances has actually
squandered or dissipated his or her assets before a curator bonis can be appointed. The essential
test is always whether the person is capable of managing his or her affairs.135 Nevertheless, courts
will carefully consider whether the appointment of a curator bonis in these circumstances is
needed, given the fact that such appointment may curtail a person’s right of freedom of
movement, and that the person with the physical disability is still compos mentis.136
Figure 10.2 Examples of the types of incapacity that have resulted in the appointment of a curator
PAUSE FOR
REFLECTION
Questions that might be asked in the assessment of capacity

In Francescutti v Francescutti; Ex parte Francescutti,137 the court found that an 80-year-old
man was suffering from senile dementia and had been incapable of managing his affairs at the
time he purported to enter into a marriage. The court found this to be the case after questioning
Mr Francescutti wherein:
• he did not know that Nelson Mandela was the president of South Africa before Thabo
Mbeki;
• he could not remember against which team the South African rugby team had played the
weekend before his testimony, despite being an avid rugby enthusiast and having watched
the game on television; and
• he could not compute a return of R14 000 on R200 000 as a percentage despite being a
former highly successful businessman.138
It is important to note that the fact that a curator has been appointed to a person does not mean that
the person has been deprived of the capacity to act and litigate. Neither is the person incapable of
being held accountable for crimes and delicts.139 Someone who has been placed under curatorship
because of an inability to manage his or her own affairs can enter into a valid legal transaction if,
at that particular moment, he or she is physically and mentally able to do so.140 It has for example
been held that such a person may marry without his or her curator’s consent141 and make a will.142

1. Mental illness may affect a person’s ability to make informed decisions, manage his or her
own affairs or appreciate the wrongfulness of his or her act or omission.
2. In private law, a person is considered mentally ill if that person cannot understand the nature
and consequences of his or her juristic acts, or if the person does understand the nature and
consequences of his or her juristic acts, but is motivated or influenced by delusions caused by
his or her mental illness.
3. If a person cannot understand or appreciate the nature and consequences of his or her juristic
acts, these acts are void.
4. If a mentally ill person acts during a lucidum intervallum (clear moment), in other words he or
she can understand the nature and consequences of his or her juristic acts, those acts are valid
and enforceable.
5. Since all persons are considered to be mentally capable until the contrary is proved, the onus
rests on the person alleging the mental illness to prove that the person concerned is in fact
mentally ill.
6. A curator personae can be appointed to care for the personal well-being of a mentally ill
person.
7. A curator bonis can be appointed to look after the patrimonial interests of a mentally ill
person.
8. A curator ad litem can be appointed to assist the mentally ill person in litigation.
9. If a person is so impaired as a result of alcohol and drugs that the person did not know that a
transaction was being entered into, or had no idea of its provisions, that transaction is void.
10. If a physical disability or illness affects the ability of a person to manage his or her own
affairs, a curator may be appointed by the High Court to represent such a person.
11. The Mental Health Care Act makes provision for the appointment of an administrator to care
for and administer a person’s property.
1 Brakel & Rock (eds) The Mentally Disabled and the Law Rev. ed (1971) 1.
2 For example, Roman law prohibited the rearing of children with physical disabilities, or so-called monstra, a
practice that was carried over into Roman-Dutch law.
3 One of the earliest legal references to mental illness is contained in the Twelve Tables of Rome (promulgated
in 449 BC) where it provided that relatives could assume control of the person and goods where such person
was a furiosus, in other words, a mentally ill person. See also C 5.70.6; Inst Iust 1.23.3.
4 For example Voet 27.10.3.
5 The Declaration on the Rights of Mentally Retarded Persons proclaimed by Resolution 2856(XXVI) on 20
December 1971 and the Declaration on the Rights of Disabled Persons proclaimed by Resolution 3447(XXX)
of the United Nations General Assembly on 9 December 1975. See also the United Nations Principles for the
Protection of Persons with Mental Illness and for the Improvement of Mental Health Care proclaimed by the
United Nations General Assembly Resolution 119 46th Session on 17 December 1991.
6 Adopted on 13 December 2006 during the 61st session of the United Nations General Assembly by
Resolution A/RES/61/106.
7 South Africa signed and ratified the Covenant on 30 March 2007 and 30 November 2007 respectively.
8 S 9(3).
9 S 10.
10 S 14.
11 S 12(1)(e).
12 Robinson et al. Introduction to the South African Law of Persons 2 ed (2008) 108. Similarly, in the context of
contract, Christie remarks that ‘it is right that the law should protect mentally afflicted persons against
contractual pitfalls.’ See Christie The Law of Contract in South Africa 5 ed (2006) 247.
13 Lee An Introduction to Roman-Dutch Law 4 ed (1946) 119.
14 Ibid. See Prinsloo’s Curators Bonis v Crafford and Prinsloo 1905 TS 669; Pheasant v Warne 1922 AD 481,
488; Estate Rehne v Rehne 1930 OPD 80; Pienaar v Pienaar’s Curator 1930 OPD 171; Bowmaker v
Bowmaker 1947 (1) PH B20 (A).
15 1930 OPD 171.
16 See 10.2.7 below regarding the effect of a curator.
17 Voet 27.10.3. Heaton The South African Law of Persons 3 ed (2008) 119.
18 In Lange v Lange 1945 AD 332, the court approved of Lord Langale’s statement in Snook v Watts (50 ER
757) that ‘there is no subject, I conceive, more difficult to investigate and satisfactorily to adjudicate upon in
courts of justice than the state of a man’s mind, with reference to his sanity or insanity, for the purpose of
determining whether he is legally bound or answerable for his acts.’
19 S v De Boer 1968 (4) SA 866 (A); S v Mngomezulu 1972 (1) SA 797 (A); S v McBride 1979 (4) SA 313 (W).
See S v Kavin 1978 (2) SA 731 (W).
20 Lange v Lange 1945 AD 332.
21 Prinsloo’s Curators Bonis v Crafford and Prinsloo 1905 TS 669; Pheasant v Warne 1922 AD 481; Lange v
Lange 1945 AD 332; Uys v Uys 1953 (2) SA 1 (EC); Theron v AA Life Assurance Association Ltd 1995 (4)
SA 361 (A); Eerste Nasionale Bank van Suidelike Afrika Bpk v Saayman 1997 (4) SA 302 (SCA).
22 Heaton 119.
23 1945 AD 332.
24 Voet 27.10.3; Pheasant v Warne 1922 AD 481 487-489; Lange v Lange 1945 AD 332 342; Theron v AA Life
Assurance Association Ltd 1993 (1) SA 736 (C) 739-741; 1995 (4) SA 361 (A) 374-375; Eerste Nasionale
Bank van SA Bpk v Saayman 1997 (4) SA 302 (SCA) 314.
25 Ex parte Human 1948 (1) SA 1022 (O); Ex parte De Jager 1950 (4) SA 334 (O); Ex parte Adendorff 1958
(4) SA 544 (N); S v Steyn 1963 (1) SA 797 (W).
26 Estate Rehne v Rehne 1930 OPD 80.
27 Voet 27.10.4. See also Pienaar v Pienaar’s Curator 1930 OPD 171; Mitchell v Mitchell 1930 AD 217; De
Villiers v Espach 1958 (3) SA 91 (T) 95-96; Heaton ‘Mental and physical disability: prodigality’ in Van
Heerden et al. (eds) Boberg’s Law of Persons and the Family 2 ed (1999) 106, 116, 137, 142, 143.
28 17 of 2002. Commencement date: 15 December 2004.
29 S 1. The South African medical and psychological sectors (psychiatrists and psychologists) use and
acknowledge accepted diagnostic criteria as those found in the American Diagnostic and Statistical Manual
of Mental Disorders (DSM) and the International Classification of Diseases and Mental and Behavioural
Disorders (ICD).
30 However, it should be noted that the Mental Health Care Act does provide for the appointment of an
administrator which, in effect, supplements the mentally ill person’s lack of capacity. See 10.2.7.4 below.
31 Defined in s 1 of the Act as ‘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.’
32 S 12.
33 S 25, read with s 1; i.e., the person’s submission is voluntary and thus no court intervention is required. Such
person is still capable of making informed decisions.
34 Ss 26-31 read with s 1; i.e., a person who is incapable of making informed decisions due to his or her mental
health status but who does not refuse health interventions.
35 Ss 32-38, read with s 1; i.e., a person who is incapable of making an informed decision on the need for health
interventions and is unwilling to receive such interventions, even though he or she requires such services for
his or her own protection or for the protection of others.
36 Chapters VI and VII of the Act.
37 51 of 1977.
38 See 10.2.6.4 above.
39 Snyman Criminal Law 5 ed (2008) 171.

