THE SOUTH AFRICAN

LAW OF PERSONS

SIXTH EDITION
THE SOUTH AFRICAN
LAW OF PERSONS

SIXTH EDITION

JACQUELINE HEATON
BLC LLB (Pret) LLM (Unisa)
Professor of Private Lc,w, University of South Africa

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First Edition 1999. Reprinted 2000, 2001, 2002, 2003

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Third Edition 2008, Reprinted 2011
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 PREFACE

I wish to thank the team at LexisNexis and, in particular, Corne Human, Elna Brelage,
MandyJonck, Dane Chengan and Melanie Govender for their professional, efficient input
and fliendly cooperation. Dane Chengan deserves special thanks for preparing the Table of
Cases, Table of Statutes and Index.
This work reflects the law as at 30 September 2021. Decisions up to the September 2021
law reports were co11sidered for inclusion i11 the book.

JACQUELINE HEATON
Pretoria
October 2021

V
 CONTENTS

Page
. 'reface.................................................................................................................................. v
INTRODUCTION.......................................................................................................... 1
1.1 Definition of the law of persons........................................................................... 1
1.2 Law and rights....................................................................................................... 1
1.3 Legal subject and legal object.............................................................................. 2
1.3.l Corporeal things....................................................................................... 2
1.3.2 Performance............................................................................................. 3
1.3.3 Personality property................................................................................. 3
1.3.4 Intellectual property................................................................................ 3
1.4 Different kinds oflegal subjects........................................................................... 3
1.4.1 The natural person................................................................................... 3
1.4.2 The juristic (or artificial) person............................................................ 3
1.5 Law of persons, the Constitution, and transformative constitutionalism ......... 5
_ THE BEGINNING AND END OF LEGAL PERSONALI1Y........................................ 7
2.1 The beginning oflegal personality...................................................................... 7
2.2 Registration of births............................................................................................ 8
2.3 The interests of the unborn............................................................................................12
·2.3.1 The nasciturus fiction...........................................................................................12
2.3.2 The fields of application of the nasciturus fiction..........................................13
2.3.3 Does the protection of the nasciturus' interests imply that
an unborn human being is sometimes a legal subject?................................ 26
2.4 The end oflegal personality............................................................................................. 27
2.4.1 General.................................................................................................................. 27
2.4.2 Proof of death..................................................................................................... 28
2.5 Presumption of death...................................................................................................... 28
2.5.1 Common-law procedure....................................................................................... 28
2.5.2 Statutory procedure.............................................................................................. 29
2.5.3 The effect of an order of presumption of death.............................................30
2.5.4 Setting aside an order of presumption of death.............................................31
2.6 Presumptions regarding sequence of death.................................................................32
2.7 Registration of deaths.......................................................................................................32
2.8 Duty to bury the deceased................................................................................................33
STATUS......................................................................................................................................35
3.1 Introduction........................................................................................................................35
3.2 Legal capacity....................................................................................................................35
3.3 Capacity to act...................................................................................................................36

vii
viii The South African Law of Persons

3.4
3.5 Page
Capacity to litigate................................................................................................. 36
Capacity to be held accountable for crimes and deliccs..................................... 37
4 DOMICILE................................................................................................................................39
4.1 Introduction.......................................................................................................................39
4.2 Replacement of the common-law rules on domicile by the Domicile Act
3 of 1992...........................................................................................................................40
4.3 Definition of domicile.....................................................................................................41
4.4 General principles governing domicile..........................................................................41
4.5 Kinds of domicile.............................................................................................................41
4.5.1 Domicile of origin...............................................................................................41
4.5.2 Domicile of choice..............................................................................................42
4.5.3 Assigned domicile (domicile by operation of the law, domicile of
closest connection).............................................................................................46
5 CHILDREN BORN OF UNMARRIED PAREl\ffS..................................................................49
5.1 Introduction.......................................................................................................................49
5.2 Definition of ''children born of married parents" and "children born of
unmarried parents".......................................................................................................... 49
5.3 Categories of children born of unmarried parents....................................................50
5.3.1 Introduction..........................................................................................................50
5.3.2 Natural children...................................................................................................50
5.3.3 Adulterine children.............................................................................................50
5.3.4 Incestuous children.............................................................................................50
5.4 Artificial fertilisation.........................................................................................................50
5.4.1 Meaning of "artificial fertilisation".....................................................................50
5.4.2 Status of a child who is born as a result of artificial fenilisation................51
5.4.3 Relationship between the child and the birth mother, and between
the child and the person whose gamete was used for the artificial
fertilisation............................................................................................................51
5.5 Proof of parentage............................................................................................................54
5.5.l Introduction...........................................................................................................54
5.5.2 Presumptions of paternity................................................................................56
5.5.3 Corroboration of the mother's evidence........................................................58
5.5.4 Factors which may be relevant in proving paternity or
rebutting a presumption of paternity..............................................................59
5.6 The legal relationship between a child and his or her unmarried parents..............67
5.6.1 Inu·oduction..........................................................................................................67
5.6.2 Definition and components of parental responsibilities and rights............67
5.6.3 Parental responsibilities and rights of the mother.........................................69
5.6.4 Parental responsibilities and rights of the father...........................................70
5.6.5 General rules on exercising parental responsibilities and rights.................77
5.6.6 The position if both unmarried parents have parental responsibilities
and rights.............................................................................................................79
5.6.7 Succession............................................................................................................82
5.7 Changing the status ofa child born ofunma1Tied parents.......................................82
5.7.1 Introduction...........................................................................................................82
5.7.2 A subsequent marriage between the child's parents......................................82
5.7.3 Adoption...............................................................................................................83
5.7.4 An order of the authorities................................................................................83
 Contents ix

Page
6 MINORITY................................................................................................................................85
6.1 Introduction......................................................................................................................85
6.2 Children's rights..............................................................................................................86
6.2.1 Constitution of the Republic of South Africa, 1996......................................86
6.2.2 Children'sAct38of2005......................................................................................86
6.2.3 United Nations Convention on the Rights oft.he Child and
African Charter on the Rights and Welfare of the Child..............................90
6.3 The legal status of an in/ans..........................................................................................90
6.3.l Capacity to act.....................................................................................................90
6.3.2 Capacity to litigate..............................................................................................91
6.3.3 Capacity to incur delictual and criminal liability..........................................92
6.4 The legal status of a minor.............................................................................................92
6.4.1 Capacity to act.....................................................................................................92
6.4.2 Capacity to hold cenain offices and perform certain functions.................111
6.4.3 Capacity to litigate............................................................................................112
6.4.4 Capacity to incur delictual and criminal liability........................................113
6.5 Termination of minority...............................................................................................114
6.5.1 Attainment of the presc1;bed age..................................................................114
6.5.2 Marriage.............................................................................................................115
6.5.3 Venia aetatis and release from tutelage...........................................................115
6.5.4 Emancipation.....................................................................................................116
7 MENTAL ILLNESS.................................................................................................................119
7.1 Introduction ............................................,....................................................................119
7.2 Definition........................................................................................................................119
7.3 Proving mental illness....................................................................................................120
7.4 Legal status of a person with a mental illness...........................................................120
7.5 Appointment ofa curator..............................................................................................123
7.6 Mental Health Care Act 17 of 2002............................................................................124
7.6.1 Definition...........................................................................................................124
7.6.2 Rights of mental health care users.................................................................125
7.6.3 Care, treatment and rehabilitation..................................................................126
7.6.4 Placeofadmission............................................................................................130
7.6.5 Mentally ill prisoners and state patients..........................................................130
7.6.6 Care and administration of the property of mentally ill persons...............130
8 INABILITY TO ADMINISTER AFFAIRS OWING TO REASONS OTHER THAN
MENTAL ILLNESS..................................................................................................................133
8.1 Introduction.....................................................................................................................133
8.2 Applying to have a curator appointed for a person who is unable to
administer his or her affairs.........................................................................................134
8.3 Legal status of a person who is unable to administer his or her affairs................135
9 INFLUENCE OF ALCOHOL AND DRUGS.......................................................................137
10 PRODIGALITY.......................................................................................................................139
10.l Introduction....................................................................................................................139
10.2 Legal capacity.................................................................................................................140
10.3 Capacity to act................................................................................................................141
10.4 Capacity to litigate..........................................................................................................143
x The South African Law of Persons

Page
10.5 Capacity to be held accountable for crimes and delicts..........................................143
10.6 Constitutional implications of interdiction as a prodigal........................................144
11 INSOLVENCY........................................................................................................................145
11.1 Introduction.....................................................................................................................145
11.2 Legal capacity.................................................................................................................146
11.3 Capacity to act................................................................................................................146
11.4 Capacity to litigate.........................................................................................................146
11.5 Capacity to be held accountable for crimes and delicts.............................................147
11.6 Rehabilitation..................................................................................................................148
BIBLlOGRAPIIY..........................................................................................................................149
TABLE OF CASES.......................................................................................................................153
TABLE OF STATUTES.................................................................................................................165
INDEX........................................................................................................................................... 173
 IT]
INTRODUCTION

1.1 Definition of the law of persons

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

1.2 Law and rights

The law can be viewed from different angles. On the one hand it is a system of norms of
conduct or rules posited by competent bodies to regulate relations between members of the
community in a peaceful and just manner. In this sense we are concerned with law in the
objective sense.1 Examples of such norms of law are that one should fulfil one's contracts,
that one person should not cause damage to another, that one should have a driver's
licence if one drives a motor vehicle on a public road, and so forth.
Viewing the law from another angle, it is not norms of conduct or rules that are at issue,
but rather a network of legal relationships amongst legal subjects. Here we are concerned
with rights, or law in the subjective sense.2 For example, if a person owns a motor vehicle,
he or she has a right to that motor vehicle, which all other legal subjects must respect, and,
if a person concludes a contract with somebody else, that person has a right to fulfilment
of the contractual obligations, which the other party to the contract must meet.
Rights thus concern a dual relationship:
(1) The legal relationship between the bearer of the right and other legal subjects. This is
the subject-subject relationship. The content of this relationship is a 1ight and a cor
responding obligation - the bearer of the right is entitled to the right as against other
legal subjects, who are obliged to respect it. After all, it makes little sense to speak of
a right ifit does not operate against other legal subjects.
(2) The legal relationship between the bearer of the right and the object of the right. This
is the subject-object relationship. One can speak of a right only if the right relates to
an object. For example, one has a right to one's motor vehicle (which operates against
all other legal subjects). It would be meaningless to have a right against others if that
right did not pertain to some object or another.'
The connection between law and right is that the norms of the law determine how far the
powers of the bearer of a 1ight extend; in other words, the law determines the content and

See furLher Hosten, Edwards, Bosman and Church Introduction lo South African Law ch l; Van Apeldoorn
Tn.l.eiding wt de Stiulie van het Nederlamlse Recht 36 et seq, 128; Van der Vyver and Jouberl Pers<me- en Fam.iliereg
31 et seq, Van Zyl and Van der Vyver ln.l.eiding tot die Regswetenskap 412 et seq.
2 Van der Vyver and .Joubert Person,:,- en Familiereg l et seq; Van Zyl and Van der Vyver Jnleiding tot die
&gs wetenslwp 355 et .,eq,Joubert 1958 THR.fm 12 et .seq, 98 el seq.
3 See further.Joubert 1958 THRHR 12 et seq, 98 et seq.

1
2
The South African Law of Persons

limit of every right. The owner of a motor vehicle may, inter alia, drive the vehicle, but
may not do so in a way that causes harm to another. An owner of land may build on it,
lease or mortgage it, and so forth but may not dig a trench on the boundary which causes the
neigh bour's land to cave in.

1.3 Legal subject and legal object

Legal norms make a basic distinction between legal subjects (for example, human beings)
on the one hand and legal objects (for example, animals, furniture, motor vehicles, immov
able property and other things) on the other hand.' The term "legal subject" means any
entity that can have rights, duties and capacities. A legal subject therefore is any entity
which the law recognises as such and to which the law attributes the capacity to have
rights, duties and capacities.5 In other words, the law confers legal personality upon the
entity." An entity upon which legal personality is conferred is called a legal subject (or
legal person). The ability to have rights, duties and capacities is called legal capacity.'
A legal subject controls and deals with legal objects and in so doing acquires rights,
duties and capacities against other legal subjects and in relation to legal objects. The term
"legal object" denotes any object upon which the law has not conferred the capacity to have
rights, duties and capacities and which therefore cannot participate in legal and commercial
n·affic. Thus, a legal object is anything in respect of which a legal subject can have rights,
duties and capacities but which cannot itself have rights, duties and capacities.8
There are four - or possibly five, or perhaps even six - categories of legal objects,
namely corporeal things, performances, personality property, and intellectual property.
Personal intellectual objects (or personal immate1ial objects) and trade secrets,
respectively, may possibly constitute the fifth'0 and sixth categories." Each category
confers a different type of right on the legal subject.

1.3.1 Corporeal things

In principle, corporeal things are separate, tangible items which are susceptible to human
control and which are of value to people. The right to a thing is a real right. For example,
the right of ownership one has in respect of one's motor vehicle or house is a real right.

4 See e.g. Van Zyl and Van der Vyver Inleiding Lot die Regswelenskap 371 et seq.
5 See e.g. Hahlo and Kahn Sou/Ii Africa 345.
6 In this book, the tenn "legal subject", instead of "juristic person", is used to denote any entity to which
the law grants the capacity to have rights, duties and capacities. The reason for this is that the tenn "jtuis
tic person" has a specific technical meaning in law. It denotes a specific kind of legal sul ect, i.e. any en
tity apart from a human being or natural person, to which the law grants legal personality, e.g. a
company, university or the state. Below in this chapter the juristic person in the narrow sense is again
referred to.
7 Van Zyl and Van der Vyver bileiding tot die RegJwetenska/1 374 et seq; Robinson 1992 THRHR 337. On legal
capacity, see further ch 3 below.
8 On the issue of whether embryos which were created through in vit·ro fertilisation and have not yet
been implanted in a woman are leiral subjects or legal objects, see Jordaan 2005 SAlJ 237; Robinson
2018 PELI, available at https://doi.org/10.l7159/1727-3781/2018/v2li0a2914; Thaldar 2020 PEL],
available at https://doi.org/10.17159/1727-378l/2020/v23i0a6217.
9 Sec e.g. Van der Merwe Beskerming van Vurderingsregte141 et seq; Van Zyl and Van der Vyver lnleiding lol
die l?egswP.ttmsluif1407.
10 This c tegory was identified by Neethling: see e.g. Neethling, Potgieter and Roos Personality Righ,,15;
Neethhng and Le Roux 1987 ind10,frial LawJcmrnal 719; Neethling 1987 THRHR 316, 1990 THRHR 101.
See also Van der Vyver in Straus. (ed.) Huldigingsbtmdel vir WA]ou.bert 232-233; Reinecke 1988
Dejllre 235.. Personal intellectual objects have some of the characteristics or elem"nts of personality
property and mtcllectual property. Earning capacity and credit-worthiness are cited as examples of
objects falling w,thm this category. But see Van der Merwe and Olivier Onregma.tige Daad 186-187 fn 28,
who reject this category.
11 Knobel 2001 'J'EfRHR 572 suggests that trade secrets should be recognised as the object of an independ
ent nght. Seealso Van Heerden and Neethling Unlawfttl Comf>etitimi 224.
 Chapter 1: Introduction 3

1.3.2 Performance
Performance is a human act by which something is done or not done. The right to
perform ance is a personal right or a claim. For example, if A and B agree that A will sell
his motor vehicle to B for RlOO 000, B has a personal right to performance by A (or it can
be said that B has a claim against A), that is, that A must deliver the motor vehicle to B.
Similarly, A has a personal right to pe1fonnance by B, that is, that B must pay him RlOO
000.

1.3.3 Personality property

Personality property relates to aspects of a person's personality. The right to personality
property is a personality right. A person's rights to his or her good name (that is, his or her
reputation), honour, personal identity and physical integrity are examples of personality
rights.

1.3.4 Intellectual property

Intellectual property refers to the incorporeal objects which come into existence through a
person's intellectual activity but exist independently of that person, for example,
copyright, trademarks, designs, and patents. Thus, for example, once a piece of music has
been com posed or a book has been published, it is protected by copyright, and once an
invention has been patented, it is protected by patent law. In all these cases the object of
the right is the product of the human intellect but it exists independently of the person
whose intellect was used to create the product.

1.4 Different kinds of legal subjects

As was pointed out above, legal personality is bestowed only on legal subjects. South African
law recognises two categories of legal subjects: natural persons and juristic or artificial
persons.

1.4.1 The natural person

In South African law, all human beings are recognised as legal subjects regardless of, for
example, their age, or intellectual or physical ability. Therefore, every human being can
have rights, duties and capacities although the content of these rights, duties and capacities
12
may vary, depending on factors such as the person's mental capacity and age. To distin
guish them from other legal subjects, humans are known as natural persons.
In tl1e past, some humans were not recognised as legal subjects. For example, in the
Cape, slaves were legal objects until slavery was abolished in 1834.' In Roman and
Roman-Dutch law, children who were borri severely malformed - the so-called monstra -
were not regarded as legal subjects either. They could be killed after permission had been
15
granted by a magis trate." This rule does not apply in South African law.

1.4.2 The juristic (or artificial) person

The human being or natural person is not the only legal subject recognised by South African
law. The demands of the legal order necessitate that legal personality also be bestowed on
certain associations of natural persons. Apart from the individual human beings who make
up such an association, each one of whom is of course a legal subject, a new legal subject

12 On the content ofa person's 1ights, duties and capacities, see ch 3 below.
13 Cory The Rise of S<YIJ,lh Africa vol III 42 et s,q.
14 See in general Twelve Tables 4 No l; D 1.5.14; C 6.29.3; Grotius fnleidinge 1.3.5; Voel Commentary on the
Pandecfa 1.6.13; Van der Keessel Praelectiones 1.3.5. See also Leyser Meditaliones ad Pandectas 9.597.7;
Matthaeus De C,-iminibu.s48.5.1.6;Van der Linden R.edusgel.eerd, Prarticaa en Koofnnans Handboeh 2.5.2.
15 See Tjollo Ateljees (Eins) Bpk v Small 1949 (1) SA 856 (A) 865 where it was stated that "the birth of a mon
strum in the Roman sense is a physical impossibility".
4 The South African Law of Persons

comes into being, namely the association itself. Such an association to which legal personal
ity is granted is called ajm;stic person or an artificial person.16
The juristic person, as a legal subject, enjoys a legal existence independent from that of
its members or the natural persons who created it. Naturally, the juristic person must
always act through its functionaries. For example, in the case of a company, the directors
or officers act on behalf of the juristic person (namely, the company). However, when the
functionaries act on behalf of the juristic person, it is the juristic person that acquires
rights, duties and capacities and not the functionaries themselves in their personal
capacities. For example, through its functionaries a company can bind itself by contract,
be the owner, lessor or lessee of things, commit and be held liable for certain delicts and
even certain crimes, sue its debt ors, be sued by its creditors, and so forth.
Our law recognises the following entities as juristic persons:
7
(I) Associations incorporated in terms of general enabling legislation, such as companies,1
18 19 20
banks, mutual banks, and co-operatives.
(2) Associations especially created and recognised as juristic persons in separate legislation
- for example, universities, state-owned enterprises and other public entities (such as
the SABC, Telkom and Eskom).
(3) Associations which comply with the common-law requirements for the recognition of
legal personality of a juristic person:' At common law, such juristic persons are known
as universitat,es. A unirJersitas must meet the following requirements to be recognised as
a juristic person:
(a) The association must have a continuous existence irrespective of the fact that its
members may vary.
(b) It must have rights, duties and capacities or be able to have rights, duties and
cap acities in its own right, (that is, distinct from the rights, duties and capacities
of the individual members in their personal capacities). The fact that the
association regards itself as a juristic person with rights, duties and capacities is
important but not decisive.
(c) Its object must not be the acquisition of gain.
Measured against these three requirements the courts have held that the following associ
22 23 24
ations inter alia have legal personality: a church, a political party, and a trade tinion.
A trust is not a juristic person.• Nor is a partnership a juristic person. Thus, for example,
26
the individual partners are responsible for partnership debts out of their private funds.

16 See e.g.Van Zyl and Van der Vyver Jnleid.ing tot die Regsweten.1kap388 el seq.
17 In terms of the Companies Act 71 of 2008.
18 In terms of the Banks Act 94 of 1990.
19 In terms of the Mutual Banks Act124 of1993.
20 Jn terms of the Co-operatives Act 14 of 2005.
21 On the common-law juristic person, see Pienaar Gemeenregtelike Regspersoon passim; Willes Princij,les 396-397.
22 Louvis v Diccnomos 1917 TPD 465; De Vos v Die Ringskommissie van die NGK 1952 (2) SA 83 (0);
i'vialebjoe v Bantu Methodist Clmrdi of South Africa1957 (4) SA 465 (W).
23 Wilken v Brebner1935 AD 175.
24 Amalgamated Engineering Union v Mini,ter of Labour1965 (4) SA94 (W).
25 See e.g. Commissioner Jar Inland Revenue v Friedman 1993 (1) SA 353 (A); Lmul and. Agrirnltura.l Bank
of South Afnca v_Parlwr2005 (2) SA 77 (SCA); l,upacchini v Minister of Safety and Security [2011) 1 All SA
138 (S_CA). Certain Acts do, however, confer legal personality on trusts for specific purposes, such as
tax ation: Income Tax Act 58 of 1962 s l.
26 The law does, however, recognis some exceptions to the rule that a partnership is not a separate legal
enllty - e.g. rule 11(2) of the Umform Rules of C..omt allows a partnership to sue and be sued in its
own name.
 Chapter I: Introduction 5

1.5 Law of persons, the Constitution, and transformative

constitutionalism
The Constitution of the Republic of South Africa, 1996 is the supreme Jaw of the country.27
All law and public power derive their force from the Constitution,28 and any law or conduct
which is inconsistent with the Constitution is invalid.29 "[A]ny law" refers to any legal rule
deriving from the common law, customary law, or statute. Unconstitutional law does not
automatically cease to exist - it applies until it is repealed by Parliament or declared uncon
stitutional by a court.80
31
The Bill of Rights and the constitutional values set out in section J of the Constitution
(particularly human dignity, the achievement of equality, and the advancement of human
2
rights and freedoms)" are the key provisions in testing law and conduct for constitutionality.
These provisions have been the foundation of the statutory andjudicial development of sev
eral aspects of the law of persons, including the extensive revision of the legal position of
unmarried fathers by the Children's Act 38 of 2005;3' the extension by Petersen v Maintenance
Officer'!,+ of the duty of support to the paternal grandparents of a child born of unmarried
parents; the enactment of the provisions of the Children's Act which supplement the rights
that the Constitution confers on every child/5 the protection afforded in Malcolm v Premier,
Western Cape Government N036 to minors whose claims would have prescribed as a result of
the lowering of the age of majority/' and the protection and special rights afforded to
mentally ill persons by the Mental Health Care Act 17 of 2002.118So far, failed constitutional
challenges to aspects of the law of persons include Christian Lawyers Association of South
Africa v The Minister of Health (Reproductive Health Alliance as Amicus Curiae),39 where the
provisions of the Choice on Termination of Pregnancy Act 92 of 1996 which allow a
minor inde pendently to consent to the termination of her pregnancy were unsuccessfully
challenged;'0

27 Constitution s 2.
28 See e.g. Pharmaceutical 1Hanufact1trers Associalion of Soulh Afiica: In re Ex par/e Presidenl of the Republic of
South Africa 2000 (3) BCLR 241 (CC), 2000 (2) SA 674 (CC); Natimwl Gambling Board v Premier, KwaZultt-
Natal
2002 (2) BCLR 156 (CC), 2002 (2) SA 715 (CC); Akxlwr Ltd v The Richtersvekl ommunity 2003 (12)
BCLR 1301 (CC), 2004 (5) SA 460 (CC); Bato St1ir.Fishing (Pt)') Ltd v Minister of Envirom,um,tal Affairs and
Tourism 2004 (7) BCLR 687 (CC), 2004 (4) SA 490 (CC); Manlwyi v Anglogold Ashanti Ltd 2011 (5)
BCLR 453
(CC), 2011 (3) SA 237 (CC); Mansingh v General Council of the Bar 2014 (1) BCLR 85 (CC), 2014 (2) SA
26 (CC).
29 Constitution s 2.
30 All courts do not have the same jurisdiction to declare a law or conduct unconstitutional. The Constitu
tional Court is the only court which has jurisdiction in all constitutional matters: s 167(3) (b) of lhe
Con stitution. The Supreme Court of Appeal only has jmisdiction in respect of appeals and issues
connected with appeals relating to constjtutional matters decided by the High Court: s 168(3)(b). The
High Cou1t may decide any constitutional matter except one that the Constitutional Coun has agreed to
hear directly or a matter that the legislature has assigned to another court that has a status similar co the
High Court: s 169(1). However, if it (or the Supreme Court of Appeal) declares an Act or a provision
of an Ace invalid, the order has no force unless it is confirmed by the Constitutional Court: s 167(5).
The lower courts {magistrates' courts) may decide any constitutional matter except one relating to the
constitu tionality of any legislation or any conduct of the President: s 170.
31 The Bill of Rights is contained in ch 2 of the Constitution.
32 S l(a).
33 See further ch 5 below.
34 (2004] 1 All SA 117 {C), 2004 (2) BCLR 205 (C) {also reported as Petersen v Mainten,mce Office,; Simon's
Town Maintenance Court 2004 (2) SA 56 (CJ). See further ch 5 below.
35 See further ch 6 below.
36 [2014] 2 All SA 251 (SCA), 2014 (3) SA 177 (SCA).
37 See further ch 6 below.
38 See further ch 7 below.
39 2005 (1) SA 509 (T) (also reported as Christian Lawyers' Associatimi v Minis/er of Hmlth (2004] 4 All SA 31
(T), 2004 (10) BCLR 1086 (T)).
40 See further chs 2 and 6 below.
 6 The South African Law of Persons

Christian League of Southern Afri,ca v Rall" where an application for the appointment of a
curator ad litem to represent the interests of an unborn child in all matters concerning a
42
proposed termination of pregnancy was dismissed; and AB v Minister of Social Development,43
where a constitutional challenge to the requirement that there be a genetic link between the
commissioning parent and the child born of surrogacy was dismissed.'04
Further developments based on the Constitution are sure to follow. For example, authors
and the courts are of the view that the rule that a husband's lex domicilii at the time of his
marriage dictates the spouses' matrimonial property system should be declared unconstitu
tional;'' and it seems unlikely that the infringement of a prodigal's constitutional rights by
the court order interdicting him or her from administering his or estate will withstand con
stitutional scrutiny.'16
It must moreover be borne in mind that the relevance of the Constitution and the scope
of its influence are far-reaching. The Constitution is not to be used only in a formalistic
manner, to effect changes to the law solely by way of a technical and literal reading of the
47
law. The Constitution has a much broader role: it is a powerful instrument to facilitate
and
achieve transformation in society. Therefore, the approach that should be adopted to the
role of the Constitution is called "transformative constitutionalism".48 The objective of trans
formative constitutionalism is to use the Constitution to move South Africa "from a society
based on division, injustice and exclusion from the democratic process to one which re
spects the dignity of all citizens, and includes all in the process of governance"; that is, the
goal is "a society based on democratic values, social justice and fundamental human rights".'iu
Transformation of the legal system and legal culture is crucial in this endeavour. As the
Constitutional Court stated in Director of Public Prosecutions, Transvaal v Minister ofJustice and
ConstitutionalDevelopment.w
Our constitutional democracy seeks to transform our legal system. Its foundational values of
human dignity, the achievement of equality and the advancement of human rights and free
doms, introduce a new ethos that should permeate our legal system.
Therefore, we must engage in a substantive, value-based analysis and evaluation of all
aspects of the law in order to establish whether the legal outcomes are justified in terms of
the norm of transformative constitutionalism.51 The Constitution and its tra.nsformative goals
are the prism through which all aspects of the law must be viewed. Every aspect of each field
of law, including the law of persons, must be studied and evaluated in order to determine
whether a better legal outcome can be achieved by using the transformative potential
offered by the ConstituLion.52

41 1981 (2) SA 821 (OJ.

42 See further ch 2 below.
43 2017 (3) BCLR 267 (CC), 2017 (3) SA 570 (CC).
44 See funher ch 5 below.
45 See further ch 4 below.
46 See further ch 10 below.
47 See e.g. Cockrell 1996 SAJHR 1-10; Langa 2006 Stell LR 351-353; Davis and Klare 2010 SAJHR 407-408.
48 The term "transformac.ive constitutionalism" was coined by Klare 1998 SAJHR.146.
49 Investigating Directurate: Serious Economic Offences v Hyundai Motur Distributors (Pty) Ltd: in re Hyundlli
Motur Distributors (Pty) Lttl v Smit NO 2001 (I) SA 545 (CC) par (21). See also Daniel.r v Cmnpbell NO
2004 (7) BCLR 735 (CC), 2004 (5) SA331 (CC); Botha v Rich NO2014 (7) BCLR 741 (CC), 2014 (4) SA
124 (CC);
United Democmtic 1\,fooement v Speake,; NationalAssembly2017 (8) BCLR 1061 (CC), 2017 (5) SA 300 (CC).
50 2009 (7) BCLR 637 (CC), 2009 (4) SA 222 (CC) par (2).
51 See e.g. Klare 1998 SAJHR 156; Langa 2006 Stell TR354; Quinot 2012 SA.1/413-414.
52 On transformative constitutionalisrn, see further e.g. Humby, Kotze and Du Plessis (eds) Introduction to
Law 38-43; Moseneke 2002 SAJHR.309; Pieterse 2005 SAPL 155; Van der Walt 2005 TSAR 655; Van
der
Walt 2006 TSAR l; Moseneke 2009 Stell LR 3; Roux 2009 Stell LR 258; Van Marie 2009 Stell LR 286; Davis
and Klare 2010 SAJHR 403; Sibanda 2011 Stell LR 482; Rosa 2011 Stell LR 542; Quinol 2012 SA.4/ 411;
Claassens and Budlender 2013 Constitutional Com·t RP.view 75; Sibanda 2013 Stell LR 329; Brickhill and Van
Leeve 2015 Actrsjuridiw 141; Fish 2015 Actajuri<lica 189; Liebenberg 2015 SA]HR146; Madlingozi 2017
Stell LR 123.
 [I]
THE BEGINNING AND END OF
LEGAL PERSONALITY

2.1 The beginning of legal personality

A natural person's legal personality begins at birth, provided that the following require
ments are met:
(1) The birlh must be fully completed, that is, the body of the mother and the body of the
child must be completely separated.' For birth to be completed it is not required that
the umbilical cord be severed.
(2) The child must live after the separation even if only for a short period.2 This require
ment is sometimes called the "born-alive rule".s A stillborn child or a child who dies
during birth does not acquire legal personality. In our Jaw it has not yet
authoritatively been decided how life after birth must be proved. Normally, evidence
that the child breathed is accepted. However, any medical evidence by which life may
be proved should be admissible when the issue of whether a child was born alive is to
be decided for purposes of determining whether the child obtained legal
personality.4
Some authors maintain that the child must also be viable before legal personality is confer
red upon him or her.' This means that the child must have reached such a stage of develop
ment that he or she can exist independently of his or her mother's body. Thus, a child who
is born but, in the light of human experience, has no chance of remaining alive (for ex
ample, because he or she is born so prematurely, deformed or ill that his or her early death
is inevitable right from the start) is not recognised as a legal subject even if he or she is
completely separated from his or her mother's body and even ifhe or sheactually lives for
a while. It is doubtful whetl1er viability ever was a requirement in Roman or Roman-Dutch
law6 and it is suggested that it is not a requirement for the commencement of legal
personality in

l D 25.4.1.l; C 6.29.3; Voel Commentary un the Pandects l.5.5.

2 DS0.16.129; C6.29.3.
3 Some authors are c1itical of this rnle and advocate its replacement with viability as lhe sole criterion for
obtaining legal personality or "legal personhood'' - at least for some purposes such as medical negli
gence and "murder" of the unborn: see e.g. Schulman Nr,,citu.rns N<m-jiction ch 4ff; Pillay 2010 Stell LR
230. I do not support viability as a criterion for acquiring legal personality, either in addition to the re
quirements that the child must be born alive and be fully separated from the mother's body or as the
sole crilerion for acquiring legal personality or "legal personhood". As Pickles 2013 Stell U 148 points
out, "lhe definition assigned to foetal viability is vague and indeterminable" in medical science (154),
requires "a clinical determination based on a case-by-case basis", and is "subject to numerous factors
fraught with uncertainty, all of which can be verified only upon live birth" (163). See also Pickles Preg
nancy Law 308-309.
4 See also Boezaart Persons14; Kruger and Skelton (eds) Pnwns21; Mahler-Coetzee in Banatt (ed.) Persons
an<l the Family 32; Van der Vyver and Joubert Persone- en Fmniliereg 59.
5 Boberg Per.<ons an,l the Fami:ty 8; Van Zyl and Van der Vyver Inleiding tot die Regswetenskap 385.
6 Asser Het Neder/anasch B1trgerlij'k Wetboek 16; Fockema Andreae OiuJ,.Netler/,anrl1ch Burge,·lijk Recht vol I 128;
Lee Commentary 6; Von Savigny System vol II 10--11 Beylage 3, 385 et seq. But see Dernburg Panrlekten 110-
111; Windscheid Lehrbuch 233.

7
 8 The South African Law of Persons

South African law either.' The problem with requiring that the child must be viable is that
viability is a vague concept that gives rise to all sorts of questions. For ex mple, ow _short
must a child's life have been for his or her early death to have been considered mev1table
right from the stare? And what is the position of a child who stays alive n twithstanding
the fact chat he or she was regarded as not being viable? When does such a child become a
legal subject?