40 Gouws 2004 (2) SACR 512 (W). Similarly, it does not matter whether the mental illness is curable or not.
41 Snyman 171.
42 Ibid.
43 Heaton ‘The concepts of status and capacity: a jurisprudential excursus’ in Van Heerden et al. (eds) 65. See
also 1.1 and chapter 5 above.
44 Thus legislation like the Mental Health Care Act does not replace the common-law principles.
45 Davel & Jordaan Law of Persons 4 ed (2005) 7 & 140. Note that there is a close connection between legal
capacity and capacity to act. For example, the holding of a particular office necessarily implies the
concluding of juristic acts.
46 Insolvency Act 24 of 1936 ss 55(c) & 58(b).
47 Administration of Estates Act 66 of 1965 s 54(1)(b)(v).
48 Companies Act 61 of 1973 s 218(1)(b). Although the 2008 Companies Act has been passed, it is not yet in
force – hence the reference to the 1973 Act.
49 Ex parte Human 1948 (1) SA 1022 (O); Ex parte Powrie 1963 (1) SA 299 (W). A court may terminate,
suspend, or restrict parental responsibilities in a number of contexts. For a full discussion of the courts’
powers, see Skelton and Carnelley (eds) Family Law in South Africa (2010) 253ff.
50 See for example Estate Rehne v Rehne 1930 OPD 80 91.
51 Pheasant v Warne 1922 AD 481; Phil Morkel v Niemand 1970 (3) SA 455 (C).
52 Unlike the position of the minor, a mentally ill person cannot enter into a transaction even if he or she
acquires only rights and the other party incurs only duties. See Heaton 120.
53 Grotius 3. 30. 3; Van Leeuwen Cens For 1.4.3.2; Molyneux v Natal Land & Colonization Co Ltd [1905] AC
555 PC, 569. See also Van der Vyver & Joubert Persone- en Familiereg 3 ed (1991) 302-303 who disagree
with this view.
54 Molyneux v Natal Land & Colonization Co Ltd above. See Skelton et al. Family Law in South Africa (2010)
64-65 for a description of negotiorum gestio in the context of family law.
55 Voet 27.10.3; Pienaar v Pienaar’s Curator above 174-5.
56 Pheasant v Warne 1922 AD 481 489; Vermaak v Vermaak 1929 OPD 13 15 18.
57 See Mental Health Care Act ss 32 & 36.
58 Molyneux v Natal Land and Colonisation Co Ltd above 561; Prinsloo’s Curator Bonis v Crafford and
Prinsloo 1905 TS 669 673; Pienaar v Pienaar’s Curator 1930 OPD 171 174-175. See Heaton in Van
Heerden et al. (eds) 106.
59 1905 TS 669
61 In Jonathan v General Accident Insurance Co of SA Ltd 1992 (4) SA 618 (C), the court held that ‘on a proper
interpretation of the Lange case, the capacity to make rational decisions is a requirement, separate from and
in addition to the capacity to understand… [T]he ability to make rational decisions is a requirement for the
capacity to act.’
62 Prescription Act 68 of 1969 s 13. See Road Accident Fund v Mdeyide 2008 (1) SA 535 (CC) para [38].
63 Wills Act 7 of 1953 s 4.
64 Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 s 57(2). S 1 of the Act
specifically refers to a ‘person who is mentally disabled’ as one who is affected by any mental disability,
including any disorder or disability of the mind, to the extent that he or she, at the time of the alleged
commission of the offence in question, was: (a) unable to appreciate the nature and reasonably foreseeable
consequences of a sexual act; (b) able to appreciate the nature and reasonably foreseeable consequences of
such an act, but unable to act in accordance with that appreciation; (c) unable to resist the commission of any
such act; or (d) unable to communicate his or her unwillingness to participate in any such act.
65 Divorce Act 70 of 1979 s 5(1).
66 Matrimonial Property Act 88 of 1984 s 16(2).
67 Matrimonial Property Act 88 of 1984 s 20. This section is qualified: such division can only take place where
no other person will be prejudiced by the order.
68 Matrimonial Property Act 88 of 1984 s 8(1). See also other protective mechanisms under the Matrimonial
Property Act 88 of 1984 relating to the protection of spouses, for example ss 8(2), 16(1) & 20(2).
69 Weber v Santam Versekeringsmaatskappy Bpk 1983 (1) SA 381 (A) 389 403 410.
70 Neethling & Potgieter Neethling-Potgieter-Visser Law of Delict 6 ed (2010) 125.
71 C 9.35.5 and D 47.10.5(8).

72 BGH NJW 1995, 452 Bundesgerichtshof – V1 ZR 303/93. See also Neethling et al. Delict 125 fn. 16.
73 S 77(1); Du Toit et al. ‘Accused: capacity to understand proceedings: mental illness and criminal
responsibility’ in Commentary on the Criminal Procedure Act (2010) 13-1.
74 Referring once again to the Criminal Procedure Act s 78.
75 S 77(1).
76 S 79(1).
77 See Rule 57 of the Uniform Rules of Court; Santam Insurance Ltd v Booi 1995 (3) SA 301 (A).
78 Minister of the Interior v Cowley 1955 (1) SA 307 (N) 311; Njikelana v Njikelana 1980 (2) SA 808 (SEC)
811.
80 Van der Linden 1.5.3. See also Clarkson v Gelb 1981 (1) SA 288 (W) 293-5. In Weber v Santam
Versekeringsmaatskappy Bpk 1983 (1) SA 381 (A), the court described a bonus paterfamilias as the
reasonable man or the average prudent person.
81 Ex parte Hill 1970 (3) SA 411 (C) 412-3.
82 Kruger ‘Mental Health’ in Joubert (ed) The Law of South Africa vol. 17 250.
83 Ex parte Dixie 1950 (4) SA 748 (W); Grotius 1.7.16.
84 In Martinson v Brown; Gray NO vs Armstrong 1961 (4) SA 107 (C) 110, the court warned that ‘[a]
pplications of this nature involve serious encroachments upon a person’s liberty and in my opinion the Court
should only make appointments where a real need for them has been shown.’
85 61 of 2003.
86 Mental Health Act 61 of 2003 s 7(1). It should be noted that such consent may be dispensed with in
emergencies. See also s 3 of the Sterilisation Act 44 of 1998 in respect of consent for sterilisation treatment.
87 See Pienaar v Pienaar’s Curator 1930 OPD 171 174-5; Minister of the Interior v Cowley 1955 (1) SA 307
(N) 310; Ex parte Hill 1970 (3) SA 411 (C) 412.
88 Ex parte AB 1910 TPD 1332; Spangenberg v De Waal [2008] 1 All SA 162 (T).
89 Mitchell v Mitchell 1930 AD 217 223. However, the court left open the question of whether a curator bonis
has the locus standi to set aside a marriage because of his or her mental incapacity at the time that the
marriage was entered into. See Prinsloo’s Curator Bonis v Crafford and Prinsloo 1905 TS 669.
90 Estate Watkins-Pitchford v Commissioner for Inland Revenue 1955 (2) SA 437 (A) 458.
91 An example of the type of duties carried out by a curator bonis can be found in the case of Ex parte Van
Hasselt 1965 (3) SA 553 (W). The curator in this matter was given permission to make certain investments.
92 Ex parte Jacobs 1965 (3) SA 270 (C). Where appointed for general issues, it is usual that such appointment is
for a specified time only.
93 Administration of Estates Act 66 of 1965 s 76(2)(a), see also Ex parte Du Toit: In re Curatorship Estate
Schwab 1968 (1) SA 33 (T) 34-37.
95 Voet 27.10.4. Ex parte Hamer 1946 OPD 163 168.
96 Minister of the Interior v Cowley NO 1955 (1) SA 307 (N) 310G-H; Francescutti v Francescutti; Ex parte
Francescutti 2005 (2) SA 444 (W) para 2.
97 See the position of prodigals in Chapter 9.
98 1930 OPD 171 (at 174-175)
99 As set out in Rule 57(5) of the Uniform Rules of Court. See generally Judin v Wedgwood 2003 (5) SA 472
(W) regarding procedural issues.
100 Harms Civil Procedure in the Superior Courts (March 2009 – SI 38) para B57-3.
101 Du Plessis v Strauss 1988 (2) SA 105 (A) 145-6.
102 18 of 1973.
103 Ss 59-60.
104 S 63(3).
105 S 63(4)(a).
106 S 63(4)(b).
107 S 63(5). Such duty can be varied upon the Master’s direction or where a legal document made by the person
concerned before the appointment directs otherwise.
108 Christie 249. Essakow v Galbraith 1917 OPD 53 56. However, see 10.3.3 below regarding statutory
provisions regulating criminal acts.

110 1960 (1) SA 380 (N)
111 Heaton 135.
112 Van Metzinger v Badenhorst 1953 (3) SA 291 (T) 293D.
113 (1907) 28 NLR 227 232.
114 Grotius 3.14.5; Voet 18.1.4; Manning and Wax v Heathcote’s Trustee 1915 EDL 81; Essakow v Galbraith
1917 OPD 53; Van Metzinger v Badenhorst 1953 (3) SA 291 (T) 293. See Gray v Moodliar 1962 (3) SA 379
(N) 382.
115 Goodman v Pritchard (1907) 28 NLR 227 231.
116 Van Rensburg et al. ‘Contract’ in Joubert (ed) The Law of South Africa vol. 5(1) para 160 fn. 12. In Essakow
v Galbraith 1917 OPD 53, the court found that a promissory note was signed by a person in an intoxicated
state and that such intoxication made him incapable of entering into any transaction which required judgment
and discretion, such as signing a promissory note. While the other party did not deliberately ply Galbraith
with liquor, he was fully aware of Galbraith’s intoxication.
117 Goodman v Pritchard (1907) 28 NLR 227 233; Van Metzinger v Badenhorst 1953 (3) SA 291 (T) 293H;
Manning and Wax v Heathcote’s Trustee 1915 EDL 81 84.
118 Manning and Wax v Heathcote’s Trustee 1915 EDL 81.
119 Heaton 135.
120 Burchell Principles of Criminal Law 3 ed (2005) 403.
121 1981 (1) SA 1097 (A).
122 1 of 1988.
123 See Burchell 403-423.
125 Neethling et al. Delict 126.
126 See Van den Berg v Van den Berg 1939 WLD 228 231-2; De Villiers v Espach 1958 (3) SA 91 (T) 95F; Ex
parte Derksen 1960 (1) SA 380 (N) 381D-E; Ex parte Oppel 2002 (5) SA 125 (C) 128H-I.
128 Road Accident Fund v Mdeyide (Minister of Transport Intervening) 2008 (1) SA 535 (CC).
129 Para [37]. See Kotze NO v Santam Insurance Ltd 1994 (1) SA 237 (C) where a curator who was subsequently
appointed to a person persuaded the High Court to permit him to ratify such steps as had already been taken.
130 For example, compare Ex parte Wagner: In re De Bie 1988 (1) SA 790 (C) (concerning an 88-year-old
bedridden woman) with Ex parte Maritz: Ex parte De Klerk 1968 (4) SA 130 (C) (concerning a 92-year-old
woman with cerebral arteriosclerosis).
131 Ex parte Bell 1953 (2) SA 702 (O) and Ex parte Estate Van Rensburg 1948 (2) SA 753 (O).
132 Ex parte de Jager 1950 (4) SA 334 (O).
133 Ex parte Powrie 1963 (1) SA 299 (W).
134 Ex parte De Villiers 1943 WLD 56; Nyathi v Nyathi 1976 (4) SA 43 (R).
135 Francescutti v Francescutti; Ex parte Francescutti para [15].
136 Ex parte Wilson: In re Morison 1991 (4) SA 774 (T) 779-80. De Villiers v Espach 1958 (3) SA 91 (T) 95-6.
See Davel & Jordaan 152.
137 2005 (2) SA 442 (W).
138 Para [12].
139 Pienaar v Pienaar’s Curator 1930 OPD 171 175.
140 Heaton 133.
141 Pienaar v Pienaar’s Curator 1930 OPD 171.
142 Spies v Smith 1957 (1) SA 539 (A).
Chapter 11
Race, custom and religion

11.1 Introduction
11.2 The influence of religion on legal status

11.2.1 Introduction
11.2.2 Religious influence on the capacity to marry and restrictions on the freedom
| to choose partners
11.2.3 The legal status of parties married according to religious rites
11.2.3.1 A contract arising out of a religious marriage
11.2.3.2 The duty of support and a wife’s right to maintenance in
accordance with religious law
11.2.4 The influence of religion on the capacity to obtain a divorce
11.2.5 The influence of religion on the capacity to contract, litigate, own and
dispose of property
11.3 The influence of race on legal status

11.3.1 Customary law as a racial legal system
11.3.2 Capacity to enter into a customary marriage and to litigate determined by
race
11.4 The influence of customary law on legal status

11.4.1 Introduction
11.4.2 Patriarchy and legal status
11.4.3 The legal status of family heads and heirs
11.4.4 Legal status conferred by family, clan and tribal membership
11.4.4.2 Family membership
11.4.4.3 Clan membership
11.4.4.4 Membership of a tribal group
11.4.5 The legal status of children under customary law
11.1 Introduction
Some aspects of custom and religious faith contain an element of law in the form of what is
known as personal law. The term ‘personal law’ is not defined anywhere in the Constitution of
South Africa, 1996. However, section 15 of the Constitution guarantees the right to freedom of
religion and acknowledges the relevance of personal legal systems. Section 15(3), in so far as is
relevant, provides as follows:
This section does not prevent legislation recognising … systems of personal and family law
under any tradition, or adhered to by persons professing a particular religion …
Personal law is a system of law that is:
• recognised by a particular community as binding on its members; and is

• in accordance with either:
◆ recognised religion or faith; or
◆ the rules of an established and legally recognised custom.
1
Personal legal systems are regarded by their adherents as having the same, or higher, status as the
‘law’ because of their historical and divine origins and, clearly, section 15(3) of the Constitution
does recognise such systems as law. Indeed, in many instances, the adherents of personal legal
systems maintain that these systems have an even higher authority than ‘man-made’ law because
they are ‘sacred and not subject to censure.’2
Although some aspects of personal law do correspond with civil law, there are circumstances in
which personal law differs from, or even contradicts, civil law. The purpose of this chapter is to
discuss these circumstances, as well as to look at the ways in which race may be an influence on
legal status.3
It must be borne in mind that legal status is attained through the operation of law. As Spiro puts
it:
The characteristics of status are said to be that it can only be conferred on an individual by
the state, that it is a matter of public or social interest, that it cannot be acquired, varied or
divested at the mere will of the parties concerned and that it is universal.4
The difficulty in determining the legal status of a person to whom two different legal systems are
applicable is further complicated by the fact that under each system, such a person would be
required to conform to the particular system’s law. In South Africa race, religion and customary
law have played a major role in the determination of personal legal status although, with the end
of apartheid in 1994, the role of race began to diminish as a negative factor influencing legal
status. The role and influence of race has, however, been retained in the spirit of affirmative action
in terms of the Constitution.
While the effect of race on status has diminished, there has been an increase in the number of
cases that deal with the legal status of adherents to religious law, and of persons governed by
customary law. The courts have increasingly moved to protect religious and customary laws as far
as possible within the extent of their powers, particularly in the area of family law. The next
section deals with the influence of religion on the legal status of Muslims, Jews and Hindus under
South African family law.
Figure 11.1 The broad issues that will be dealt with in this chapter
11.2 The influence of religion on legal status
11.2.1 Introduction
South African courts,5 like their American counterparts,6 have generally been hesitant to interpret
religious law in order to avoid what they have called ‘religious entanglement’. Consequently, in
Ryland v Edros7 and Singh v Ramparsad 8 the courts have cautioned against secular courts making
rulings on disputes of a religious nature.
Despite this, the doctrine of avoidance of religious entanglement has not prevented the secular
courts from making rulings on religious law. Numerous court decisions have led to the partial
recognition of some aspects of religious law, and this has been particularly so in the area of family
law.9
11.2.2 Religious influence on the capacity to marry and restrictions

on the freedom to choose partners
Religious law is neither secular nor morally neutral and the adherents of a religion are generally
expected to be morally virtuous. Further, religious law is not (and should not be) the law of the
State as it is the law of those who voluntarily adhere to a religious faith and its rules. In this way,
religious morality plays a major role concerning the capacity to marry. Outsiders are generally
excluded from the enjoyment of the specific rights and status associated with adherents, unless
they convert to, or become adherents to, the religion in question. This may be illustrated by the
following examples:
Figure 11.2 The various aspects of the influence of religion on legal status that will be dealt with
in this section
• Islam prohibits a marriage between people of the same sex10 and, furthermore, a marriage
between a Muslim woman and a non-Muslim man unless the man converts to Islam.11 Further,
a Muslim woman is not permitted to remarry during iddah.12 A Muslim husband is, however,
permitted to marry a limit of up to four wives13 irrespective of whether he is going through a
divorce with any of his existing wives.14
• Inter-caste15 marriages were legally prohibited by ancient Hindu law.16 Some authors argue
further that there may have been times when a marriage between a Hindu and non-Hindu was
specifically prohibited.17 Despite the ban and criminalisation of the caste discrimination in
India,18 the practice still seems to be prevalent among the Hindus of rural India.19 Modern
Hindu law does not expressly prohibit marriages between Hindus and non-Hindus. However,
the prohibition may be implied. For example, the Indian Hindu Marriage Act20 states that ‘A
marriage may be solemnised between any two Hindus …’ Thus, it can be deduced that a
marriage between a Hindu and a person of another religion is not permitted.21 This makes
sense because a Hindu marriage is not a mere contract but also a samskara (religious
sacrament). It has been referred to as ‘the last of the Ten Sacraments and is regarded as a
divine unification of souls.’22
• Jewish law specifically forbids a marriage between a Jew and non-Jew. If such marriage does
take place, it will be invalid and ‘entail no legal consequences’ under Jewish law.23
As will be discussed below, the South African courts may enforce the consequences of a religious
marriage provided that certain requirements are met. One of these requirements is that the
marriage while invalid under South African civil law, must, for validity, have complied with the
religious requirements. Under these circumstances the courts give effect to the injunctions of the
relevant religious law.
It is therefore not possible for the courts to give effect to the religious consequences of a
marriage if the marriage itself does not comply with that law for the purposes of validity. Thus,
the spouses will not be capable of enforcing any rights and duties concerning such marriage which
will be invalid in terms of both religious law and civil law.
11.2.3 The legal status of parties married according to religious rites

Potentially polygynous religious marriages are not legally recognised in South Africa.24 It is not
uncommon, however, for the adherents of religious groups to marry each other according to their
religious rites and then register such marriages as civil marriages in terms of provisions of the
Marriage Act.25 In fact, the Act allows such arrangement.26 A marriage registered in terms of the
Marriage Act is a civil marriage, and the legal status of the parties and capacities of the spouses
are governed solely by civil law.
PAUSE FOR
REFLECTION
The duty of support on a husband with more than one wife

Under common law, Muslim, Hindu and Jewish marriages are not legally recognised in South
Africa because they are potentially polygynous. The court may enforce the consequences of a
properly solemnised religious marriage provided that the marriage is factually monogamous
and was not registered as a civil marriage. In the case of Amod v Multilateral Motor Accident
Fund 27 the Supreme Court of Appeal held that Islamic law imposes a duty of support on the
husband to support his wife, but the court deliberately left open the question of whether the
duty of support would arise if the husband were to have more than one wife. The judgment
leaves an interesting question unanswered, namely whether the number of wives should have
any effect on the duty of support.
The effect of the registration of a religious marriage under the Act is that spouses forfeit their
rights and obligations that may arise from a religious marriage, and as such, a marriage will be
treated as a civil marriage governed by civil law.
If the spouses fail to register their religious marriage as a civil marriage (which must be
monogamous), they will not acquire the status of a married couple. In the circumstances, one
might assume that the consequences of a valid marriage will not apply because the marriage is not
valid, but this is no longer the case. In recent years, the courts have adopted a cautious but liberal
approach towards religious marriages. For instance, the courts have extended the meaning of
‘spouse’ as contained in relevant legislation to include parties married in accordance with
Muslim28 and Hindu29 rites, despite the non-recognition of such marriages.
This has resulted in the legal recognition of rights and obligations of parties married by
religious law, subject to various requirements which will be discussed hereunder. Thus, under
common law, spouses who have contracted a marriage according to a religious law have the
capacity to enforce certain consequences of their marriage provided that:
• the marriage was duly solemnised, and is valid in accordance with the relevant religious law;30
• the consequences in question are recognised by the religious law in question as legally
enforceable;
• the religious marriage is not recognised under civil law31 and has not been registered under the
provisions of the Marriage Act; and32
• the marriage is, in fact, monogamous. 33
In applying the above principles the courts have made it possible for spouses to acquire and
enforce the contracts arising from religious marriages, for example the duty of support and
maintenance of a spouse, in terms of religious law.
11.2.3.1 A contract arising out of a religious marriage