2.2 Registration of births

In terms of the Births and Deaths Registration Act 51 of 1992, the Director-General of Home
Affairs (or any person to whom the Director-General has delegated his or her powers and
duties) must be notified of the birth of every child who was born alh·e.8
A notice of birth is a prerequisite for obtaining a birth certificate.9 A birth certificate is
prima facie evidence of the particulars in the certificate, including the child's name, surname,
date and place ofbirth.1°Children who do not have a birth certificate are "invisible"."
They
cannot obtain South African citizenship and are at "risk of being excluded from the educa
tion system and from accessing social assistance and healthcare",'? because, in the eyes of
the state and the law, they do not exist or cannot prove that they exist."
As a rule, notice of birth must be given by any of the child's parents within 30 days of
the child's birth." Where possible, both parents must give notice."' If both parents are de
ceased, ,wdcen7V.N .be ffePC-n by me dJjJd's next-of-kin or legal guardian.16 If the child has
already reached the age of 18 years, he or she may personally give notice.,r
The notice of birth must be accompanied by the documents prescribed in the regulations
made under the Act. These documents include a proof of birth form attested to by a medi
cal practitioner who attended to the child's birth or examined the child or his or her
mother after the birth; an affidavit by a South African citizen who witnessed the birth if
the birth did not take place at a health institution; a palm, foot or fingerprint of the child;
fingerprints of the parent(s); and certified copies of the identity document, passport, visa,
or permit of the parent(s), next-of-kin or legal guardian.18 If the notice is given after 30
days

7 See also Boezaarl Persons 14; Cronje l.AWSA vol 20 part 1 Persqns par 440; Kruger and Skelton (eds)
Per.wns 23; Van dcr Vyver andjouberl Persone- en Familimg61, and fn 3 above.
8 S 4. Although only the birth of a live child qualifies as a "birth" in terms of the Act, notice must also be
given of a stillbirth. S 18 of the Births and Deaths Registration Act governs notices of stillbirth. S18 is
discussed in more detail below in this chapter.
9 S 9(7) read with s 5.
10 S9(8).
11 Centre forC,hil,t l,fLW v Dfrector-Ceru:ral: Department of Home Affairs (2020] 4 All SA 76 (ECG), 2020 (8)
BCLR 1015 (ECG}, 2020 (6) SA199 (ECG} par [4).
12 Ibid. See also Mkhwanazi et al20l8 South African Child Gauge 74; Boniface 2021 THRHR132,139.
13 Sec fur1her Boniface 2021 THRHR132-133.
14 S 9(1); regs 3( l} and 8(1). S 9(3A) read with regs 4(1), 4(2). 5(1) and 5(2) regulate the position if
notice is given after the 30-day period has expired.
15 Regs 3(3) and 4(3). But see reg 12(1), which provides that the notice of birth of a child born ofunmar-
1ied parents must be given by the child's mother. This regulation as well as parts of regs 3-5 were de
clared unconstitutional in Naki v Dfrector General: D,P<lrlment of Home Affair,; [2018] 3 All SA 802
(ECG). On appeal to the full bench, the decision was overturned ands 10of the Births and Deaths
Registration Act was declared unconsti1utional: Centre f<>rChild Law v Direct<>r-General: Department of
Home Affiurs [2020) 4AII SA 76 (ECG}, 2020 (8) BCLR 1015 (ECG), 2020 (6) SA 199 (ECG). The
Consti1utional Coun con
filmed the unconstitutionality of s LO: Centre for Chila Law v Dirut.or-General· Department of Home Affairs
[2021) ZACC 31, 22September 2021.
16 S 9(1) read with regs 3(2) and 8(2).
17 S 9(3A) read wir.h reg 5(2).
18 Regs 3(3) and 8(3). Requiring an identity document, passport, visa, or permit has the result that some
children's births cannot be registered. E.g., undocumented parents and parents whose refugee permits
continued
 Chapter 2: The beginning and end of legal personality 9

from the date of birth but before the child is older than a year, the notice must in addition
19
be accompanied by a form setting out the reasons why notice is being given late. If the
child is older than one year when notice is given, the notice must be accompanied inter alia
by a proof of birth form attested to by a medical practitioner who attended to the child's
birth or examined the child or his or her mother after the child's birth; an affidavit by a
South African citizen who witnessed the birth if the birth did not occur at a health institu
tion; a palm, foot or fingerprint of the child if the child is younger than seven years of age;
fingerprints of the parents and of the child if the child is seven years or older; photographs
of the child if the child is seven years or older; certified copies of the identity document,
passport, visa or permit of the child's parent(s), next-of-kin or legal guardian"° and of the
child if he or she is seeking to register his or her own birth; and a fonn providing details of
the child's life events, including his or her place of birth, religious ceremonies performed
in respect of the child, pre-school institutions or creches the child attended; schools and
tertiary institutions the child attended, and the child's employment record.21
In the case of an abandoned child, notice is given, after an enquiry has been undertaken
in terms of the Children's Act 38 of 2005, by the social worker involved in the enquiry.22
The same applies in respect of notice of the birch of an orphan whose birth has not already
been registered.28
No birth may be registered unless a forename (that is, a first name or individual name)
and a surname (or family name) have been assigned to the child.2'
Prior to the Constitutional Court's decision in Centre for Child Law v Director-General:
De partment of Home Affairs,2" the Births and Deaths Registration Act distinguished
between children born of married parents and children born of unmarried parents in respect
of the surname under which their birth could be registered. In terms of section 9 of the
Act, notice of birth of a child born of married parents was given under the surname of
either parent or both parents' surnames joined together as a double-barrel surname. Section
10 applied to the surname of a child born of unmarried parents. It provided that if a child
was born of unmarried parents, the birth had to be registered under the surname of the
child's 26
mother, unless the parents jointly requested that the father's surname be used. If the birth
was to be registered under the father's surname, the father had to acknowledge paternity in
writing in the presence of the person to whom the notice of birth was given and enter his
particulars on the notice of birth.27 Even if the father acknowledged paternity in the pre
scribed manner with the mother's consent, the child's birth could be registered under the
mother's surname.28 Section 10 did not provide for registration of the child's birth under a
double-barrel surname at all. In Centre for Child Law v Director-General: Department of
Home Affairs, the Constitutional Court held that it was unjustifiable to distinguish between
chil dren born of married parents and children born of unmarried parents in respect of
the

have expired cannot register their children's birth: Khan 2020 PELJ244, available at https://doi.org/
10.l7159/l727-3781/2020/v23i0a6414.
19 S 9(3A). reg 4 read with Annexure 2A.
20 Requiringan identity document, passport, visa, or pcnnit has the unfortunate result that some children's
births are not being registered: see fn 18 above.
21 Reg 5(3) read with Annexure 2B.
22 S 12(1). On the right of a child who was abandoned as a baby to know his or her biological origins, see
South African Law Reform Commission The Right to Know One'.5 Biological Origins Issue Paper 32 ch 6;
Ros enberg 2020 TSAR 724.
23 S 12(2)
24 S 9(6). In te1ms of s 28(1)(a) of the Constitution of the Republic of South Africa, 1996 every child has
the right to a name. On a child's constitutional rights, see ch 6 below and Heaton and Kruger F{l.mily Law
ch 22.
25 (2021] ZACC 31, 22September 2021.
26 S l0(l)(a).
27 S10(1)(b).
28 S 10(2).
10 The South African Law of
Persons
surname under which their birth was to be registered. The court stated that section 10
of the Act perpetuated "stereo ical gender roles[,] ... the assumption that child-care is
inherently a mother's duty", and "gendered narratives about men's caregiving"."° The
section also perpetuated the societal stigma attached to unmarried parents and their
chil dren, demeaned unmarried fathers and their children, and established a prejudicial
dis tinction between married and unmarried fathers. The section further inflicted an
indignity on unmarried fathers and deprived them and their children of ubuntu. The
court accord ingly found that section 10 of the Act violated the right to dignity, which
is protected by section 10 of the Constitution. It also violated section 9(3) of the
Constitution by unfairly discriminating against unmarried fathers on the grounds of
marital status, sex and gender and against children on the grounds of social origin and
birth. Section 10 of the Act further violated section 28(2) of the Constitution, because the
concept of "illegitimacy" and differ ential rights for children born of married and
unmarried parents is inconsistent with the pa.ramountcy principle and does not advance
the rights of children as autonomous beings. The court found that these violations were
unjustifiable. Consequently, it declared section 10 of the Act unconstitutional and
invalid to the extent that it limited the right of an un married father to give notice of the
birth of his child under his surname. It ordered that section 10 be severed from the
Births and Deaths Registration Act. The declaration of invalidity and severance took
effect on the date of the court's order, that is, 22 September 2021. Thus, section 10 of
the Act ceased to apply as from that date. Now, the surname under which a child's
notice of birth may be given is regulated only by section 9 of the Births and Deaths
Registration Act. Consequently, notice is given under the surname of either parent or
both parents' surnames joined together as a double-barrel surname, regardless of
whether the child is born of married or unmarried parents.
Section 11 of the Act stipulates that a father who wants to acknowledge paternity and
enter his particulars after the child's birth has been registered may do so with the consent
of the child's mother.'1 If the mother withholds consent, the father may apply to the High
Court for a declaratory order confirming his paternity and dispensing with the mother's
consent.s2 Once the particulars of the father have been entered, they may not be changed
without conclusive proof being presented that tl1e changed details are those of the person
who actually is the child's father.33 The objective of the latter provision is mainly to
restrain parents from registering their child's birth under one father's surname and
subsequently falsely changing the father's details to those of anotl1er man in order to
enable the "new" father to obtain a South African immigration permit.''
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.''
If the unmarried parents of a child marry each other or enter into a civil union with each
other after the child's birth has been registered, the birth registration may on application
to the Director-General, be altered to reflect the child as a child born of married persons.
The application may be made by either of the parents or by the child personally if he or
she is already a major.'" If the Director-General is satisfied that tl1e applicant is competent
to make the application, that the alleged parents are in fact the child's parents, and that
they

29 Par (46).
30 Par (52].
31 Births and Deaths Registration Acts 11(4);see alsos 26(1) of the Children's Act.
32 Births and Deaths Registration Acts 11(5).
33 S 11(4A}.
34 "South Af1ica: Govt targets fraudulent birth, deaths registrations", available at http://allafrica.com/
stories/201009170892.html,accessed 4 August 2017.
35 Children's Acts 26(2).
36 Births and Deaths Registration Acts 11(1).
 Chapter 2: The beginning and end of legal personality 11

legally manied each other, the birth will be registered as if the parents were legally married
to each other or were the parties to a valid civil union at the time of the child's birth.3;
The surname of a child who was born of parents who were married to each other or were
each other's civil union partners may be changed to the surname of the child's mother if
the marriage or civil union is dissolved by the death of the child's father.58 The child's
surname may also be changed to his or her mother's surname if his or her parents' mar
riage or civil union is dissolved by divorce and the child's mother has sole guardianship or
the child's father consents to the change. The court may dispense with the father's con
sent.39 If the mother enters into a new marriage or civil union, she may apply to have the
child's surname changed to the surname she bears.''0 In such event, she needs the written
consent of the child's father as well as the written consent of her new husband or civil
union partner, unless the court dispenses with consent.11 If the mother has sole guardian
ship, she does not need the father's consent, but she still needs the consent of her new
husband or civil union partner, unless the court dispenses with consent:' A ,.vidow who
enters into a new marriage or civil union may also apply to have her child's surname
changed to hers.43 In the latter event she needs the written consent of her new husband or
civil union partner, unless the court dispenses with consent."
If an unmarried mother marries someone other than the child's father or enters into a
civil union with someone who is not the child's father, she may apply to have the child's
surname changed to correspond to hers. She needs the written consent of her husband or
civil union partner.''·; If the child bears his or her father's surname, the mother also needs
the written consent of the child's father, unless she has sole guardianship or the court
dispenses with consent.46
Furthermore, the surname of any person may be changed for good and sufficient
reason.'; In the case of a minor, the application for the change must be made by either of
the child's parents.'8 In the case of an adult, the person personally makes the applicati.on.49
Any person's

37 Births and Deaths Registration Acts 11(1) read withs 13(2) of the Civil Union Act; see also Children's
Acts 38(1).
38 Births and Deaths Registration Acts 25(1)(h).
39 S 25(1)( b) and (lA).
4.0 S25(l)(b).
41 S 25(1).
42 S 25(1A).
43 S 25(1)(b).
44 S 25(1).
45 Ibid.
46 S 25(1)(c) and ( lA). In NAV v MVM and Minister of Home Affairs unreported, GP case no
15664/2017, 16 February 2018, the court set aside a change of surname that was obtained without the
consent of the father: see Maja and Gumede October 2018 DeR.ebm 46.
47 Ss 25(2) and 26(2). As a rule, no one may assume or pass under a surname othe1· than that under which
he or she has been included in the population register. S 26(1) of the Births and Deaths Registration
Act (read withs 13(2) of the Civil Union Act), however, exempts a woman who, on entering into a
marriage or a civil union, assumes the surname of her husband or civil union partner. The exemption
also applies if, after having assumed the surname of her husband or civil union partner, the woman
resumes a sur name she bore at any prior time, or adds the surname she acquired after entering into the
marriage or civil union to any surname she bore at any prior time. It further applies to a divorced or
widowed woman who resumes using a surname she bore at a pre, ous time. On this exemption, see
further Heaton and Kn.1ger Family Law ch 5. How the exemption would operate in a same-sex civil
union is unclear. The ob vious solution is to extend the exemption to both parties to a civil union and
also to extend it to both parties to a marriage, thus enabling either party to adopt the other's surname or
to form a double-barrel surname. This solution would be in line with the gender equality provisions of
the Constitution (e.g. s 9).
48 Births and Deaths Registration Acts 25(2).
49 S 26(2).
12 The South African Law of
Persons
forename may also be changed.''° The Act does not stipulate a ground on which the applica
tion for a change of forename must be made. In the case of a minor, the application must be
made by either 52of the child's parents.51 In the case of an adult, the person personally makes
the application.

2.3 The interests of the unborn

2.3.1 The nasciturus fiction
It was pointed out above that a natural person's legal personality begins at birth. Therefore,
the unborn are not legal subjects and cannot have rights, duties and capacities. However,
the law protects the potential interests of the unborn by employing the nasciturus fiction.;,
In terms of this fiction, a nasciturus (that is, an unborn human being) is regarded as having
been born at the time of his or her conception whenever it is to his or her advantage. The
full Latin adage that reflects this fiction is nasciturus pro iam nato habetU1 quotiens d£
ccnnr,wdo
eius agitur (that is, the na.sciturus is considered to have been born when his advantage is
at issue).
The fiction operates as follows: if it appears that a nasciturus would have had certain
claims or rights had he or she already been born, the legal position is kept in abeyance until
he or she is born and acquires legal personality, or until it is certajn that he or she will not
become a legal subject (for example, because his or her mother has miscarried or termin
ated the pregnancy, or because the baby was stillborn)." If the nasciturus indeed becomes a
legal subject, he or she receives the rights that have been kept in abeyance for him or her.
For the nasciturus fiction to come into operation the following requirements must be
met:
(1) The nasciturus must have been conceived at the time that the benefit would have
accrued to him or her.
(2) The nasciturus must subsequently be born alive.55 If he or she is not born alive, the
nasciturus is considered as never even having been conceived.
It must be emphasised that application of the fiction must be to the advantage of the
56
nasciturus. A third person may benefit from the application of the nasciturus fiction if such
benefit is a natural consequence of the application of the fiction in favour of the
nasciturus, but the fiction may not be applied solely to benefit a third person.57 Take the
example of a nasciturus who would have received a large inheritance had he or she been
born at the time of a particular person's death. If the child dies shortly after birth, the
na.sciturus fiction will not be applied, because the only persons who will benefit from the
application of the fiction are the child's intestate heirs and not the child personally. The
position is different if the child stays alive for a while. Because parents are responsible for
their child's mainten ance if their child needs maintenance and they are able to provide it,
the child would have had a claim for maintenance against his or her parents were it not
for the fact that he or she received the inheritance and consequently became self-
supporting. The child received the inheritance because the nasciturus fiction was applied.
In this case, applying the fiction

50 S 24(1).
51 Ibid.
52 S 26(2).
53 D1.5.7, 1.5.26, 50.16.231; Grotius lnkulinge 1.3.4;Voet u1111menwry 011 the Pandecls 1.5.5.
54 Pinchin v Sanlam lnsuran<.e Co Lui 1963 (2) SA 254 (W); Christian Leng,.u of Southern Africa v Rall
1981 (2) SA821 (0).
55 D 50.16.231; Voet unnmentary onthe Parukcts 1.5.5. For criticism of the "born-alive" rule.see fn 3 above.
56 Grotius lnkidinge 1.3.4. See further D1.5.7; Voet C',mnmenta,y on the Pandects 1.5.5.
57 Voet Commentary on the Pandects 1.5.5.
 Chapter 2: The beginning and end of legal personality 13

benefits not only the child but also the child's parents because they are no longer liable
for the child's maintenance.

2.3.2 The fields of application of the nasciturus fiction

(a) Introduction
At common law the nasciturus fiction was applied mainly in the field of succession.ss In
modem South African law this is still the main field in which the fiction should be applied.
However, as appears from the discussion below, the fiction has been reused, and sometimes
applied, in other areas of South African law, too.
(b) Succession
(i) Inttstate sucussion
If a person dies without leaving a valid will, his or her estate devolves in terms of the law
of intestate succession. Under the rules of intestate succession a person can only inherit if
he or she is alive at the time that the estate "fulls open" (that is, when delati.o takes
place). Genera.Uy, delati.o takes place at the moment the deceased dies. It is clear that if
this prin ciple were to be strictly applied, a nasciturus could not qualify for an intestate
inheritance. The nasciturus fiction is employed to protect the potential interests of such a
nasciturus. With the aid of the fiction, distribution of the deceased estate is postponed
until it is certain whether or not a live person has been born. lf the child is born alive, he or
she inherits as if he or she were already born at the time of the deceased's death. ln the
absence of live birth, the nasciturus does not inherit.
(ii) Testate succession
lf a testator leaves property in a valid will, effect must be given to the provisions of the will.
lf the testator's intention regarding whether or not the unborn should inherit is clear, the
testator's intention is simply carried out. If the testat0r's intention is unclear, it must be
established with the aid of the rules of the law of succession.
lf the testator leaves property specifically to A, B and C, while D has already been con
ceived at the time of the testator's death but has not yet been born, D will not inherit if he
or she is subsequently born alive, even if he or she is the testator's child. Only the benefi
ciaries specifically mentioned in the will will inherit, as this is clearly what the testator
intended.
If the testator leaves his or her property to his or her children (or grandchildren) who
are "born or still to be born", any such children (or grandchildren) born after the
testat0r's death will inherit, regardless of whether or not they had been conceived at the
time of the testator's death. Again the intention of the testator is clear and it is simply
carried out.
If a testator does not appoint beneficiaries by name but as members of a class, a child in
that class who was already conceived at the Lime of the testator's death but was born only
after the testator's death can also inherit.59 Thus, if a testator leaves his or her estate to his
or her daughter's "children" and the daughter has two children, A and B, and is expecting
Cat the time of the testator's death, C will share in the inheritance if C is subsequently born
alive. In this regard reference should be made to Ex parte Boedel Steenkamp.r.o In this case,
the testator left the residue of his estate to his daughter and her children '\vat by datum
van dood in die !ewe is" (that is, who are alive at the time of my death). At the time of the
testator's death, his daughter and two of her children, D and C, were alive. His daughter

58 D 1.5.26; Inst S.l .8; Voet Commmlmy on IM P,mderli J.5.5.

59 Wills Act 7 of 1953 s 20( I )(c); / ,ta Lewi., v E.rta Jackson (1905) 22 SC 73; Hopkim ,1 F.stau Smuh I920
CPO 558; Bollia v 11iomf1son 1936 CPD I.
60 1962 (3) SA 954 (0).
14 TheSouth African Law of
Persons
was, however, pregnant with P, who vras later born alive. The question arose as to whether
P could also share in the inheritance.Judge DeVilliers said:
Dit is gemene saak dat 'n kind in ventre matrisvir die doeleindes van erllat.ing vermoed word
le wendig te wees mits dit later gebore word en mits dit tot die voordeel van sodanige kind
is.61 (That is, it is common cause that a child in its mother's womb is presumed to be alive for
the purposes of succession, provided the child is subsequently born and that it is to the
advantage of such child.)62
Had the testator in this case simply left the residue of his estate to his daughter and her
children, there would have been no doubt that P could also share in the inheritance,
because it would clearly have been to P's benefit that he be regarded as having been born at
the date of the testator's death. The question, however, was whether the words "wat by
datum van dood in die !ewe is" did not rebut the presumption that the testator also·wished
to benefit children born later. Judge De Villiers held that this was not the case and P ac
cordingly inherited.
A testator may nominate unborn or even unconceived heirs or beneficiaries in a will or
trust deed. In fact, a testator may leave property to persons who will only be born gener
ations later. A testator may, for example, leave his farm to his son, B, subject to the proviso
that the farm must devolve on B's eldest son, C, after B's death, and after C's death on his
eldest son, D. Such an institution is known as a fideicommissum. B is knm-vn as the .fiduciarius
(or fiduciary) and C and D as the .fideicommissarii (or fideicommissaries). In this regard the
law protects the potential interests of the unborn in several ways. In the above example,
fiduciary B may, in principle, not alienate or mortgage the farm without the consent of the
High Court. If all the fideicommissa1ies are majors and give their consent to the alienation
or mortgage, there will be no problem in obtaining such an order. In the case of a minor
fideicommissary who has already been born alive, the High Court must give or withhold
consent in its capacity as upper guardian of all minors.c;a The question of whether the High
Court may also consent in the case of an unborn fideicommissary was controversial"' until
the Appellate Division (now the Supreme Court of Appeal) rnled in Ex pa-rte Swanepoez65 that
the High Court cannot give such consent because it is not the upper guardian of children
who do not yet exist. This decision is in line with the common law, but the legislature did
not approve of its outcome and enacted section 33(1) of the General Law Amendment Act
62 of 1955. The section reads as follows:
vVhenever under a will or other instrument any unborn person will be entitled to any interest
in immovable property which is subject to any restriction imposed by such will or other in
stmment, any provincial or local division of the Supreme Court [now the High Court] may
grant its consent on behalf of any such unborn person (whether already conceived or not) to
the alienation or mortgage of such property as if such unborn person were a minor in esse
[that is, in existence].
This section expressly empowers the court to consent to the alienation or mortgage of land
in which the unborn may obtain an interest, and puts conceived and unconceived beneficiar
ies on an equal footing in this regard.66 The court will only give its consent if the alienation or

61 956BC.
62 My translation.
63 fa parle Odendaal 1928 OPD 218; Ex parle Visagie 1940 CPD 42; Ex parte Swanepoel 1953 (1) SA 280 (A);
Ex f1arLeDe Winnaad959 (l) SA 837 (N).
64 Seee.g. F:x parte Visagie 1940 CPO 42; Ex fimte Strauss1949 (3) SA 929 (0); Ex j,m·tejacobs 1950 (1) SA 129
(T); Ex fJarte DeJager1950 (4) SA583 (E).
65 1953 (1) SA 280 (A).
66 For examples of applications for the alienation or mortgaging of fideicommissary property in which
unborn persons had an interest, see Ex f,arle De Win,uw:r 1959 (1) SA837 (N); Ex /Jar/e Marais1960 (2)
SA 197 (GW). Lupton 1997 TSAR 757 submits that frozen embryos should be excluded from the ambit
of s 33(1). His view is difficult to understand as it seems illogical not to consider a frozen embryo under
legislation which expressly extends even to children that are yet to be conceived.
 Chapter 2: The beginning and end of legal personality 15

mortgage will be to the advantage of all the beneficiaries, including those still to be
born.67 In terms of the Immovable Property (Removal or Modification of Restrictions) Act
94 of 1965,68 the legislature further empowered the court to remove or modify restrictions
on immovable property which have been imposed by a will or another instrument if this is
to the advantage of an unborn or even an unconceived beneficiary. 61J Clearly, the
protection afforded by these legislative provisions is not based on the nasciturus fiction, as
the fiction applies only to those who have already been conceived.
The Administration of Estates Act 66 of 1965 also protects the interests of the
nasciturus. It provides that if an unborn heir will, after birth, become entitled to money or
movable property which is subject to somebody else's usufructuary or fiduciary rights, that
person must give security to the satisfaction of the Master of the High Court for the
payment of the money or delivery of the property to the child after his or her birth. The
money or property will not be paid or delivered to the person in whose favour the
usufructuary or fiduciary rights operate unless such security has been given.7° A person
can only be exempted from these statutory provisions if the testator's will expressly
permits this. The Act further pro vides that the Master of the High Court may consent to
the subdivision of land on behalf of an unborn heir if this is expedient and equitable.''
In legal proceedings involving property in which the unborn might have an interest a
curator ad litemlooks after the unborn 's interest.72
(c) Maintenance after birth
If a pregnant wife divorces the father of her unborn child, the court may provide for the
child's maintenance in the divorce order in order to avoid the need for legal proceedings
about maintenance after the child's birth." The position is the same if a pregnant civil
union partner divorces tl1e unborn child's parent."
In Shields v Shield15 the divorcing parents of an unborn child entered into a setllement
agreement which provided, inter alia, that the child's father would not be responsible for
the child's maintenance after birtl1. The parents wanted tl1is agreement incorporated into
their divorce order. The court refused to do so. It held t11at a mother cannot waive her
unborn child's right to claim maintenance, and that the agreement was contra bonos mores
(tl1at is, contrary to good morals, or contrary to the legal convictions of the community).
A father would likewise not be permitted to waive his unborn child's right to claim
mainten ance from his or her mother after birtl1.
It is submitted tl1at the regulation of maintenance for an unborn child of a divorcing
couple is not a true application of the nasciturus fiction. It merely reflects a common-sense
approach to post-divorce child maintenance t11at is based on expediency. If the regulation
of post-divorce child maintenance were truly based on the nasciturus fiction, the child would
have to be deemed to have been born at t11e time of his or her conception and would
therefore be entitled to maintenance as from that date. As this would entitle the nasciturus
to maintenance for a longer period than a child whose parents divorced each other on the
day of his or her actual birth, t11e equality clause in the Bill of Rights76 would be unjustifiably

67 Ex parte Visagie 1940 CPD 12; Ex f1arle De Winnllar 1959 (1) SA 837 (N); Ex pa.rte Blieden 1965 (1) SA 474
(W); Rogers v Erasmus 1975 (2) SA 59 (T); Ex parteKruger1976 (1) SA 609 (0).
68S2(1).
69 Ex part.e Barcuiys National Bank Lttl1972 (4) SA 667 (N).
70 S 44.
71 S 94.
72 See e.g. Expa1teL011wl972 (1) SA551 (0).
73 Shiel v Shields1946 CPD 242; Pretorius v Pretorius 1967 (2) PH Bl 7 (0).
74 S13oftheCivil Union Act equates a ci, I union and a civil marriage.
75 1946 CPD 242.
76 Constitutions 9.
16 The South African Law of
Persons
breached. Moreover, it would be absurd to award maintenance to a child as from the date
of conception (or as from any other time before his or her acnial birth).77
Furthermore, since the coming into operation of section 18(2) (d) of the Children's Act,
maintenance has been statutorily included as a parental responsibility and i;ght,78 and no
parental responsibility and right can operate before a child's actual birth.79 A pregnant
woman clearly cannot have parental responsibilities and rights over part of her own body.
Nor can the child's father or the mother's same-sex ci,il union partner have parental
responsibilities and rights over part of the mother's body. If the father does not have the
power to stop the mother from terminating her pregnancy,5° how could he ever have
parental responsibilities and rights in respect of the foetus? A pregnant woman's same-sex
civil union partner should also not be able to stop her from terminating her pregnancy,
even if the woman's pregnancy resulted from her being implanted with the artificially
fertilised ovum of her same-sex civil union partner. Thus, the same argument applies to
marriages and (lesbian) civil unions. Furthermore, how could parental responsibilities and
rights be exercised in respect of a child who has not in actual fact been born yet?
Accepting the view that a parent cannot have parental responsibilities and rights over his
or her unborn child does not affect the application of the nasciturus fiction in the field of
succession.81 In the case of succession the fiction is used to postpone distribution of a
deceased estate until it is clear whether or not a live person has been born - and this hap
pens only once the child is actually born or it is clear that he or she will not be born. Until
then, the position is kept in abeyance with the result that no action by the parent on behalf
of the nasciturus is required. It is only once the child has been born that the inheritance
becomes available to the child and it is only once that has happened that adiation or repu
diation (that is, acceptance or rejection) of the inheritance can occur. At that time the
parent does have parental responsibilities and rights which empower him or her to adiate
or repudiate on behalf of the child.82
(d) Dependant's action for loss of support
In Chisholm v East R.and Proprietary Mines Ltd83 it was held that a child whose father was killed
prior to his or her birth as a result of someone else's delict has a dependant's action for
damages for loss of support against the person who committed the delict. As far as
mainten ance is concerned, the child is put in the position in which he or she would have
been had his or her father not been killed. A child may obviously also claim damages for
loss of sup port from someone who killed his or her mother in an unlawful and culpable
way while she was pregnant - provided, of course, that the child is born alive despite his or
her mother's death.
Chisholm was the first South African case in which the nasciturus fiction was applied in the
field of the law of delict. Several authors have submitted that the fiction should never
have

77 See also Kruger and Skellon (eds) Persons 24. Boezaan Persons 17 fn 35 (also Boezaart in Boezaart
(ed.) Child Law in South Africa 9 fn 35) criticises the categorisation of the regulation of child
maintenance in a divorce order a5 an application of the nascitums fiction on a different ground. She
argues that a child would in any event have a maintenance claim against his or her mother's ex-
husband on the ground of the presumption of pater est quem nufJtiae demonstrant and that it is
therefore unnecessary to invoke the fiction. On the pater est quem nuf,tiae demon,trant presumption, see
ch 5 below.
78 On the meaning and content of"parental responsibilities and rights", see ch 5 below.
79 But see Bosman and Van Zyl in Robinson (ed.) Law ofChildr,m and Ymm.g Persons 51.
80 On this issue, see below in this chapter.
81 The position of the nascitu-nts in respect of succession is discussed above in this chapter.
82 In the case of repudiation the court's consent is needed, too.
83 1909 TH 297.
 Chapter 2: The beginning and end of legal personality 17

been extended to this field of the law...' Their c1iticism, which has found favour in the
Supreme Court of Appeal,85 is set out under the next heading below.
(e) Pre-natal injury
The issue of whether a child has an action for pre-natal injuries he or she suffered as a
result of the wrongful act of a third party first came before the court in Pinchin v Santam
Insurance Co Ltd86 The facts of the case were briefly as follows: a pregnant woman was
seriously injured in a motor vehicle accident and her child was subsequently born with
cerebral palsy. As a result of the cerebral palsy the child would never be able to care for
himself. The child's father maintained that the child's brain injuries had been caused by
the negligent conduct of the other vehicle's driver. Santam, the statutory insurer of the
other party's vehicle, admitted that the driver had been negligent. In his personal capacity,
the father claimed damages in respect of medical expenses regarding the child. On behalf
of the child he also claimed satisfaction for the infringement of the child's personality
rights.
The legal question was whether a person has an action for injury that was inflicted on
him or her while he or she was still a foetus in his or her mother's womb. Judge Hiemstra
stated that the only starting point in our common-law sources for the protection of the
interests of the foetus was to be found in the nasciturus fiction. He quoted the texts from the
Digest81 that deal with the nasciturus fiction and mentioned that all the commentators
related these texts specifically to the law of succession and the question of status, although
none of them expressly limited the fiction to these fields of the law. He concluded that the
principles of our law are flexible enough to extend the nasciturus fiction to the field of
delict, and that, in principle, a child does have an action to recover damages for pre-natal
injuries. However, because the facts of the particular case did not prove that the brain
damage had been caused by the accident, the action was dismissed.
The court's view that the nasciturus fiction could be applied in the field of the law of de
lict proved to be controversial. Most authors are of the view that it is unnecessary to invoke
the nasciturus fiction in circumstances such as those that arose in Pinchin.Stl They, quite
correctly, submit that the question which arose in Pinchin's case could have been solved
without bringing the nasciturus fiction into the issue at all, because the ordinary principles
of the law of delict would have given the child an action for pre-natal injuries anyway.89
They point out that all the elements of a delict need not be present at the same time and
that it therefore does not matter that the conduct and its consequences (namely, the
damage) do not manifest themselves at the same time. Thus, the requirements of conduct
and damage are met even if the disability from which the child suffers after birth was
caused by the conduct of the driver before the child's birth. The fact that the child's
disability only be comes evident after birth makes no difference: when the action is
instituted after the

84 Most of these authors raise their objections in the context of Pinchin v Santmn Insurance Co Ltd 1963
(2) SA 254 (W), which is discussed under the next heading below.
85 R=l Accident Fund v Mtati 2005 (6) SA 215 (SCA) (also reported as RoadAccidm.tFund v M obo M
(2005] 3 All SA 340 (SCA)).
86 1963 (2) SA 254 (W).
87 1.5.7, 1.5.26, 50.16.231.
88 See e.g. Boezaart Persons 22;Joubert 1963 THRHR 295; Lind 1992 SAi.,/ 441-443; Mukheibir 2006 Obiter
188; Neethling 2006 THRHR5ll; Knobel and Kruger 2006 T.IH?.HR517; Scott 2006 TSAR617.
89 See also Ch,-istian League of Smtthem Africa v &i/11981 (2) SA 821 (0) and Friedm,m v Glichsman 1996 (1)
SA 1134 (W). In Christian League Steyn J in an obiter dictum indicated his agreement \\ th the view
that the ordinary principles of the law of delict could have been relied on in Pin.chin's ca e. In
Friedman's case Goldblatt] indicated that the nascitunts fiction (the judge referred to the nascitmus
rule) would not be the basis for an action for wrongful life because the child's action arises, not when
the pregnancy is not terminated, but when the child is born. (See also Stewart v Bo/ha (2007] 3 All SA
440 (C), 2007 (9) BCLR 1012 (C), 2007 (6) SA 247 (C).) On the difference between the nasciturus
fiction and the nasci turns rule, see below in this chapter.
18 The South African Law of
Persons
child's birth the child is a legal subject who is suffering from a disability as a result of the
driver's conduct, and on that basis the child has a deliccual claim (provided of course that
the other requirements of a delict90 are satisfied).
Some authors, however, argue that the nasciturus fiction must be applied in order to give
an action for pre-natal injury. One argument is that, according to the ordinary principles of
our law, the unborn do not have legal personality and therefore have no rights that can be
infringed by a delict. In other words, if the ordinary principles of our law were to be ap
plied, the unborn would not have rights which could be infringed by the commission of a
delict if the unlawful conduct occurred prior to birth. In order to afford the child an action
after birth, his or her legal personality must accordingly be pre-dated to before his or her
actual birth so that he or she has legal personality at the time of the conduct causing the
91
injury. Another argument is that, in the case of pre-natal injury, the conduct and the
damage actually do occur at the same time, namely when the injury is inflicted, because the
injury does not cause harm only once the child is born. The harm and resultant damage
already start when the conduct occurs prior to birth; after birth the child simply continues
to suffer damage.9'1 In other words, when the child started to suffer damage he or she was
not a legal subject and therefore the nascitwus fiction has to be applied to give him or her
an action for pre-natal injlll-Y,
The Supreme Court of Appeal settled the issue in Road Accident Fund v Mtati93 by
holding that it is unnecessary to use the nasciturus fiction to grant a child an action in
respect of pre natal injuries. The facts of this case were similar to those of Pinchin. Here,
too, a pregnant woman was injured in a motor vehicle accident and her child was
subsequently born with brain damage and a mental disability. The child's father alleged
that the accident had caused the child's injuries. He instituted a claim against the Road
Accident Fund on the child's behalf. The Road Accident Fund raised a special plea against
the claim. The Fund contended, firstly, that an unborn child is not a person and is therefore
not entitled to compensation and, secondly, that because an unborn child is not a person,
a driver does not owe a duty of care to it. The court a quo dismissed the special plea,
whereupon the Fund appealed to the Supreme Court of Appeal. The Supreme Court of
Appeal dismissed tl1e appeal. It held that the ordinary rules of the law of delict should be
used to determine whether the child has a claim. The court held that the child's delictual
right of action in respect of his or her pre-natal irtjuries becomes "complete"94 when the
child is born alive. Thus, it is unnecessary and undesirable to employ the nasciturus fiction
in the field of the law of delict.
(f) Guardianship and care
Guardianship and care are two of the components of parental responsibilities and rights.93
If a woman is pregnant when she gets divorced, the court may include an order regarding
guardianship and care in the divorce order to remove the need for further legal proceed
96
ings once the child has been born. It is submitted that in these circumstances - as in the
case of maintenance for a child who is born after his or her parents' divorce97 - the court is
not regulating parental responsibilities and rights in respect of the unborn; nor is it protect
ing the interests of the unborn by means of the nasciturus fiction. The court is merely, as a
matter of convenience, regulating the position that will apply once the child has been
born.