The spouses have the capacity to enforce the terms of a contract arising naturally out of a religious
marriage.
PAUSE FOR
REFLECTION
The Muslim marriage is a contract between husband and wife

In Ryland v Edros34 an unregistered Muslim marriage had been dissolved according to Islamic
law, and the husband sought an eviction order against the wife. In her counterclaim, the wife
argued that because a Muslim marriage was a contract between husband and wife, the current
constitutional values demand that the terms of such contract should be enforced. The court
heard expert evidence that a Muslim marriage was, in fact, a contract between husband and
wife, and it was decided that, in accordance with Islam, a marriage contract entitles the wife to
arrear maintenance, maintenance until the end of iddah, and the delivery of a consolation gift.
It is submitted that there is no reason why the courts would not enforce the consequences of a
religious marriage under the common-law principles, or any other terms of a marriage contract
entered into in accordance with any religion, provided they are not unconstitutional or contrary to
public policy.
11.2.3.2 The duty of support and a wife’s right to maintenance in accordance

with religious law
After Ryland v Edros35 the case of Amod v Multilateral Motor Vehicle Accident Fund 36 took the
ruling in Ryland a step further in that the court did not limit the duty of support to a Muslim
marriage. Further, the court did not base the duty of support on a contract between husband and
wife.37 Instead, the court formulated a new test for the duty of support concerning unrecognised
religious marriages, which could be applied to any unrecognised religious marriage. Mahomed CJ
made it clear that the duty of support in cases of religious marriages should not be based on
whether the marriage is valid at civil law or not. For a duty of support to be legally enforceable
concerning an unrecognised religious marriage, the test in Amod requires the dependants to show
that: 38
• the deceased had a legally enforceable duty to support the dependant; and
•
that it was a duty arising from a marriage solemnised in accordance with the tenets of a
recognised and accepted faith; and
• it was a duty which deserved recognition and protection for the purposes of the dependant’s
action.
It is important to note that the above test allows the dependants to claim the duty of support
irrespective of whether the marriage is a Muslim marriage or not. With Islamic marriages the
husband has a legal duty to support his wife during the marriage39 and during the period of iddah
only.40 Once the divorce is finalised and the iddah period has expired, the duty of support ceases.
Further, there is no legal duty on the part of a Muslim wife to support her husband during
marriage and after a divorce even if she can afford it.41 There are conditions that the wife has to
comply with to claim maintenance from the husband. She must be obedient and faithful to the
husband, she must not become apostate,42 and she must not refuse sexual intercourse with her
husband.43 Further, the duty of support ceases on confirmation of divorce because the spouses are
presumed to be financially independent as they have separate estates during and after the
dissolution of marriage.
Comparable principles are applied to a Hindu marriage. A Hindu husband has a personal duty
to support his ‘family’ – that is, his wife, ‘irrespective of whether he possesses property of any
kind and independently of any distinct demand for it’,44 his children, and his aged parents.45 The
duty of support in Hindu law is both legal and moral and ‘based on the concept of the joint family
system and the dictates of natural justice supported by the theory of co-ownership.’46 This also
means that the parents of a deceased husband have a duty to support his widow.47
With Jewish law, the husband is said to have ‘ten obligations towards his wife (or her
descendents) and four rights in respect of her’ which are derived from principles of Jewish law.48
Some of the ten obligations are ‘to provide his wife with sustenance or maintenance … to provide
ketubbah (the sum fixed for the wife by law) … to provide for her support after his death and
ensure her right to live in his house as long as she remains a widow.’49
Thus the few points on duty of support and maintenance of spouses as required by the three
religious legal systems may be enforceable in South Africa following the decision in Amod. The
problem is, however, that the recognition is merely partial, and restricted to the provisions of the
relevant religious law. This means that spouses will not have the same legal status or capacity to
claim maintenance over and above what the relevant religious legal systems provide. For instance,
the husbands would not have the right to claim maintenance or duty of support because there are
no legal obligations on the part of the wives to support their husbands. Further, there is uncertainty
surrounding the question of de facto polygynous religious marriages. The courts have not had to
deal with such marriages concerning similar issues.
11.2.4 The influence of religion on the capacity to obtain a divorce

For obvious reasons a decree of divorce may not be granted to parties who are not legally married.
The difficulty with religious marriages is that the right to divorce is often reserved for the husband
only, unless such right is delegated to the wife by the husband.50 So, if the couple entered into a
religious marriage which they registered as a civil marriage, secular courts can grant a decree of
divorce concerning a civil marriage only, and not the religious marriage because according to the
rules of their religion, which must be observed, the divorce must comply with different or
additional requirements.
It is for this reason that section 5A of the Divorce Act51 as amended by the Divorce
Amendment Act52 empowers a court to refuse to grant a decree of divorce concerning any civil
marriage if it appears to the court that the spouses are still bound by their religious marriage,
preventing either of the spouses from remarrying.
PAUSE FOR
REFLECTION
An example of the application of section 5A of the Divorce Act in a Jewish divorce court
In Amar v Amar 53 the wife, who belonged to the Ashkenazi branch of Jewish Orthodoxy, sued
her husband, who belonged to the Sephardi branch, for divorce. The parties had registered their
Jewish marriage as a civil marriage. Jewish ecclesiastical law prohibited a wife from
remarrying unless the Jewish marriage was also dissolved in accordance with Jewish law,
which the husband insisted must be done according to Sephardi rules. The Beth-Din (Jewish
court) in Johannesburg could grant divorces according to Ashkenazi rules only; the only
possible place to obtain a Jewish divorce according to Sephardi rules was Israel. The court
explained the purpose of section 5A and then ordered the husband, in order to ‘pressurize’ him,
to pay maintenance to the wife monthly until their Jewish marriage was dissolved either in
Israel or in Johannesburg.
According to Bilchitz54 Jewish law requires the husband to hand a bill of divorce (known as a get)
to his wife to end a marriage. The wife must consent to receiving the get. If a husband refuses to
give a get to his wife, she may not remarry, but because polygyny (a marriage where there is one
husband and more than one wife) is not prohibited by Jewish law, the husband may still marry
another woman if his wife refuses consent to receiving a get.
According to Islam the right to pronounce a talaaq (divorce) is exclusively given to the
husband. In order for the wife to be able to divorce her husband, a contract must have been
entered into to allow her to do so, either in the form of tafwid at-talaq (where the husband
delegates his right to effect a divorce to his wife), khul’a (where the wife offers and the husband
accepts payment of compensation to divorce the wife) or mubarat (where husband and wife agree
to divorce each other).55
Effectively, according to the religious laws discussed above, the wife’s right to divorce is
restricted in various ways. It is submitted that section 5A of the Divorce Act serves an important
role in regulating the legal status of women married in accordance with religious law. There is a
clear need for similar legislation that will put pressure on individuals to perform the necessary
religious rituals in order to bring religious law into line with the values underlying the
Constitution. As a result of religious law being divine law and the fact that South African courts
are reluctant to rule on aspects of religious law, it is submitted that the legislature must enact more
laws similar to section 5A of the Divorce Act. With Muslim marriages, the South African Law
Reform Commission has recommended and drafted a Bill on Muslim marriages. The Bill is
appended to the Commission’s Report on Islamic Marriages and Related Matters.56 If it becomes
law, the Bill will legally recognise the enforcement of Islamic marriages, and related matters like
divorce settlements and the procedure for obtaining a divorce, registration of the marriages,
polygyny and matrimonial property regimes. Essentially, the Bill aims to extend protection and
enjoyment of marital rights to people who are married according to Muslim law.
11.2.5 The influence of religion on the capacity to contract, litigate,

own and dispose of property
Religious laws that determine a person’s locus standi and capacity to enter into contracts and to
own property will inevitably influence the legal status of the adherents in various ways. Most
religions regulate a person’s capacity by looking at factors such as gender, marital status, and
position within the religion.
Generally, elements of patriarchy are often obvious in the sources of religious law. Men appear
to have more legal rights and duties than women while women have fewer rights and,
consequently, fewer duties. Islam clearly declares that ‘Men are overseers over women because
Allah has made the one of them excel the other, and because men are required to spend their
wealth for the maintenance of women. Righteous women are, therefore, devoutly obedient and
guard the husband’s property and their own honor.’57
Furthermore, according to the Maliki and the Shafi’i jurisprudence, a woman (except a widow
or divorcee) is incapable of concluding a valid marriage contract without the consent of a guardian
(wali), who should be a male person.58 Additionally, Islam equates the testimony of two women to
that of one man.59 According to Islam, ‘in regard to inheritance, Allah commands you concerning
your children: that the share of a boy shall be twice that of a girl.’60
Despite this unequal status of men and women in Islam, the proprietary consequences of an
Islamic marriage have been said to be akin to those of a marriage out of community of property
excluding the accrual system.61 This allows the spouses to own and dispose of property
independently of each other, and to retain such property on divorce.
One of the rights of the husband, according to Jewish law, is the husband’s entitlement to a
usufruct of his wife’s property. 62 During the marriage the husband is under an obligation to
support his wife, and the wife must ‘bear children and look after the home.’63 On divorce, the wife
is entitled to the return of her property and the obligation on the part of the husband to support her
terminates.
Usufruct is a beneficial right to use property that belongs to another person.
Hindu law makes a distinction between what Gokul calls ‘limited woman’s estate’ and property
known as stridhana.64 The difference between the two is that stridhana falls under the absolute
ownership and control of the woman, while limited woman’s estate may not be sold or disposed of
in any way whatsoever during a woman’s lifetime.65 Upon her death, stridhana (the word ‘stri’
means ‘woman’ and ‘dhana’ means ‘property’ – stridhana means personal property of a woman)
will devolve according to specific rules of succession.
It is not clear how far the courts will uphold the above religious laws considering the
differentiation between men and women. Even if the courts do not uphold such rules on account
of public policy, the practice may still continue as required by the relevant religions.
11.3 The influence of race on legal status

During the apartheid era factors that determined a person’s rights and duties in South African
legal discourse used to be decided on the basis of a person’s race.66 For the indigenous African
there was an additional factor – the African person’s tribal origin and the tribal laws applicable to
that person.67 Because of the repeal of racially biased laws in South Africa it can be argued that
race is no longer used to determine a person’s legal status. There are, of course, exceptions –
affirmative action (a full discussion of which is beyond the scope of this chapter) uses, inter alia,
race to determine rights. In addition, customary law is de facto applied to indigenous African
people. The various sections of the Black Administration Act68 which were used to determine
African people’s legal status have been repealed.69
De facto means judging according to the factual position.
In Bhe v Magistrate, Khayelitsha (Commission for Gender Equality as Amicus Curiae); Shibi v
Sithole; and South African Human Rights Commission v President of the Republic of South
Africa,70 Langa DCJ quoted Sachs J in Moseneke v The Master 71 when emphasising the need for
the repeal of racially based laws, in particular the Black Administration Act:
It is painful that the Act still survives at all… it is in conflict with the establishment of a non-
racial society where rights and duties are no longer determined by origin or skin colour.72
PAUSE FOR
REFLECTION
The case of Bhe v Magistrate, Khayelitsha

In Bhe v Magistrate, Khayelitsha two extramarital daughters of the deceased challenged the
constitutional validity of the male primogeniture principle (a system whereby only the closest
male relative of the deceased person may inherit the deceased’s property). Section 23 of the
Black Administration Act, read with the Regulations for the Administration and Distribution of
the Estates of Deceased Blacks73 provided that the male primogeniture should be applied in
matters in which a black person has died intestate. The court held that the male primogeniture
principle was inconsistent with the Constitution and invalid to the extent that it excludes or
hinders black women and extramarital children from inheriting property.
This section is intended to highlight some of the race issues that, despite the abolition of apartheid,
continue to affect a person’s legal status.
11.3.1 Customary law as a racial legal system

Before 1994 in South Africa, race used to determine almost every aspect of a person’s life. The
legal status of non-white people was inferior due to certain limitations on their capacity to act and
to litigate.74
PAUSE FOR
REFLECTION
Special courts from the apartheid era

During the apartheid era, a hierarchy of special courts was established for the exclusive use by
people of African origin (black people). These were the Chiefs’ Courts constituted in terms of
section 12(1) of the Black Administration Act, the Commissioners’ Courts of Appeal created
by section 12(4) of the Black Administration Act, and the Black Divorce Court established in
terms of the Divorce Court Act 9 of 1929. Note that racially mixed marriages were prohibited
under the Mixed Marriages Act 55 of 1949. Further, ownership and allocation of land for
occupation was restricted depending on the race of a person under the Group Areas Act 36 of
1966. Certain areas were allocated to particular racial groups which were white, black and
coloured (the ‘coloured’ race, according to the apartheid government, included the Cape Malay,
and people of Asian and Chinese origin). Further, note that black people could not freely carry
on a business or profession within certain reserved areas.
Historically, customary law was applied concerning civil disputes between blacks only. Until
recently, the Black Administration Act75 provided that the capacity of an African person to enter
into any transaction, as well as his or her locus standi in iudicio, was determined according to the
law of the land, except in so far as such transaction originated and was entered into according to
customary law, and in which case such locus standi and contractual capacity was determined
according to the principles of the relevant customary law. This section was repealed in 2005,76 but
there are other unwritten rules of customary law that still determine rights and duties on the basis
of race.
Locus standi in iudicio means the right to appear in court.
The retention of customary law as a separate legal system for indigenous communities is
clearly indicative of the fact that the rights and duties that arise out of that system are reserved for
members of the tribal groups concerned. Although this may be unintended, it is an inevitable
effect of the recognition of customary law as a separate legal system, and should be construed as a
form of race classification which affects a person’s legal status solely on the basis of race.77
The Recognition of Customary Marriages Act,78 the Black Administration Act and the Law of
Evidence Amendment Act79 still exclude certain people from the enjoyment of certain legal
capacities simply on the basis that they are not indigenous Africans.
11.3.2 Capacity to enter into a customary marriage and to litigate

determined by race
Section 1 of the Recognition of Customary Marriages Act80 defines customary law as ‘the customs
and usages traditionally observed among the indigenous peoples of South Africa and which form
part of the culture of those peoples.’81
COUNTER
POINT
Lack of clarity about to whom the Recognition of the Customary Marriages Act applies
It is not clear whether people of other races may be able to marry each other in terms of this
Act.82 The definition of ‘customary law’ clearly implies that a customary marriage may only be
entered into by ‘indigenous peoples of South Africa’ simply because the marriage customs and
usages ‘must form part’ of their culture. In Gumede v President of Republic of South Africa,
Moseneke J identified the problem presented by the Act as follows:83
Difficult questions may surface about the reach of customary law, whom it binds and, in particular,
whether people other than indigenous African people may be bound by customary law. Happily,
that matter will have to stand over for decision on another day. Given the conclusion I reach on the
equality claim of the applicant, it is not necessary to resolve whether the discrimination is also on
the ground of race or whether any of the parties is not bound by customary law. Both consider
themselves spouses in a customary marriage and bound by the codified customary law of KwaZulu-
Natal.
Sections 12 and 20 of the Black Administration Act dealt with the civil and criminal jurisdiction
of chiefs’ courts, and the judicial powers of chiefs. The capacity to litigate in these courts was
limited by race. In terms of section 12(1)(a), an authorised chief may hear civil disputes arising
out of customary law ‘brought before him by Blacks against Blacks resident within his area of
jurisdiction.’ These sections have been repealed with effect from 30 December 2009.84 Sections 5
and 6 of the Traditional Courts Bill retain the civil and criminal jurisdiction of traditional courts
(or chiefs’ courts). The difference is that the phrase ‘Blacks against Blacks’ has been omitted,
implying that the capacity to sue or to be sued in a traditional court will no longer be determined
by race. However, where the conflict of laws issue arises in legal ‘proceedings between Blacks’,
the Law of Evidence Amendment Act85 requires the courts to apply the law which is in operation
at the place where the defendant or respondent resides, carries on business, or is employed. If
more than one system is applicable, the court must apply the law of the tribe (if any) to which the
defendant or respondent belongs.
The confusion created by the three Acts is that questions of race and capacity will always arise
in such proceedings. Obviously, in proceedings involving an indigenous African and a person of
another race, it will be difficult for the courts to determine the law to be applied in disputes
involving a non-indigenous African defendant and an indigenous African plaintiff without
addressing the question of race and tribal connection of the parties. Clearly, under the current
democratic government, the question of race in the context of customary law will continue to play
a major role concerning the determination of legal status.
11.4 The influence of customary law on legal status
11.4.1 Introduction
Under customary law the factors that influence legal status are primarily determined by:
• African models of patriarchy;

• the legalisation of polygyny;
• the existence of extended families and family heads; and
• the recognition of tribal communities.
11.4.2 Patriarchy and legal status

The system of patriarchy bestowed certain rights, privileges and authority on senior males in
society and within the family.86 Thus junior males and women (irrespective of age) had lesser
privileges and rights than senior males. Although this form of differentiation has to a large extent
been abolished,87 there are still customary laws that reserve privileges and authority and,
accordingly, legal capacity and standing, to senior males in society and within the family unit.
PAUSE FOR
REFLECTION
The system of patriarchy

This patriarchy may be illustrated by the following examples:
• First, a woman may not ‘negotiate’ her own marriage or any contract concerning the lobolo
property for her marriage.88 This is reserved for the family head who acts in his
representative capacity as head of the family. Her mother can assume such contractual
capacity only if the husband has abandoned the family,89 or has died, or it is physically
impossible for him to do so.90 A man is able, however, to negotiate both his marriage to a
woman as well as the lobolo for that marriage.91
Further, the family head is the primary recipient of the lobolo property for each of his
daughters. In these circumstances, the traditional role of the recipient of lobolo shall apply
to him and he will be under a legal duty to provide mediation concerning any disputes
between the parties and to provide asylum and protection to the wife for whose marriage he
received lobolo.92
• Second, in a polygynous marriage, the wives are ranked mainly according to the dates of a
marriage.93 In practice, this means that older women in the marriage would have more
competencies than younger wives because junior wives are subordinate to the Great wife
(or senior wives). For instance, upon the death of the husband, the heir (whether male or
female)94 comes from the Great (first) wife’s house and the Great wife assumes temporary
control over the family estate, unless the deceased has left a valid will or the heir is mature
enough to take such control.
11.4.3 The legal status of family heads and heirs