90 The five elements of a delicl are conduct, wrongfulness, fault, causation and damage.
91 Van derVyver and Joubert Person.e- en Fa.miliereg65; Mankga 2007 (2) Codicillm52.
92 Boberg Persons a.nd the Family 16-17 fn Jl. Keightley reiterates this opinion in the second edition of
Boberg's work (Van Heerden et al (eds) Boberg's Law of Persons and the Family 36 fn 15) and expresses the
view that Boberg's "reasons remain cogent today".
93 2005 (6) SA 215 (SCA) (also reported as RolUlAccidentFun<l v M obo M [2005] 3 All SA 340 (SCA)).
94 Par [39).
95 On the meaning and content of "parental responsibilities and rights", see ch 5 below.
96 ShieldsvShieldsl9 CPD242; PreummvPretori11sl967 (2) PHB17 (0).
97 See above in this chapter.
 Chapter 2: The beginning and end of legal personality 19

In Friedman v Glicksrnanw Judge Goldblatt held that a mother may not enter into a con
tract on behalf of her unborn child, because legal personality only begins at birth and an
agent may not enter into a contract on behalf of a non-existent p1;ncipal. It might be
argued that the problem of the unborn child's being a non-existent principal could be
solved by employing the nasciturus fiction. For example, if a pregnant woman, acting as
her child's agent, entered into a contract which benefits the child, the nasciturus fiction
might be invoked so that the unborn child could be considered as having been bom at the
time of his or her conception. The child would therefore be considered as having been in
existence when the contract was concluded. However, it is submitted that this approach
would be incorrect because it would require conferring parental responsibilities and rights
on the parent prior to the child's actual birth. In the case of agency the authority of the
agent to represent the principal is essential. Even if the unborn child were considered as
having been born at the time of his or her conception, he or she would still be without the
capacity to act as principal, for the child would be in the position of an infans (that is, a
child below the age of seven years). As an infans, the child would have no capacity to act
and could therefore not authorise his or her parent to act as his or her agent. Because of
the child's lack of capacity to act, the parent would have to act on the child's behalf and
authorise the agent to represent the child.99 (In the above example the agent and the parent
are one and the same person.) This the parent could do only if the parent had parental
responsibilities and rights and, as indicated above, parental responsibilities and rights do
not arise until a
child is actually born.
If a parent wants to negotiate benefits for his or her unborn child, the solution lies in
applying the mechanism of a stipulatio alteri (that is, a contract for the benefit of a third
party).'00 This entails that the parent (A) enters into a contract with somebody else (B) in
terms of which B undertakes to keep open an offer to contract with the unborn child (C)
after his or her birth, or undertakes to make an offer to C after his or her birth. C is not a
party to the contract; only A and B are parties to the contract. It accordingly does not
matter that C does not exist yet.'01 Thus, for example, future spouses or civil union partners
can agree in their antenuptial contract that children who may be born of their marriage or
102
civil union will become entitled to specified property when they are born. In the case of a
contract for the benefit of a third party, C is benefited by being given the opportunity of
entering into a conu·act with B. After C's birth, A (who then has parental responsibilities
and rights) can accept or decline B's offer on behalf of C. Upon C's acceptance of the
10
offer a contract comes into existence between B and C. '
(g) Termination of pregnancy
(i) General
As this is not an instance where the foetus' interests are protected on the premise that a
child will eventually be born alive, termination of pregnancy (abortion) is not a topic that
properly falls under a discussion of the nasciturus fiction. Nor is sterilisation!°' However,

98 1996 (1) SA ll34 (W).

99 A child's capacity to act is discussed in detail in ch 6 below.
100 On contracts for the benefit of a third person, see e.g. Ken- Cont,.act 85-97; Van Rensburg, Lotz and
Van Rhijn LA\¾S"A vol 9 Contract par 350; Wilie's Principles 815-816.
101 See e.g. Natal Land and Colonization C.oLtd v Pm,line CoUiery andDroelopm.ent Sy,uliccueUd 1904 AC 120.
102 See e.g. Ex parte Bulsillie et Uxor 1928 CPD 218.
103 See e.g. Crookes v Wt,tson 1956 (1) SA 277 (A). In Friedman's case the conn-act in issue was not one for
tl1e benefit of a third party, because the child "could only accept the benefit, if it be one, at a time when
the alleged benefit, i.e. termination of pregnancy, w·as no longer possible" because the child had
already been born (1140H).
104 In the case of tennination of a pregnancy, the child v. ll not be born and thus cannot meet one of the
requirements for the application of the 11asciturus fiction, namely that the child must evemually be born
alive. In the case of sterilisation the foetus will never even be conceived (if the sterilisation is successful,
continued
20 The South African Law of Persons

these topics have traditionally been included in expositions relating to the nasciturus
fiction, and that approach is adopted in this book, too.
The Choice on Termination of Pregnancy Act 92 of 1996 permits termination of preg
nancy'°' on demand during the first 12 weeks of the gestation period, and on several
grounds (including socio-economic considerations) after that. Regrettably the Act does not
provide for compulsory counselling before or after the termination ofpregnancy.106
(ii) Circumstances in which a pregnancy may be t.erminated
A pregnancy may be terminated at the request of the pregnant woman during the first 12
weeks of the gestation period.'07
From the 13th up to and including the 20th week of the gestation period a pregnancy
may be terminated if a medical practitioner, after consultation with the pregnant woman,
is of the opinion that any of the following circumstances are present:
(1) The continued pregnancy will pose a risk of injury to the woman's physical or mental
health.
(2) There is a substantial risk that the foetus will suffer from a severe physical or mental
abnormality.
(3) The pregnancy resulted from rape or incest.
(4) The continued pregnancy will significantly affect the woman's social or economic cir-
cumstances.108
After the 20th week of the gestation period a pregnancy may be terminated only if a medi
cal practitioner, after consultation with another medical practitioner or a registered mid
wife who has undergone the presc1ibed training course,109 is of the opinion that the
continued pregnancy will do any of the following:
(1) Endanger the woman's life.
(2) Result in a severe malformation of the foetus.
(3) Pose a risk of injury to the foetus.110
Only a medical practitioner may perform a termination after the 12th week of the gestation
period. Until that time the termination may be performed by a medical practitioner, a
registered midwife who has undergone the prescribed training course, or a registered nurse
who has undergone the prescribed training course.111

that is). For other reasons why te,mination of pregnancy falls outside the scope of the law of persons in
the strict sense, see Cockrell Bill of Rights C,ompendium par 3E4.
105 Termination of pregnancy refers to the separation and expulsion of the contents of the uterus of a
pregnant woman by medical or surgical means: s 1. The termination of ectopic and extra-uterine preg
nancies is thus not covered by the Act.
106 S 4 only obliges the state to "promote the provision of non-mandatory and non-directive counselling,
before and after the termination of a pregnancy". But see Pizzarossa and Durojaye 2019 SAJHR59--6-0,
who argue that the regulations under 1.he Act provide "for a sort of mandatory counselling" on the
alternatives to termination and on the procedure and associated risks of termination of the pregnancy.
107 S 2(l)(a}.
108 S 2(1}(b).
109 The training course is prescribed by the regulations under the Choice on Termination of Pregnancy Act.
110 S 2(l)(c). McQuoid-Mason 2006.IJS121 argues that the resLrictive provisions regarding termination
ofa pregnancy after the 20th week place an undue burden on rape and incest survivors. He submits
that the exclusion of rape and incest as grounds for terminating a pregnancy after the 20th week is
unconstitu tional.
ll l S 2(2). Any other person who performs a termination is guilty ofan offence: s lO(l}(a} and (b). On the
question whether self-induced te1·mination of pregnancy falls within the scope of s 10, see Pickles
2018 SAJHR 496. Anyone who prevents the lawful termination of a pregnancy or obstructs access to a
facility that provides terminations also commits an offence: s lO(l}(c). On constitutional grounds, a
health
cqntmued
 Chapter 2: The beginning and end of legal personality 21

(iii) Consent
A termination of pregnancy may only take place with the informed consent of the pregnant
woman.112 It must be stressed that, unless she is incapable of giving consent, no consent
other than that of the pregnant woman is required."' In the case of a pregnant minor1"' the
medical practitioner, midwife or nurse must, however, advise the minor to consult with
her parents, guardian, family members or friends before the gregnancy is terminated, but
the
1
termination may not be denied if she prefers not to do so. ·' I nt hcea s e of surrogate
mother
hood, the surrogate mother must inform the commissioning parent(s) of her decision. She
must also consult with the commissioning parent(s) p1ior to the termination, but the
decision on whether to proceed with the termination is hers alone.116
In Christian Lawyers Association of South Africa v The Minister of Heallh (Reproductive Health
Alliance as Amicus Curiae)"' the provisions of the Act that allow a minor independently to
consent to the termination of her pregnancy and merely require that she be advised to
consult with her parents, guardian, family members or friends were constitutionally chal
lenged. The plaintiff sought a declaratory order striking down the relevant provisions. The
plaintiff inter alia alleged that a woman who is below 18 years of age is incapable of giving
informed consent, and that she has to have the assistance of her parent or guardian when
she decides whether or not to terminate her pregnancy. The plaintiff also alleged that
allowing a pregnant minor independently to decide whether or not to have a termination
violates her right to family or parental care and her right to be protected from maltreat
ment, neglect, abuse or degradation, does not render her best interests of paramount
importance, and does not comply with the guarantee of equality before the law and equal
protection and benefit of the law."8 The defendant raised an exception against the plain
tiff's particulars of claim on the ground that they did not disclose a cause of action.
The court pointed out that in the case of an exception to particulars of claim, the Jaw
119
requires that the allegations in the particulars of claim must be accepted as the trnth.
Therefore, the plaintiff's allegation that a woman who is below the age of 18 years is in
capable of giving informed consent must be accepted as true for purposes of deciding the
exception. The court held that the cornerstone of the regulation of termination of a preg
nancy under the Act is that the pregnant woman's informed consent is needed before a
termination may be performed. The implication of the plaintiffs allegation that a woman
who is below the age of 18 years cannot give informed consem is that such a woman does
not qualify for a termination under the Act unless she has the assistance of her parent or

worker who has conscientious o jections to terminating pregnancies may not be forced to participate
in performing a termination: Ngwena 2000JJS37-39, 2003JJS1.
112 S 5(1). On the meaning of "informed consent" (incorrectly translated as 001woii toeslemming in Lhe
Afrikaans text of the Act) in the context of the Act, see·van Ooscen 1999 SAL}71-72. On the inteiface
between the provisions of the Act and the Children's Act, see McQuoid-Masonjune 2010 SAJBL12.
ll3 S5(2).
114 I.e. any female person under the age of 18 years: s 1.
115 S 5(3). On the question whether this provision can be used when performing an emergency caesarean
section on a minor, see McQuoid-Masonjuly 2018 SAJBL 43.
116 Children's Acts 300(2). If the termination takes place for medical reasons, the surrogate mother incurs
no liability to the commissioning parent(s): s 300(3). If it takes place for other reasons, she has to
refund payments made in respect of expenses that relate directly to her artificial fertilisation and
pregnancy and the confomation of the surrogate motherhood agreement, her loss of earnings as a
result of the surrogate motherhood agreement, and her pregnancy-related death and disability
insurance: s 301(2). She also has to reimburse the commissioning parent(s) for payments for bona fuie
professional legal or medical sen ces with a view to the confirmation of the surrogate motherhood
agreement or in the exe cution of the agreement: s 301(3). On surrogate motherhood, see further ch 5
below.
117 2005 ( l) SA 509 (T) (also reported as Christian I.awyers' Association v Minister of Health [2004] 4 All SA
31 (T), 2004 (IO) BCLR 1086 (T)).
118 Constitution ss 28(1)(b), 28(l)(d), 28(2) and 9(1).
119 See e.g. Natal Fresh Produce Growers Associatwn v Agrvse,ve (Pty) Ltd 1990 (4) SA 749 (N); Van7.yl v lJolton
1994 (4) SA 648 (C).
22 The South African Law of Persons

guardian. Thus, the Act actually does not permit a tennination in the circumstances the
plaintiff alleges and the plaintiffs particulars of claim therefore do nol show a cause of
action. The exception was accordingly upheld.
In obiter dicta the court further stated that the rights to bodily and psychological
integrity (including the right to make reproductive decisions and the right to security in
and control of one's body), dignily, privacy, and to have access to reproductive health
care confer a right to termination on every woman, regardless of her age, since the
Constitution of the Republic of South Africa, 1996 confers these rights on "eveq1one".12-0
In support of its view that every woman has a constitutional right to terminate her
pregnancy, the court further referred to the right to equality, the right not to be subject to
unfair discrimination on the grounds of gender, sex and pregnancy, the right to life, and
121
the right to freedom and security of the person.
If a pregnant woman is mentally disabled to such an extent that she is completely incap
able of understanding and appreciating the nature or consequences of the termination of
her pregnancy, or if she is in a state of continuous unconsciousness vvithout a reasonable
prospect of regaining consciousness in time to request and consent to the termination, and
the gestation period is less than 21 weeks, her pregnancy may be terminated if her guard
122
ian, spouse or civil union partner consents. In this case the grounds that were listed
above in respect of terminations from the 13th up to and including the 20th week of the
123
gestation period of a mentally able woman must be presenr.'2•1 If the woman's guardian,
spouse or civil union partner cannot be found, her curat.or personae (that is, the curator to
125
her per son) may consent. In addition, two medical practitioners or a medical practitioner
and a registered midwife or registered nurse who has completed the prescribed training
course must consent to the termination.
In certain circumstances a mentally disabled or continuously unconscious woman's preg
nancy may be terminated even without the consent of her guardian, spouse, civil union
partner or curator personae. In this regard a distinction must be drawn between terminalion
prior to the 21st week of the gestation period, and termination from the 21st week. Prior to
the 21st week, the pregnancy may be terminated without the consent of the woman's
guardian, spouse, civil union partner or curator personae if two medical practitioners or a
medical practitioner and a registered midv.rife or registered nurse who has completed the
prescribed training course are of the opinion that either of the following is present:
(1) The continued pregnancy will pose a risk of injury to the woman's physical or mental
health.
(2) There is a substantial risk that the foetus will suffer from a severe physical or mental
abnormality.'""
From the 21st week of the gestation period the woman's pregnancy may be terminated
without the consent of her guardian, spouse, civil union partner or curator personae if two
medical practitioners or a medical practitioner and a registered midwife or registered nurse
who has completed the prescribed training course are of the opinion chat the continued
pregnancy , rill do any of the following:
(1) Endanger the woman's life.
(2) Result in a severe malformation of the foetus.
(3) Pose a risk of injury to the foetus.'2;

120 Constitution ss 12(2), 10, 14and 27(l)(a).

121 Coastitlltion ss9(1), 9(3), 11 and 12(1).
122 Choice on Te1mination of Pregnancy Acts 5(4) read withs 13(2) of the Civil Union Act.
123 Le. the grounds listed ins 2(1)(b) of the Choice on Termination of Pregnancy Act.
124 S5(4).
125 On the appointment of a cttrawrpemmae,see chs 7 and 8 below.
126 S 5(5)(a).
127 S 5(5)(/,).
 Chapter 2: The beginning and end of legal personality 23

(iv) The foetus' right to life and other constitutional issues surrounding termination of pregnanry
Before the introduction of a Bill of Rights into our law,''lll our courts consistently held that a
foetus is not a legal subject and does not have a right to life that can be enforced on its
behalf. Thus, in Christian League of Southern Africa v RaU/"J an application for the appoint
ment of a curator ad litem to represent the interests of a foetus in all matters concerning a
termination of pregnancy was dismissed.130 The court held that a child cannot have rights
that can be enforced on his or her behalf before he or she is born alive, because it is only
131
upon birth that the child becomes a legal subject. Another example is Van Heerden v
Joubert'$' where the court held that for purposes of the Inquests Act 58 of 1959 the word
"person" does not include an unborn child. It was unnecessary for the court to decide
whether a foetus should be regarded as a legal person or to what extent life before birth
should be protected, but the court pointed out that serious problems might arise with
regard to, for example, the law relating to termination of pregnancy, murder and culpable
homicide if legal personality were extended to a foetus.
The view that a foetus does not have a right to life was criticised on various grounds, in
cluding moral, religious and legal ones. When the law relating to termination of pregnancy
was liberalised by the Choice on Termination of Pregnancy Act after the enactment of the
Bill of Rights it was inevitable that the Act would be challenged on constitutional grounds.
This happened in Christian Lawyers Association of South Africa v The Minister of Health.138 The
plaintiffs contended that human life starts at conception and that the Choice on Termin
ation of Pregnancy Act contravenes section 11 of the Constitution, which guarantees the
right to life. They sought a declaratory order striking down the Act in its entirety. The
defendants excepted to the plaintiffs' particulars of claim inter alia on the ground that it
did not disclose a cause of action because section 11 of the Constitution does not confer
any right on a foetus.Judge McCreath upheld the exception, holding inter alia that no
provision of the Constitution bestows legal personality or protection on the foetus, and that
the Con stimtion does not qualify a woman's right to make decisions about reproduction
and her right to security in and control over her body'$< in order to prolect the foetus.
It is submitted that the outcome of the case is correct.135 The law grants rights and obli
gations (including constitutional rights and obligations) only to legal subjects.' 6 ln the
absence of a clear provision elevating the foetus' status to that of a legal subject, the Con
187
stimtion cannot be said to have conferred any rights on the unborn. An allegation tl1at
human life begins at conception is an insufficient basis on which to found the argument

128 Ch 3 of the Constitution of the Republic of South Africa 200 of 1993 contained the first Bill of
Rights, which carne into operation on 27 April 1994. It was replaced when the Constitution of the
Republic of South Africa, 1996came into operation on 4 February 1997.
129 1981 (2) SA821 (0).
130 But see G v SujJerintendent, Groote Sdnmr Hospit"l 1993 (2) SA 255 (C) in which Seligson AJ said in an
obiter dictum that "there is much to be said for recognising that an unborn child has a legal right to
rep resentation, or an interest capable of protection, in circumstances where its very existence is threat
ened" (2590). On the manner in which the Act takes the foetus' interest in its continued existence into
account, see Pickles 2012 PEIJ 403.
131 830A. On the issue of whether a nascilurus is a legal subject, see further below in this chapter.
132 l994 (4) SA 793 (A).
133 1998 (ll) BCLR 1434 (Tl, 1998 (4) SA lll3 (T).
134 These rights are enshrined ins 12(2) of the Constitution.
135 lvicCreathJ's approach and reasoning may, however, not have been correct in all respects: see e.g. Naude
1999 SAJHR 541.
136 See ch l where the distinction between legal subjects and legal objects is set out.
137 See also Sinclair assisted by Heaton Law of Mmriage 96 who made the point in relation to the interim
Constitution (Constitution of the Republic of South Africa 200 of 1993). It applies equally to the final
Constitution (Constitution of the Republic of South Africa, 1996). And see Voir,i of theUnborn B"by NPC
v Minister of 1-Iome Affairs (2021] JOL 49991 (GP), 2021 (4) SA 307 (GP), where it was held that
"[i)t is trite that an unborn 'child' is not a bearer of 1ights": par (43].
24 The South African Law of
Persons
that a foetus has a right to life, because "human life·· is not the determinant in respect of
legal personality.1"'
Because the unborn do not have any rights, the issue of a conflict between a foetus' consti
tutional rights and those of the pregnant woman does not arise.1 In the case of a conflict
between a pregnant woman and the father of her unbom child about whether or not the
pregnancy should be terminated, a constitutional challenge by the father of the provision
in the Choice on Termination of Pregnancy Act which grants the woman the sole right to
decide on the matter by requiring only her consent to the termination140 would in all prob
ability fail. Section 12(2) (b) of the Constitution entrenches every person's right to security
in and control over his or her body, which clearly includes the person's reproductive powers.
It therefore implies that a woman has the final say about whether or nor she will terminate
her pregnancy (or be sterilised or submit to in vitro fertilisation, etc.). Any limitation there
may be of the father's right to make reproductive decisions would, in myview, be justifiable.
From the point of view of dignity, privacy, and gender equality, too, it is submitted that the
woman should have the final say in so far as reproduction is concerned.141 Barring, perhaps,
the invocation of the constitutional right to gender equality, the same arguments would
apply in the case of same-sex relationships.1'2

138 See also Mablcr-Coetzee in Barratt (ed.) Pmo,is and the FamiJ.J 25, 32. That pre-natal human life mav
be worthy of proteclion is a different issue altogether. In this regard, stale and commumty intereslS
may be considered constitutionally justifiable limitations on the pregnant woman's righlS. E.g., the
limitations the Choice on Termination of Pregnancy Act imposes on termmation of pregnancy after
the 12th week of the gestation period are probably jusufiable on th<' ground of state and community
int.ereslS in pro tecting human life once that life has developed beyond a certain stage.
139 There may be a conflict between the woman's nght to reproducti,"C autonomy and 5tate and commumty
int.crests: see the precedingfn.
140 S 5(2).
141 Ss10 and 14 of the Constitution respectively entrench the right to digmty and privacy. Gender
equality is protected inter aiia by the equality clause (s 9; see also the prohibition on sex and gender
discrimma tion in the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000, s
6 read with the "prohibited grounds" ins 1( I), anrl 8). Several other constin1tional prov,sions could
also he rehed on in appropnatc circumsmnces, such as freedom of conscience, religion, thought, belief
and opm1on (s 15(1)), the right to have access to reproductive health care services (s 27(l)(a)), and
the right 10 participate in the culn1ral life of one's choice ( 30). See also Chnflian Lawyrs A.uocuuw,i of
South Afncn v TIIL Ministn of H«JJh (Refrrodurtwe Heabli AUUJna as Amicus Curiae) 2005 (I) SA 509 (T)
(also report· edas Christian/,a.wyers'As.iocuu1011vMmisterofHeaU/r [2004) 4All SA.31 (T), 2004 (10)
BCLR 1086 m). In this case, the court stated, in obiter d1<-ta, that a woman has a constitutional right
to terminate her pregnancy. The court relied on the right to fr<'edom and security of the person (s
12(1)), the nght to bodily and psychological integrity (s 12(2)), the nght to equality (s 9), rhe nght to
be free from unfair discrimination on the ground of gender, sex and pregnancy (5 9(3)), rhe right to
dignity (s JO), the nght to life (s 11), the right to privacy (s 14), and the 1ight to have access 10
reproducu,-e health care (s 27(l)(n)). The court, however, also indicated that a woman's right to
1erm111a1e h<'r pregnancy is not absolute. The state may legitimately regulate and limit lhe woman's
right in order to protect pre-natal life, but such regulation and limitation may not amount to denying
"omen the right to termmate their pregnancies. On th<' constilutional issues regardmg tcnmnation of
pregnancy, see further, l'.g., Kcight• Icy in Van Hee1·den et al (eds) Roberg'., law of Pmmts and ti
Fmnil)• 42-43 fn 24, 45 fn 32; Kmgcr and Robinson in Robinson (ed.) law of Chudmi mul Young Pnsoru
10-11; Kruger and Skelton (eds) Pm,,ns 38; Birenbaum 1996 SAJIIR485; Meyerson 1999 SA/,)50;
Naudc 1999 SAJHR541; Ngwcna 2000.IJS 19;
Pickles 2012 PF.TJ 403.
142 It might be argued that because thl' parties to a same-sex civil union belong to the same sex. gender
equality issues cannot anse. It must, howe,·er, be borne in mmd that \CX and gender are different mat
ters. "Sex" refers to the biological fact of being a man or a woman, while "gender" refers Lo the roles
and difTerenc<:5 ascribed to men and women through socialisation. E.g. a woman's sex entails that only
she can fall pregnant, while her gender entails that it 1s expected of her (rather than her male partner)
to fulfil (the tn<!j0r part of) child-a.re responsibilities. In a saine-sex relation5J11p the same gen cr
stereo types can arise. Thus, it can, e.g.. be expected of a stay-at-home partne1 or the partner who 1s not
the main breadwinner to meet the ex.pe<:tauons that society usually has m respe<:t of women. It 1s
q111te po, siblc that applying these stereotypes and expectations 111 a same-sex u111on will resul_i 111 t e
same cli'l- advantage, discrimination and mequality that operalC in many he1crosexual relat1onsh1ps.
In such event, the gender equality argument could be invoked 111 same-sex relationships, too.
 Chapter 2: The beginning and end of legal personality 25

(h) Sterilisation
The Sterilisation Act 44 of 1998 permits the voluntary sterilisation of anyone who has
reached the age of 18 years and is capable of consenting.'''' This rule applies regardless of
whether or not the person is married or a party to a civil union.'.,, The person who is to be
sterilised must give free and voluntary consent without any inducement. Before
consenting, the person must receive a clear explanation and adequate description of the
proposed plan of the sterilisation procedure and the consequences, risks and reversible or
irreversible nature of the procedure, and be advised that consent may be withdrawn any
Lime before the sterilisation takes place. Once this has been done, consent must be given
on a pre scribed form."'5
A minor may be sterilised only if failure to perform the sterilisation would jeopardise
his or her life or seriously impair his or her health.146 The sterilisation may only be
performed with the consent of the minor's parent, guardian or curator."'' Furthermore, an
independ ent medical practitioner must consult the minor and frovide a written report that
48
indicates that the sterilisation is in the minor's best interests. The desirability of the
sterilisation must also be evaluated by a panel consisting of a psychiatrist (or a medical
9
practitioner if no psychiatrist is available), psychologist or social worker, and a nurse."'
The Act also contains specific provisions regarding the sterilisation of a person who is
incapable of consenting or incompetent to consent. Such a person may be sterilised only if
he or she is mentally disabled'50 to such an extent that he or she is incapable of all of the
follo,.,ring:
(1) Making an independent decision about contraception or sterilisation.
(2) Developing mentally to a sufficient degree to make an informed decision about
contraception or sterilisation.
(3) Fulfilling the parental responsibilities associated with giving birth.151
If these requirements are met, the consent of the person's parent, spouse, civil union part
ner, guardian or curator must be obtained 152 and a panel consisting of a psychiatrist (or a
medical practitioner if no psychiatrist is available), psychologist or social worker, and a
153
nurse must concur that the sterilisation may be performed. When considering whether
the sterilisation may be performed the panel must take all relevant facts into account,
including:
(1) The person's age.
(2) The person's mental and physical health and well-being.
(3) Whether there are other safe and effective alternatives to sterilisation.

143 S 2(1).
144 In the case of a conflict between a couple as LO whether one of them will be sterilised, a conslitulional
challenge of the provision that requires only the consent of the party who is to be ste,ilised would, it is
submitted, fail for reasons similar to those that are advanced above in respect of termination of preg
nancy.
145 S 4.
146 S 2(3)(1.).
147 Ste1ilisation Acts 2(3)(b) read with ss 2(3)(c)(i) and 3(1)(a). On a minor's capacity to consent to
medical treatment and operations, see further ch 6 below.
148 S2(3)(c}(ii).
149 S 2(3)(b) read withs 3(2).
150 S 3(7) defines "mental disability" as "a range of functioning extending from partial self-maintenance
under close supervision, together with limited self-protection skills in a controlled environment
through limited self care and requiiing constant aid and supervision, to restrained sensory and motor
functioning and requiring nursingcare".
151 S 3(l)(c).
152 S 3(l)(a) of theSterilisation Act read withs 13(2) of the Civil Union Act.
153 Sterilisation Acts 3(l)(b) and (2).
26 The South African Law of Persons

(4) The potential effect of sterilisation on the person·s mental and physical health and
well-being.
(5) The nature of the sterilisation procedure that is to be performed.
(6) The likelihood that the person will become capable of consenting.
(7) Whether the sterilisation is in the person's best interests.
(8) The benefit the person may derive from the sterilisation.'5·•
Whenever a sterilisation is performed the method holding the smallest risk to the patient's
health must be used.'"

2.3.3 Does the protection of the nasciturus' interests imply that an unborn
human being is sometimes a legal subject?
At the beginning of this chapter it was explained that a natural person's legal personality
begins at birth. The protection of the interests of the nasciturus, however, gives rise to the
question of whether our law recognises an unborn child as a legal subject in some instances.
In other words, does the protection that a nasciturus ertjoys when its interests are at stake
mean that our law recognises an exception to the rule that legal personality begins at birth?
To find an answer to this question one must distinguish between the so-called nasciturus
rule and the nasciturus fiction.
On the one hand there are jurists'r.G who maintain that the protection afforded to the
unborn is based on the nasciturus rule and not on a fiction. The rule is that whenever a
situation arises where it would have been Lo the advantage of the nasciturus had he or she
already been born, all rights that are conferred upon people who have already been born
alive are also conferred on the nasciturus. From this it logically follows that a nasciturus is a
legal subject as from the date of his or her conception whenever his or her interests are at
stake. Accordingly, legal personality sometimes begins at birth and sometimes (namely,
when this benefits the nasciturus) it begins at conception. In other words, live binh is the
usual point at which legal personality is obtained, but in exceptional cases (namely, when
this benefits the na..sciturus) legal personality may be antedated to the time of the nasciturus'
conception.
Other jurists prefer to view the protection of the nasciturus in terms of a fiction. They
either describe it as the nasciturus fiction, or they say that it is the nasciturus rule which
operates by way of a fiction.157 In terms of the nasciturus fiction, the na..sciturus is regarded as
having been born at the time of his or her conception if a situation arises where it would

154 S 3(l)(b).
155 SS(5).
156 Van der Vyver and .Joubert Per.ume- en Familiereg 65-66; Van der Menve 1963 THRHR 293-295; Van der
Vyver 1981 THRHR306 el seq. Du Plessis 1990 TSAR49-50.
157 See e.g. Boezaa.rt Pemms15; Keightley in Van Heerden el al (eds) floberg's Law of Persons and the Family
SO fn 6, 37-38 fn 15; Kruger and Robinson in Robinson (ed.) Law of Chiulren antl Young Pe1:<011s 3, 4;
Kruger and Skelton (eds) P-.rsom 23; Schafer Chil,l Lmu 32; Schafer in Clark (ed.) Family !,aw
Service par E6; Spiro Panmt and Child 37; Davel 1981 De ju,·e 362, See also Hahlo 1974 SAL} 75. In
Ch,·i.stian Lea,g-ue of Soutlumi Afric.a v Rall l981 (2) SA 821 (0) the court expressed the view Lhat the
protection of a foetus is founded on a ficuon (829G-830B). This view is correct. However, as Bedil 1981
SAL] 464 cor rectly points out, either approach would have yielded the same results in the South
African cases in which the ,wstoitmus' interests have been at issue. Even in Ralts case it would not have
made any differ ence had the court based the protecLion of the foetus on the ,w.scil-urns rule instead of
the nnsciturus fic tion, because the rule - like the fiction - cannot operate in the case of
termination of a pregnancy because the rule is predicated upon subsequent live birth; see also Pinchin v
Sanlam fn.mrance Co U,l 1963 (2) SA 254 (W). In Road Accident Fund v MttJti 2005 (6) SA 215
(SCA) (also reported as !wad Accident Amd v M obo M (2005] 3 All SA 310 (SCA)) the Supreme Courl
of Appeal referred to the nasci• t,m,s rule as a ficuon. On the distinction between the nascilurus fiction
and rule, see further Kcightley in Van Heerden t 1,l (eds) Boberg's Lmu of Perso,u mul the Ftimily 37
fn 15; Nothling-Slabbert 1997 (1) C(}(licilltu 56--57; Knobel and Kruger 2006 THRHR 521.
 Chapter 2: The beginning and end of legal personality 27

have been to his or her advantage had he or she already been born. In terms of this view, iL
is not the protection of Lhe "rights" of the nascit11,rus that are at issue, but the protection of
the rights of the child who will be born later - hence the qualification that the nascilurus is
regarded as having been born only if a living child is indeed born. If the child is not born
alive, the protection falls away completely and it is as if there never was a nasciturus. Thus,
the interests involved are those of the child yet to be born, and the only practical way in
which these interests can be protected before birth is to keep them open for the child until
he or she is born. The nasciturus fiction is but an awkward way in which this interim protec
tion is expressed. Seen in this light there is no need to regard the nasciturus as a legal
subject in some cases, bm not in others. Thus, a single rule applies in respect of the begin
ning of legal personality, namely that legal personality begins at birth. The nasciturus fiction
simply deems birth to have taken place at the time of conception when this is to the ad
vantage of the nasciturus.
Those who favour the version of the nasciturus rule that operates by way of a fiction
achieve the same result by arguing that the nasciturus rule operates as a fiction that deems
the nascituru.s to have been born at the time of his or her conception if a situation arises
where it would have been to the nascitun,s' advantage had he or she already been born. In
other words, this version of the nasciturus rule is simply the nascilurus fiction by another
name. Unlike the version of the nasciturus rule that was seL out in the previous paragraph,
this version of the nasciturus rule does not antedate legal personality to the time of concep
tion.
I support the nasciturus fiction. It is submitted that, to avoid confusion, the term "nasci
turu.s rule" should be reserved for the view that our law recognises an exception to the rule
that legal personality begins at birth, and that the term "nascilurus fiction" should be re
served for the view Lhat legal personality always begins at birth and that when the nasciturus'
interests are protected it is the child's birth that isfictionally a11Ledated.

2.4 The end of legal personality

2.4.1 General
A person's legal personality is terminated by death. Therefore, dead people have neither
rights nor obligations. Nevertheless, the law protects the deceased's body and regulates its
158
disposal. This is done because of community interests (such as public health, respect for
the feelings and sensibilities of the deceased's relatives, and respect for the dead).159 The
deceased's former assets are also protected, but once again not in the deceased's own
interests but in the interests of his or her creditors and heirs.
Prior to the coming into operation of section 1 of the National Health Act 61 of 2003,
South Africa lacked a legal definition of "death". When the legislature enacted this Act, iL
adopted the criterion of brain death as the legal standard in so far as the provision of
health services, donation of corpses or specified tissue in corpses (such as specific organs),
post-mortem examinations, and the removal of tissue at post-mortem examinations are
concerned.'r'° Using brain death as the crite1ion for determining when a person is legally
dead is in keeping with the prevailing view in modern medical practice on when death

158 Committing a sexual act with a corpse is a crime in terms of s 14 of the Criminal Law (Sexual
Offences and Related Matters) Amendment Act 32 of 2007. Violating a grave and violating a corpse
are common law cnmes: see e.g. S t1 (,Ol/tz,ee (1993] 4 All SA 531 (T); Boezaart Pei'.Wns 180; Mahler-
C:oetzee in Barratt (ed_.) Persons and the Fmn ly 149-150; Hoctor LA A vol 11 Criminal law par 242.
Keeping a pregnant, bram-<lead woman on life-support until her foetus i born, would amount to
violating a corpse: McQuoid-Mason August 2014 SA/\llj554; McQuoid-Mason November 2014
SAJBL44.
159 See e.g. _fl t1 Stphuma 1984 (3) SA 982 (T); Keigluley in Van Heerden el n1 (eds) Boberg's [,tUu of Pei-som
<1nd the family 52; Labuschagne 2001 DeJure 354.
160 See the definition of"death"in s 1 of the Act, read \\ th ss 7(l)(e), 62, 66and 67.
 28 The South African Law of
Persons
161
occurs. It should, however, be horne in mind that the definition of "death" in the ation
al Health Act applies only to the specific matters governed by the Act. Thus, the courts are
not bound by the definition in circumstances where the Act does not apply. In those cir
cumstances they may, as in the past, rely on any medical evidence to establish whether
someone has died and to determine the moment of death, although the definition in the
Act will probably have persuasive force because it reflects the predominant medical view.

2.4.2 Proof of death

In private law, proof of death is important for two reasons: once death has been proved,
the deceased's estate may be administered and distributed, and the surviving spouse or civil
union partner may enter into a new marriage or civil union.
The usual way to prove a person's death is by means of presenting a certificate that has
been issued by a medical practitioner. If the death was due to natural causes, the certificate
indicates the cause of death.'62 If the death was due to, or is suspected to have been due to,
unnatural causes, an inquest is held.'u In such event, the medical practitioner must, as soon
as he or she is satisfied that the corpse is no longer needed for the inquest, issue a certifi
164
cate to that effect. In this case, the cause of death is not stated.
Once a death has been reported to the Director-General of Home Affairs and regis
tered165 the Director-General issues an official death certificate.166 The death certificate is
prirna facie proof of the person's death.16'

2.5 Presumption of death

If a person disappears and there is no certainty as to whether he or she is dead or still
alive, a presumption of death can be pronounced in terms of the common law or, in certain
instances, in terms of statute.
2.5.1 Common-law procedure
In terms of the common-law procedure, any interested party - for example, a creditor of
the missing person, or the person's heirs or surviving spouse or civil union partner - may
approach the High Court in whose jurisdiction the missing person was domiciled at the
time of his or her disappearance to grant an application for an order presuming the per
son's death.163 The case is brought by way of an application.169 The applicant must prove
on a preponderance of probabilities that the missing person is dead.110
Initially our law followed the English rule according to which an order presuming a
per son's death is granted after an absence of seven years.171 This was superseded by the
rule

161 Circulatory death (i.e. the irreversible cessation of heart and lung function) is another common
medical criterion for determining whether a person has died. On the medical theories as to when
death occurs, see Boezaart Persons 164-165; Keightley in Van Heerden et al (eds) &berg's Law of Persons
and the Fmnily 50 fn 59; Kruger and Skelton (eds) Persons 43; Mahler-Coetzee in Barratt (ed.)
Persons and the Family 134-136; Hunt 1968 SAJJ200; Le Roux-Kemp 2008 Obiter 260. For recent
medical guidelines on the determination of death, see Thomson et al 2021 SA.MJ367. On societal
norms and values and con troversies as to brain death as the moment of death, see Le Roux-Kemp
2013 CILSA.74.
162 Births and Deaths Registration Acts 15(1) and (2).
163 On inquests, see further below in d1is chapter.
164 S 17(2).
165 Ss14, 15 and 17. On the registration of a death, see further below in this
166 chapter. Births and Deaths Registration Acts 22; Identification Act 68 of 1997
167 s 13( I).
168 Births and Deaths Registration Acts 28(2); Identification Acts 13(1).
169 Ex parli: Mackan1968 (2) SA 644 (C).
But see Kakuua u Minister Pan Poli.,ie 1983 (2) SA 684 (SWA) where the court was unable to decide the
170 case on the papers before it. It referred the matter for uial so that oral evidence could be heard.
171 F.x parte Rungasamy 1958 (4) SA 688 (D); Ex parte Rnolm,inia: In re Sardha 1964 (4) SA ]63 (D).
In re Booysen 1880 Foord 187.
 Chapter 2: TI1e beginning and end of legal personality 29

172
that no fixed period of time is required. 1\iaturally the length of a person's absence is a
factor that is taken into account by the court and it can even be decisive, but it is not the
only factor. As the court indicated in Ex pmte Estate Russell,m other factors are also
relevant:
[B]efore coming to any conclusion the Court must take into consideration certain factors -
the age of the person presumed to be dead, the length of his absence from home, the trade or
occupation of such person, whet.her he followed an ordinary peaceful occupation or whether
he was engaged in a business or trade to which ordinarily risk or danger was attached ... but
in the absence of any evidence to indicate that the person presumed to be dead was engaged
in an occupation that endangered life, the mere fact of his not having been heard of for any
number of years is not sufficient to authorise the Court to come to the conclusion that his
death must be presumed.
On occasion, even an absence of 30 years ·was considered insufficient reason for
pronounc ing a presumption of death."' In contrast, the presumption can be pronounced
after a short absence if the probability of death is very strong.17!'
The fact that the missing person would have reached an advanced age at the time of
the application can be important,"" as can the fact that the person was in bad health at the
time of his or her disappearance"' or that he or she manifested suicidal inclinations.178
A person's death is not presumed lightly and it is thus required that the applicant bring
all the relevant facts and circumstances to the attention of the court.11\)
It has apparently become firm practice for the court, after hearing the application, to set
a return date on which the final order will be made. The applicant is then ordered to give
notice of the rule nisi to those interested parties indicated by the court, and to publish the
rule nisi in the Government Gazette and a newspaper in circulation in the area where the
missing person used to live. This enables other interested parties to object to the granting
of the final order or to bring further facts to the notice of the court which could either
rebut the presumption of death or strengthen it.180

2.5.2 Statutory procedure

Section 5(2) of the Inquests Act 58 of 1959 stipulates that if a magistrate is of the opinion
that a person's death was not due to natural causes, he or she must take the necessary
steps to ensure that an inquest as to the circumstances and cause of the death is held by a
judicial officer in terms of section 6.181 If the person's corpse is available, the district
surgeon or another medical practitioner examines it in order to determine the cause of
182
death. If it appears at the inquest that the person's body has not been found, or has
allegedly been

172 Re Beaglehole1908TS 49.

173 1926 WLD 118 120. See also In re Cuthbert 1932 NPD 615; & pa.rte Heard 1947 (1) SA 236 (C); Ex pa,1e
Pieters1993 (3) SA379 (D);Expa,-ieCovenderl993 (3) SA 721 (D);ExparteStoterl996 (4) SA1299 (E).
174 Exparte Versterl956 (1) SA409 (C).
l75 Dempers and Van Ryneveld v SA Mutual Co (1908) 25 SC 162; ln re Labistour 1908 NLR 227; Ex pa,·te
Dorward 1933 NPD 17; Ex p11rte Thesen'., Steamship Co Ltd 1944 CPD 165; Ex p1irte Heard 1947 (1) SA 236
(C); Ex p11rte]ames 1947 (2) SA1125 (T); Ex parte Engelbrecht 1956 (1) SA 408 (E); Ex pa.rte Alexander 1956
(2) SA 608 (A).
176 Ex parte Panaarl908 CTR 544; Ex f>mte Runga.samy 1958 (4) SA 688 (D).
177 In ,·e Kirby (1899) 16 SC 245.
178 Ex pa.rte Cerilener 1933CPD 29; Ex pmteGoveniler 1993 (3) SA 721 (D).
179 Ex pa.rte Parker1947 (3) SA 285 (C).
180 Ex /Jarle Parker 1947 (3) SA 285 (C); & pa.rte Rungasamy 1958 (4) SA 688 (D); Ex pa-rte Pieters 1993 (3)
SA
379 (D).
181 As far as the procedure is concerned, it was held in Marais v Tiley 1990 (2) SA 899 (A) that a public
inquest with oral evidence is the general rule. See also s 10. In terms of the Inquests Act, an inquest may
only be held into the death of a "person". For purposes of the Act the word "person" does not include
an unborn child: Van Heerden vjo-11bert 1994 (4) SA 793 (A). Thus, an inque l cannot be held into the
death of a stillborn child.
182 S 3(2).
30 The South African Law of Persons

destroyed, and the evidence proves beyond reasonable doubt that the person is dead, the
judicial officer must record his or her findings in respect of:
(1) The deceased's identity.
(2) The cause or likely cause of
(3) death. The date of death.
(4) Whether the death was caused by any act or omission which prima farie involved or
amounted to an offence by anyone.183
If the judicial officer is unable to record such a finding, this fact must be recorded.1 ' If a
finding regarding the deceased's identity and date of death has been recorded, the record
of the inquest, together with any comment the judicial officer wishes to make, is submitted
for review to the division of the High Court that has jurisdiction in the area where the
inquest was held.185 If the finding is confirmed, the effect is the same as if the High Court
had made an order presuming the person's death.186
Two aspects of the Inquests Act must be emphasised. First, ic is clear that the state takes
the initiative because an unnatural death is suspected. Therefore, it is not necessary for a
private person to approach the court for a presumption of death. However, section 18(3)
provides that the procedure laid down in the Act does not affect the court's common-law
jurisdiction to grant an order presuming the death of any person. Secondly, section 16(1)
provides that the judicial officer must be certain beyond reasonabl,e doubt that the person is
dead before he or she may record a finding that the person is presumably dead. This differs
from the common-law procedure where an order may be granted if it is proved on a bal
ance of probabilities that the person is dead. There is thus a big difference in the onus of
proof and it would obviously be easier to obtain an order presuming death in tenns of the
common-law procedure.

2.5.3 The effect of an order of presumption of death

(a) Rebuttable presumption
If the court pronounces a presumption of death, this obviously does not mean that the
187
person is dead. There is only a rebutcable presumption that the person is dead.
(b) Distribution and administration of the missing person's estate
After a death has been presumed, the person's estate may, in principle, be deall with as if
he or she were dead. Thus, his or her estate can be administered and divided among his or
her heirs. The courts have, however, on occasion adopted a cautious attitude and ha\'e
ordered that while the estate may be divided, the heirs must furnish security for the restor
ation of the property, or its value, should the missing person return.1138
If the court decides that the circumstances of a particular case do not justify granting an
order presuming death, it may none the less order that the missing person's property be

183 S 16; see also V,m Heerden v.fo11bert 1994 (4) SA 793 (A); Pa.div Botha 1996 (3) SA 732 (W).
184 S 16(3).
185 S 18(1).
186 S 18(2) and 18(2A).
187 Van der Vyver and Joubert Pers01U!- en. Fnmiliereg 426 correctly submit that the courts are sometimes too
hesitant to grant an order presuming death. They ascribe this hesitancy to the fact that the courts do
not distinguish between a declaration and a presumption of death. E.g., in In re Kamum"'Jer: F.:c pa
Knnnemey,r(1899) 16 SC 407 408 it was stated that it "is in the highest degree probable" that the
person concerned Mls dead "but there is no legal presumption to that effect. The Court cannot,
therefore, declare him to be dead". The authors point out that a court cannot declare a person to be
dead; it can only pronounce a presumption of death and this it can do if it is cominced on a
preponderance of probabilities that the person is dead. See also Boezaart Persons 173; Kruger and
Skelton (eds) Perstms 46, 50; Schoeman-Malan 2018 THRHR230.
188 Ex parte Es/ate Rmsell 1926 ViLD 118; F.x parn D,wids 1918 (1) SA 1018 (W).
 Chapter 2: The beginning and end of legal personality 31

divided among his or her heirs provided that they furnish sufficient securily for the return
189
of the property or its value, should the missing person reappear. The court may also
appoint a curator bonis to administer the missing person's affairs without pronouncing a
190
presumption of death.
(c) Dissolution of the missing person's marriage or civil union
Because an order presuming someone's death does not automatically terminate his or her
ma1Tiage, great uncertainty existed in the past concerning the sunriving spouse's remar
riage.'9' At present the Dissolution of Marriages on Presumption of Death Act 23 of 1979
regulates the position.192 This Act applies to the dissolution of chil unions, too.'9
Section 1 of the Act reads as follows:
Ally provincial or local division of the Supreme Court of South Africa [now the High Court]
making an order tl1at the death of any married person shall be presumed, may, when making
thal order or at any time thereafter, on the application of such person's spouse, make an
order that the marriage in question shall be deemed to have been dissolved by death as from
a date determined by the court, whereupon that marriage shall for all purposes be deemed to
have been dissolved by death as from the date so determined.
The court that pronounces a presumption of death is thus empowered to make an order
dissolving the person's marriage or civil union al the same time that the presumption of
death is made, or at any time thereafter. In other words, a separate application for an order
dissolving the man;age or chril union may be made. The court may not grant the order on
its own initiative. It may only do so on the application of the surviving spouse or civil
union partner.
The court is not bound to grant the applicaLion. It has a discretion in the matter, but it is
improbable that a court would be prepared to issue a presumption of death bm refuse to
dissolve the missing person's marriage or ci'l,il union.
The result of the order is that the marriage or civil union is deemed to have been dis
solved by death for all purposes. In other words, the persona] and patrimonial conse
quences of the dissolution are exactly the same as if the marriage or ci,ril union were
dissolved by the death of one of the parties.
Section 2 of the Act regulates tl1e position where an inquest was held and a finding was
made in terms of the Inquests Act.'"' If the High Court confirms the finding, the person's
marriage or civil union is deemed to have been automatically dissolved as from the date
recorded in the court's finding as the dare on which the person died. In this case - unlike
under the common-law procedure - no special application for the dissolution of the mar
riage or civil union need be made.

2.5.4 Setting aside an order of presumption of death

As a presumption of death is rebuuable, the court that pronounced the presumption may
set aside the original order if, on the basis of further evidence, it becomes clear that t.he
person who was presumed dead is in fact alive.191

189 Tn re K11m1.emeyer: /;",xpa:rl-e Kannemeyer (1899) 16 SC-W7; Re Nicolmn 1908 TS 870; Ex f>tJrle Halbert
1912 CPD 706; in re Cuthbert 1932 l\'PD 615; Ex fmrtt JJa.vitls 194.8 (I) SA 1018 (W). See further Ex
par/e Pie.Im 1993 (3) SA 379 (D) where the amount to be distributed was so small that the court
dispensed with secur-it:y.
190 In re 11\iiddicomhe ( 1929) 50 NLR 311. On che appoinunent of a rnralor bonis,see further ch 8 below.
191 In re Bocysm 1880 Foord 187; Ex pa.rte lied/er 1897 HCC 136: Ex f111rte Ha.lbat 19)2 EDL ]67; Ex />mte
Kerkhtifl924TPD 711.
192 On the Act, see further Nathan 1979 SALf 439; Stoop 1979 Ccdicillus 12; Pau"' 1980 TflRHR 71.
193 Civi1UnionActsl3(2).
194 On the Inquests Act, sec above in this chapter.
195 B-erg,rv Aiken 1964 (2) SA 396 (W). In this case it was said that a court "has juiisdiction to alter an
order presuming death. because it is of a provisional nature·· (400H).
32 The South African Law of
Persons
Any interested person, including the "missing" person, may approach the court for an
order that the person's estate not be further divided and that the order presuming his or
her death be set aside. Anyone who has received benefits must return either the benefits or
their value. Should they fail to do so, they can be sued by means of an enrichment action,
namely the condictio indebiti.196
Finally, it must be mentioned that only the High Court of the area where the missing
person ,-vas domiciled at the time of his or her disappearance has jurisdiction to set aside
an order presuming his or her death.197

2.6 Presumptions regarding sequence of death

If several people die in the same disaster, it may be important to establish which of the
commorientes (that is, persons who die together) died first in order to determine whether
one inherited from the other. This is so because one person can only inherit from another
if he or she is alive at the time of the other person's death.
The general rule is that if the sequence in which people died cannot be proved on a bal
ance of probabilities, there is no presumption either of survival or simultaneous death.198
However, unless there is evidence to the contrary, the courts will find that commorientes
died simultaneously.199 After all, if there are no witnesses to testify that one person died
before the other, the court can hardly do anything else but find that they died
simultaneously.

2.7 Registration of deaths

The Births and Deaths Registration Act requires every death to be reported to the Director
General of Home Affairs (or the Director-General's duly appointed representative). This
applies irrespective of whether the death was due t0 natural or unnatural causes.m Notice
must also be given of a stillbirth.2°1
If someone died of natural causes, anyone who was present at the death, became aware
of it, or is in charge of the person's funeral must notify the Director-General.202 If it is sus
pected that the deceased died of unnatural causes, the Director-General, or the medical
practitioner who attended the deceased before his or her death or examined the corpse
must report the matter to the police."°' An inquest will then be held in terms of the Inquests
Act.2-0"
In the case of a stillbirth, the medical practitioner who was present at the stillbirth or
examined the stillborn child's corpse must notify the Director-General.2°' If no medical
practitioner was present or examined the child's corpse, the duty falls on anyone who was
present at the stillbirth.206

196 BergervAiken 1964 (2) SA 396 (W).

197 Ex parteWelsh: In reEstate Keegan1943vVLD 14 7.
198 See in general Nepgm v Van Dyk 1940 EDL 123; Ex parte Martienssen 1944 CPD 139; Ex parte Chod-0s 1948
(4) SA 221 (N); Ex parte Graham 1963 (4) SA 145 (D). See also Greylingv Greyling1978 (2) SA 114 (T).
199 See the cases referred to in the previous fn; Hahlo and Kahn S()Uth Africa 348; Schoeman-Malan 2017 De
jure36 and 378; Schoeman-Malan 2017 Obiter 275.
200 Ss 14, 15 and 17.
201 S 18. See also above in this chapter.
202 S 14(1).
203 Ss 14(3), 14(4) and 15(3).
204 Births and Deaths Registration Acts 16; Inquests Acts 2(1). The Inquests Act is discussed above in
this chapter. For a critical discussion of the inadequacies of the Act and the reporting mechanisms it
pro vides for, see Theophilopoulosand Tuson 2016 Stell LR 161.
205 Births and Deaths Registration Acts 18(1).
206 Births and Deaths Registration Acts 18(2).
 Chapter 2: The beginning and end of legal personality 33

2.8 Duty to bury the deceased

1
o one may be buried or cremated before a burial order has been issued in terms of the
Births and Deaths Registration Act. A burial order is issued only once the prescribed notice
of death or stillbirth has been given.'111'
In terms of section 20(1) read with Lhe definitions of still-born" and "still-binh" in sec
tion 1 of the Births and Deaths Registration Act, a notice of stiIJbirth may only be given in
respect of a foetus that has had at least 26 weeks of intra-uterine existence. Consequently, a
burial order cannot be issued and foetal remains cannot lawfully be buried if the foetus did
not survive for at least 26 weeks. Instead, such foetal remains arc disposed of as so-called
"medical waste••_toSRecently, in Voice of the Unborn Baby NPC v Minister of Home Ajfairs,m the
Gautc11g Division of the High Court, Pretoria held that the 26-wcck requirement is uncon
stitutional, as it violates the ri.ght to dignity of the parents of foetuses that are miscarried
before 26 weeks, by precluding such parents from burying the foetal remains. The declara
tion of unconstitutionality was suspended for 12 months to give Parliament an opportunity
to amend the legislation. The High Court ordered that, in the meantime, it would not be
unlawful to notify the Director-General of a stillbirth in respect of a foetus that was miscar
ried before 26 weeks of intra-uterine existence. It further ordered the officials of 1.he De
partment of Home Affairs not to refuse to issue a burial order on the ground that the
requirement of 26 weeks of intra-uterine existence bas not been met in respect of a miscar
ried foetus. It is important to note that the court's order applies only to foetuses who were
miscarried, not to foetal remains from pregnancies terminated in terms of the Choice on
Termination of Pregnancy Act. The Constitutional Coun is yet to decide on confirmation
of the declaration of unconstitutionality.210
If a deceased left written, or even verbal, instructions regarding his or her funeral and/or
burial place or cremation, those instructions must be complied with as far as possible and to
the extent that they are reasonable and Icgal.11' In the case of verbal instructions, there
must be clear proof of those instructions - especially if they conu-adict written instructions
the deceased gave at a different time.21!
If the deceased did not give any instructions or the deceased's instruction are illegal,
unreasonable or impossible tO follow, his or her heirs have the right and duty to make the
funeral or cremation arrangements and to determine the deceased's last resting place.21, It

207 S 20(1).
208 Voirt of the Unborn Baby NPC v Minister of Home A.ffaii-s [202l]JOL 49991 (GP), 2021 (4) SA 307
(GP).See also Slabbert 2017 THRHR 104.
209 [2021]JOL49991 (GP), 2021 (4) SA 307 (GP).
210 Ss 167(5) and l 72(2)(a) of the Constitution require 1.hat a declaration of unconstiLUtionality of a
s1au1tory provi ion must be confirmed by the Conslitutional CourL
211 See e.g. Saiicl v Srhatr.1972 (1) SA 491 (T); Sektlmi v Sekelmi 1986 (2) SA 176 (Tk); l\1anJtah/a v MaJ,woru
1989 (2) SA 911() (C); Mn)ama v Gxalnba 1990 (I) SA G50 (C); Mabula v Thys1993 (4) SA 701 (SEC). But
see also Human v Human 1975 (2) SA 251 (E); Tw,la v Maqutu 1976 (2) SA 418 (Tk); Mba,yu,a v Mona
1977 (4) SA 403 (Tk) and Gonsalves v Gonsalves 1985 (3) SA 507 (T) where, invoking the rule of e i
dence in terms of which hearsay eviclence is inadmissible, verbal instructions"·ere ignored. Generally
on the duty to bury the deceased, see Boezaart Ptmms 178-179; Keightlcy in Van Heerdcn ti al (eds)
&berg's Law of l'ersuns and the Fam1ly 53 fn 61: Kruger and Skelton (eds) P= 53; Mal1ler-Coet2.ce in
Barrau (ed.) Pn-<,ms and the Fnmily 147-148; Boberg 1975 Busin,.ss11111n's /,aw 222; Mqele I987 Tmnskn
L] 255; Cassim 1993 De R.dm.1 533; Labuschagne 2001 DeJure 354-357; Mokotong 2001 THRHR 297;
Bek
ker, labuschagne and Boonzaaier 2004 Dejurt 215-217; Mokotong 2008 DeJure 616; Slabben 2016 Dt
Jure 230. On the conflict between the custOID.ll) and common law principles on burial rights. see Prins-
loo 1991 TSAR 665; Bekker, Labuschagne and Boonzaaier 2004 DeJurr 203. See also Manlhwa and
Nts0ane 2020 THRHR61 I.
212 See e.g. Mabu/11 v Thys1993 (4) SA 701 (SEC); Gohavana v Mbete (2000) 3 All SA 561 (Tk) and tl1e three
unreported decisions Mokotong 2001 THRHR 297 refers to at 300.
213 See Voet Ccmmmtary on the Pandut.s 11.7.7; Human v Human 1975 (2) SA 251 (E); Sdttleni v Sekeltni 1986
(2) SA 176 (Tk); Mankahla v l\1a1iwane 1989 (2) SA 920 (C); Mahula v Thys 1993 (4) SA 701 (SEC);
Gab11vmia v Mberf.[2000] 3 All SA 561 (Tk).
34 The South African Law of
Persons
has been held that if there are multiple heirs with conilicung wishes, the wishes of the
surviving spouse have preference (if the surviving spouse is an heir) _!11' but this approach
has not been followed consistently. Various other faClors. including fairness, propriety,
convenience, the interests of justice, the deceased's family relationships, the ,,ishes of
tl1e deceased's children, the wishes of the deceased·s broader family, the place where
the deceased's forebears are buried, and practical considerations have been taken into
account.m

21'1 Tseola v Maqutu 1976 (2) SA 418 (Tk); TM v Q\1 unreported GP case 110 2019/24763, 11 September
2019.
215 Mahala v Nkombombini 2006 (5) SA 524 (SEC); Con.wives v Gons11/ves 1985 (3) SA 507 (T); FinlaJ v
Kutoane 1993 (4) SA 675 (W); TmllipvDuPkssis2002 (2) SA 24.2 (W); Sengruir vTsambo [2019) I All SA
569 (GJ) (al o reported as LSvRL2019 (4) SA 50 (GJ)).
 [I]
STATUS

3.1 Introduction
In chapter I it was indicated that the law of persons is that part of private law which inter
alia determines the legal status of a legal subject. For a proper grasp of the law of persons
it is therefore very important that the meaning of the concept "status" be understood.
The word "status" is derived from the Latin verb stare (that is, to stand) which in itself is a
good indication of what is meant by "status". Here we are concerned with a person's "stand
ing" in the law. This "standing" is determined by all those attributes a person has, or the
condition in which he or she finds himself or herself to which the law attaches consequences.1
In private law the most important attributes or factors which determine a person's status are
domicile, birth of unmanied parents, youth, physical illness or incapacity, mental illness or
incapacity, intoxication, prodigality and insolvency. These factors are discussed in more
detail in the chapters that follow.
To properly grasp the concept "status" and its implications, one has to understand what
capacities a legal subject can have. These capacities flow directly from law in the
objective sense and are sometimes referred to as competences. They do not arise as a result
of a person's rights in respect of legal objects and must be distinguished from the powers
that the holder of a right has in respect of the object of the right (for example, an owner is
entitled to use, enjoy, and dispose of his or her property).2
The most important capacities that are traditionally distinguished are legal capacity,
cap acity to act and capacity to litigate (that is, wc·us standi in iudicio). In broad outline
these capacities refer to the capacity, firstly, to have rights and duties (that is, legal
capacity); secondly, to perform juristic acts by which rights and duties are acquired or
disposed of (that is, capacity to act); and thirdly, to enforce rights and duties in a lawsuit
(that is, cap acity to litigate or /,ocu.s standi in iudicio). A fourth capacity, namely the
capacity to be held accountable for crimes and delicts, has been added. These capacities
are discussed in more detail immediately below.

3.2 Legal capacity

Legal capacity is the capacity to have rights and duties.' All human beings have this
capacity in-espcctive of their personal qualities. Thus, a new-born baby, a mentally ill
person and an insolvent person all have legal capacity.

1 Fockema Andreae Rechstsgeleerd Handwoorrlenboek su "status" defines status as the "[t)oestand,

hoedanig heid waaraan bepaalde rechtsgevolgen verbonden zijn" (i.e., condition, quality to which
certain legal consequences are attached).
2 Joubert Gronds!M u<m <lie Persoonlikheidsreg 119. On the distinction between hompetensi,s and bi'T1oegdhede,
see further Heaton in Van Heerclen el al (eds) Boberg's Law of Persons and the Family 67 fn 10, 69 fn 14. On
the distinction between law in the objective sense (law) and law in the subjective sense (tights), see ch 1
above.
3 Some authors call this "passive legal capacity": see e.g. Barratt in Barratt (ed.) Persmlt and lhe Family 10;
Boberg'.s Lmu of Perso11s an1l the Family 66, 74; Wille'.,Principles 146; see alsoSchafer Chikl Law199,who refers
to passive capacity to acquire rights and duties.

35
36 The South African Law of
Persons
A clear distinction must he drawn between the capacily to have rights and duties, and the
panicular rights and duties lhat a specific person has at a specific time. There is no differ
ence in the status of two persons merely because one has a large estate and consequently
has more rights than the olher. There will be a difference in lheir status only if the one can
have rights that the other cannot. Children below the age of seven (thal is, in/antes), for
example, cannot marry and therefore cannot have the rights that arise from a marriage.
They have limited legal capacity and thus not only their legal capacity, but also their status
differs from lhat of persons who may marry.
Therefore, although all legal subjects have legal capacity, their legal capacity docs not
extend equally far. Certain legal subjects cannot have certain rights or duties at all, or
cannot have certain rights or duties at a specific moment. This means that the legal
capacity of those legal subjects is limited to some extent because there are certain rights
that they cannot have. lt does not, however, mean that they have no legal capacity
whatsoever. They are still capable of having rights and duties although their legal capacity
is limited in so far as they cannot have certain rights and duties. No legal subject can be
enlirely without legal capacity. It is precisely this fact that characterises a legal subject.
Something that can never have rights and duties is nol a legal subject but may be a legal
object.•

3.3 Capacity to act

Capacity to act refers to the capacity to perform validjurist.ic acts.5 Ajuristic act is a
human acl lo which the law attaches at least some of the consequences desired by the
party or parties performing the act. Avalid juristic act can lherefore be brought about only
if the law attaches consequences lo a person's declaration of intent.
Il is clear that entering into legal transactions can have serious implications for the per
sons concerned and therefore a person must have achieved a certain level of intellectual
de\'elopment before the law confers capacity to act on him or her. Children below Lhe age
of seven years and mentally ill persons, for example, have no capacity lO act in South
Afri can law. This does not mean lhat, legally speaking, these people have no will or
cannot give expression to it. It simply means that the law, for tJ1eir own protection, does
not attach any validity to their expression of will.
In certain cases the law attaches consequences to some expressions of will by certain
per sons while no consequences are attached to other expressions of will by the same
persons. Such people, for example, minors between the ages of seven and 18 years, have
limited capacity to act. The considerations underlying lhe limitations on their capacity to
acl may vary. People below 18 years of age, for example, are considered not to have the
necessary maturity of judgement and must therefore be protected by the law.

3.4 Capacity to litigate

Capacity to litigate (that is, I-Ocus standi in iudicio) is lhe capacity to appear in court as a
party to a lawsuit. There usually is a close correlation between capacity to act and capacity to
litigate.
Some author:;6 maintain that everyone has all three of lhe above-ment.ioned capacities.
They argue lhat even infantes and mentally ill persons have capacity lO act and litigate
although they do not have capacity to act or litigate on their own behalf. Though they
cannot perform certain juristic acts al all (for example, marrying or executing a will). there

4 On the distinct.ion between a legal subject and a legal object, see ch l above.
5 Some authors call this "capacity to perform juristir aclS" or "active legal capacity": see e.g. Barran in
Barratt (ed.) Pmons and theFamily 10; Boberg's Law of Pei:,on5 and the Family 66, 73-74; Wilie's Prin.cipks
146.
6 Van der Vyver and .Joubert Person en fim1iliereg 5<1-55; Van Zyl and Van der Vyver /nl,,iding tot <lit Regs
f"1'len.<kaf,378-381; Van der Vyver 1973 THRHR 271-272, 1979 THRHR 129.
 Chapter 3: Status 37

are other acts that can be performed on their behalf (for example, entering into an ordin
ary commercial contract). In the case of the latter acts, the infantes and mentally ill persons
themselves perform the acts because their guardians or curators merely act as their func
tionaries. What these people actually lack is not capacity to act but the capacity personally
to perform the act. A similar argument is advanced regarding capacity to litigate; in other
words, the person lacks the capacity personally to litigate, but does not altogether lack cap
8
acity to litigate.' It is submitted that this approach should not be followed.

3.5 Capacity to be held accountable for crimes and delicts

The three capacities discussed above do not include a person's capacity to be held account
able for crimes and delicts (that is, wrongdoings) he or she commits. A fourth capacity
should therefore be added to the traditional ones, namely accountability, or the capacity to
be held accountable for crimes and delicts.9 This capacity is to a large extent influenced by
a person's age and mental condition because fault in the form of either intent or negli
gence is, generally speaking, a requirement for criminal and delictual liability. Consequently,
if someone cannot have fault, for example, because he or she is too young or is mentally
ill, he or she cannot be held accountable for his or her delicts and crimes. Accountability
often coincides with capacity to act and capacity to litigate.
To summarise, one can say that a person's status is the aggregate of his or her
capacities, and also determines his or her capacities (that is, his or her legal capacity,
capacity to act, capacity to litigate, and capacity to be held accountable for crimes and
delicts). A person's status, in turn, is dependent upon all his or her attributes or the
condition in which the person finds himself or herself and to which the law attaches
consequences.

7 Van der Vyver and Joubert Pel'SQ'IW- en Fmniliereg54.-55; Van der Vyver 1973 THRHR 271-272, 1979 THRHR
129. Kruger and Robinson in Robinson (ed.) Law of Children arui Young Pm3ons 14, 15 approve of the terms
seljlwruielings011beuoegand seljumk),ningsonhevoeg. They translate these terms as "personal capacity to act"
and "personal capacity to litigate".
8 Van Rensburg's criticism of the approach (1974 THRHR94 et seq) is conect. See also Cronje LAWSA vol
20 part 1 Perso11S par 449 fn 16; Heaton in Van Heerden el al (eds) Boherg's Law of Pe, 011S and the Family
72-73; Heaton and Pretotius 2007 SAIJ 120.
9 See e.g. Barratt in Barratt (ed.) Persons and the Famil)' 10, 12; Van der Vyver and Joubert Persone- en
Familiereg 7; Van der Vyver in Strauss (ed.) Huldigingsburuiel vir WAJoubert 201, 210; Wille'.5Princip!,es
146. But see Van Zyl and Van der Vyver lnleiding tot die Regswetenskap 381 who do not consider
toere/ieningsvat baarhei<l to be a capacity.
 DOMICILE

4.1 Introduction
As legal systems differ, it is of the utmost importance to establish which legal system
deter mines a person's status. In many legal systems a person's private-law status is
determined by the law of the country of which he or she is a citizen (that is, the person's
nationality).' In South African law, however, a person's status is generally determined by
the law of the place where the person is domiciled (that is, the person's /,ex loci domicili lex
domicilii or domicili ary law).2
Thus, for example, a person's lex domicilii determines whether he or she is a minor.3 The
question of whether a child was born of married or unmarried parents is determined by the
law of the place where the child was domiciled at birth (that is, the child's domicile of
origin).4 A person's /,ex domicilii is also important in the law of succession. For instance, the
law of intestate succession of the country in which the deceased was domiciled at the time
of his or her death determines how his or her movable property devolves if he or she died
without having made a valid will (that is, if he or she died intestate).5 The lex domicilii of the
testator at the time of executing a will determines whether he or she has the capacity to
6
dispose of his or her movable property by means of that will. Domicile also plays a role in
respect of jurisdiction. For instance, matters regarding a person's status must, as a rule, be
heard by the court having jurisdiction in the area where the person is domiciled.' Domicile
is also a factor in determining whether a foreign judgment can be enforced against a
person in a localjurisdiction.8
The lex dornicilii also plays an important role in respect of the patrimonial
consequences of a marriage, because the /,ex dornicilii of the husband at the time of the
marriage deter mines the spouses' matrimonial property system.9 Take the example of a
man domiciled in South Africa who marries a German woman, in Germany, while
studying there. The patri monial consequences of the marriage are determined by South
African law. This means

Citizenship is very important as far as a person's status at public law is concerned but because it does not
playa major role in private law it is not discussed in this book.
2 See e.g. Roezaart Persons 34-35; Eiselen in Robinson (ed.) Law of Children and Young Persons 210; Wilie's
Principles 153;Schoeman 1999 THRHR272.
3 See e.g. Barrau and Schoeman in Barratt (ed.) Persuns and ll-w Family 118; Boezaart Persons 34; Forsyth
Private lniemn.tinnal l.nrv 313; Kmger and Skelton (eds) Persons68-69.
4 Seetlat's Execulors v The MttSler (Nttto.l) 1917 AD 302.
5 Estate Baker v Estate Baker (1908) 25 SC 231.
6 See e.g. Barratt and Schoeman in Barratt (ed.) Persons and the Family 119; Boezaart Persons 37; Eiselen in
Robinson (ed.) Law of Chi/,d-ren «nd Young Persons 214-215; Forsyth P,ivale lnterrw.tional Law 401-402;
Kruger and Skelton (eds) Persuns 71.
7 See e.g. fa part.e Kaiser 1902 TH 165; Ex parte Oxton 1948 (1) SA 1011 (C). For an exception to the rule,
see s 2(1)(b) of the Divorce Act 70 of 1979.
8 See e.g. Divorce Acts 13.
9 Frankel's Esta,J,e v The MttSler 1950 (1) SA 220 (A). On the various mauimonial property systems, see
Heaton and Kruger Family L<twchs 6 and 7.