The tolerance of extended families and polygyny under customary law implies the need for an
administrator in the form of a family head for such families to function. Traditionally, the position
of family head was acquired through the inheritance of such status, which was designed to prefer
senior males through the principle of male primogeniture (the right of the eldest close male
relative of the deceased to inherit his property to the exclusion of all others). The emphasis of
succession was on status or position rather than property. Following the decision in Bhe, 95 the
legal status of family heads is no longer clear. It submitted that the decision affected only the
inheritance of property and not the positions of family heads. Traditionally, family heads had
numerous legal capacities which are still recognised by South African law:
• The family head is the legal agent of the family unit, entrusted with the duty to contract on
behalf of the family unit.96 For instance, under customary law, a woman has no locus standi to
institute a customary legal action to claim damages for her own seduction97 because the delict
is committed against her family and therefore only the family would be able to institute such
action. This may be found to be unconstitutional – it may be argued that civil law does allow
an unmarried woman a similar action.
• The earnings of minors of the family unit accrue to the family head.98 If the marriage is
monogamous, the Recognition of Customary Marriages Act99 provides that such marriage is in
community of property and profit and loss between the spouses. However, whenever the
husband intends to marry an additional wife, the husband must approach the court for approval
of a written contract that will regulate such polygynous marriage.100 The Act does not,
however, stipulate the capacity of the spouses where the husband did not make such
application or the contract was not approved.101 In the circumstances it is submitted that the
original customary-law position remains in effect, that is, the family head is regarded as the
administrator and the trustee of the family property, and is obliged to allot separate property to
his wives in terms of custom.102
• The family head is liable for wrongful acts committed by members of his family unit because
he has control over the family property. Traditionally, the capacities of the family head are
capable of being transferred to the heir, who inherits the status of family head.103 In Bhe v
Magistrate of Khayelitsha104 the court did not decide on the question of the legal status of the
heir and thus left open the issue of whether the heir (whoever this may be), upon stepping into
the shoes of the deceased, is actually liable for the deceased’s legal obligations105 such as the
liability for debts, and for wrongful acts of the members of his family, as well as the
maintenance of dependants and widows.106
In the circumstances it seems that the legal status of the family head remains unchanged
concerning all subjective rights and legal obligations. Further, it seems that the heir may inherit
the capacities of the family head.
11.4.4 Legal status conferred by family, clan and tribal membership
The organisation and division of indigenous African communities into clans, tribes and extended
families also influences the legal status of the individuals within those families. Consequently,
customary law puts more emphasis on group rather than individual rights and obligations.
11.4.4.2 Family membership

Families are created through marriage. A customary marriage results in a contractual relationship
between both the husband and wife and their respective extended families.107 Therefore, unlike a
civil law marriage, the legal relationship and the legal consequences arising out of such marriage
are binding between the two parties to the marriage as well as to their family groups.108 Such legal
relationship remains and binds the families beyond the lifetime of the spouses.109 In this instance,
some customs imply that a deceased man continues to acquire rights and obligations long after his
death, provided that he was married in terms of customary law.110 This is better illustrated by
marriage customs of ukungena111 (also known as ukuzalela112), ukuvusa113 and perpetual
widowhood.114 All these customs influence the capacities of the relevant persons in the following
manner:
• First, children born of these forms of marriages or from the widow are regarded as the children
of the deceased for all intents and purposes, and will have all rights and obligations that the
natural children of the deceased would have had, irrespective of who their biological parents
are.115
• Second, in the case of ukungena and ukuvusa, the wife is regarded as the wife of the deceased
man. If the surviving wife declines the ukungena marriage, she becomes a perpetual widow
because at the time of marriage, she was attached (or ‘married’) to the family of the deceased
and such status remains until she is formally released through the performance of some rituals.
In the case of ukuvusa, the wife is subsequently married by a member of the family of the
deceased man, and thus ukuvusa is, in fact, a new marriage of the woman into the family
concerned.
Polygamy refers to a custom of having more than one spouse (male or female or both), at the same
time, in a marriage. The custom of polygamy comes in two forms: It may take the form known as
polygyny, which is the custom of having more than one wife at the same time or it may take the
form known as polyandry, the custom whereby there is a union of one wife and more than one
husband in a marriage. Polygynous marriages are valid in South Africa but only if they are entered
into in accordance with the provisions of the Recognition of Customary Marriages Act. Any other
forms of polygamy such as polyandry and religious marriages, which are potentially polygynous,
are legally invalid. Thus, a customary husband is legally competent to marry additional wives – as
many as he may wish. On the contrary, there is no provision for a woman to marry more than one
husband. If the marriage is polygynous, the legal status and ranking of the wives in that marriage
would be determined by customary law.116
The family head must establish a house for each wife that he marries.117 Each house must also
be allotted property (known as house property) by the family head,118 and any property which has
not been allotted to specific houses (known as family property) is available for use and enjoyment
by all members of the family. The use and enjoyment of house property is reserved for the house
in question, but inter-house debts are permitted and are concluded by the wives of the houses
concerned.
11.4.4.3 Clan membership

Generally, under customary law persons belonging to the same clan and/or tribe lack the capacity
to marry each other.119 For instance, it is incestuous for persons sharing the same isibongo (clan
name) to marry each other among the abaNguni tribes.120 It must be borne in mind that section 3
(6) of the Recognition of Customary Marriages Act provides that ‘[t]he prohibition of a customary
marriage between persons on account of their relationship by blood or affinity is determined by
customary law.’
11.4.4.4 Membership of a tribal group

In order to establish the capacity of the parties the procedure concerning customary civil disputes
requires the litigants to establish the ‘tribal connection of the two litigants.’121 Thereafter, the court
can decide which customary law should be applied if the litigants belong to different tribal groups.
Where the parties to a civil dispute belong to different tribes with different customary laws, and in
the absence of any agreement between the parties, the court shall choose the applicable laws in the
following manner:
• First, the court must apply the customary law of the place where the defendant resides or
carries on business or is employed.122 This implies that the plaintiff may find himself being
bound by law other that of his tribe. If more than one customary legal system is applicable in
the area where the defendant resides or carries on business or is employed, the court must
apply the law of the tribe of the defendant.123
• Second, membership (or presumed membership) of a tribe influences status in that the law is
binding on members of the tribe solely because of their membership. In principle, customary
law should be applied only to litigants who are members of a specified tribe, and they must be
indigenous peoples of South Africa.124 This implies that non-tribal members lack the capacity
to be sued in terms of customary law because the court must apply the customary law of the
defendant.
11.4.5 The legal status of children under customary law
The status of children in customary law is determined largely by whether lobolo was paid. If it
was paid, then under customary law the child is generally considered to ‘belong’ to the family of
the father, and if it was not paid, the child ‘belongs’ to the family of the mother. However, in the
field of child law the courts have made it clear that the internationally recognised concept of the
best interests of the child will override a strict adherence to customary law rules. As was stated in
Hlope v Mahlalela:125
It is, in my view, clear that issues relating to the custody of a minor child cannot be
determined in this fashion, i.e. by the mere delivery or non-delivery of a certain number of
cattle.
The court relied on the constitutional principle that the best interests of the child shall be the
paramount consideration in matters concerning the child.126
The courts have given recognition to the customary law of adoption in relation to a claim for
loss of support against the Road Accident Fund127 and in the payment of maintenance where a
couple who adopted a child together under customary law, subsequently divorced.128 The
Constitutional Court has brought about reform to the customary law of succession by recognising
that girls and children born outside of marriage should not be discriminated against.129
The Children’s Act 38 of 2005 has also introduced provisions that have an effect on the
operation of customary law. Particularly relevant for this chapter is the definition of marriage in
section 1 of the Act which includes customary marriages and also marriages concluded in
accordance with a system of religious law, subject to specified procedures. This is significant
because it moves to eradicate discrimination against children based on the law or custom under
which their parents have chosen to marry.130