39
40 The South African Law of Persons

that the marriage is in community of property unless the parties concluded an antenuptial
contract.'0 The rule regarding the husband's lex domicilii as the determining factor in re
spect of the matrimonial property system applies to heterosexual civil unions, too." How
ever, it fails to cater for same-sex civil union partners: in such unions there is no "husband"
whose lex domicilii can be used, because the parties to the civil union are either two males
(two husbands) or two females (two wives)." This failure unjustifiably limits the right to
equality that is protected by section 9 of the Constitution. It, inter alia, unfairly
discriminates against same-sex civil union partners on the ground of their sexual
orientation by leaving the proprietary consequences of their civil union uncertain.'' Even in
the case of hetero sexual spouses and heterosexual civil union partners the rule
unjustifiably limits the equal ity clause, for it constitutes unjustifiable unfair discrimination
on the ground of sex.•• Therefore, the rule should be declared unconstitutional.
Unfortunately, South African private international law does not currently have a ready
replacement for the rule.15 It is submitted that the legislature should step in as a matter of
16
urgency to enact a suitable and constitutionallyacceptable rule.

4.2 Replacement of the common-law rules on domicile by the

Domicile Act 3 of 1992
In the past, the law of domicile was governed by the common law, and uncertainty
prevailed on many aspects relating to domicile. For this reason, the South African Law
Commission (which is now called the South African Law Reform Commission)
investigated domicile with a view to reforming this branch of the Jaw.17 Its investigation
and recommendations culminated in tl1e Domicile Act 3 of 1992, which came into
operation on l August 1992.
The Act solved many, but not all, of the problems with regard to the law of domicile. For
example, it remains unclear whether someone can have more than one domicile at the
same time. It is also unclear whether military staff, diplomats, public servants, employees
of foreign governments or businesses, and prisoners are competent to establish a domicile
of choice in tenns of the Act or whether the common law still applies to them. These
issues are discussed below in the chapter.
It should also be noted that the Act is not retrospective. It accordingly does not affect
any right, capacity, obligation or liability which was acquired, accrued or incurred by
virtue of the domicile a person had at any time prior to 1 August 1992. Nor does it affect
the legality of any act performed before that date.'8 For example, in Lenfema v Lenfema,'
which was decided in 2013, the issue of whether the husband had a domicile in South
Africa at the time of the spouses' marriage had to be determined in terms of the common
law, because the maniage was solemnised in 1983.

IO F.del,tein vEdelstein 1952 (3) SA 1 (A).

11 Civil Union Act 17 of2006 s 13(2).
12 See also Farlam JA's minority judgment in Fourie u Mini,ter of Hom" Affairs 2005 (3) BCLR 241 (SCA},
2005 (3) SA 429 (SCA) pars [124J-[125] and AS v CS 2011 (2) SA 360 (WCC) par (55].
13 S 9(3) and (4) of the Constitution deals \\ th unfair discrimination.
14 For criticism of the mle, especially in the light of the equality clause in the Constitution, see Forsyth
Priva,le International T,nw 296, 300-301; Kruger and Skelton (eds) Persons69; Neels 1992 TSAR 336; Heaton
and Schoeman 2000 Tl-lRHR 146; Schoeman 2004 TSAR 117-118, 140; Neels and Wethmar-Lemmer
2008 TSAR587-588.
15 On alternative rules which might be used, see Forsyth Private /nJ,ernntional Law 302-303; Stoll and Visser
1989 DeJure 335; Schoeman 2004 TSAR132-140; Neels and Wethmar-1..emmer 2008 TSAR587.
16 See also Boezaatt Persons37; Forsyth Private International Law 303; Schoeman 2004 TSAR140.
17 Pwject 60 Domicik.
18 S 8(2).
19 Unreponed, SCA case no 120/13, 2 December 2013.
 Chapter 4: Domicile 41

4.3 Definition of domicile

A person's domicile is the place where he or she is legally deemed to be constantly present
for the purpose of exercising his or her rights and fulfilling his or her obligations, even in
the event of his or her factual absence.
Although a person's domicile frequently coincides with the place where he or she per
manently resides, permanent residence is not Lhe same as domicile. Thus, the fact that
somebody is permanently resident in South Africa does not necessarily mean that he or she
has a domicile here.

4.4 General principles governing domicile

Every person must have a domicile at all times.20 In other words, no one can ever be
without a domicile.
Whether someone can have more than one domicile at the same time has not been
finally settled in our law. For example, can a person who lives in Pretoria for six months of
the year and in London for the other six months have two domiciles? According to our
21
common-law authors the answer would be "yes". However, obiter dicta in some of the
decisions of our courts indicate tlrnt a person cannot have more than one domicile at a
particular time.22 In Eiwn v Eil,on2' the Appellate Division (now the Supreme Court of Ap
peal) referred to tl1e issue but did not have to decide it. The Law Commission did not deal
with this matter in its Report on Domicile. Because Lhe Domicile Act was based on the recom
mendations contained in the Law Commission's report, it too is silent in this regard. Most
modern South African authors, however, submit that a person cannot have more than one
24
domicile at the same time.
In terms of section 3(1) of the Domicile Act, no one loses his or her domicile until he or
she has acquired another domicile. A change of domicile is never simply accepted. It must
always be proved."' Whether a person has acquired or lost a domicile is determined on a
balance of probabilities.26

4.5 Kinds of domicile

Our law distinguishes between the following kinds of domicile:

4.5.1 Domicile of origin

A person's domicile of origin (also called the person's original domicile or domicilium
wiginis) is the domicile the law confers on tlle person at birth. In the past, a person's domi
cile of origin revived if he or she abandoned his or her domicile of choice witllout
assuming a new domicile. In such event the person's status was determined by the law of
his or her

20 Boezaart Persom 35; Clark in Van Hcerden et al (eds) Boberg's I.aw of Pnsuns and the Family 104; Eiselen in
Robinson (ed.) law of Cliild,·en and Young Pl!Tsuns 205; Forsylh Private fotemati01llll Law 132-133; Van
der Vyver and Joubert Persoru,- enFmniliereg84; Wilie's Principles 152.
21 Voet Commentary on the Pandects 5.1.92; Van Leeuwen R/Xnns-f-lollands-Regt,5.6.J; Van Bijnkershoek
Obseroa tiones Tmnultwtriae ll 1371;Van der Kcessel Pral'lcction.es1.2.27.
22 f.,eviny v leviny (1908) 25 SC 173; Ex parte Dmully 1915 WLD 29; Webbl!T v Webber1915 AD 239; S11kovs v
Vcm
der Wa/.t (1998] 3 All SA 664 (0).
23 1965 (1) SA 703 (A).
24 Boezaart Persons 35; Clark in Van Hecrden et nl (eds) Bober-g's f,ar,, of Persons and the Fomil:J• 104; Eiselcn
in Robinson (ed.) Law of Children cmd Young Pmom 205; Forsyth Private lntemalional law l 33; Kahn
Dominf.f 11-17; Van der Vyver and Joubert Person,;, en Familiercg 84; Willi's Principks 152. But cf Spiro
1962 Arla Juritlir,a 66-69.
25 Mason v Mason ( 1885) 4 EDC 330; Smith v Smith 1952 (4-) SA 750 (0).
26 S 5.
42 The South African Law of
Persons
domicile of origin until such time as he or she assumed a new domicile of choice. 27 Thus,
the person's domicile was neither based on the place where he or she physically resided
nor was it connected with his or her intention - it was simply a domicile that was assigned
to him or her by operation of law for reasons of efficacy.
The Domicile Act changed the position. Section 3(1) of the Act provides that no one
loses his or her domicile until he or she has acquired another domicile, whether by choice
or operation of law. Section 3 (2) of the Act expressly provides that a person's domicile of
origin does not revive, although a person can have a domicile where his or her domicile of
origin was if he or she acquires a domicile of choice there28 or if he or she does not have the
capacity to acquire a domicile of choice and the law assigns a domicile to him or her2'l at
the place where his or her domicile of origin was, because he or she is most closely
connected with that place. Thus, for example, a child who is born in South Africa and lives
with his or her parents in this country acquires a domicile here. If the child moved
permanently with
his or her parents to Egypt, he or she would acquire an assigned domicile in Egypt. If, as
an adult, he or she left Egypt with the intention of never returning to that country and
lawfully returned to South Africa with the intention of indefinitely living here, he or she
would once again obtain a South African domicile. However, his or her South African
domicile would be a domicile of choice; it would not be his or her domicile of origin that
revived.
Because of the provisions of the Domicile Act, domicile of origin has lost most of its signifi
cance. A person's domicile of origin is still relevant in so far as it determines whether the
person qualifies as a child born of married parents.ll() As a person's domicile of origin is
purely the first domicile assigned to him or her, it might just as well be categorised simply
as an example of an assigned domicile (that is, a domicile by operation of law)."

4.5.2 Domicile of choice

(a) Definition
A domicile of choice is the domicile that a person who has capacity to act has chosen for
himself or herself by exercise of his or her free will.
(b) Persons who can acquire a domicile of choice
Section 1 (1) of the Domicile Act provides that, regardless of sex or marital status,
everyone who is of or over the age of 18 years and everyone under the age of 18 years
who legally has the status of a major, is competent to acquire a domicile of choice, unless
he or she lacks the mental capacity to make a rational choice. Therefore, the only persons
who can acquire a domicile of choice are adults (that is, persons who are 18 years or
older)32 and minors (that is, persons below the age of 18 years}'' who have acquired
majority status. A minor can acquire majority status by entering into a marriage.l-1 As minors
are expressly excluded from concluding civil unions, they cannot acquire majority status by
concluding a civil union.30

27 Ex parte Donelly 1915 v\'LD 29; Hutchison's Executar v The Master (Natc,l) 1919 AD 71; Grindal v Grindal 1997
(4) SA 137 (C); Kahn D0111icile19 et seq.
28 In terms of s 1 of the Act.See also Grindal v GrindaJ1997 (4) SA 137 (C).
29 In terms of s 2 of the Act
30 But see Forsyth Private lnLmwtional Law 154 and 312, who indicates that difficulties may a1ise if the
lex domicilii of the parents differ.
31 Davel 1993 DeJure 405.
32 Children's Act38 of2005 s 17.
33 Ibid.
34 On a minor's capacity to marry, see ch 6 below. As an emancipated minor does not acquire majority
status, he or she cannot acquire a domicile of choice. On the age of majority and the ways of
tem1inacing mino1ity, see ch 6 below.
35 Civil Union Acts 1. On a minor's inability to enter intoa civil union, see further ch 6 below.
 Chapter 4: Domicile 43

The second requiremem set out in sect.ion 1(1) is that the person must have the mental
capacity to make a rational choice. Consequently, a mentally ill wrson or a person with a
serious intellectual disability cannot acquire a domicile of choice.
Fortunately, sex and marital status no longer play a role in the acquisition of a domicile
of choice. At common law a wife automaticaJly acquired her husband's domicile at
marriage and followed it whenever he changed it, irrespective of whether she was present
at the particular place or whether she had the intention of residing tl1ere permanently."
This rule applied even if the spouses were lhfog in different countries. The wife's domicile
was called a domicile of dependence.
A minor also had a domicile of dependence, which was the domicile of his or her
guardian. low, as is explained below in this chapter, a minor has an assigned domicile
which does not necessarily correspond to his or her guardian's domicile.
(c) Presence and intention as requirements for acquiring a domicile of choice
Section 1(2) of the Act provides that a domicile of choice is "acquired by a person when he
is lawfully present at a particular place and has the intention to settle there for an
indefinite period". The section thus sets two requirements: one relates to being lawfully
present at a particular place, and tlle other relates to tlle person's intention about the
duration of settling at the particular place. At common law these requirements were
respectively called the factum and the animus requirement.
The two requirements must at some time or another exist simultaneously but they need
not come into being simultaneously.• A person may therefore first settle at a place and
only later form the intemion of residing there indefinitely.
Once a domicile of choice has been established at a particular place, the person does not
have to be continuously present at that place in order lO retain the domicile."
Let us consider the two requirements in section 1(2) in more detail:
(i) Lawful presence
To comply wi.tll the first requirement in section 1(2), the person must acn.1ally sett.le at the
particular place where he or she wants to acquire a domicile of choice, and his or her
presence there must be lawful. It is important to note that the section only recognises lawful
presence for purposes of acquiring a domicile of choice."'° An illegal alien (also called a
prohibited immigrant} can therefore not acquire a domicile of choice in South Africa
despite having the intent.ion of settling here permanently." However, in Van &11.sburg v
Ballinger'2 the court held that a prohibited immigrant whom the authorit.ies had openly
permitted to reside in South Africa could acquire a domicile of choice here.
A person who has applied for refugee status in South Africa is not in the same posit.ion as
an illegal alien.'' \,\lhilc tlle person's application for refugee status is being considered by L11e
Soutll African authorities, he or she is lawfully present in the country Therefore, he or she
can meet the requirement of lawful presence for purposes of acquiring a domicile of choice.

36 On menraJ illness and imellecrual disabilities as factors influencingstarus. see chs 7 and 8 below.
37 Surprisingly, some courts seem to be unaware of the faCl 1.hat a wife no longer follows her husband's
domicile. In Cm/ml Authority v TK2015 (5) SA 408 (GJ), SpilgJ incorrectly suued r.hat a wife and a minor
obtain domiciles of dependence.
38 Crindat v Grindal 1997 (4) SA 137 (C).
39 Chinnlnc Oriental Trading Cov Enkine 1998 (4) SA 1087 (C).
40 Bui.see Toumbis v Antonimi 1999 (I) SA 636 (W) where CloeteJ, in an obiter dirtum, adopted the incorrect
view 1.hat a person can have a domicile of choice at a place where his or her presence has been rendered
unlawful because the authorities have decided tl1at he or she must be removed from Lhac place.
41 Smilh v Smilh 1962 (3) SA 930 (FC).
42 l950(4)SA427(T).
43 A.-sevMinislno/HmneAJlairs2012 (4) SA544 (SCA).
44 Alam v Minister of Nome Affairs 2012 (5) SA 626 (ECP).
44 The South African Law of
Persons
Persons who are deported from South Africa lose their domicile in this country even if
they intend returning, because their return would be unlawful."'
It has been held that a person who has acquired a domicile at a particular place and who
subsequently leaves that place in order to escape from the process of the law (in other
words, someone who becomes a fugitive from justice) does not lose his or her domicile at
the place from which he or she has fled.'6 The object of this rule is to preclude the fugitive
from relying on the court's not havingjurisdiction to hear the matter, thereby escaping the
consequences of his or her misconduct. It must be borne in mind that in this instance the
fugitive's residence has not been rendered unlawful; he or she has fled in order to escape
the legal consequences of his or her actions. This case therefore differs from that of the
illegal alien.
In order to establish whether a person meets the requirement regarding physical pres
ence the situation is viewed objectively.'' A specific period of physical presence is nor re
quired, but the person muse not simply be visiting the place where he or she wants to
acquire a domicile of choice. 18 If it is established that the person was indeed physically
present at a specific place where he or she intended to stay, and that his or her residence
·was lawful, the duration of his or her residence there is iffelevant. However, tl1e courts
sometimes take the duration of the physical presence into consideration to infer whether
the person had the intention of remaining at that specific place (that is,whether the person
had the animus manendi) .'9
(ii) Intention to settle for an inrkfinite period
The second requirement in section 1(2) provides that a person can acquire a domicile of
choice at a particular place if he or she has the intention of settling there "for an indefinite
period".50 Thus, a person can satisfy this requirement even ifhe or sheenvisages moving at
an unknown future time."

45 Ex parte Macleoil 1946 CPD 312; Drakensbngpm Bpk v Sharpe 1963 (4) SA615 (N).
16 (;h.ina,e.-.; Oriental Trading Co v Enkine 1998 (4) SA 1087 (C). Cheuy J simply cited tl1e Rhodesian (i.e.
Zimbabwean) case of Steinberg v Cosmopolila,n National Bank of Chicago 1973 (4) SA 564 (RA) and
Kahn's discussion in 1973 Annual Survey 436--437 as authority for this view. It is doubtful whether
Steinbt:rgs case was correctly decided (see Forsytl1 Private International Law 421 fn 27 and 436--437;
Forsyth considers the decision to be so wrong on so many points that "it would be foolhardy to rely upon
it for any proposi tionI"). The correctness of this point of tl,e decision in Chinatex Oriental Trading Co v
Erskine may lhere fore also be suspect. The judgment. in (,hinatex Orienlal Trading Co v Erskine was
reversed in Erskine v China./l!XOriental Trading Co 2001 (l) SA 817 (C) on the ground iliat it was not
proved tl1at the appellant had ever obtained a domicile in England, as t11e court a quo had found.
The appeal court therefore found it unnecessary to deal with the court" qua's anding that the appellant had
not lost his domicile in Englancl because he had fled that country as a f-ugitive from justice.
47 Cliinatex Orien/a.l Trruling Co v.t'r.skine '1998 (4) SA 1087 (C).
48 lbitl.
49 Cool, v Cook 1939 CPD 314; Smith v Smith. 1952 (4) SA 750 (0); Webber v Webber 1915 AD 239;
Chinatex Oriental Trtufo1g Cov Erskine 1998 (4) SA 1087 (C); Erskine v Chinalex OrienJal Trading Co2001
(1) SA 817 (C).
50 Despite the enactment of the Domicile Act, Wright] in Sukovs v Van der Wall [1998] 3 All SA 661 (0)
based his decision on the st,ict common-law test for animus, namely that the person must have a fixed and
deliberate intention to abandon his or her previous domicile and to settle permanently at his or her new
place of residence, without entenaining any doubt as to whether or not he or she would remain there,
and witl10ut contemplating any certain or foreseeable future event which would cause him or her to leave
(see Eilon v F.ilon 1965 (1) SA 703 (A)). Although Sukovsdoes not contain a single reference to the Dom
icile Act and it is abundantly clear from the judgment that Wright] was unaware of the Act, his con
clusion that the respondent had acquired a domicile of choice in New Zealand would have been no
difTerent had he applied the provisions of 1he Act.
5J For a detailed analysis of when a person can be said to have intended to settle for an "indefinite"
period as envisaged by the Domicile Act, sec Schoeman 1999 THRHR 272,!125, especially 329-3!14.
 Chapter 4: Domicile 45

2
To establish whether the person complies with the requirement a subjective test is used.;
In other words, the intention of the particular person is determined.
To satisfy the requirement, the person must be able to carry out his or her intention of
settling at the particular place." The fact that a person who has applied for refugee status
has precarious residence because the application might be dismissed does not disqualify
the person from acquiring a domicile of choice, but it is a factor that is taken into account
in determining whether he or she can have the intention to settle for an indefinite period.;.,
Military staff, diplomats, public servants, employees of foreign governments or businesses,
and prisoners were initially considered incapable of acquiring a domicile of choice at the
place where they were stationed, posted or imprisoned, on the ground that their employers
or the state determine where they are to reside and that they therefore cannot give effect to
their intention of settling at a particular place. The Domicile Act does not expressly deal
with the acquisition of a domicile of choice by someone who is not free to decide where he
or she wants to reside. No provision expressly excludes a person whose presence at a par
ticular place is not originally by choice, from acquiring a domicile of choice there. It could
therefore be argued that, like any other person over the age of 18 years who has the re
quired mental capacity, such a person should be competent to establish a domicile of
choice in terms of section 1 of the Act." Consequently, the mere fact that someone has
been posted to, or is stationed or imprisoned at, a specific place should not render him or
her incapable of having the required intention to acquire a domicile of choice. I prefer this
view.'l\
In contrast, it could be argued that because the Act does not expressly state that people
like military staff, diplomats, public servants, employees and officers of foreign
governments or businesses, and prisoners can meet the requirement regarding intention
even though their employment or imprisonment limits their ability to give effect to their
intention, the common lawstill applies in this respect.
As it is unclear which argument will be preferred by the courts, the common-law
position is briefly summarised below:
Military staff
It used to be generally accepted that foreign military staff could not acquire a domicile of
choice in South Africa, however much they wished to settle here permanently. In McMillan
v McMillan57 the reason given for this attimde was that the person's residence here was not
voluntary but was prescribed by a foreign power. In 1945 the Appellate Division in Baher
v Baker's opened the door to a new approach. It held that soldiers can acquire a domicile of
choice at a place where they are not stationed. Although the court declined to answer the
question of whether soldiers can acquire a domicile of choice where they are stationed, the
erstwhile Transvaal59 and Cape courts60 subsequently interpreted obiter dicta in the
judgment as being authority for the view that this is possible.

52 Chinatex Oriental nMling Co vErski•UI 1998 (4) SA1087 (C). The subjective test sometimes enables
courts to lean over backwards to hold that the reqi1irement of intention to settle indefinitely has been
satisfied: see e.g. the majority dcc.ision in OR v LBDS [2021J 2 All SA 527 (WCC).
53 Ex fHtrle Quintrell 1922TPD 14.
54 Tomnbis v Antoniou 1999 (1) SA636 (W); Alam v Minister of Home Affairs 2012 (5) SA626 (ECP).
55 Boezaart Persons 46-48; Forsyth Privale lnternatitmal Law 146; South African Law Commission Report <m
Domicile par 3. 76; Davel I993 De]u.re403.See also Forsyth Privau lnlenuuionm I,11w 147, 149; Kahn Domicile
53.
56 Sec also Kruger and Skelton (eds) Persons 76.
57 1943TPD 345.
58 1945AD 708.
59 Moore v Moore 1945 TPD 407; Ex pa,te Glt,ss et Uxor1948 (4) SA 379 (vV).
60 NicolvNicoll948 (2) SA613 (C);ExparteReMlingsl958 (4) SA432 (C).
46 The South African Law of
Persons
Diplomats, public servants, and empl-0yees and officers of foreign governments or businesses
Originally, foreign diplomats, police officials, public serYants, and employees and officers of
foreign businesses were also denied a domicile of choice in South Africa while they were
in the service of the foreign government or business.61 In 1\'aville v Naville62 the Cape
court decided, however, that a foreign diplomat could acquire a domicile of choice in
South Africa while still in the service of a foreign country. The same should apply in
respect of public servants and employees and officers of foreign go\·emments and
businesses.
Prisoners
It has been argued that a prisoner cannot acquire a domicile of choice at the place where
he or she is imprisoned since he or she is not there of his or her own free will."' In Nejler v
Nefler64 it was, however, held that a prisoner who had been imprisoned for life
automatically acquired a dorrucile of choice in prison.

4.5.3 Assigned domicile (domicile by operation of the law, domicile

of closest connection)
Section 2(1) of the Domicile Act provides that anyone who does not have the capacity to
acquire a domicile of choice is domiciled at the place with which he or she is most closely
connected. Minors and people who do not have the mental capacity to make a rational
choice cannot acquire a domicile of choice.,;; The law assigns a domicile co chem for as
long as their minority or mental incapacity lasts, and that domicile is the place with which
the particular person is most closely connected. This type of domicile is called an assigned
domicile, a domicile by operation of the law, or the domicile of closest connection.
(a) Domicile of a minor
By virtue of the provisions of section 2 of the Domicile Act a minor is dorruciled at c.he
place with which he or she is most closely connected. Section 2(2) contains c.he rebucrable
pre sumption 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. Section 2(3) of the Act expressly pro
vides that the term "parents" includes a child's adoptive parents and parents who are not
married to each other.
66
A domicile is assigned to a minor only if he or she is unmarried. ·when the minor attains
majority or if he or she acquires the status of a major by getting married, he or she retains the
domicile he or she had by operation oflaw until he or she establishes a domicile of choice.6;
(b) Domicile of a mentally incapacitated person
Formerly, the courts adopted the view that mentally incapacitated persons retained the
domicile they had when they became mentally incapacitated.68 In conrrast, some authors
were of the opinion that it would be better if mentally incapacitated persons followed the

61 Bothm,i v Bothma1940 (l) PH B9 (0); C,a1valho v Carva!Jw 1936 SR 219.

62 1957 (1) SA 280 (C). See also the obit.er dicla in Ex parte Quintrell 1922 TPD 14 16; Fozard v Fur.md
1923 CPO 62 63 and McMillan v McMillan 1943TPD 345 349-350 which suggest that they can acquii-e a
domi cile of choicesince such employees are normally not transfen-ed as often as soldiers.
63 Kahn Domicile53.
64 1906 ORC 7.
65 Ss l (l) and 2.
66 Above in tl is chapter it is explained that marriage is the only means by which a minor can acquire majo1ity
S(alllS.
67 S 3(1).
68 Hennin1;'s ExecuJ,or v The Mas/er (1885) 3 SC 235; Rifkin v Rifkin1936WLD 69.
 Chapter 4: Domicile 47

domicile of their curator, if one had been appointed.''-'The issue has been resolved by the
Domicile Act, which provides that persons who do not "have the mental capacity to make a
rational choice" cannot acquire a domicile of d10ice.;0 Instead, they acquire a domicile at
the place with which they are most closely connected."

69 Boberg Law ql Prrsnns 1111d th, Fami(v 68; K,-ihn Domirilt 98-99; Van der Vyvcr and Joubert Pm nn,- en
l•a,ni/iei-,g 100,
70 S 1(I).
71 S 2(1).
 CHILDREN BORN OF UNMARRIED PARENTS

5.1 Introduction
In the past, our law categorised children as either "legitimate" or "illegitimate" (children
born out of wedlock, extra-marital children). The Children's Act 38 of 2005 steers away
from these negative, hurtful terms. Instead, it describes parents with reference to their
marital status and uses this criterion to regulate the acquisition of parental responsibilities
and rights. Thus, the Act refers to a married or an unman;ed father, a married or an
unmarried mother, a married or an unmarried person, and married parents.' Consequently,
the terms "child born of married parents" and "child born of unmarried parents" are the
more up-to-date descriptions, and they are used in this book.
Originally, "illegitimate" children suffered from a number of legal disabilities, and the
mles relating to their parents' responsibilities and rights differed markedly from those that
applied to the responsibilities and rights of parents of "legitimate" children. Gradually, the
law began to reduce these legal differences. As appears from the discussion below in this
chapter, the Jaw still does not treat unmarried and married parents in exactly the same
way. Now, however, the law grants the same parental responsibilities and rights to certain
un married fathers that it grants to married fathers and to mothers.

5.2 Definition of "children born of married parents"

and "children born of unmarried parents"
A child born of married parents is a child who is born of parents who a.re legally married co
each other at the time of the child's conception or birth or at any intervening time.2 The
Children's Act defines marriage in broad terms that include civil, customary and religious
marriages.' In terms of the Civil Union Act 17 of 2006,4 civil unions are also covered by the
term "marriage". Thus, a child who is born of civil union partners is also a child born of
married parents. In view of the provisions of the Civil Union Act, and for the sake of simplifi
cation, the remainder of the chapter will refer to marriages as encompassing civil unions,
unless the context requires otherwise.
If a child's parents are not married to each other at the time of the child's conception or
birth or at any intervening time, the child is a child born of unmarried parents.

l See e.g. ss 19-21, 38, 40 and 233.

2 Children's Acts 20; Grotius Jnleidinge 1.12.2, l.12.3; Van dcr Keessel Theses Sewctae 169; Van
Leeuwen Rooms-Hollands-Regt 1.7.2; Voet Com111enta,y on the Pandects 1.6.6. This n.1le extends to a child
born of a voidable marriage: Children's Acts 39(1) and (6). Achild who is born of a putat.ive maniage is
also treated as a child born ofmanied parents, even though the ma,,;age is void: M v M 1962 (2) SA 114
(GW). On pu tative maniages, see Heaton and Kruger Family Lawch 4.
3 S l(l).
4 S13(2).

49
 Chapter 5: Children born of unmarried parents 67

It is submitted that Judge Burger was indeed justified in taking judicial notice of the
technique and results of blood tests and that the same applies to DNA tests. The value
and accuracy of blood and DNA tests are widely recognised nowadays. In terms of section
21 of the Maintenance Act 99 of 1998, a court may even order the state to pay the full or
part of the costs of the taking of blood samples in order to carry out scientific tests to
determine paternity if parties agree to submit to the tests but cannot afford to pay for
them. Surely the courts should be prepared to take judicial notice of the technique and
reliability of, at the very least, blood tests if the legislature considers these tests accurate
enough to warrant the state bearing the costs of the tests in Maintenance Court cases.

5.6 The legal relationship between a child and his or her

unmarried parents
5.6.l Introduction
In terms of the common law, the mother of an "illegitimate" child had parental authoriLy
(or parental power) over her child, unless she was a minor.137 The child's father had no
parental authority even if he lived with the child's mother. He could, however, approach the
High Court in its capacity as upper guardian of all minors for an order conferring any or all of
the elements of parental authority on him if this was in the best interests of the child.138
Regardless of whether the father had parental authority, he had to support his child.139
The Children's Status Act and Natural Fathers of Children Born out of Wedlock Act 86
of 1997 subsequently partly codified the law relating to the parental authority of unmarried
parents. These Acts essentially reiterated the common-law position. In terms of the Chil
dren's Status Act, the mother was the child's guardian and custodian (care-giving parent)
unless she was an unmaffied minor.110 If she was an unmarried minor, guardianship
vested in her guardian but she had custody (care) unless a court directed otherwise.'"' As
far as the father's position was concerned, the Natural Fathers of Children Born out of
Wedlock Act afforded the High Court a statutory power to award guardianship and/or
custody (care) and/or access (contact) to him if this was in the best interests of the child."2
In 2007, when the first batch of sections of the Children's Act came into operation, the
position changed radically. The Children's Act inter alia repealed and replaced the Chil
dren's Status Act and the Natural Fathers of Children Born out of Wedlock Act. It also
substituted the term "parental responsibilities and rights" for "parental authority" and, for
the first time, conferred automatic parental responsibilities and rights on some unmarried
fathers.

5.6.2 Definition and components of parental responsibilities and rights

Section 1(1) read with section 18(2) of the Children's Act defines parental responsibilities
and rights non-exhaustively to include caring for the child, maintaining contact with the
child, acting as the child's guardian, and cormibuting to the child's maintenance.

137 See e.g. Voet Commenlmy on the Pam/eels 27.2.1; D()(,wt v Blwyal 1932 TPD 125; Dhanabakium v
Subrmnanian 1943 AD 160; Ex parteVan Dam1973 (2) SA 182 (W); Nokqyo v AA Mutw,t lnmran,-e
Association Lid 1976 (2) SA 153 (E); Fv T.1987 (4) SA525 (W) (also reported as D vL 1990 (1) SA894
(W)).
138 See e.g. Rowan v Faifer1953 (2) SA 705 (E); Ex pt1rteV,mDam 1973 (2) SA 182 (W).
139 See e.g. Grotius lnleidinge3.35.8; Lmnb v Sack 1974 (2) SA 670 (T); Talevjurtuto 1976 (4) SA 238 (W); Van
der Harst v Viijoen1977 (1) SA 795 (C); Sager v Bez11idenhout 1980 (3) SA 1005 (0). See alsos 15(3)(a)(iii)
of the Maintenance Act.
140 S 3(1).
141 Tbfrl.
142 S 2(1) and (2).
68 The South African Law of
Persons
(a) Care
In terms of section 1(1) of the Act, "care" refers to the following:
(1) Within available means, providing the child with a suirable11' place to live, living con
ditions which are conducive to his or her health, well-being and development, and
the necessary financial support. Thus, care encompasses providing the child with
maintenance. However, the inclusion of maintenance under the statutory definition
of "care" does not mean that the common-law duty of support has suddenly ceased to
exist. Because the Children's Act did not expressly abolish the common-law rules re
lating to maintenance of a child, all parents still have a duty to support their child, re
gardless of whether they have parental responsibilities and rights in respect of the
child.1«
(2) Safeguarding and promoting the child's well-being.
(3) Protecting the child from maltreaunent, abuse, neglect, degradation, discrimination,
exploitation and any other physical and moral harm or hazards.
(4) Respecting, protecting, promoting and securing the fulfilment of, and guarding
against any infringement of the child's constitutional rights and the rights set out in
the Children's Act.
(5) Guiding and directing the child's education and upbringing in a manner which is
appropriate to the child's age, maturity and stage of development.
(6) Guiding, advising and assisting the child in decisions he or she has to take, bearing in
mind the child's age, maturity and stage of development.
(7) Guiding the child's behaviour in a humane manner.
(8) Maintaining a sound relationship with the child.
(9) Generally ensuring that the child's best interest is the paramount concem in all
matters affecting the child.
(b) Contact
"Contact" refers to maintaining a personal relationship with the child and communicating
with him or her on a regular basis if he or she lives with someone else. The communication
may take place in person (for example, by visiting or being visited by the child) or in
another way (for example, via telephone calls, letters, videos, video calls, electronic mail,
mobile phone text messages, or social media).'""
(c) Guardianship
"Guardianship" refers to administering and safeguarding the child's property and property
interests, assisting or representing the child in administrative, contractual and other legal
matters, and giving or refusing any consent that is legally required in respect of the
6
child.1'
(d) Maintenance
As indicated above, both parents have the duty to maintain their child. This duty is appor
tioned between them according to their respective means.'•'

143 Cl L(d) of the Children's Amendment Bill deletes the word "suitable" from the definition. The Mem
randum on the Objects of The Children's Amendment Bill. 2020 does not explain t11e proposed
change. In view of 1J1e extent of poverty in South Africa and the resultant inability of many parents
and other holders of parental responsibilities and right5 to provide suilabl, places to live to all children,
the change might reflect a desire to align the definition ,vith South African reality.
144 See also Boezaart Persom 124; Domingo and Barratt in Barratt (ed.) Persons and lhe Family 190; Heaton
and Krnger Family L<w 302; Schafer Child Law 226.
145 S 1(1).
l46 S I(1) ,-ead ,vith s 18(,1).
147 Maintenance Acts 15(3)(a)(ii).
 Chapter 5: Children born of unmarried parents 69

If an unmarried parent dies, his or her estate is responsible for the child's mainten
ance.148 If neither parent (or the parent's estate) can suppon the child, the duty of support
passes to the child's grandparents.1·•9 In terms of the 1930 decision of the Appellate Division
in Motan v ]oosub,"" only maternal grandfarents are liable for the child's maintenance.
However, in Petersen v Maintenance Officer'" the Cape Provincial Division of the High Court
(now the Western Cape Division of the High Court, Cape Town) declared this rule uncon
stitutional on the ground that it unjustifiably violated the right of a child born of unmarried
parents not to be subject to unfair discrimination on the ground of birth and the child's
right to dignity, and also failed to afford paramountcy to the child's best interests ."2 Even
though this decision does not bind all courts, there is little doubt that it will be followed and
tJ1at, in future, courts will hold maternal and paternal grandparents liable for support regard
less ofwhelher their grandchild was born of married or unmarried parents.15
From our common law it is clear that a child who is born of unmarried parents must
support his or her mother and maternal blood relations.'5' The position as far as the child's
father and his blood relations are concerned is not quite as clear, because some authors
mention the possibility that the father and his relations might not have a right to claim
maintenance from the child.155 However, denying an unmarried father and his blood
relations the right to claim maintenance from the child solely because the child was born
of unmarried parents would constitute an unjustifiable violation of the equality clause,'56
157
and would be unconstitutional.

5.6.3 Parental responsibilities and rights of the mother

In terms of section 19 of the Act, every biological mother apart from a surrogate mother1
"" acquires fullgarental responsibilities and rights in respect of her child when she gives
birth to the child.1 This rule applies regardless of whether the mother is married or
unmarried.

148 See e.g. Kramer v Findlay'.5 Executors (1878) 8 Buch 51; Carelse v £stale De Vries (1906) 23 SC 532; Sj>ies'
Executors v Be)'ers 1908TS 473; Secretary for Inland Revenue v Brey 1980 (1) SA 472 (A).
149 Ex partef(1cobs 1936 OPD 31; Gliksman v Takkinsky 1955 (4) SA 468 (W). It is unclear whether the duty
can be enforced against the deceased estate of a grandparent In Lloyd v Menzies [1956) 2 All SA 155
(D), 1956 (2) SA 97 (DJ it was held that it would be illogical not to enforce the duty against the de
ceased estate of a person who was liable for support while he or she was alive. However, in Barnard v Mil
ler (1963] 1 All SA 560 (C), 1963 (4) SA 426 (C) the court anived at a different conclusion. In Van Zyl
v Getz (2020] 3 All SA 730 (SCA) the Supreme Court of Appeal declined to bring about certainty by
de veloping the common-law rnle. It held that, in this case, there was insufficient evidence that the
child's father could not support the child. If the father could maintain the child, there was no need to
consider whether the common law should be developed to extend the duty of support to the deceased
estate of a grandparenL
150 1930 AD 61; see alsoFv L 1987 (4) SA 525 (W) (also reported as Dv l,1990 (I) SA 894 (W)).
151 (2004] l All SA 117 (CJ, 2004 (2) BCLR 205 (CJ (also reported as Petersen v Maintenance Officer,
Simon'.s TownMaintenanceCourt2004 (2) SA56 (C)).
152 The right not to be subject to unfair discrimination on the ground of binh is protected by s 9(3) of the
Constitution, whiles 10 of the Constitution protects the·right to dignity. S 28(2) of the Constitution pro
vides that the child's best interests must be paramount in every matter concerning the child.
153 See also Boei.aan Perstms 125; Heaton and Kn.1ger Family Law 306; Kruger in Boezaart (ed.) Child Law
in S01tth Afiica 4-6; Robinson in Atkin (ed.) 2007 international Survey of Family Lmv 283; Skelton and
Car nelley (eds) Family Law 355; Bekink 2008 DeJure154.
154 D 25.3.5.4; Voet Commenta,y on the Ptindects 25.3.8.
155 Hahlo and Kahn Sauth Afri.ca 355; Kruger and Robinson in Robinson (ed.) Law of Children rirul Young
Persons 43; Spiro Parent anrl Child 404; Van der Vyver and Jouben Personf!- en Familiereg 223 (but see
also the same work at 629 where the view is expressed that the child ought to be obliged to support his
fa ther).
156 Constitution s 9.
157 See also Cockrell Bili of Rights CtJmf!endium par 3E24; HeaLon and Kruger Family LC1w 310; Heaton Bill of
Rights Compen.{lium par 3C47; Kruger in Boezaart (ed.) Child f.r,w in Smtih Afi-ica 48; Van Heerden in Van
Heerden et al (eds) Boberg'., LCJhJ of Persons ftnd the Family 422; Robinson in Atkin (ed.) 2007 Interrwti01ud
Stt1lJC)' of Family Law 283; Davel 2004 De juu 381 387.
158 On surrogate motherhood, see above in this chapter.
159 S 19(1) read withs 19(3).
70 The South African Law of Persons

An exception regarding guardianship applies if the mother is an unmarried minor (the.·

is, a person below the age of 18 years) 160 and neither she nor the child's biological fath{-:
has guardianship in respect of the child. In such e,·ent, her guardian is also her child·,
guardian.161

5.6.4 Parental responsibilities and rights of the fatber162

(a) Introduction
As is pointed out above in this chapter, the Children's Act',;, replaced the common-law anc
statutory provisions that denied unmarried fathers inherent parental authority with rule,
which, inter a.Zia, automatically co11fer parental responsibilities and rights on certain unmar
ried fathers.'"" Many arguments have been raised in favour of, and against, granting
amo matic responsibilities and rights to unmarried fathers. It has been argued, intei·
alia, tha: compelling both parents to shoulder the responsibilities of parenthood, rather
than lea,in these responsibilities up to mothers, is what substantive sex and gender
equality, the child', best interests, and the child's right to parental care demand. Those
who oppose auromatic responsibilities and rights for unmarried fathers argue that, since
unmarried mothers are sti[ predominantly the primary caretakers of their children, their
primary responsibility for childcare justifies exclusion of unma1Tied fathers from
automatic rights in respect of the1r children. Another argument in favour of exclusion of
unmarried fathers from automatit rights is that, because of the economic inequality of the
sexes, the unma1Tied mother shoulc not have to go to court to challenge the unmarried
father's rights in respect of his child.i.,;
(b) Automatic parental responsibilities and rights for certain unmarried fathers
By virtue of section 21(l) (a) of the Children's Act, an unmarried biological father acquire<
full parental responsibilities and rights in respect of his child if he lives with the child',
mother in a permanent life partnership when the child is bom.11l6 If the provisions of clause
lO(a) of the Children's Amendment Bill were to become law, the unmarried father would
acquire parental responsibilities and rights if he lived with the child's mother at the rime ot
the child's conception or at any time betv,een the child's conception and birth. The clause

160 S17.
161 S 19(2). Cl 9 of the Children·s Amendment Bill restricts lhis exception to instances where the fat.her
doc:s not automatically have parental responsibilities and rights in lenns of ss 20 or 21. S 20 confers
pa rental responsibililies and rights on man;ed fathers: see above in this chapter. S 21 confers
automalic parental responsibilities and rights on certain unmanicd fathers: see below in lhis chapter.
162 On the difJcrenccs between the provisions of the Children's Act and customary law on a father·,
acquisition of responsibilities and dghts, see Nkmi 2018 Obicer 197.
l 63 S 313read with Schedule 4.
164 S 21. On s 21, see below in this chapter.
165 On lhc constitutional implications of the legal posilion of unmar,;ed parents, see e.g. K."lganas in
Murray (ed.) Geiu/er and the l\lew Sottlh Afric.an Legal Order 17g....174; Sinclair assisted b)' Heaton Law 1
Marria!{e 118-126; South African Law Commission fvfmrl 011 the Reuil!IU of Jiu Child Carr Art par 8.5.2.1:
Van Heerden in Van Heerden ,1 al (eds) Boberg'., La: of Persons a,1d c/1$ Family 391-394 fn 205,417; Clar\..
1992 SAJHR 568; Sonnekus and Van Westing 1992 TSAR 240 fn 50; Goldberg 1993 SALJ270; Hutchings
1993 THRHR 315; Labuschagne 1993 './1-TRHR 417-419, 428; Mosikar.sana 1996 ASSA.l 183; Kniger 1996
THRHR 521-522; Pamazis 1996 SAL) 11-19; Labuschagne 1996 TlfRHR 181; Goldberg 1996 THRHR
282; Schwellnus 1996 Obiter 153; Wolhuter 1997 Stell LR 65; Labuschagne 1997 THRHR 555; Robinson
1999 DeJure 281-282; Boshoff 1999 TSAR 28g...284; Pieterse 2000 St,U LR 326-328; Louw 2010 PFLJ 156:
Morei 2011 (2) Speculum Juris 81; Louw 2016 DeJure 193. Many of these authors deal ,,ith the
position prior lO the coming into operation of s 21 of the Children·s Act, but several of the points they
make re main pertinent.
166 S 21(1) (a). The Act does not rlefine a "pe1manelll life partnership". The phrase presumably refers to a
life partnership that falls outside the ambit of the Civil Union AcL See further Heaton in Dan:l and
Skelton (eds) Commentmy on tile 01ildren'.< Act 3-14; Louw 2016 Dejurt201.
 Chapter 5: Children born of unmarried parents 71

further removes the requirement that the parenrs' living together must have constituted a
107
permanent life partnership.
Section 21(1) (b) provides another avenue for the acquisition of full parental
responsibili ties and rights by an unmarried biological father. This section applies
regardless of whether the father ever lived with the mother. To acquire parental
responsibilities and right in terms of section 21(1) (b), the father must:
(1) consent or successfully apply to be identified as the child's father'68 or pay damages in
terms of customary law;"'"
(2) contribute or have attempted in good faith to contribute to the child's upbringing for
a reasonable period;
(3) contribute or have attempted in good faith to contribute towards expenses relating to
the child's maintenance for a reasonable period.'70
lt is unclear whether the Lhree requirements in section 21(1) (b) are conjunctive (that is,
apply together and must all be met) or independent. In RRS v DAL,171 it was held that all172
three requirements must be satisfied. This is in keeping with the view of some authors.
However, in Iv C: concern was raised about Lhe interpretation that renders the three
73

requirements cortjunctive, inter alia because it excludes unmarried fathers who are poor
but nevertheless contribute or make good faith attempts to contribute to their children's
upbringing. The court did not have to decide the issue, because it held that, in this case,
the father had in any event complied with all three requirements. On appeal, in KLVC v
SDI,174 the Supreme Court of Appeal confirmed the latter finding. Consequently it, too, did
not decide whether all three requirements have to be satisfied. In GM v KI,"5 the High
Court subsequently assumed that the requirements are not conjunctive, for it held that the
father acquired full parental responsibilities and rights when he consented tO being identi
fied as the child's father. The court's additional statement that an unmarried father can
acquire parental responsibilities and rights hy contributing to his child's maintenance also
indicates that it does not consider the requirements to be conjunctive. Unfortunately, the
Children's Amendment Bill does not address the issue of whether the unmarried father
176
must comply with all three of the requirements.
The phrases "contribut[ing] or ... attempt[ing] in good faith to contribute" and
"reasonable period" in section 21(1) (b) are vague. In KLVC v SDI the Supreme Court
of Appeal provided guidance on their interpretation. It held that the question of what
consti tutes "a reasonable period of time" depends on the facts of each case,
particularly the child's age and the parties' circumstances and actions. "Contribut[ing)"or
"attcmpt[ing] in good faith to contribute" for "a reasonable period" are

167 For criticism of the wording of the clause, see Heaton 2019 PEL] 7-10, available at https://doi.org/
10.l7159/l 727-3781/20I9/v22i0a5974.
168 The application to be identified as the child's father is governed bys 26 of the Children's Act.
169 On the issue of what payment of damages in terms of customary law refers to, see Heaton and Kruger
Fmnily !,aw 313 fn 106; Heaton in Boezaa1t (ed.) Chil,l Law in SouthA(,ica 86; Heaton in Davel and Skel
ton (eds) Commentaiy on theChiufren.'s Act 3-15; Nkosi 2018 Obiter 201.
170 S 21(I) (h). For a detailed discussion of case law on the three requirements, see Louw 2016 Dr.Jure!93.
171 Unreported, wee case no 22994/2010, 10 December 2010.
172 Schiifer Chiul Law 241; Skelton and earnelley (eds) Family Law 247. See further Heaton in Boezaart
(ed.) ChiklLaw in South Africa 85; Heaton in Davel and Skelton (eds) Commentary on the Children's Act
3- 14; Louw 2016 Dejtl1"e 203,204,211.
173 Unreported, KZDHe case no 11137/2013, 4April 2014.
174 (2015) I All SA 532 (SCA).
175 2015 (3) SA62 (GJ).
176 For criticism of the leg-islature's failure to deal with this issue, see Heaton 2019 PEIJ 11-13, available at.
https://doi.org/l0.17l59/1727-378I/2019/v22i0a5974.
72 The South African Law of
Persons
elastic concepts and permit a range of considerations culminating in a value judgment as tc
whether what was done could be said to be a contribur.ion or a good faith attempt at contrilr
uting to the child's upbringing over a period which, in the circumstances, is reasonable.m
The Supreme Court of Appeal further held that the maintenance contribution sectio1:
21(1) (b) refers to does not imply that the father must have provided maintenance as de
fined in the Maintenance Act. Any contribution to the maintenance of the child is suffi
cient.
Clause lO(c) and (d) of the Children's Amendment Bill seeks to remove some of tht
abovementioned uncertainty by deleting the phrases "in good faith" and "for a reasonable
period". If those deletions were Lo become Jaw, an unmarried father would have to pro\·t
simply that he contributed or attempted to contribute to the child's upbringing and ex
penses in connection with the child's maintenance.178
If an unmarried father qualifies for parental responsibilities and 1ights in terms of
section 21(1)(a) or (b), he acquires the same responsibilities and rights as the child's
mother and is a co-holder of parental responsibilities and rights alongwith the mother.179
180
In FS v ff, the Supreme Court of Appeal held that the father's acquisition of parental
responsibilities and 1ights is automatic. The facts of the case concerned a father who lived
with the child's mother when the child was born. Thus, the matter fell squarely within the
ambiL of secLion 21 (1)(a). However, the ratio of the court's finding that the acquisition of
parental responsibilities and rights is automatic refers to the portion of section 21(1) that
precedes paragraphs (a) and (b) of section 21(1). This portion reads as follows:
The biological father of a child who does not have parental responsibilities and rights in re
spect of the child in terms of section 20, acquires full parental responsibilities and rights in
respect of the child ...
The wording of the quoted portion is not restricted to fathers who fall within the ambit of
section 2l(l)(a); it applies equally to fathers who fall withLn the ambit of section 2l(l)(b).
Consequently, it is my view that the Supreme Court of Appeal's decision regarding automatic
acquisition of parental responsibilities and rights relates to unmarried fathers who meet
the
requirements in section 21(1)(a) and to those who meet the requirements in section 21(1)
81
(b). In KLVG v SD/ (which was decided after FS v If), the Supreme Court of Appeal
referred to the whole of section 21 and stated that "[s]ection 21 of the Act was specifically
intended to provide for the automatic acquisition of parental right [sic] by an unmarried
father if he was able to meet certain requirements". KLVG v SDI concerned acquisition of
parental responsibilities and rights in terms of section 21(1) (b). Therefore, there should no
longer be any doubt as to whether or not the father's acquisition of parental responsibilities
and rights182
is automatic, regardless ofwhether the circumstances in section 2l(l)(a) or (b) a.re
at issue. lJ doubt still ex:ists, it would be removed if clause 8 of the Children's Amendmem

177 Par (22], quoting the judgment of the court a quo.

178 See further Heaton 2019 PF,LJ 10-11, available at https://doi.org/10.17159/1727-3781/2019/
v22i0a5974.
179 In M v V(Rom N) (2011].JOL 27045 (WCC) it was held that the parems have no choice but to co-
parent, because the law imposes joint parental responsibilitiesand rights on them.
180 2011 (3) SA 126 (SCA).
181 (2015] l All SA 532 (SCA) par [19].
182 But see Boniface and Rosenberg 2017 THRJ-I/1256, who argue that acquisition of parental responsihili
ties and rights by an unmarried father is not automatic, since the father first has to meet the require
ments ins 21(1). They criticise the Supreme Coun of Appeal's statement in Kl,VC:v SDI thats 21 is
intended to confer automatic parental responsibilities on unmarried fathers. The authors seem to have
lost sight of the fact that the court stated thats 21 confers automatic parental responsibilities and rights
on an unmal'l"ic:d father "if he was able to meet certain requirements" (par (19) of the judgment). If,
however, the authors did not lose sight of this qualification, it is unfortunate that they did not explain
why the acquisition of parental responsibilities and rights is not automatic once the father has satisfied
the rcQuircments ins 21(1). See also Heaton 2019 PElf 6 fn 11, available at
lrnps://doi.org/10.17159/ 1727-3781/20l 9/v22i0a5974.
 Chapter 5: Children born of unmarried parents 73

183
Bill were to become law. This clause inserts the headin& "Automatic acquisition of parental
responsibilities and rights" to sections 18 to 21 of the Act. 84 Furthermore, clause lO(e) inserts
subsection (IA) into section 21 of the Act. In terms of this new subsection, the family
advocate may issue a certificate confirming that an unmarried father has automatically ac
quired full parental responsibilities and rights in terms of section 21(1) (a) or (b)
0
(emphasis added)."
It is unclear whether parties can validly exclude the acquisition of parental responsibili
86
ties and rights by a man who acts as a so-called "sperm donor" via sexual intercourse.' In
the case of "sperm donation" through sexual intercourse, the man impregnates the woman
for the purpose of enabling her to have a child, and the parties enter into an agreement
which provides that the man wilfnot have parental responsibilities and rights. This agree
ment is called a "known sperm donor agreement". The phrase "known sperm donor"
signifies that the identity of the so-called "sperm donor" is known, in contrast to the posi
tion in legally regulated sperm donation for purposes of artificial fertilisation, where the
donor's identity may not be revealed.187 The prohibition on revealing the identity of the
man who donated sperm for purposes of artificial fertilisation is sometimes breached, with
the result that such a donor is also a "known sperm donor". The latter scenario is
188
illusLrated by QG v CS, which is discussed below in this chapter.
In BR v LS89 the KwaZulu-Natal Local Division of the High Court, Durban had to decide
on the legal position of a known sperm donor in the first sense, that is, a man who acted as
a so-called "sperm donor" via sexual intercourse. The court assumed, without deciding the
issue, that a known sperm donor agreement can validly be concluded in these
circumstances. However, this assumption did not play a role in determining the outcome of
the case, because the court found that the mother had failed to prove that she and the father
had entered into a known sperm donor agreement which excluded the father's parental re
sponsibilities and rights. As the agreed facts of the case showed that the father satisfied the
requirements in section 21(1) (b), inter alia by having his name entered on the child's birth
certificate, having contact with the child, accompanying the child on visits to the paediatri
cian, and attempting to pay maintenance for the child, the court declared that he had full
parental responsibilities and rights alongside the child's mother. It is submitted that a
known sperm donor agreement cannot validly exclude the acquisition or exercising of
parental responsibilities and rights by a father who meets the requirements in section
21(1). As explained above, a father who meets the requirement5 in section 21(1) automati
190
cally acquires parental responsibilities and rights. Any attempt, by way of a known
sperm

183 See also Heaton 2019 PELJ5, available at https://doi.org/10.17159/l 727-378l/2019/v22i0a5974.

184 Briefly, ss 18-20 provide that a person may have full or partial parent.al responsibilities and rights; describe
the conlent of parental responsibilities and rights; set out the instances where joint consent by all guarcti
ans is required for matters relating to the minor or the minor's estate; and state that mothers and married
fathers have full parental responsibilities and rights.
185 1f enacted, the new subsection would be a welcome addition to the Act, as it would reduce the number
of instances in which unmarried fathers would have to approach the court for o,·ders confirming that
they fall within the ambit of s 21(1) and have automatically acquired parent.al responsibilities and
rights: Heaton 2019 PEI:f 13, available at https://doi.org/10.17159/1727-3781/2019/v22i0a5974.
186 "Sperm donation" is implicitly assumed to refer to sperm being donated for purposes of artificial
fertilisation and "sperm donor" has a corresponding implicit meaning: see e.g. Lupton in Clark
(ed.)
/i'(lmily Law Seruia parjl03; Van der Linde 2010 THTU-fR 690; Lauw 2016 SAI:f 1; Anonymous Sept
2017 DeRebus51. See also Heaton in Davel and Skelton (eds) C..om11umtary on lite O,iulren\ Act 3-17.
But see S v Mwyifani 2012JDR 0119 (ECP) and S vjulies 2017JDR 0573 (NCK), where reference is made
1.0 sperm donors in the context of rape.
187 S 41(2) provides that the identity of the gamete donor may not be revealed. See further the discussion
on artificial fertilisation above in this chapter.
188 [202l)JOL50542 (GP).
189 2018 (5) SA 308 (KZD).
190 See also Scrazzolo April 2021 De &bus 8, 9. But see Robertson.June 2019 De Rebus 12 who, in discussing
known sperm donor agreements and the decision in BR v LS, refers to parental responsibilities and
rights being "awarded" to the father.
74 The South African Law of
Persons
donor agreement or otherwise, tO divest the father of the parent.al responsibilities and
tights he will acquire after the child's birth, will fall foul of section 30(3). Section 30(3)
provides that "[a] co-holder of parental responsibilities and rights may not surrender or
transfer those responsibilities and rights to another co-holder or any other person" (em
phasis added). The section does permit co-holders to agree that one of them will exercise
any or all of the parental responsibilities and lights on behalf of the other but, in terms of
section 30(4), such agreement"does not divest a co-holder of his or her parental
responsibili ties and rights and ... [the] co-holder remains competent and liabl,e to exercise
those respon sibilities and lights" (emphasis added). If, once the child has been born, it is
not in the child's best interests that the "sperm donor" father retain parental
responsibilities and rights, the court could be approached for an order terminating his
parental responsibilities and iights.191
The father's acquisition of parental responsibilities and rights in te1ms of section 21(1)
operates re rdless of whether the child was born before or after the coming into operation
of the Act. 92 The application of section 21(1) to children born before the coming into
operation of the Act does not mean that the unmarried father acquired parental responsi
bilities and rights in respect of the period before the section came into operation. It simply
means that even if the child was born before the coming into operation of the Act, his or
her unmanied father acquired parental responsibilities and rights when section 21 came
into operation, that is, on 1July 2007.195
(c) Parental responsibilities and rights agreement
If an unmarried father does not meet the conditions seclion 21 sets for his automatic
acquisition of full parental responsibilities and rights and he does not have full or specific
parental responsibilities and rights in terms of a court order, he can acquire full or specific
parental responsibilities and rights by entering into a parental responsibilities and rights
agreement with the child's mother or any other person who has parental responsibilities
and lights.19' This agreement is regulated by section 22 of the Children's Act.
A parental responsibilities and rights agreement confers only those parental responsibili
ties and rights that are set out in the agreement.19 The agreement cannot confer more
responsibilities and rights than the confener has at the time of the conclusion of the
196
agreement. In other words, the agreement may deal with fewer parental responsibilities
and rights than the conferrer has, but it may not deal with more responsibilities and rights
than he or she has. Thus, for example, a 16-year-old unmarried mother may confer contact
on Lhe child's father, but, generally, she cannot confer guardianship on him, because her
guardian, not she, is the child's guardian.197 In this context, too, the prohibition in section
30(3) on the surrender or transfer of parent.al responsibilities and rights must be borne in

191 The application would usually be made in te,ms of s 28 or by invoking the power of the High Court as
upper guardian. On tennination of pa,·ental responsibilities and 1ights, see Heaton and Kruger Family
Law 349ff. On the legal impossibility of obtaining parental responsibilities and rights in respect of a
child before the child is born, see ch 2 above. On the legal position of kno"" sperm donors, see further
Van der Linde 2010 THRHR 690; Louw 2016 SAL]1; Anonymous September 2017 De R.ehus 51;
Thaldar
April 2018 De R.ehm 4; Robertson June 2019 De l /n,s 11; Van Niekerk 2021 Obiter 79; Scra.zzolo Ap,il
2021 De Rebm8.
192 S 21(4).
193 Fish Hoek Primary School v Welcome 2009 (3) SA 36 (C). In Fish Hoek Primmy SrJwol v GW2010 (2) SA
141 (SCA) the Supreme Court of Appeal overturned the decision of the court a q110 " thout dealing \,
th this dictu.111.
194 S 22(1).
195 Ibid.
196 S 22(2).
197 See also Heaton and Kruger Family Lt1w 314; Heaton in Bonaart (ed.) Child Law in South Africa 87.
S 19(2) governs guardianship of the child of an unmarried minor mother. The section is discussed
above in this chapter.
 Chapter 5: Children born of unmarried parents 75

mind. As indicated under the previous subheading, this section provides that a co-holder of
parental responsibilities and rights may not surrender or transfer his or her responsibilities
and rights. Therefore, a parental responsibilities and rights agreement cannot provide, for
instance, that a father who has full garental responsibilities and rights waives them and
1
transfers them to the child's mother. '•
Clause 12(a) of the Children's Amendment Bill seeks to insert section 22(2A) into the
Act. The proposed section provides that, if the child is sufficiently mature and has
sufficient mental capacity to do so, he or she must be given the opportunity to express his
or her views regarding the content of the parental responsibilities and rights agreement.
The proposed section fits in with regulation 8(3)(a) of the General Regulations Regarding
Children/19 which requires that the views and wishes of the child must be given due
consid eration when a parental responsibilities and rights agreement is being developed,
bearing in mind the child's age, maturity and stage of development.
A parental responsibilities and rights agreement must be in the format and must contain
the particulars that are prescribed by the regulations under the Act. 200 Even if the agree
ment meets these requirements, it is unenforceable unless it is registered with a family
advocate or is made an order of court on the parties' application. 0' Unless the agreement
deals with guardianship, the High Court, a Regional Court dealing with a divorce matter or
the Children's Court within whose area of jurisdiction the child ordinarily resides may
make it an order of court.wi If the agreement relates to guardianship, only the High Court
may make it an order of court.203
Before registering the agreement or making it an order of court, the familt advocate or
court must be satisfied that the agreement is in the best interests of the child. ·• The family
advocate or court must therefore apply the best interests of the child standard as set out in
section 7 (1) of the Act.20'
Once a parental responsibilities and rights agreement has been registered or made an
order of court, it can only be terminated or amended by the family advocate or the court.206
If the family advocate registered the agreement, he or she may amend or terminate it on
application by:
(1) A person who has parental responsibilities and rights in respect of the child.
(2) The child, provided that he or she has the court's consent.
(3) Any other person who is acting in the child's interest and has the court's consent.207
If the agreement has been made an order of court, the court may amend or terminate it on
application by the same persons who may approach the family advocate.208 If the
agreement relates to guardianship, only the High Court may amend or terminate it.200
(d) Assignment of parental responsibilities and rights by a court
An unmarried father can acquire parental responsibilities and rights by means of a court
order. Firstly, as upper guardian of all minors, the High Court may confer any or all
parental

198 On Lhis secLion, see further below in this chapter.

199 General Regulations Regarding Children, 2010 in GN R261 CG33076 of 1 Ap,il 2010.
200 S 22(3) read with the definition of"prescribccl" ins 1(1).
201 S 22(4).
202 S 22(4)(b) read with s 29(1).
203 S 22(7); Ex pa,te Swisi 2011 (1) SA 192 (KZP).
204 Ss 22(5) and 29(3).
205 These factors are set out below in this chapter.
206 S 22(6)(a).
207 Ibid.
208 S 22(6)(b).
209 S 22(7).
76 The South African Law of
Persons
210
responsibilities and rights on the father. The decisiYe consideration is the child's best
interests. In determining the child's best interests the court must take into account the
211
factors that are listed in section 7(1) of the Children's Act. Due consideration also has to
be given to the views of the child if he or she is of an age, maturity and stage of develop
ment to be able to participate in the matter.212
Secondly, in terms of section 23 of the Children's Act, anyone who has an interest in the
child's care, well-being or development may approach the High Court, a Regional Court
dealing with a divorce matter, or the Children's Court for an order awarding contact or
213
care to him or her. Depending on the facts of the case, an unmarried father may qualify
as a person who has an interest in his child's care, well-being or development. Even a man
who was a sperm donor for purposes of artificial fertilisation may qualify, as is illustrated
by QG v CS.214 In this case, a man who was known to a lesbian couple donated sperm for
pur poses of the artificial fertilisation of one of the women. After the child's birth, the
women allowed the sperm donor and his mother to have contact with the child on a few
occasions spanning the first five years of the child's life. They did so because they were
grateful that the man had donated his sperm. When disagreements about the child's
upbringing arose between them and the sperm donor and his mother, the contact was
terminated. The sperm donor and his mother then approached the court for an order in
terms of section
23. The court held that even though a man who is biologically related to a child by reason
only of being a sperm donor for purposes of artificial fertilisation does not qualify as the
child's parent,2"' he may apply for an order in terms of section 23 if he can show that he
has an interest in the care, well-being or development of the child who was born of the
artificial fertilisation. On the facts of the case, the court held that the father and his mother
quali fied as people who have an interest in the child's care, well-being or development,
but that it would not be in the best interests of the child to award contact to the sperm
donor and his mother.
The court must cake 16the following factors into account when considering an application
in terms of section 23:i
(1) The best in.terests of the child.
(2) The relationship between the applicant and the child, and between any other relevant
person and the child.
(3) The degree of commitment the applicant has shown towards the child.
(4) The extent to which the applicant has contributed towards expenses in connection
with the child's birth and maintenance.
(5) Any other fact that should, in the opinion of the court, be taken into account.
Either contact or care, or both contact and care can be assigned to the applicant.217 If the
court assigns contact and/or care to a person, it may impose whatever conditions it deems

210 For examples of cases where the court's common-law power as upper guardian to confer (elements of)
parental authodty (i.e. parental responsibilities and 1ights) on an unmarried father was invoked prior to
the coming into operation of the Children's Act, see Expw'le Van Do.111 1973 (2) SA 182 (W); W11 S 1988
(1) SA 475 (N); B II P 1991 (4) SA 113 (T); S II S 1993 (2) SA 200 (W); B II S 1995 (3) SA 571 (A);
Bethell
11 Bkmd 1996 (2) SA 194 (W); Coehee v Singh 1996 (3) SA 153 (D); V 11 H [1996) 3 All SA 579 (SEC);
Kn1.Sin v Ogle (1997) 1 All SA 557 (W); 'J'v M 1997 (1) SA 54 (A); Wickf v Fisher 1999 (2) SA 504 (N)
(also
reported as W11Fl998 (9) BCLR 1199 (N)); lvS2000 (2) SA 993 (C).
211 These factors are set out below in this chapter.
212 Children's Acts LO.
213 S 23(]). The coun" thin whose area of jurisdiction the child ordinarily resides hasjurisdiction to make
the order: s 29(1).
214 Unreported, GPPHC case no 32200/2020, 17June 2021.
215 See the discussion of anificial fertilisation above in this chapter, See also s 26 and the definition of
"parem" ins I (I), whic:h are discussed above ln this chapter.
216 S 23(2).
217 GM v N(; [2012) 3 All SA 104 (WCC), 20I2 (4) SA152 (\I.CC).
 Chapter 5: Children born of unmarried parents 77

necessary.218 Furthermore, the assignment order does not affect the parental
responsibilities and rights another person has in respect of the child.219 Thus, for example,
an unmarried mother does not lose her parental responsibilities and rights or any element
of those responsibilities and rights simply because Lhe coun assigns contact and/or care to
the child's father. However, section 28(2) authorises combining an application for
termination, extension, suspension or circumscription of parental responsibilities and
rights with an application for the assignment of contact and/or care. Thus, for example,
the unmarried father could ask the court to suspend particular aspects of Lhe molher's care
and to assign them co him.220
Thirdly, a person who has an interest in the child's care, well-being or development
may approach the High Court in terms of section 24 for an order assigning guardianship
to him or her.221 When considering the application, the court must take the following
factors into account:
(l) Thebest interests of the child.
(2) The relationship between the applicant and the child, and between any other
relevant person and the child.
(3) Any other fact that should, in the opinion of the court, be taken into account.m
If the child already has a guardian, the person who applies for assignment of guardianship
must give reasons why the existing guardian is not suitable to have guardianship.22' In CM v
NG,m it was held that the latter requirement applies only if the applicant is seeking sole
guardianship.
(e) Adoption
A child may be adopted by his or her unmarried biological father.225 If the father adopts
the child, he acquires full parental responsibilities and rights in respect of his child to the
exclusion of anybody (including the child's mother) who had parental responsibilities and
rights before the adoption order was made, unless the order provides otherwise.216 Subject
to the exceptions imposed by the adoption order, the child is for all purposes regarded as
the child of the adoptive parent and vice versa.w However, the adoption order does not
permit any marriage or sexual intercourse between the child and any person which would
have been prohibited had the child not been adopted.m Nor does the adoption order
affect any rights to property the child acquired before the adoption.229

5.6.5 General rules on exercising parental responsibilities and rights

A person need not have all the components of parental responsibilities and rights."° Thus,
one parent may have more parental responsibilities and rights than the other, or one
parent may have no parental responsibilities and rights at all.

218 S 23(1).
219 S 23(4).
220 See also Heaton in Boczaart (ed.) C/iil{l Lt1w in South Africa 89; Heaton in Davel and Skelton (eds)
C,011111Untary on the Children'.5 Act 3-23-S-24.
22l S 24(1) read with ExparteSibisi2011 (l) SA 192 (KZP).
222 S 24(2).
223 S 24(3).
224 (2012] 3AJI SA 104 (WCC), 2012 (4) SA452 (WCC).
225 S 231(1)(<1). The child's biological father who does not have guardianship is entilled LO be notified
when the child becomes available for adoption and to be given an opportunity to apply to adopt the
child:s 231(7)(a).
226 Children's Acts 242(1) and (2)(a) and (b).
227 S 242(3).
228 S 242(2)(c). On the prohibited degrees of relationship, sec Heaton and Krnger Family Law 26-29,
207, 219.
229 S 242(2)(d). On adoption, see further Heaton and Kruger Family Law 317-323.
230 S 18(1).
 78 The South African Law of Persons

Regardless of whether a person is the sole holder or a co-holder of parental responsibili

ties and rights, he or she must apply the standard that the child's best interests are of
paramount importance whenever he or she exercises any aspect of those responsibilities
and rights.231 The best interests standard entails, ·inter alia, that the factors that are listed
in section 7(1) of the Act must be taken into account where relevant. These factors are:
(1) The nature of the personal relationship between the child and his or her parents, or
any specific parent, and between the child and any other caregiver or relevant
person.
(2) The attitude of the parents, or any specific parent, towards the child and the
exercise of parental responsibilities or rights in respect of the child.
(3) The capacity of the parents, any specific parent, or any other caregiver or person, to
provide for the child's needs, including his or her emotional and intellectual needs.
(4) The likely effect any change in the child's circumstances would have on the child. This
includes the likely effect of the child's separation from either parent or both parents, a
sibling, another child, or any other caregiver or person with whom the child has been
living.
(5) The practical difficulty and expense of the child having contact with his or her
pa.rents, or a specific parent, and whether that difficulty or expense would substantially
affect the child's right to maintain personal relations and direct contact with that
parent on a regular basis.
(6) The child's need to remain in the care of his or her parent, family and extended
family, and to maintain a connection with his or her family, extended family,
culture or tradition.
(7) The child's age, maturity, stage of development, gender, background and any other
relevant characteristic.
(8) T11e child's physical and emotional security and his or her intellectual, emotional,
social and cultural development.
(9) Any disability the child may have.
(10) Any chronic illness from which the child maysuffer.
(11) The child's need to be brought up within a stable family environment or, if this cannot
be achieved, in an environment resembling a family environment as closely as possible.
(12) The need to protect the child from any physical or psychological harm which may
be caused by subjecting him or her to maltreatment, abuse, neglect, exploitation or
degradation, exposing him or her to violence, exploitation or other harmful behav
iour, or exposing him or her to maltreatment, abuse, degradation, ill-treatment, vio
lence, or harmful behaviour towards another person.
(13) Any family violence involving the child or a family member of the child.
()4) Which action or decision would avoid or minimise further legal or administrative
proceedings regarding the child.
Clause 4 of the Children's Amendment Bill proposes the addition of "any special needs
that a child may have" to the list.
When a holder of parental responsibilities and rights exercises any parental
responsibility and/or right, he or she must give effect to section 10 of the Act. In terms of
this section, a child who is of such an age, maturiLy and stage of development as to be
able to participate in any matter concerning the particular aspect of parental
responsibilities and rights, may participate in an appropriate way, and his or her views
must be given due consideration.

231 Constit1.1tio11s 28(2); s 9 of the Children's Act.

 Chapter 5: Children born of unmarried parenis 79

Furthermore, in terms of section 31(1), due consideration must be given to any views
and wishes the child expresses, before a holder of parental responsibilities and righis takes any
of the following decisions:
(1) A decision in connection with the child's marriage, adoption or removal from South
Africa, an application for a passport for the child, or the alienation or encumbrance
of the child's immovable property. As is explained below in this chapter, these are
the decisions for which the consent of all co-holders of guardianship is required.
(2) A decision in connection with a matter affecting contact becween the child and a co
holder of parental responsibilities and rights.
(3) A decision in connection with the appointment of the person's successor as sole
guardian or sole holder of care.
(4) A decision which is likely to significantly change, or to have an adverse effect on,
the child's living conditions, education, health, g;rsonal relations with a parent or
family member or, generally, the child's well-being."
The child's age, maturity and stage of development must be taken into account when
consideration is given to the child's wishes and views.