1. Some aspects of African customs and religious faiths have an element of law in the form of
what is known as personal law. Personal laws are regarded by the adherents thereto as having
the same status as ‘law’ because of their historical and divine origins, and clearly, section 15
(3) of the Constitution does recognise them as law.
2. The main complication created by the existence of personal laws alongside civil law is the fact
that under both systems, such person would have no choice but to obey both legal systems.
Can a Muslim person refuse to obey the injunctions of the Holy Qur’an in favour the Bill of
Rights in the South African Constitution?
3. The South African courts have generally been hesitant to interpret religious law in order to
avoid what they have called ‘religious entanglement.’ Religious morality plays a major role
concerning the capacity to marry. Outsiders are generally excluded from the enjoyment of
specific rights and status associated with adherents, unless they convert or assume the religion
in question.
4. If the spouses fail to register their religious marriage as a civil marriage (which must be
monogamous), they would not acquire the status of a married couple. Where they fail to
register their religious marriage as a civil marriage, however, they would have the status of an
unmarried couple or cohabitants. The court may still enforce the consequences of the religious
marriage.
5. The case of Amod v Multilateral Motor Accident Fund made it clear that the duty of support in
cases of religious marriages should not be based on whether the marriage is valid at civil law
or not, but on some other factors stated in the case.
6. Section 5A of the Divorce Act131 as amended by the Divorce Amendment Act132 empowers a
court to refuse to grant a decree of divorce concerning any civil marriage if it appears to the
court that the spouses are still bound by their religious marriage, preventing either of the
spouses from remarrying. If the husband, within whose power it is to dissolve the religious
marriage, refuses to do so, the court has the power to make any other order it deems fit.
7. Generally, elements of patriarchy are often obvious in the sources of religious law. Men
appear to have more legal rights and duties than women, while women have fewer rights and
consequently, fewer duties.
8. Due to the repeal of racially biased laws in South Africa, it can be argued that race is no longer
used to determine a person’s legal status. There are exceptions of course – affirmative action
uses, inter alia, race to determine rights.
9. The influence of customary law on legal status is considered from the perspective of:
• patriarchy;
• family heads and heirs; and
• family, clan and tribal membership.
10. Children’s status is affected by customary law but the courts apply the ‘best interests’
principle. Recognition has been given to customary adoption, and the customary law of
succession has been developed by the Constitutional Court so that it does not discriminate
against girls and children born outside of marriage. The Children’s Act defines marriage as
including marriages properly concluded under customary or religious law.
1 For a more detailed description see Mofokeng Legal Pluralism in South Africa: Aspects of African
Customary, Muslim and Hindu Family Law (2009) 3.
2 Rautenbach & Goolam ‘Constitutional analysis’ in Rautenbach & Goolam (eds) Introduction to Legal
Pluralism in South Africa Part II (Religious Legal Systems) (2002) 115.
3 See chapter 5.
4 Spiro Law of Parent and Child 4 ed (1985) 480. Other examples include intellectual disability (see chapter
10); domicile (see chapter 6); minority (see chapter 8); prodigality (see chapter 9); inability to manage one’s
own affairs (see chapter 9) for a detailed discussion of these examples.
5 See generally Ryland v Edros 1997 (2) SA 690 (C) 703; Singh v Ramparsad 2007 (3) SA 445 (D);
Mankatshu v Old Apostolic Church of Africa and others 1994 (2) SA 458 (TkA).
6 Jones v Wolf 443 US 595 (1979).
7 1997 (2) SA 690 (C) 700-703.
8 2007 (3) SA 445 (D) 453I, 455C.
9 See generally Mofokeng 25-26.
10 Hodkinson Muslim Family Law: A Sourcebook (1984) 92.
11 Goolam ‘Marriage’ in Rautenbach & Goolam (eds) 62. According to Goolam, the impediment is
unanimously agreed upon by both Sunni and Shia jurists.
12 Vahed Islamic Family Law (2006) 33 defines iddah as follows: ‘Iddah is the period during which it is
incumbent upon the wife, whose marriage whether valid or irregular, has been dissolved by divorce or death,
to remain in seclusion and to abstain from marriage.’
13 Islam prohibits a man from contracting a marriage with more than four wives. See Holy Qur’an 4:3.
14 Syed Ahmad Khan v Imrat Jahan Begum AIR 1982 All 155. See Hodkinson 180.
15 The caste system means that one’s position in society, and in life, is determined by birth and clan
membership. During ancient times, Hindu society was divided into four classes (varnas) by the Vedas,
depending on a person’s profession or occupation.
16 According to Gokul a classification of the Hindu society according to the division of labour was the cause of
the caste practice (Gokul ‘Hindu law’ in Rautenbach & Goolam (eds) 27).
17 Gupte Hindu law 3 ed (1981) 13.
18 See Hindu Marriage Act 25 1955 (India).
19 Human Rights Watch Report to the UN Committee on the Elimination of Racial Discrimination (CERD)
(February 2007) Volume 19, No. 3 (C), ‘Hidden Apartheid: Caste Discrimination against India’s
‘Untouchables’ ’.
20 Hindu Marriage Act 25 of 1955 (India) s 5.
21 Note the wording of s 2(1): ‘This Act applies – (a) to any person who is a Hindu by religion in any of its
forms or developments… (c) to any person domiciled in the territories to which this Act extends who is not a
Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not have been
governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt
with herein if this Act had not been passed.’
22 Gokul in Rautenbach & Goolam (eds) 231.
23 Bilchitz ‘Jewish law’ in Rautenbach & Goolam (eds) 243.
24 Ismail v Ismail 1983 (1) SA 1006 (A); S v Ventsegamy 1972 (4) SA 351 (D); Seedat’s Executors v The
Master (Natal) 1917 AD 302.
25 25 of 1961.
26 S 3(1) of the Act reads: ‘The Minister… may designate any minister of religion of, or any person holding a
responsible position in, any religious denomination or organization to be… a marriage officer for the purpose
of solemnizing marriages according to Christian, Jewish or Mohammedan rites or the rites of any Indian
religion.’
27 1999 (4) SA 1319 (SCA).
28 Daniels v Campbell 2004 (5) SA 331 (CC).
29 Govender v Ragavayah 2009 (3) SA 178 (D).
30 See Govender v Ragavayah 2009 (3) SA 178 (D) 186. See also Amod v Multilateral Motor Vehicle Accident
Fund 1999 (4) SA (SCA) 1331.
31 Govender v Ragavayah 2009 (3) SA 178 (D) 186.
32 If the marriage is registered under the provisions of the Marriage Act, the consequences of such marriage
would be governed by civil law.
33 The courts have refused to comment or make a ruling concerning de facto polygynous marriages because in
all cases brought before the courts, the marriages were factually monogamous. Thus, the courts purposely left
the issues of polygynous marriage open. See for instance in Ryland v Edros [1996] 4 All SA 557 (C) 709;
Amod v Multilateral Motor Vehicle Accident Fund 1999 (4) SA 1319 (SCA) 1330. Note, however, the
decision in Hassam v Jacobs 2009 (5) SA 572 (CC) in which it was held that it is unconstitutional to grant a
widow in a monogamous Muslim marriage the protection offered by s 1 of the Intestate Succession Act 81 of
1987 and to deny the same protection to widows of a polygynous Muslim marriage.
34 1996 (4) All SA 557 (C).
35 1996 (4) All SA 557 (C).
36 Amod v Multilateral Motor Vehicle Accident Fund 1999 (4) SA 1319 (SCA).
37 Per Mahomed CJ at 1331.
38 Amod v Multilateral Motor Vehicle Accident Fund 1999 (4) SA 1319 (SCA) 1331.
39 Holy Qur’an 65:7.
40 Holy Qur’an 2:240. See also Poulter ‘The claim to a separate Islamic system of personal law for British
Muslims’ in Mallat & Connors Islamic Family Law, Arab & Islamic Laws Series (1990) 156. See also the
Holy Qur’an 65:6.
41 Vahed 31.
42 An apostate is a person who renounces a religious faith or belief.
43 Vahed 31. See also the Holy Qur’an 4:34-35.
44 Derret Introduction to Modern Hindu Law (1963) 169.
45 Gokul in Bekker, Rautenbach & Goolam (eds) 238.
46 Gokul in Bekker, Rautenbach & Goolam (eds) 238.
47 Current legislation, such as the Hindu Women’s Right to Property Act 18 of 1937 (India), has not changed
this position. See Gokul in Bekker, Rautenbach & Goolam (eds) 238.
48 Bilchitz ‘Jewish Law’ in Bekker, Rautenbach & Goolam (eds) 245.
49 Bilchitz in Bekker, Rautenbach & Goolam (eds) 245.
50 For the position in Muslim marriages see Garg ‘Law and religion: the divorce systems of India’ 1998 Tulsa
Journal of Comparative and International Law 7.
51 70 of 1979.
52 95 of 1996.
53 1999 (3) SA 604 (W).
55 Vahed 41-43.
56 South African Law Reform Commission Report on Islamic Marriages and Related Matters Project 59
(2003).
58 Syed Islamic Origins of the Islamic Law: A Historical Approach (1989) 54.
61 Vahed 2.
63 Bilchitz in Rautenbach & Goolam (eds) 245.
64 Banerjee & Gooroodass The Hindu Law of Marriage (1923) 327.
65 Gokul & Rautenbach ‘Hindu law’ in Bekker, Rautenbach & Goolam (eds) 209.
66 For people of Indian origin, see the Indian Immigration Law 25 of 1891 (Natal), which created a distinct
legal status for Indian immigrants. See also Ponmathie v Bangalee 1960 (4) SA 650 (N).
67 Black Administration Act 38 of 1927 s 11(3) (repealed by s 1(1) of Act 28 of 2005).
68 38 of 1927.
69 S 1(7) of the Repeal of the Black Administration Act and Amendment of Certain Laws Act 28 of 2005
repealed ss 1, 2(1), (2), (3), (5), (6), (7), (7)bis, (7)ter, (8) and (9), 3, 5 (1)(a), 11(3)(a), 11A, 12(1), (2), (3),
(4) and (6), 20(1), (2), (3), (4), (5), (6) and (9), 21A, 22(7) and (8), 23(1), (2), (3), (5), (6), (7)(b), (8), (9),
(10)(a), (b), (c), (e) and (f) and (11), 24, 26(1), 27, 31, 33, 34, and the Second and Third Schedules of the
Black Administration Act.
70 2005 (1) SA 580 (CC).
71 2001 (2) SA 18 (CC).
72 At 614 (para [64]).
73 R200 published in Government Gazette 10601, 6 February 1987.
74 For a detailed discussion on these issues, see generally Barnard, Cronjé & Olivier The South African Law of
Persons and Family Law 2 ed (1990) 146-152.
75 S 11(3) (repealed).
76 S 11(3)(a) was repealed by s 1(1) of the Repeal of the Black Administration Act and Amendment of Certain
Laws Act.
77 Note that the apartheid laws defined and classified people according to their race for all legal purposes. The
definition of ‘black’ was limited to people of ‘aboriginal race or tribe of Africa’ and excluded people of other
races and people of mixed race (also known as ‘coloureds’). See s 1 of the Population Registration Act 30 of
1950.
78 120 of 1998.
79 45 of 1988.
80 120 of 1998.
81 Author’s emphasis.
82 Note that section 1 of the Act further defines a customary marriage as a ‘marriage concluded in accordance
with customary law’ (author’s emphasis).
83 2009 (3) SA 152 (CC) at 164 (para [31]).
84 See s 1 of the Repeal of the Black Administration Act and Amendment of Certain Laws Act 28 of 2005.
85 45 of 1988 s 1(3).
86 Bennett Customary Law in South Africa (2004) 204.
87 See, in particular, s 6 of the Recognition of Customary Marriages Act, which provides for the equal status
and capacity of spouses, including capacity to acquire assets and to dispose of them, to enter into contracts
and to litigate. See also the decision of the Constitutional Court in Shilubana v Nwamitwa 2009 (2) SA 66
(CC), where the court validated and approved the appointment of a female chief despite the old customary-
law rules prohibiting such appointments. See also Bhe v Magistrate, Khayelitsha (Commission for Gender
Equality as Amicus Curiae) 2003 (2) SA 363 (CC), where the court declared the principle of male
primogeniture to be unconstitutional.
88
The Recognition of Customary Marriages Act retains the traditional position concerning the negotiation and
the contract of lobola. See s 3(1)(b) which provides that ‘the marriage must be negotiated and entered into or
celebrated in accordance with customary law.’ Note the definition of ‘customary law’ in s 1: ‘customary law
means the customs and usages traditionally observed among the indigenous African peoples of South Africa
and which form part of the culture of those peoples.’
89 Mabena v Letsoalo 1998 (2) SA 1068 (T) 1073-1074.
90 Fanti v Boto 2008 (5) SA 405 (C) 414.
91 Mabena v Letsoalo 1998 (2) SA 1068 (T) 1073.
92 Kerr ‘Customary family law’ in Family Law Service (issue 44, October 2005) para 29.
93 In Mndweza v Mndweza 1937 NAC (C&O) 142 145 the court said: ‘The rule is that the first wife is the Great
Wife, the second is the Right Hand Wife. The third [wife] is the Qadi of the Right hand House, etc.’.
94 Bhe v Magistrate of Khayelitsha 2004 (1) BCLR 580 (C); Shilubana v Nuwamitwa 2009 (2) SA 66 (CC).
95 2004 (1) BCLR 580 (C).
96 See e.g. sections 23 & 102 of the Natal Code of Zulu Law Proc. R151 of 1987.
97 Kumalo d/a Kumalo v Zungu 1969 BAC 18 (NE); Mkhombo v Mathungu 1980 AC 79 (NE). See also
Monaheng v Konupi 1930 NAC (N&T) 89 92-93; Yako v Beyi 1944 NAC (C&O) 72. Note that this
restriction does not apply if the same action is instituted in terms of civil law.
98 See e.g. s 19 of the Natal Code of Zulu Law. See also Mfazwe v Modikayi 1939 NAC (C&O) 18, 22-23;
Mtonto v Mtonto 1921 NHC 45. Compare with Mlanjeni v Macala 1947 NAC (C&O) 1.
99 120 of 1998 s 7(2).
100 Recognition of Customary Marriages Act s 7(6).
101 Note that the requirement concerning the approval of the contract in terms of s 7(6) of the Recognition of
Customary Marriages Act does not appear under the requirements for validity of customary marriages.
102 Note that in terms of s 4(9) of the Recognition of Customary Marriages Act, failure by any party to register a
customary marriage will not affect its validity.
103 These may include the debts of the deceased if the estate is insolvent. See Letlotla v Bolofo 1947 NAC
(C&O) 16; Mekoa v Masemola 1939 (NAC) (N&T) 61.
104 2004 (1) BCLR 580 (C). The decision in the case of Bhe v Magistrate, Khayelitsha declared the principle of
male primogeniture as unconstitutional on the basis that the principle discriminated against all daughters and
sons who were not the eldest in their families. The case did not deal with the legal status of the heir, and was
restricted to the issue of inheritance of property. Thus the court did not have to decide two important legal
questions concerning the legal status of an heir. Note that in Sibasa v Ratsialingwa and Hartman, NO 1947
(4) SA 369 (T), the court held that in accordance with the presumption against confiscation of private rights
the appointment as chief of a person other than the heir to the chieftainship under customary law would not
take away the property rights of the heir who had failed to secure such appointment and would not confer
upon the appointed chief a right to succeed to any property which he would not have succeeded to.
105 These may include the debts of the deceased if the estate is insolvent. See Letlotla v Bolofo 1947 NAC
(C&O) 16; Mekoa v Masemola 1939 (NAC) (N&T) 61.
106 See Mnani v Mnani 1977 BAC 264 (S).
107 For African customary marriages see Sila v Masuku 1937 NAC (N&T) 137; For Hindu marriages see
generally Gokul & Rautenbach ‘Hindu law’ in Bekker, Rautenbach & Goolam Introduction to Legal
Pluralism in South Africa 2 ed (2006) 205-208.
108 See Nqambi v Nqambi 1939 NAC (N&O) 57 59.
109 Mofokeng 5.
110 See the arguments raised by Davel & Jordaan Law of Persons 4 ed (2005) 5.
111 S 1 of the Natal Code of Zulu Law defines ukungena as ‘a union with a widow undertaken on behalf of her
deceased husband by his full or half-brother or other paternal male relative for the purpose (i) in the event of
her having no male issue by the deceased husband of raising an heir to inherit the property or property rights
attaching to the house of such widow or (ii) in the event of her having such male issue of increasing the
nominal offspring of the deceased.’
112 See Xulu v Xulu 1943 NAC (T&N) 68 70.
113 ‘Where a person of higher standing in the family dies unmarried and without any children but has assets, it is
common that his surviving brother will marry a woman who will be regarded as the deceased’s
wife’ (Mofokeng 40). See also Tekeka v Ciyana 102 NHC 13; Cindi v Cindi 1939 NAC (T&N) 38 39.
114 ‘The marriage lasts for the life of the wife. If the wife survives the husband, she continues to be bound by the
marriage’ (Mofokeng 21).
115 See the definition of these terms in s 1 of the Natal Code of Zulu Law.
116 Regarding the Zulus, Chadwick AJP held as follows in Ntaminemidwa v Mpungu 1918 NHC 27 28: ‘There
are only three principal wives in a chief’s kraal, viz., 1, the inkosikazi, or the indlunkulu; 2, the iqadi, or left-
hand wife; 3, the ikhohlo, or right-hand wife. All other wives a chief may take are affiliated to one or other of
these principal wives.’ See also Ntukwini v Miso 1917 NHC 216 228.
117 See the case of Sigcau v Sigcau 1944 AD 67 for a detailed discussion on the ranking of the wives and how
houses are created according to the Pondo custom.
118 See Sigidi’s Executors v Matumba (1899) 16 SC 439 502, where Buchanan J held that the husband in a
polygynous marriage should ‘distribute his property among the kraals of his different wives … as a matter of
convenience and for the support of each kraal.’ See also s 37 of the Natal Code of Zulu Law.
119 Some exceptions may apply, e.g. where the clan is further sub-divided into more than one section. See
generally Bennett 207.
120 This is because there is a presumption that members of the same clan have descended from the common
ancestor and therefore they are family. See Mofokeng 7.
121 Maisela v Kgolane 2000 (2) SA 370 (T) 376.
122 Law of Evidence Amendment Act s 1(3).
123 Law of Evidence Amendment Act s 1(3).
124 There have been cases where the courts have applied principles of customary law without reference to the
tribal membership of the parties to the dispute. See e.g. S v Makwanyane 1995 (3) SA 391 (CC), where the
court applied the principle of ubuntu (which implies that all human beings must be treated with humanity and
kindness) in a criminal case.
125 1998 (1) SA 449 (T) 459D-E.
126 This is contained in section 28(2) of the final Constitution but at the time this case was heard the principle
was embodied in section 30(3) of the Interim Constitution.
127 Kewana v Santam Insurance Co Ltd 1993 (4) SA 771 (TkA); Metiso v Padongeluksfonds 2001 (3) SA 1142
(T).
128 Maneli v Maneli [2010] ZAGPJHC 22 (19 April 2010) (JOL 25353).
129 Bhe and Others v Magistrate, Khayalitsha and Others 2005 (1) SA 580 (CC).
130 For a more detailed discussion of the effects of the Children’s Act on customary law as it pertains to children
see R Ngidi ‘Upholding the best interests of the child in South African customary law’ in Boezaart (ed) Child
Law in South Africa (2009) 236-242.
131 70 of 1979.
132 95 of 1996.