5.6.6 The position if both unmarried parents have parental responsibilities

and rights
(a) General
If both unmarried parents have parental responsibilities and rights in respect of their child,
they may exercise those responsibilities and rights without each other's consent unless the
Children's Act, any other rule of law or a court order provides otherwise.233 In other
words, the starting point is that co-holders may independently exercise their parental
responsibili ties and rights. Joint consent may, however, be required in terms of an Act,
another rule of law, or a court order.
(b) Guardianship and care
In respect of guardianship, section 18(5) read with section 18(3)(c) of the Act specifically
requires the consent of all the child's guardians for:
(1) The child's marriage.
(2) The child's adoption.
(3) The child's departure or removal from South Africa.
(4) The child's application for a passport.
(5) The alienation or encumbrance of any immovable property of the child.
The High Court or a Regional Court in a divorce matter may grant exemption from the
requirement of joint consent.i"
Clause 17 of the Children's Amendment Bill proposes the iJ1Sertion of a new section -
section 30A- which also requiresjoim consent, but does not relate specifically to guardians.
The proposed section applies to "parents" who, in terms of section 30A(4), "may include
any co-holder of parental responsibilities and rights". ln terms of section 30A(l), the
parents of a child "must agree" on the child's residence.:!.'! They must determine the resi
dence in accordance with the child's best interests. 2116 If there is a dispute between the

232 S 3l(l)(a) read withs 3l(l)(b)(i), (ii) and (iv); see also s 10. On the overlap betweens 31(1) ands 10,
and the difficulties in interpreting the words "significant" and •significantly", see Heaton in Davel and
Skelton (eds) Cc1m11mlary on /he Cluldrm'.,Art!l-35-3-37;Bonthuys 2006 SuULR4.90.
233 Ss 18(1) and (5), 30(2).
234 S 18(4) and (5) read withs 45(3)(a), (d) and (g).
235 S 30A(l) read withs 30A(4).
236 S 30A(2).
80 The South African Law of
Persons
co-holders as to the child's residence, the matter must be referred for mediation to a family
advocate, social worker or other suitably qualified person, before the co-holders may ap
proach the court.2"
(c) Due consideration of the views and wishes of other co-holders
A further limitation on the exercising of common parental responsibilities and rights is
found in section 31(2) of the Act. This section provides that a person who holds parental
responsibilities and rights must give due consideration to the views and wishes of all co
holders before taking any decision which is likely to change significantly or to have a
signif icant adverse effect on a co-holder's exercise of parental responsibilities and rights.
Once such consideration has been given to the co-holder's views and wishes, the person
may, however, act independently.2- 8 Failing to give consideration to the co-holder's
views and wishes does not render the decision void or invalid, but the decision - like any
01.her - can be set aside by the court ifit isnotin thechild's best interests.239
(d) Surrender or transfer of parental responsibilities and rights is prohibited
Section 30(3) places yet another restriction on co-holders' powers. This restriction is men
tioned above in this chapter. It provides that a co-holder of parental responsibilities and
rights may not surrender or transfer his or her parental responsibilities and rights. Co
holders may, however, agree that one of them will exercise any or all of the parental re
sponsibilities and rights on behalf of the other co-holder(s).
In terms of section 30(4), an agreement in which a co-holder authorises somebody to
exercise his or her parental responsibilities and rights on his or her behalf does not divest
him or her of those responsibilities and rights. He or she remains "competent and liable"
to exercise them. Thus, for example, an unmarried father who has parental responsibilities
and rights may not waive his parental responsibilities and rights or transfer them to the
0
child's mother, but he may delegate them to her.2'
(e) Parenting plan
If co-holders of parental responsibilities and rights experience difficulties in exerc1smg
those responsibilities and rights, they may approach the court for an appropriate order, but
11
before doing so they must try to agree on a parenting plan in terms of section 33. In
preparing their parenting plan, they must seek the assistance of a family advocate, social
worker or psychologist, or mediation through a social worker or other suitably qualified
person.242 If one or more of the co-holders refuse to engage in discussions about a parent
ing plan, the court can be approached for an order on the exercising of the particular
parental responsibilities and rights. In such event, the court may order the unwilling co
15
holder to enter into a parenting plan with the other co-holder.2'

237 S 30A(5).
238 jvj2008 (6)SA30 (C).
239 Ibid.
240 See also Heaton in Boezaart (ed.) Chiltl La:w in South Africa 97; Heaton in Davel and Skelton (eds)
Commmta,y on the Chiltlren'.)· Act 3-35.
241 S 33(2). See also reg 10(1) of the General Regulations Regarding Children. The Act does not define a
parenting plan. From s 33(1) one deduces that a parenting plan is an agreement in which co-holders
make a1Tangements on the way in which they will exercise their respective parental responsibilities
and rights: see also PD v MD 2013 (I) SA 366 (ECP); Heaton in Davel and Skelton (eds) Commentary
on the Children's Act 3-40. On the question whether parenting plans serve the best interests of the
parent or the child, see Mahlobogwane 2013 Obiter2l8.
242 S 33(5). On the difficulties relating to when a family advocate, social worker or psychologist can be said
to be giving "assistance" in prepating a parenting plan, and the meaning of the phrase "other suit.ably
qualified person", see Heaton in Davel and Skelton (eds) Commentmy on the Chiulren's Act 3-42. See also
Schafer Clziltl Law 255.
243 Mv V(Born N) [20ll]JOL 27045 (WCC).
 Chapter 5: Children born of unmarried parents 81

Even if co-holders do not experience difficulties in exercising their responsibilities and

rights, they may enter into a parenting plan/+<but then they need not seek the assistance
of a family advocate, social worker or psychologist, or mediation by any person.
A parenting plan may determine any matter in connection with parental responsibilities
and rights, including where and with whom the child is to live, the child's maintenance,
contact between the child and any of the parties or between the child and any other
person, and the child's schooling and religious upbringing.245 A parenting plan must
comply with the best interests of the child standard as set out in section 7."'6 Furthermore,
the child must be consulted during the development of the plan, bearing in mind his or her
age, maturity and stage of development. He or she must be granted an opportunity to
47
express his or her views, and those views must be given due considern.tion.'
Section 34 lays down the formal requirements for a parenting plan. It requires that the
plan must be in writing and be signed by the parties.2'8 The plan may be registered with a
family advocate or be made an order of court.249 Since section 34 does not indicate that
there are different grounds for registration by the family advocate and the making of a
court order, the parties have a choice as to whether to approach the family advocate or the
court.250
A parenting plan that was registered with a family advocate may subsequently be amended
or terminated by the family advocate upon application by the co-holders who are the
parties to the plan.251 A parenting plan that was made an order of court may only be
amended or terminated by a further order of court. Three categories of persons may
approach the court for amendment or termination, namely:
(1) The co-holders who are the parties to the parenting plan.""
(2) The child in respect of whom the parties to the parenting plan have parental respon-
sibilities and rights, provided that the child has the court's consent.
(3) Any other person who is acting in the child's interest and has the court's consent.""'
In VN v i'vlff< the court held that, even though the Act does not expressly require this,
panies who are experiencing difficulties in exercising their parental responsibilities and
rights must obtain the assistance of a family advocate, social worker or psychologist when
preparing a variation of their parenting plan, just like they have to do when they initially

244 S 33(1).
245 S 33(3).
246 S 33(4).
247 Reg ll (1).
248 S 34(l)(ti).
249 S 34(l)(b).
250 See also Heaton and Kruger Family Law 328 fn 255; Heaton in Boezaart (ed.) Child I.aw in South Africa
98; Heaton in Davel and Skelton (eds) Cmnmentary on the Children's Act 3-44. If a parenting plan is made
an order of court, it can more easily be enforced than if it is registered with a family advocate, since an
order of court enjoys "greater enforceability in law": Comeli October 2018 De &bus4.9.
251 S34(4).
252 In PD v MD 2013 (1) SA 366 (ECP) the respondem argued that the phrase "by the co-holders of
parental responsibilities and rights who are parties to the plan•· means that the co-holders are required
jointly to approach the court for amendment of the parenting plan. The court rejected this argument
and held that a co-holder of parental responsibilities and rights is entitled to apply to court for an
amendment of the terms of a parenting plan that has been made an order of coun, provided that he or
she made a reasonable effort to reach agreement with the other co-holder(s) before approaching the
court: par [29].
253 S 34(5). On parenting plans, see further Domingo and Ban-att in Barratt (ed.) Per.sansand the Family
202-203; Heaton and Kruger Family Law 327-328; Heaton in Boezaart (ed.) Child Law in South Afri«i
97-99; Heaton in Davel and Skelton (eds) Commentary on the Children's Act 3-40-347; Schafer Child Law
254-258; Mahlobogwane 2013 Obiter218; Comeli October 2018 De Rebus 48; Maree December 2018 De
&bti,S 36; Robinson, Ryke and Wessels 2019 Obit.er 221.
254 2017 (2) SA 328 (ECG).
82 The South African Law of Persons

prepare a parenting plan. As is the case with the initial parenting plan, this assistance must
be obtained before the parties seek court intervention. _-\lthough the court did not refer
to mediation by a social worker or other suitably qualified person as an alLernative to
obtain ing the assistance of a family advocate, social worker or psychologist, such
mediation would presumably also be acceptable, because it is a permissible alternative
when a parenting plan is initially being prepared.

5.6.7 Succession
(a) Intestate succession
In terms of section 1(2) of the Intestate Succession Act 81 of 1987, the fact that a child
was born of unmarried parents _does not affect the capacity of one blood relation to
6
inherit the intestate estate of anor11er.2' This means that children who are born of
unmarried parents can inherit intestate from both parents (and more distant blood relations)
and that both parents (and more distant blood relations) can inhe1it intestate from the
children.
(b) Testate succession
Section 2D(1) (b) of the Wills Act 7 of 1953""' provides that, for the purpose of
interpreting a will, the fact that a child was born of unmarried parents is irrelevant when
determining a person's relationship to the testator or any other person. Therefore, for
example, a refer ence in a will to "my children" includes children the testator had as a
married and an unmarried person.

5.7 Changing the status of a child born of unmarried parents

5.7.1 Introduction
There are two, or possibly three, ways in which a child bom of unmarried parents can
acquire the status of a child born of married parents. These ways were previously referred
to as ways of "legitimating" the child. As is pointed out above in this chapter, the
Children's Act moved away from the terms "legitimate" and "illegitimate". It is therefore
no longer appropriate to refer to "legitimating"a child.

5.7.2 A subsequent marriage between the child's parents

In terms of section 38 of the Children's Act, a child born of parents who marry each other
after the child's birth must for all purposes be regarded as a child born of parents who were
married to each other at the time of the child's birth.2;8 This means that the child's father
retroactively acquires full parental responsibilities and rights alongside the child's mother,
because the child's parents are deemed to have been married at the time of the birth. This
is Lhe position even if the child's parents could not have legally married each other at the
time of the child's conception or birth.m It is also the position if the subsequent union
between the parents is a putative marriage.260
If a child's mother marries someone other than the child's father, the child does not
become a child born of married parents and the maniage does not confer any parental

255 See s 33(5).

256 As a result of .tn amendment effected bys 8 of the Refom1 of Customary Law of Succession and Regula
tion of Related Matters Act 11 of 2009, s l (2) of the Intestate Succession Act applies to customary law of
succession too. The position is difTerent in terms oflslamic law of succession: see Abduroaf2021 Obiter
126.
257 Which was inserted by the Law of Succession Amendmcm Act13 of 1992.
258 Children·s Acts 38(1); see alsos 11(1) of the Births and Deaths Registration AcL On registration of
the child's birth, see further ch 2 above.
25!) Children's Acts 38(2).
260 M11khuliso v Makholiso 1997 (4) SA 509 (Tk); see also fn 2 above in this chapter.
 Chapter 5: Children born of unmarried parents 83

responsibilities and rights on the mother's husband.261 The position is different in custom
ary law. In terms of the law of some customary groups, a man may marry a woman and
simultaneously join a child his wife had with another man to his family, thereby acquiring
parental responsibilities and rights in respect of the child.262

5.7.3 Adoption
When a child is adopted, the adoption terminates the parental responsibilities and rights of
the child's existin parents and confers full parental responsibilities and rights on the
adoptive parent(s). 3 Therefore, if a child born of unmarried parents is adopted by married
adoptive parents, his or her status will change to a child born of married parents. This rule
probably applies, not only to adoption in terms of chapter 15 of the Children's Act, but
2
also to customary adoption. G-t

5.7.4 An order of the authorities

The court is not vested with a general power to change the status of a child born of unmar
ried parents to that ofa child born of married parents.265 It does have the power to make a
declaratory order in respect of the status of a child born of a putative marriage, but in this
situation it simply confirms an existing fact, because a child who is born of a putative mar
riage is in any event treated as a child born of married parents.2<,t;

261 See also Boezaart Per.wms 99; Heaton and Kruger Family [,aw 312; Heaton in Boezaart (ed.) Child Law in
Smtlh Africa 84. In respect of the position prior to the coming into operation of the Children's Act, see
Nokoyo v AA Mutual lnsurrmce Association Ltd 1976 (2) SA 153 (E) where it was held that the mother's
husband does not acquire guardianship in respect of her child.
262 See e.g. l,M v GK2013JDR 0918 (GSJ); Rakhavha v Rorul Accidenl Fund 2019JDR 1219 (GP); Muller-
Van der Westhuizen in Rautenbach (ed.) Legal Plumli.sm 109; Mokotong 2015 THRHR 344; Monye
2017 JLSD I; Sonnekus 2021 TSAR 211.
263 Children's Acts 242(2)(a).
264 Sonnekus 2021 TSMl 222-223 argues that Lhe phrase "in te1ms of any law" in the definitions of
"adopted child" and "adoptive parent" ins l of the Act implies that a child's status can be changed by
way of cus tomary adoption too. Customary adoption has been judicially recognised: see e.g. Maneli v
Maneli 2010
(7) BCLR 703 (GSJ); LM v CK 2013 JDR 0918 (GSJ); Raklu,vha v Road Accident Fund 2019 JDR 1219
(GP).
265 WvS1988 (1) SA475 (N).
266 On putative marriages, see Heaton and Krnger Family Law ch 4.
 IT]
MINORITY

6.1 Introduction
Minority is one of the most important factors influencing a person's status. The legal view
is that, because people's juristic acts are dependent on their expression of will, only persons
who have a reasonable understanding and judgement should have capacity to act. In other
words, the law confers capacity to enter into juristic acts only on persons who can under
stand the nature, purport and consequences of their acts, since such acts may have far
reaching consequences for their authors: for example, they may result in the creation or
loss of rights and duties. Obviously, youth has a major influence on a person's powers of
judgement. For this reason the law protects young people by limiting their capacity to
participate in legal interaction. From a legal point of view, the starting point is that a
person has neither the intelJectual ability nor the experience to participate independently in
legal and commercial dealings before reaching the age of 18 years. The restrictions on a
minor's' capacity do not violate the constitutional right to equality, because their objective
is the minor's protection.2
Generally speaking, a person acquires full capacity to participate in legal interaction on
his or her 18th birthday.' However, several earlier ages are of legal importance. For ex
ample: children below the age of seven (that is, in/antes) have no capacity to act, while
minors between the ages of seven and 18 years have limited capacity to act, which means
that they can, as a rule, only enter into contracts with the assistance of their guardian. Once
children have turned 12 years of age, they may independently buy condoms and receive
free condoms on request, and they may be provided with other contraceptives if they
request this, receive medical advice, and undergo a medical examination to determine
whether there are any medical reasons why a specific contraceptive should not be pro
vided.4 As from the age of 14 years minors may witness a wilJ," and once they have turned
16, they may make a will.0 These examples and the other rules on minors' capacity are set
out in more detail below in this chapter.

For lack of a beuer word, "minor• is used to denot<' a person hetween seven and 18 years of age
although, strictly speaking, the term includes a person under the age of seven years. On the preference
for the word "minor", sec further Heaton in Van Hecrden et al (eds) Bobug's Law of Per= and the
Family 755 fn 39.
2 The right to equality is protected bys 9 of the Constitution of the Republic of South Africa, 1996; see
also Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 s 6 read with the
"pro hibited grounds" ins l( 1), which interalia prohibit unfair disc1imination on the ground of age.
3 Childrcn'sAct38of2005s 17.
4 Children's Acts 134(1) .111d (2).
5 Wills Act 7 of 1953 s 1.
6 Wills Acts 4.

85
86 The South African Law of
Persons
6.2 Children's rights
6.2.1 Constitution of the Republic of South Africa, 1996
Although minors can invoke the rights that the Constitution of the Republic of South
Africa, 1996 confers on everyone, they are also afforded special protection by section 28
of the Constitution. The purpose of section 28, which is commonly known as the children's
rights clause, is to protect children, not their parents. Thus, it affords rights to children, not
their parents.'
Section 28(1) of the Constitution gives every child the right:
(1) To a name and nationality from birth.
(2) To family or parental care, or appropriate alternative care when removed from the
family environment.
(3) To basic nutrition, shelter, basic health care and social services.
(4) To be protected from maltreatment, neglect, abuse and degradation.
(5) To be protected from exploitative labour practices.
(6) Not to be required or permitted to perform work or provide services that are inap
propriate for someone of his or her age, or place his or her weJJ-being, education,
physical or mental health, or spiritual, moral or social development at risk.
(7) Not to be detained except as a measure of last resort. If detained, the child has all the
rights which sections 12 and 35 of the Constitution afford aJJ detainees. In addition,
the child may only be detained for the shortest possible period and has the right to be
kept separately from detained adults and to be treated in a manner and kept in condi
tions that take account of his or her age.
(8) To have a legal practitioner assigned to him or her by the state in civil proceedings, at
state expense, if substantial injustice would otherwise result.
(9) Not to be used directly in armed conflict, and to be protected in times of armed
conflict.
Section 28(2) of the Constitution moreover provides that a child's best interests are of
paramount importance in every matter concerning the child. Consequently, the best in
terests of tl1e child must be centra1 in all fields of the law.3

6.2.2 Children's Act 38 of 2005

The rights that a child has in terms of the Children's Act supplement those that the
Consti tution confers on every child.9 The Act inter alia seeks to give effect to the child's
constitu tional rights to family or parental care or appropriate alternative care when
removed from the family environment, to social services, to be protected from
maltreatment, neglect, abuse or degradation, and to have paramountcy afforded to his or
her best interests in every matter concerning him or her.'0 The Act also seeks to give
effect to the obligations concerning the well-being of children which South Africa has
incurred in terms of international

7 SW v F 1997 (1) SA 796 (0). This case was decided in the context of the children's rights clause in
the inte,im Constitulion (Constitution of the Republic of South Africa 200 of 1993 s 30), but it is
submitted that the principle holds good in respect of the children's rights clause in the final
Constitution, too. See also M v S (Cmtre.far Cliil,d LawAmicus CuliaeJ 2007 (12) BCLR 1312 (CC) (also
reported as S v M (unlre for Clliul IA1ru1i Amir.11s Cu,iaeJ 2008 (3) SA 232 (CC), 2007 (2) SACR 539 (CC)).
8 011 children·s right\, see further Ileaton and K11.1gcr fo711ily UUJJ ch 22 and the sources cited there.
9 Children's Acts 6(2)(rt) read withs 8( I).
10 S 2(b); compares 28(1)(11), (<f) and (2) of 1.he Constit111ion.
 Chapter 6: Minority 87

instruments such as the African Charter on the Rights and Welfar.e of the Child and the
United Nations Convention on the Rights of the Child.11
Section 6 of the Act sets out general pdnciples which must guide the implementation of
legislation and guide proceedings, actions and decisions by organs of state relating to a
12
specific child or children in general. Included among these is the principle that- subject to
lawful limitation - all proceedings, actions or decisions in a matter concerning a child must
respect, protect, promote and fulfil the rights the child has in terms of the Bill of Rights,
the best interests of the child standard that is set out in section 7 of the Children's Act, and
the rights and principles that are contained in the Children's Act." In addition, section 9 of
the Act requires that the standard that the child's best interest is of paramount importance
must be applied in all matters concerning a child's care, protection and well-being.
Other general principles section 6 sets out are that all proceedings, actions or decisions
in a matter concerning a child must respect the child's dignity, treat him or her fairly and
equitably, protect him or her from unfair discrimination on any ground, and recognise his
or her need for development and to engage in play and other recreational activities appro
priate to his or her age." If the child is disabled, his or her disability must be recognised
and an enabling environment must be created to respond to the child's special needs. 15
Furthermore, section 11 lists specific issues which must be considered in respect of
children with disabilities or chronic illnesses.
Section 6 also provides that, having regard to his or her age, maturitJ and stage of de
velopment, the child must be informed of any action or decision in a matter which signifi
cantly affects him or her,16 and, if it is in the child's best interests, his or her family must
be given an opportunity to express their views in any matter concerning the child.17 In add
ition, section 10 affords every child who is of such an age, maturity and stage of develop
ment as to be able to participate in a matter concerning him or her, the right to participate
in that matt.er in an appropriate way. Due consideration must be given to the child's views.
Section 6 further requires that an approach which is conducive to conciliation and problem
solving must be adopted in any matter that concerns a child, and that a confrontational
approach must be avoided. A delay in any action or decision regarding the child must be
avoided as far as possible.18
Section 12 affords every child the right not to be subjected to social, cultural and reli
gious practices which are detrimental to his or her well-being.19 The section specifically
provides that children below the minimum legal age for maniage may not marry or get

11 S 2(b). On these international instruments, see further below in this chapter. South Africa also incurred
obligations in respect of disabled children when it ratified the Convention on the Rights of Persons with
Disabilities in 2007. For instance, art 7(1) of the Convention obliges states parties to take all necessary
measures to ensure the full enjoyment by children with disabilities of all human rights and fundamental
freedoms on an equal basis with other children. In tenns of art 7(2), the best interests of the child "shall
be a primary consideration" in all actions concerning disabled children. Disabled children also have the
right freely to express their views on all matters affecting them. Their views must be given due weight
in accor<lance \\1th their age and matuiity, on an equal basis with other children. They must also be pro
vided \,1th "disability and age-appropriate assistance" to realise this right: art 7(3). On the Convention,
see also chs 7 and 8 below. See further Boezaart 2011 THRHR 265; Boezaart 2012 SAPL 454; Elphick,
Elphick and De Sas Kropiwnicki 2014 SAJHR.221.
J2 S6(1).
13 S 6(2)(a).
14 S 6(2)(b)-(e).
15 S 6(2)(/).
16 S6(5).
17 S 6(3).
18 S 6(4). See also FSvJ/2011 (3) SA 126 (SCA).
19 S 12(1).
88 The South African Law of
Persons
engaged.20 Once they reach the minimum marria eable age they may not be given out in
marriage or engagement without their consent. 1 The section further prohibits female
circumcision and genital mutilation, and virginity testing of children below the age of
16 years.22 A virginity test may be pe1formed on a child who is over the age of 16 years
only if it is done in the manner that is prescribed by the regulations under the Act, and the
child has consented in the prescribed manner and has received proper counselling.23 A
male child who is below the age of 16 years may not be circumcised unless the
circumcision is performed for medical reasons on the recommendation of a medical
practitioner or for religious purposes in accordance with the practices of the particular
24
religion (for example, the Jewish faith). Taking into consideration his age, maturity and
stage of development, every male child has the right to refuse circumcision."" If the child
has already turned 16, he may be circumcised only if the circumcision is performed in the
manner that is prescribed by the regulations, and he has given consent in the prescribed
manner and has received proper counselling.26 The Customary Initiation Act 2 of 2021
imposes additional duties on traditional leaders, initiation school principals, parents and
various other parties in respect of customary initiation. It also regulates governance and
oversight of initiation schools. As cultural matters - which include customary initiation
and customary initiation schools - are areas where the provinces and national legislature
have concurrent legislative powerst
some provinces have also enacted legislation on customary initiation and/or initiation
schools.28
Section 13 entitles every child to access to information on health promotion, the preven
tion and treatment of ill-health and disease, sexuality,29 reproduction, his or her health
status and the causes and treatment of his or her health status. It also affords the child the
right to confidentiality regarding his or her health status and the health status of his or her
parent, care-giver or family member, unless maintaining such confidentiality is not in the
child's best interests.soThe health information that is provided must he relevant and must

20 S 12(2)(a). Cl 6 of the Children's Amendment Bill 18 of 2020 seeks to su·engthen the provision
relating to child marriages by providing that a child who is below the minimum legal age for marriage
must not many or get engaged.
21 S 12(2)(b). A minor's capacity to many isdiscussed below in this chapter. On the \ elations of human rights
caused by child marriage, and the conflict between cultural rights in some societies and the human rights
mies which prohibit child marriage, see Mahery in Boezaart (ed.) Chil.d law in Sout.h Africa 239-245; Mul
ler 2014 Speculum Juris 202; Swart and Hassen 2016 AHRJ.,/ 458; Olaborede and Lumina 2017 Speculum
Juii,41; Van Coller 2017 Iruernationaljournal of Daw, Poli,C)• and tk Fa,nil)' 363; Mwambenc 2018
AHRIJ 527; Olaborede and Rem be 2018 SpeculumJuris 94; Msuya 2020 JJS 43; Olaboredc and Ndlovu
2020 Specu
lumJu.-is49.
22 S 12(3) and (4); see alsos 8(b) of the Promotion of Equality and Prevention of Unfair DiscriminationAcL
23 S 12(5).
24. S 12(8).
25 Sl2(10).
26 S 12(9).
27 S 104(1)(b)(i) read with Part Aof Schedule 4 of the ConstilUtion.
28 See c. . theFree State lnitiation School Health Act l of 2004; Eastern Cape Customary Male Initiation
Practice Act 5 of 2016; Limpopo Initiation Schools Act 6 of 2016. On genital mutilation, virginity tests
and circumcision. see further Davel in Davel and Skelton (eds) Co,nmmJary on the Chi/,dren's Act 2-22-2-24;
Mahery in Boezaart (ed.) 01il.d Law in South Afrir.a 229-239; Mahery, Proudlock and Jamieson Guuk to the
Children's Act 7-8; Schafer 01ild Law 166-167, 169-173; Schafer in Clark (ed.) Famil)' Law Senna
pars E213-E217; Moodlcy 2008 SAPI. 65; Bennet(, Mills and Munnick 2010 TSAR 254; Vawda and
Maqutu
.June 2011 SAJBT, 36; Smith, Velaphi, Horn,Joolay and Madide 2011 SAMJ50; Ncube and Ross December
2012 SAJBI. 67; Sonnekus 2012 TSAR 758; Sloth-Nielsen 2012 La.w, De,rwcracy a11d Develcpmml 69;
McQuoid-Mason 2013 SANf/283; Millard and Goldstuck 2013 SAM]436; Strode, Toohey and Slack 2016
SAM]1173; Couzens 2017 SAIJ116; Millard and Goldsnick 2017 SAl\ij19; Koffman May 2018 De Rebus26.
29 For a children's rights perspective of childhood sexuality in Africa, see Kangaude, Bhana and Skelton
2020 AHRI.,j688.
30 S 13(1). On access to a minor's medical records. see Pienaar 201-1 SAJHR508.
 Chapter 6: Minority 89

be in a format that is accessible to children. In providing the information, due considera

tion must be given to the needs of children with disabilities.st
Even though the Constitution confers a right of access to court on everyone'2 and the
common law regulates the minor's capacity to litigate," section 14 of the Children's Act
specifically empowers every child to bring a matter to court and to be assisted in bringing
a matter to court. The first part of the section, which empowers every child to bring a
matter to court, re-affirms the constitutional right of access to court and relates it
specifically to children.!<This part of the section ensures that every child has access to
court either djr ectly (for example, when the minor's guardian institutes litigation on
behalf of the minor or assists the minor in litigation) or indirectly (for example, when
the court appoints a
curator ad litem or legal representative for the m i n o r ) 5. As section 14 does not prescribe
the
manner in which the minor must bring a matter to court or the way in which he or she
must be assisted in bringing the matter to court, the court must decide these matters by
applying the standard of the best interests of the child.5-0 In FB v Mlf' the court held that it
would refuse a minor's request to be assisted by his or her own legal representative in
terms of section 14 in exceptional circumstances only, particularly if the minor is a party to
legal proceedings. In this case, the minor's parent was prepared to pay for the minor's legal
representation. In tl1e absence of a financial benefactor, the minor would only be able to
obtain legal representation in terms of section 28(1) (h) of the Constitution, in which event
it would have to be shown that substantial injustice would result if the minor were
unrepre sented."'
Section 15 Lists the persons who may approach the court to enforce the rights that are
conferred by the Bill of Rights and the Children's Act. They are:
(1) A child who is affected by or involved in the matter to be adjudicated.
(2) Anyone acting in the child's interest or on behalf of another person who cannot act in
his or her own name.
(3) Anyone acting as a member of, or in the interest of a group or class of persons.
(4) Anyone acting in the p_ublic interest.";
Apart fr:01:1: onferring 1:ights on children, the Children's Act provides that every child has
r spons1b1hnes appropriate to his or her age and ability towards his or her family, commu
nity and the state.'10

31 S 13(2).
32 Constitution s 34.
33 See below in this chapter.
34 On the implications of the se of the word ·•every" in respect of a minor's right to be assisted in bringing
_ a matte tocoun, see below m this chapter.
3!:> Barrat_tm Barratt (ed.) Persons and the Family 74; Boezaart Persons 60. On the role of a curator ad /item in
affordmg a child access to court, see Boezaart 2013 DeJure 707.
36 FBvMB2012 (2) SA394 (GSJ).
37 Ibid.
38 The statutory entitlement to assistance in legal proceedings which s 14 confers on everychild is broader
111
_sc?pe_ than that which is confen-ed bys 28(1)(h) of the Constitution, because it does not limit the
childs_nght to legal representauon to cases where substantial injustice would otherwise result or restrict
the child toa legal practitio_ner assigned by 1.he state: FB v MB 2012 (2) SA 394 (GSJ). Ons 28(1)(h)
of the Consntuaon, see above m this chapter; see further Heaton and Kruger Family La,w 291-293 and
the sou,·ces cited there. On s 14 and the difficulties it creates as well as the benefits it offers see below
in this
chapter; see further Kruger and Skelton (eds) Persons 113 136·Schafer Child La 173-1'74·B
d DeBruin20llDejure416. ' ' ,
w ' oezaartan
39 S 15(2). The list resembles the one ins 38 of the Constitution
40 SI •
90 The South African Law of Persons

6.2.3 United Nations Convention on the Rights of the Child and African
Charter on the Rights and Welfare of the Child
South Africa ratified the United Nations Convention on the Rights of the Child in 1995 and
the African Charter on the Rights and Welfare of the Child in 2000. Many of the provisions
of the Children's Act embody the obligations South Africa has incurred by ratifying these
international instruments. Thus, for example, the provision that every child has responsibil
ities appropriate to his or her age and ability towards his or her family, community and Lhe
state was included in the Children's Act on the strength of the African Charter on the
Rights and Welfare of the Child and "Lhe need to Afocanise the new children's statute .11
Other noteworthy provisions include the stipulation in the Charter that the best interests of
the child must be "the primary" consideration in all actions concerning the child42 and the
stipulation in the Convention that the best interests of the child must be "a primary" con
sideration in all actions concerning the child." The Charter further provides that every
child must be given an opportunity to express his or her views in all judicial and administra
tive proceedings which affect him or her and to have those views taken into consideration
in accordance with the provisions of the law;"' while the Convention provides that children
who are capable of forming their own views must be given the right to express those views
freely in all matters that affect them, and that those views must be given due weight, taking
the child's age and maturity into account.e These provisions are echoed in sections 6, 10 and
31 of the Children'sAct.46

6.3 The legal status of an in/ans

In view of the considerable difference in status between an in/ans (that is, a child below
the age of seven years) and a minor (that is, a child between the ages of seven and 18
years);' the legal status of these persons are dealt with separately, that of the infans being
covered first.

6.3.1 Capacity to act

An inf ans has no capacity to act and cannot conclude any juristic act. This is so, not
because the Jaw denies the existence of an infans' ability to form a will, but rather because
the law attaches no consequences to his or her expression of w:ill.48 Even if there is in fact
agree ment between an infans and another party, this is ignored by Lhe law. Anything that
is transferred to an infans in terms of an agreement between the in.fans and a third party
can be reclaimed with an enrichment action.•9
However, an in/ans' act may constitute a juristic fact, giving rise to legal consequences.
For example, if an in.Jans destroys somebody's property, the juristic fact is that the
owner's right of ownership to that property ceases, but this still does not change the infans'
act into a juristic act.50

41 South African Law Commission Discu.ision PllfJeY Reuiew of 1h11Chiul umAct par 5.4.
42 An4(1).
43 Arl3(1).
44 Art4(2).
45 Art 12.
46 On the Convenlion and the Charter, see further Heaton and Kruger Family Lllw 296-297 and the
sources cited there.
47 On the use of the term "minor" to signify a child between the ages of seven and 18years, see fn 1 abo,·e.
48 This also applies to a mentally ill person: see ch 7 below.
49 Voet Com.me1Ht1ry on thePrmd11c/s 12.6.11.
50 On the meaning of "jui-islic act" and the distinction between a juristic act and ajurislic fact. see Heaton
in Van 1leerden 111 al (eds) Do/)(/1-g's Lllw of Persons and tlM F(tmil)"69-70 fn 16, 746 fn 6 and 751 fn 25.
 Chapter 6: Minority 91

An inf ans cannot conclude a juristic act even witl1 the assistance of his or her
guardian;" the guardian has to act for the in/ans and on the in/ans' bebalf.52 This applies
even to a donation. The court, the Master of the High Court, or the in/ans' guardian must
accept the donation on the in/ans' behalf. Even if it is the in/ans' guardian who is the
donor, the guardian has to accept the donation on the infans' behalf, and it has to be made
clear mat the donation is being accepted on the infans' behalf.5'
Once the guardian has entered into a contract on the in/ans' behalf, it is on the in/ans
that rights are conferred and duties imposed, and not on the guardian, because the in/ans
has legal capacity and can have rights, duties and capacities."
Certain juristic acts cannot be performed by the guardian on me infans' behalf at all, for
instance an engagement or a marriage.55 A guardian may conclude an insurance contract
on the infans' life, but the benefits that may be paid in terms of me insurance policy are
limited bystatute.56
In practice, infantes do enter into contracts, such as buying toys and sweets. Strictly speak
ing all such transactions are void. However, it is unlikely that a court would entertain a case
about such a contract, as me maxim de minimis non curat lex (that is, the law is not con
cerned with trivialities) would be applied.
An in/ans can incur liability on the ground of unjustified enrichment or negotiorum gestio,
because these forms of liability are not based on capacity to act."