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What is the purpose of the book?

What is the purpose of the book?

What are some of the key concepts discussed regarding customary law?

What are some of the key concepts discussed regarding customary law?

The Law of Persons in South Africa Page 1 of 1

Oxford University Press is a department of the University of Oxford.

Published in South Africa by

Vasco Boulevard, Goodwood, N1 City, Cape Town, South Africa, 7460

© Oxford University Press Southern Africa (Pty) Ltd 2010

The moral rights of the author have been asserted.

First published 2010

The Law of Persons in South Africa

Print ISBN: 978-0-19-598581-8

Second impression 2013

Typeset in Utopia Std Regular 9.5pt on 12pt

To my husband, Casper, and my children, Janco, Elisbé and Herko

To my colleagues at the Centre for Child Law

Thanks are due to the following academic reviewers:

Professor Julia Sloth-Nielsen, Dean of Law, University of the Western Cape

Mr Kenneth Mould, Lecturer in Private Law, University of the Free State.

Justice Belinda van Heerden

Professor Hanneretha Kruger

Doctor Ann Skelton

Professor Marita Carnelley

Professor Sonia Human

Professor J.A. Robinson

About this book

Brief description of the features

Diagrams: These provide overviews and explain key concepts visually.

An introduction to the law of persons

1.2 Recent developments in the law of persons

1.3 An overview of the contents of this book

1.2 Recent developments in the law of persons

1.2.1 The Constitution of the Republic of South Africa, 1996

1.2.2 The Children’s Act 38 of 2005

1.2.3 The Child Justice Act 75 of 2008

1.2.4 The nasciturus fiction

1.3 An overview of the contents of this book

Figure 1.1 The law of persons at a glance

1 2003 (5) BCLR 463 (CC). See 7.2.2 below.

2.3 Legal subject and legal object

2.4 The different kinds of legal subjects

This chapter in essence

2.1 Definition of the law of persons

The subject-subject relationship and the subject-object relationship in context

The classification of a legal interaction as a public-law or a private-law relationship

• The relationship between contracting parties.

2.3 Legal subject and legal object

Animal rights – legal subject versus legal object

Legal object Subjective right

Identifying the fifth and sixth categories of legal objects

2.3.1 Corporeal things

2.3.2 Immaterial property

2.3.3 Personality property

A personal right and its corresponding object

2.4 The different kinds of legal subjects

Figure 2.2 The different kinds of legal subjects in our law

2.4.1 Natural persons

2.4.2 Juristic persons