6.3.2 Capacity to litigate

In terms of the common law, an infans does not have /,ocus standi in iudicio and cannot be a
party to a lawsuit even if he or she is assisted by his or her guardian. The guardian must
always litigate for the in/ans and on me infans' behalf.'8 The litigation is brought or defended
in the name of the guardian in his or her capacity as guardian.
½lhether the common-law position still applies is not entirely clear. Section 14 of the
Children's Act provides that "every child" has the right to be assisted in bringing a matter
to court. It is arguable that the word "every" amends the common law by conferring
limited capacity to litigate on an infans and entitling him or her to assistance which will
supplement his or her limited capacity to litigate. It is unlikely that mis is what the
legislature had in mind, for such an interpretation would have the extraordinary result
that an infans would be able to litigate with his or her guardian's assistance, while being
unable to enter into even the most basic contract with his or her guardian's assistance -
which could surely not be in the best interests of the child. Consequently it is submitted
that section 14 should not be interpreted as constituting a legislative abolition of the firmly
established common-law principle that an infans does not have capacity to litigate.59

51 In this chapter the tenn "guardian• is generally used to signif)• the minor's natural guardian (i.e. his or
her parent) as well as a legal guardian that is appointed to a minor. On the appoinanem of guardians,
see ch 5 above and Heaton and Kruger Family Lawch 24.
52 Voet Comme11Jm)' 011 the Pa.mlecl< 26.8.9, 41.2.6; Van Leeuwen lwoms-Hollands-lugl 4.2.2.
53 ButtarvA1tltl950 (4) SA229 (T);Expa,1eHultcnl954(1) SA460 (C).
54 Voet Cmmnenlm)' 011 the Pa11dects26.9.2. On the meaning of"legal capacity", see ch 3 above.
55 Children's Acts 12(2)(a).
56 Long-term Insurance Act 52 of 1998 s 55. The limit differs depending on whether the child is below or
over the age of six years. On minors and insurance contracts, see further Van Niekerk 2006 SA Mere
/j204.
57 Grotius lnleidinge3.30.3: \'oet C'.ommentmy ontliAPcmdects 26.8.2; Van der Kees.sci Pmeleclicnes3.30.3.
58 Voet unmnentmJ 011 thP Pnndects 2.4.4.
59 See also Ba1Tatt in Ban-acc (ed.) Persons and lhe Family 74; Boezaan Persons 58; Boezaan in Boezaart (ed.)
Child Law in South Africa 22-23; Schafer Chi/;] L<tw 203; Boezaart and De Bruin 201l DeJure 420-422, 437,
438. On s 14, see funher above iu this chapter.
92 The South African Law of Persons

6.3.3 Capacity to incur delictual and criminal liability _

Since an in/ans is completely unaccountable in law, he or she can never be criminally
liable. Nor can an in/ans be delictually liable where liability is based 0 1 fault.61 An infans
may, how ever, be liable for delicts that are not based on fault. Thus, an znfans may be sued
under the actio de pauperie if he or she is the owner of a domestic animal (such as a dog
or_agoat) that has caused damage, and may incur vicarious liability if his or her employee
commits a dehct in the execution of the employee's duties.62
H the inflins' guardian uses the infans as his or her agent or instrument or negligently
fails co prevent the infans from causing damage, the guardian may be held personally liable
for damage me infans causes.6'

6.4 The legal status of a minor

6.4.1 Capacity to act
Minors between the ages of seven and 18 years have limited capacity to act. The influence this
has on a minor's capacity to enter into specific juristic acts is dealt with immediately below.M
(a) Contracts
(i) General
Generally, a minor can incur contractual liability only if he or she is assisted by his or her
guardian when me contract is concluded.6 A minor may, however, enter into an unassisted
contract if me contract improves his or her position vn.thout imposing duties on him or
her.r,i In other words, the guardian's consent is unnecessary if the minor enters into a
contract in terms of which the other party incurs duties while the minor acquires rights
only. Thus, for example, a minor may accept a donation without assistance or enter into an
agreement that releases him or her from a debt as long as the agreement does not impose
any obligation on him or her.67

60 ChildJusticeAct 75of2008s 7(1) and (3).

61 See e.g. Van Oud!shoom v Northern Assurance Co Ltd 1963 (2) SA 642 (A);jones v &mtam Bpk 1965 (2) SA
542 (A); Neuhaus v Bastinn Insurance Co Lt<l1968 (1) SA398 (A); RoxavMtslwyil975 (3) SA 761 (A).
62 Cronje LAWSA vol 20 part 1 Persons par 466; Donaldson Minors 90; Hahlo and Kahn Sou.th Aftic.a 378;
Keightley in Van Heerden et al (eds) Boberg's Law of Persons and tlze Family 893; Schafer in Clark (ed.)
Family u,w Seivice par E64; Spiro Parent and Child 179; Willes Principks 177.
63 See e.g. Wessel, v Ten Ovm 1938 TPD 26; De Beer v Sergeant 1976 (I) SA 246 (T); May/ett v Du Toil 1989
(1) SA 90 (T); Godfrey v Campbell 1997 (1) SA 570 (C).
64 On the issue of whether a minor is "a person not having capacity to contract" for purposes of s 5(3) of the
Bills of Exchange Act 34 of 1964, see Heaton and Pretoiius 2007 SAldl12.
65 Voet CommenJmy on the Pandects 26.8.2-26.8.4; Van Leeuwen Censura Fonm.sis 1.1.17.10, 1.4.3.2, H.ooms
Hollands-Regt 1.16.8, 4.2.3; Van der Linden Rechtsgeleerd, Practicaa4 en Koapmans Harulhoek 1.4.l;
Grotius fnleidinge 1.8.5, 3.1.26, 3.6.9, 3.48.10; Van der Keessel Theses Seier.Im128. The courts have also
often con
fomed this principle: see e.g. Dlzanabakium v Subramanian 1943 AD 160 and Edelstein v Ed"lstein 1952
(3) SA! (A).
66 Voet Commentmy on the Pandects 26.8.2; Grotius biu.,idinge 1.8.5; Van Leeuwen R.ooms-Holkmrls-Regt 1.16.8,
4.2.3; EdeL tein v Edelstein 1952 (3) SA 1 (A).
67 See e.g. Barratt in Barratt (ed.) Persons and the Family 43; Boezaart Persons 62; Cockrell in Van Heerden
et al (eds) Boberg's l.,,m, of Persons:,1-nd the Family 785 fn 78; Heaton in Van Heerden et al (eds) Bobe:rg's
Law of Persons and the Farmly 847; Schafer Child Law 201; Van Heerden in Van Heerden et al. (eds)
Boberg's Law of Persmis mid lhe fomily 737. Referring to Butta,· v Ault 1950 (4) SA 229 (T), Bradfield (
Christie's Law of Con tract 277) states that the minor must be of "sufficient age and intellegence" to
understand the offer ofthe donation and to accept it. A minor's capacity to enter into other agreements is
discussed below in this chapter. On donations by a parent to his or her child, see Van Heerden in Van
Heerden et al (eds) Boberg'.s Lmuof Persons and the Family 732 et seq.
 Chapter 6: Minority 93

If a minor enters into an unassisted contract which imposes duties on him or her, he or
she is not contractually Jiable.68 On the minor's side the contract creates a natural
obligation (naturalis obligatio), which is unenforceable against him or her and his or her
guardian.Gg Thus, it might be stated that the contract is void when viewed from the
perspective of the minor. It must be emphasised, however, that the contract is not fully void,'0
because it imposes a civil obligation (civilis obtigatio) on the other party to the contract"
which is enforceable against that party.72 One can therefore say that a minor's unassisted
contract is partially valid (inchoate or limping) in the sense of being enforceable at the
option of the minor or his or her guardian. Stating that the contract is enforceable at the
option of the minor does not mean that the contract is voidable, because a voidable
contract is valid until set aside, while a minor's unassisted contract does not bind the
minor ac all and, in that sense, is not valid as against the minor."
It is unclear whether this is also the position if the unassisted contract falls within the
ambit of the Consumer Protection Act 68 of 2008.' 4 Section 39(1) (b) of the Act provides
that an agreement to enter into a transaction for the supply of goods or services to an
unemancipated minor consumer and an agreement to supply goods or services to such a
consumer75 is "voidable at the option of the consumer", unless it is ratified by the minor's

68 Suictly speaking it is incorrect to say that the minor is not bound by the agreement: see e.g. Grotius
ln/eidinge 3.6.9 and De Wet.and Van Wyk Kontraktereg en Haiule/s,-eg 59-60. There is, after all, an
obligation in terms of which the minor must perform, although the minor cannot be held liable in court
on the strength of this obligation. Therefore, it is more accurate tosay that the minor is bound but not
liable. In South African legal terminology "bound" and "liable" are, however, used more or less as
synonyms and this practice is followed in this book. See also Cockrell in Van Heerden et ul (eds)
Boberg's Law of Persons mut the Fmnily 800 fn 131; Cronj LA vol 20 part l Persons par 469 fn 7.
69 Voet Cmnmenlm)' on the Pandtc/s 15.1.11, 26.8.4, 44.7.3; Van Leeuwen Censtm, Faren.sis 1.4.3.2; Mcudlum
v Hal/e,d916 EDL 74; Mau1irv Cleghm i & Hal'ris l,td 1917 CPD 291; Marshall v Nt1.tion1tl Woo/Industries
Ltd 1924 OPD 238.
70 But see e.g. De Beer v Estate De Beer 1916 CPD 125; McCallw11 v Hal/en 1916 EDL 74; l011w v Jvff & H
Trust (Pty)Ltdl975 (4) SA268 (T); GmndPrixiWotors WP(Pty)LtdvSwa,tl976 (3) SA221 (C) in
whichjudges described the contract as void.
71 For purposes of this discussion it is assumed that the other party is a major.
72 Grotius ln/eidinge 3.6.9; Voet Cmnmentmy on tk PandecLr 26.8.3; Van Leeuwen Gen.sum Forensis 1.1.17.10;
Edelstein v Edelstein 1952 (3) SA I (A).
73 But see Du Toil v f,otriet 1918 OPD 99 where the contract was described as voidable. Further on the
difficulty in correctly describing the nature of a minor's unassisted contract, see Barratt in Barratt (ed.)
Persons mid the Fm11ily 47-48; Boezaart Persons 73-74; Bradfield Ch1istie's Law of Om.tmct 275-276;
Cockrell in Van Heerden et al (eds) Boberg's Law of Persons and !It• Family 830 et seq,Kruger and Robinson
in Robin son (ed.) !,aw of Children and Young Persons 33-34; Krnger and Skelton (eds) Persoris 122;
Schafer Child J,mv 200-201; Van der Vyver and Joubert Persone- en Fmnilitreg 162 et seq; Watt Contracts
Ccnc/11-decl by U11<Ll
sisletl Minors 26-36; Reinecke 1961 THRJIR 138.
74 The AcL applies to every mmsaction that Lakes place in South Africa, unless the transaction relates
tothe promotion or supply of goods or services to the state, a credit agreement under the National Credit
Act 34 of 2005, se1vices in terms of an employment contract, an indusLry-wide exemption, or giving
effect to a collective bargaining ag1·eement or collective agreement in terms of the Labour Relations
Act 66 of 1995, or unless the consumer is a juristic person whose asset value or annual turnover, at the
time of the transaction, equals or exceeds the threshold value cletennincd by the Minister: s 5(1)(a)
read withs 5(2) and (3) and the definition of "Minister". At present, the threshold vah1e is R2 000 000:
GN 294 GG34181
of 1 April 2011. In ccnain circumstances, tl1e Act also applies to the promotion of goods or services or
the promotion of the supplier of goods or se1vices: s 5(l)(b). It also applies to the goods supplied or
ser vices perfonned in te1ms of a transaction to which the Act applies and, to a limited extent, to goods
that are supplied in South Afiica in terms of a transaction to which the Act does not apply: s 5( l) (r)
and (d). A "supplier" isa person who markets any goodsor services: s 1.
75 A consumer includes (1) a person to whom goods or sef\ ces are marketed in the ordinary course of a
supplier·s business: and (2) a person who has entered into a u-ansaction with a supplier in the ordinary
course of the supplier"s business, unless the transaction relates to a credit agreement under the National
Credit Act, sef\ices in tenns of an cm ployment comract, an industry-wide exemption, or giving
effecLto a collective bargaining agreement: pars (1i) and (Ii) of the definition of "consumer" read wi1h
s 5(2)(,i),
(c)-(g) c1nd (3). ln certain circumstances, a franchisee also qualifies as a consumer: par (d) of the
defini tion of "consumer" ins I.
94 The South African Law of Persons

guardian or by the minor after he or she is emancipated or becomes an adult_; In view of

the uncertainty as to the correct description of the nature of a minor's unassisted contraC!
and the frequent inaccurate use of the terms "void" and "voidable" to describe such con
tracts, it is submitted that in employing the term "voidable" the legislature did not intend
to deviate from the common-law position regarding a minor's unassisted contract and to
dictate that such contracts are valid until set aside hy the minor. It simply used the Lenn
7
loosely.'
In terms of the common law, it is the guardian or the minor with the assistance of his or
her guardian (or the minor upon reaching majority) who decides whether an unassisted
contract should be repudiated or honoured.'8 It is unclear whether this rule applies to
agreements which fall within the scope of the Consumer Protection Act. Because section
39(1) (b) of the Act provides that a minor's unassisted contract is voidable "at the option of
the consumer", it is arguable that the legislature sought to indicate that the minor may
independently (that is, without the assistance of his or her guardian) decide whether the
agreement should be repudiated or honoured. However, it could also be argued that the
guardian's assistance is still required because the wording of the section does not expressly
amend the common law.79 I favour the latter view on the ground of the presumption that a
statute does not alter the existing law to a greater degree than is necessary. To my mind.
there is no constitutional or other need that dictates that section 39(1) (b) should be found
to have removed the requirement of the guardian's assistance.
Once the guardian (or the minor with the assistance of his or her guardian) has decided
whether the contract should be repudiated or honoured, the other party to the contract has
no option but to abide by this decision. In other words, the other party cannot rely on the
minor's minority to avoid his or her own contractual obligations. Nor can the other party
avoid his or her contractual obligations by invoking the exceptio non adimpkti contractus.
This exceptio entails that one party to a contract that provides for reciprocal performance
cannot claim the other party's performance without also performing or tendering
performance. As the exceptio is founded on the principle of reciprocity, it cannot be
invoked against someone whose performance is not yet due or someone who is not
contractually bound to perform al all - as is the position in the case of an unassisted
minor. Thus, it does not offer an avenue for withholding performance to someone who has
entered into a contract with an unassisted minor. Nor does it enable that person to hold the
minor to the terms of the contract.80
What normally happens is that the minor raises his or her minority as a defence when
sued on the contract. However, nothing precludes the minor from taking the initiative and
applying for an order declaring that he or she is not contractually liable.81 The minor
cannot sue the other party for performance in terms of the contract while withholding his
or her own performance, because the minor would need his or her guardian's consent for
the litigation82 and if the guardian consents to the litigation, the guardian will obviously be
ratifying the minor's contract.in

76 On ratification, emancipation, and the age of majority, see below in this chapter.
77 See also Boezaart Persons 75 fn 198; Schafer Ghil.ti Law 202-203. But see Watt umtracts C-omlu,kd by
Unassisted Minors 94; Bhana and Visser 2014 THRHR191-192.
78 On the rule that while the minor's minority lasts the gi1ardian, and not the minor independently, must
make the decision, see Voet Commentmy on the Paruier.is 29.2.34; Rhode v Minister of Defenr.,, 1943 CPD
40; Edelstein11Edelstein1952 (3) SA I (A).
79 See also Watt Contract< Cmu:huled by Unassisted Minor.,94 fn 73. Bhana and Visser 2014 THRHR191 and
192 seem to favour this , ew, but srate that the standard of the best imerests of the child might require
that an individual assessment should be made in order to decide whether the particular minor should be
assisted by his or her guardian.
80 Barratt in Barratt (ed.) Persons mid the Family 48 fn 62; Cockrell in Van Heerden et al (eds) Boberg's Law
nf Per.,ons mul the Family 807--808.
81 Rlwde II Minister of Defence!943 CPD 40.
82 A minor·s capacity to litigate is discussed below in this chapter.
83 Edelstein v Edelstein 1952 (3) SA l (A).
 Chapter 6: Minorit)' 95

If a minor has peiformed in terms of an unassisted contract and the contract is repudi
ated, the minor may recover whatever he or she has performed.&! Property other than
money is recovered by the rei, vindicatio and money by a condictio.85 The value of the
minor's performance is reduced by the amount by which the minor was unjustifiably
enriched by the other party's perforn1ance.86 Because a minor's unassisted contract cannot be
enforced against the minor, the minor does not have to apply for restitutio in integrum (that
is, return to the previous position) in order to recover his or her performance.87 Restitutio in
integrum applies if the minor, with the required assistance, entered into a contract which
was to his or her detriment when it was made and he or she has performed in terms of that
contract.88
The minor's natural obligation may serve as the object of a suretyship,89 and it can be
novated00 and ceded."'
(ii) Assistance by the guardian
General
The oqjective of the rule that a minor cannot incur contractual liability without his or her
guardian's assistance is to protect the minor against his or her own immaturity of judge
ment.9'1 This consideration falls away if the minor acts with the guardian's assistance.
Then the minor is liable ex contractu as if he or she were a major.!!5
If the minor has more than one guardian, the consent of one of them is usually suffi
cient. However, in some instances, such as the alienation or encumbrance of the minor's
immovable property, the consent of all the guardians of the minor is required.91
The guardian's assistance may take various forms. In the first place the guardian may act
on the minor's behalf.95 Alternatively, the minor may personally enter into the contract with
his or her uardian's consent% or the guardian may ratify the agreement after it has been
concluded. '

84 On a minor's right to recover performance, see in general Voet Co1mnenucry on the Pandects 4.4.21, 26.8.4,
44.7.3; Grotius lnleidinge3.30.11, 3.39.11; Van der Keessel Th,ses SelR,tae 529, Pra.electiones1.8.5; Baddeley
v Clarke (1923) 44 NLR 306; Lauw v MJ & H Tmst (Ply) Ltd 1975 (4) SA 268 (T); Grat1d Prix Motcrs
WP (Ply) l,ul v Swart 1976 (3) SA 221 (C).
85 See e.g. Barratt in Bamm (ed.) Persmis and the Family 49; Boezaart Persons 76; Cockrell in Van Heerden
el al (eds) Boberg'.s Law of Persons mul the Family 801; Kruger and Skelton (eds) Persmis 122; Van der
Vyver and Joubert Persone- en Familiereg 164-165; Visser I.AWSA vol 17 Enrichment par 224; Watt
Contracts Con cluded by Unassisted Minors 89-93; Wiile'.5 P,·inciples 179; Reinecke 1964 THRHR 138
fn 38; Bhana and
Visser 2014 THRHR 184.
86 Badde ,v Clttrke (1923) 44 NLR 306. Unjustified emichment is discussed below in this chapter.
87 See e.g. Voet Co,mnenta,y un the Pandects 4.J.13, 4.4.21, 4.4.47, 4.4.52; Grotius fnlei<lillge3.48.10; D11
Toil v Lolriet1918 OPD 99; Tjollo Ateljees (Eins) Bpk v Small 1949 (1) SA 856 (A); &kl,t,ein v F.de.L,tein
1952 (3) SA 1 (A).
88 Edelstein vEdd5ttin1952 (3) SA1 (A). On restiWtio in integrmn, see further below in this chapter.
89 Voet C..om111en/a,y nn the Pandects 4.4.39, 26.8.4, 44.7.3; Grotius lnleidinge 3.3.22, 3.48.12; Van Leeuwen
(.ensura Forensis l.4.3.2, 1.4.43.10.
90 Voet Commenuuy on the Pandects44.1.3.
91 Cockrell in Van Heerden et al (eds) Boberg's Law of Persons and the Family 785 fn 78; Cronje LAWSA vol 20
part l Pers,ms par 469; Kruger and Skelton (eds) Per.1ons122; Reinecke 1964 THRHR136.
92 Edelstein v Edelstein 1952 (3) SA 1 (A).
93 See e.g. Voet Comnumtary on the PandecLr 14.5.4, 26.9.1, 26.9.2; Van der Keessel Theses Seleclae 133; Shead
v Colonial Banking & Trust Co Ltd 1924 TPD 497; Marshall v National Wool Industries Ltd 1924 OPD
238; Wood v Davies 1934 CPD 250; Van Dyk v SAR & Hl956 (4) SA 410 (W).
94 Children's Acts 18(3)(c)(v) read witb s 18(5).
95 See e.g. Voet Commenlm)' on the Prindecls 26.9.1, 26.9.2; Grotius Inlei<linge 1.8.5, 1.8.7, 3.48.10; Van
der Keessel 11ieses Sel.ectae 133; Sl,ead v Colonial Banking & Trust Co Ltd 1924 TPD 497; Ten Brink v
Motala 2001 (l) SA 1011 (D).
96 See e.g. Voet Comment.my on the Pande<.ts 4.4.21, 26.8.3, 39.5.7; Grotius lnleidinge 3.48.10; Shead v
C'..olonial Banking & Trust Cn l.trl 1924 TPD 497; Marshall v National Wool lndtcstries l,td 1924 OPD
238; Wood v Davies1934 CPD 250; Dhanabakium v Subra11uinian 1913AD 160; VanDyk.v SAR & Hl956
(4) SA 410 (½').
97 Ratification is discussed below in this chapter.
96 The South African I.aw of Persons

The guardian's consent may be given expressly or tacitly,98 and it may relate to a single
transaction or to several. For example, if parents allow their child to conduct his or her own
business, the minor may enter into all transactions relating to that business.00
Whether or not a minor in fact has the required consent depends on the circumstances
of each particular case. As Caney'00 puts it:
To give his assist.ance the guardian must bring his mind deliberately to bear upon the subject
his mere assent without consideration, especially if it be subsequent, is valueless ... Nor is
knowledge by him of the fact of a contract without information of its terms to be construed as
assistance by him.
The guardian need not have knowledge of each and every term of the contract, but must be
aware of its nature and essential terms.101 Consent obtained through fraud or undue influ
ence is worthless.'02 A guardian who has consented to a transaction may withdraw consent
prior to the conclusion of the transaction.10
The guardian is obliged to assist the minor in entering into legal transactions which are
beneficial to the minor, or to conclude such transactions on the minor's behalf. If the
guardian is unable or unwilling to do this, the court may order the guardian to do so or
itself give the required consent.,o-i The court will also intervene if the guardian's own inter
ests in a transaction clash with his or her duty to further the minor's interests,105 or where
the guardian's consent is insufficient in itself (for example, in respect of alienating or
mortgaging a minor's immovable property).'06
There are some contracts the guardian cannot conclude on the minor's behalf although
the guardian may consent to the minor's entering into such contracts. This is the case in
respect of an agreement of a closely personal nature (such as an antenuptial contract),""
and a contract that will come into operation only after the minor has attained majority.108
It is submitted that a guardian may not conclude an employment contract that contra
venes section 43 of the Ba.sic Conditions of Employment Act 75 of 1997 on behalf of
the minor or consent to the minor's entering into such a conn-act. Section 43(1) provides
that a minor who is below the age of 15 years or below the minimum legal school-leaving
age may not be required or permitted to work. Section 43(3) provides that a person
who requires or permits such a minor to work commits an offence. Although a contract
that is concluded in contravention of a statutory prohibition is not necessarily void;""
it is

98 McCollu,n v Hallen1916 EDL 74; Ex j}(lrle Blignautl963 (4) SA 36 (0).

99 This is known as emancipation. On emancipation, see further below in this chapter.
100 1930 SA[,f182. See further Romseau v Nmton (1908) 18 CTR 621; De.&erv E.staJe De /leerl916 CPD
125; Du Toit v Lotriet 1918 OPD 99; Baddeley v Cuu-ke (1923) 44 NLR 306; Fouchl v BaJJ.enhause11 &
Co 1939 CPD 228; Ex fmrte Blignautl 963 (4) SA 36 (0).
101 VanDykvSAR&Ifl956(4)SA410(W).
102 Au1·et v Hind (1884) 4 EDC 283; Du Toil v Lotriet1918 OPD 99.
103 Scl1oemmi v R.n.fferty 1918 CPD 485.
104 Voet Commentary mi thJ/ Pandecls 26.8.8.
105 D 26.8.l f1r, Voet Co»wumta,y mi the Pmulecls 26.8.6; Grotius lnleidinge 1. 7.11; Van Leeuwen Romns-
Hollands Regt l.16.4.
106 In such event the court (or the Master of the High Court if the value of the property does not exceed
the amount the Minister of Justice and Constitutional Development sets by notice in the GG) mwa also
consent to the transaction: Administration of Estates Act 66 of 1965s 80(1).
107 Ex pam Potgi.eter et Uxor 1943 OPD 4. An antenuptial contract is a contract between fuwre spouses or
civil union partners in which they regulate the consequences of their fuwre maniage or civil union
and, in particular, the matrimonial property system which is to apply tO it. TI1e matrimonial property
system detennines whether the couple's marriage or civil union is in or out of community of property.
On antenuptial contracts, see further Heaton and Kruger Family Law ch 7.
108 Du Toit v l.otriet 1918 OPD 99.
109 If the particular Act is silent on whether contravention results in nullity, I.he contract may be held to be
voidable or even valid: see e.g. the expositions in Bradfield Oiristie'., /,aw of Contract 392-401; Van Rens
burg, Lotz and Van Rhijn LAWSA vol 9 Contract par 335 and \¾lies Principles 761-763, and the case law
cited there.
 Chapler 6: Minority 97

submiued that a contract that contravenes section 43 ought to be illegal and void."0 South
Africa has ratified various international instruments which combat child labour and require
the setl.ing of a minimum age for entry into employmenL These insauments include the
United Nations Convention on the Rights of the Child, the African Charter on the Rights
and Welfare
111 of the Child, and Convention 138 of the International Labour Organisation of
1973. The Convention on the Rights of the Child and the African Chaner on the Rights
and Welfare of the Child further require states parties to provide for appropriate penalties
or other sanctions to ensure effective enforcement of, int,er·alia, the ban on the employment
of children below the minimum employable age. Section 43 complies wic.h the requirement
regarding the minimum employable age these international instruments set. EnforcemenL
of the minimum employable age would be more effective if no recognition at all were
aITorded to a contract that contravenes section 43. Nullity of the contract, linked with
imposition of the criminal sanction on the employer, would be a more appropriate penalty
and sanction, and would send a stronger message of discouragement of child labour than
would the mere imposition of a criminal sanction on the offending employer.112
A guardian may conclude an insurance conn-act on the minor's life or assist the minor
in entering into such a contract. The benefits that may be paid in terms of the insurance
policy are, however, limited by statute if the minor is below the age of 14 yearsm.
Liability of the guardian
As a rule, the guardian does not incur personal liability in respect of the minor's contract,
regardless of whether the guardian assists the minor or acts on the minor's behalf.11◄ The
other party can therefore not claim performance of the minor's obligations from the
guardian."$ The guardian is, however, liable on the conu-act if the minor acted as his or her
agent.116

110 See also Boezaart Persons87; Kruger and Skelton (eds) Persons 118.
111 See art 32 of the Convention on the Rights of lhe Child and art 15 of lhe African Charter on lhe Rights
and Welfare of the Child. Convention 138 of rhe International Labour Organisation specifically dictates
that the minimum age should not be lower than the minimum school-lea,ing age and may not be less
than 15 years. It, however, allows developing countries initially to set lhe minimum age at 14 years un
der certain circumstances. In the case of "light work", the minimum age may be 13 years (or 12 years
in the case of developing coumries which set 14 years as the general minimum age). South Africa
ratified Convention 138 in 2000.
112 On the abo,·e-mentioned intemational insu,1ments and child labour generally, see e.g. Church and
Church LAl,VSA ,·ol 2 part 2 Children pars 70-71; Schafer Chil.d Law 140--141; Somh Af,ican Law Com
mission Discussion Paper Review of the Ch.ilrl Gem Art par 13.5 and &j>ort on tlu Reuil!w of //u 01ild Ca.-e
Art Discussion Paper 103 Project J10 par 12.4; Mayimele-Hasha1se in Davel (ed.) Childrm's Rights in a
Tnmsi liOllal Society 79-87; Nhenga-Chakarisa 2010 AHRLJ 161.
ll3 Long-term Insurance Acts 55. On minors a11d insurance contracts, see funJ1er Van J\iekerk 2006 SA
Mere IJ204.
114 Van der Keessel Theses Sekclae 133; Van Leeuwen Gen.mm Forensis 1.1.l7.10--1.1.17.13; Mars/tall v Ntllio1uil
Wool Industries /,td 1924OPD 238; £:< part Fortoen1938WLD 62; Fo11rl1i v &zu.mhausen & C,o1939 CPD 228.
115 Our courts have, however, sometimes adopted lhe opposite view: see e.g. MrCallwn v Halk11 1916
EDL 74; Shead" Colo11i11l Banking & Trust Co Ltd 1924 TPD 497. In Skead's case it was held that a
guardian who emers into a contract which is deuimemal to the minor's interests is personal!)' liable on
that conrracL This view is incorrecl, as the parties to the conuact never intended that the guardian
should be per sonally liable. The incorrect view is based on a wrong interpretation of Voet Commenta,y
on tlu Pmukcts
15.1.11 and is not supported; see also Voet Co111111mta1y 011 the Pa1ulecL< 26.9.2, 26.9.3; Yan Leeuwen
Cmsura ForeTLsis 1.1.l7.13: .\farslwll 11 Nntional Wool lrul11.slries Ltd 1924 OPD 238; DrC)·er v Sonop Bpk 1951
(2) SA 392 (0); Bamm i11 Barratt (ed.) Persons and tlui fomily 54; Boczaart Persons 67: Bradfield CJ,risl '.,
I.aw of Contracl 274; Cockrell in Van Hecrden et al (eds) Boberg's [,iu,1 of Pnsom and ""' Family 796;
Cronjc LAWSA vol 20 part l Persons par 469, 475; Kruger and Robinson in Robinson (ed.) Lnw of
C/1iMrm and Young Persons 32: Fi.r,1ger and Skelwn (eds) Persons 118; Schafer Child Law 200; Van der
Yyver and Joubert Prrsmtt- Pll Fnmilin-,g 158.
116 McC,al/11111 v Halim 1916 EDL 74; Marshall v NaJ.ional Wool Industries Ltd 1924 OPD 238; Dreyerv Sonoj, BJ1k
1951 (2) SA 392 (0).
98 The South African Law of
Persons
A guardian is also liable if he or she guaranteed the minor's performance or bound him
self or herself as surety for the minor's performance."; In this situation the guardian's
liability arises only if the minor does not perform in terms of the conu-act.
A guardian may also incur liability on the basis of negotiorum gestio if he or she is the
118
child's parent. Parents have a duty to support their children. If a third party fulfils the
duty of support on behalf of a parent by supplying his or her child with necessaries like
food and clothing, the parent may be liable on the basis of negotiorum estio. In this case
the guardian's liability does not arise contractually but quasi-contractually.1 9
(iii) Ratification
As a minor's unassisted contract creates a natural obligation, it can be ratified by the guard
ian or by the minor once he or she has attained majority. Ratification converts the minor's
natural obligation into a civil one ·with the result that the contract becomes fully enforcea
ble as against both parties with retroactive effect."10 However, a guardian cannot ratify a
contract he or she could not validly have concluded on the minor's behalf at the time when
121
the contract was made.
Ratification may take place either expressly or tacitly.1"' Express ratification presents no
problem, but it can be quite difficult to determine whether a contract has been tacitly
ratified, especially if ratification by a minor who has attained majority is at issue. The
court considers the former minor's conduct, and deduces from all the circumstances
whether or not he or she had the intention ofratifying the contract.123
It is unclear whether a former minor who is unaware of his or her rights can ratify a con
tract after attaining majority. The former minor may, for example, not know that he or she
is not contractually liable and is entitled to repudiate the contract. Would an act that would
normally amount to ratification, be ratification in such circumstances? On the one hand.
one can rely upon the maxim ignorantw. iu.ris haud excusat ( that is, ignorance of the law is no
excuse). According to this view the former minor's ratification is assumed and the minor is
12 1
contractually bable. • On the other hand, because of the decision of the Appellate Division
(now the Supreme Court of Appeal) in S v De Blom'25 that ignorantia iuris haud excusa.f. no

117 Barratt in Barratt (ed.) Pemms and lhe Family 55; Boezaart Persons 68; Boezaart in Boezaart (ed.) Child
Law in South Africa 30; Cockrell in Van Hee rden el al (eds) Boberg's Law of P=ns tmd11111Family 798;
Cronje I.AV\ISA vol 20 part l Person., par 475; K.tuger and Robinson in Robinson (ed.) Law of Children and
Young
Persons 32; Kruger and Skelton (eds) Ptmonr 118; Van der Vyver and Joubert Personl7 en Fa111iliereg 158.
167; Spiro 1951 SAL]l78 et sq. The surety remains liable even if the minor, not having had the required
consent, is not liable: Voet <'..ommenlat)' on the Pandecls 44. 7.3.
118 On the parental duty of support, see Heaton and Krnger Family Law 303-310, 349-352.
119 T/111 Colonial Govenin111nt v William Meldrtt111 (1890) 11 NLR 139; Schreiber v Paper (1906) 20 EDC 34:
McCallmn v Hallen 1916EOL 74; Mazzur v Ckghorn & Hams Lld 1917 CPO 291; Fillis v Joubert Park PrivaJr
Hospital (Pty) Ltd )939 TPD 234. See further Cockrell in Van Heerden et al (eds) Boberg's [,aw of Person,
and the Family 780, 798, 813.
120 See e.g. Voet Com11111nla1y on the Pander.ls 26.8.1; Van Leeuwen Gen.mm Forensis 1.1.17.10; Du Toit v Dotrid
1918 OPD 99; Baddeley v Clarke (1923) 44 NLR 306; FoucJie v Battenhausen & Co 1939 CPO 228; Perkinsr
Dmiford 1996 (2) SA 128 (C).
121 Du Toit v Lotriet 1918 OPD 99.
122 Voet 1n11w111ntary on the Pandec/.s 4.4.44; De Villiers v LidJenberg (1907) 17 CTR 867; Shead v C..olonial Banking
& Tm t CoLld 1924TPD 497.
123 Voet Co,nnzent,uy on the PantiJX(<1.4.44; Stuttaford & Cov Obe,·lw/ur 1921 CPD 855. See also Mort v
Hemy Shie/.ds-Chiat 2001 (1) SA 464 (C).
124 Seee.g. Wessels Contract pars 856-857; Caney 1930 SAJJ 194.
125 1977 (3) SA 513 (A).
 Chapter 6: Minority 99

longer applies without qualification, it seems that an inference of ratification can be rebut
ted if the former minor's ignorance is reasonable and excusable.126
127
In Edelstein v Edelstein it was held that an antenuptial contract that was concluded
with out the necessary consent cannot be ratified by the minor or the minor's guardian
once the marriage has taken place, because ratification would amount to an impermissible
change of
the matrimonial property system.128 This is still the position if the minor enters into a civil or
customary marriage with consent but concludes an antenuptial contract without consent.
In terms of the Civil Union Act 17 of 2006, only persons who have already reached the
age of 18 years may enter into a civil union.129Thus, a minor cannot validly enter into a
civil
union regardless of whose consent he or she obtains. However, he or she might conclude
an unassisted antenuptial contract in anticipation of a civil union he or she intends enter
ing into upon attaining majority. In such event, the antenuptial contract could be ratified
prior to the coming into existence of the civil union. Once the civil union has taken place,
the decision in Edelstein v EdeL1tein'w would apply'31and ratification would be impenni.ssible.
The position would be the same if a minor concluded an unassisted antenuptial contract in
anticipation of a civil or customary marriage he or she intended entering into upon attain
ing majority.
(iv) Statut01y exceptions regarding a minor's capacity to incur contractual liability
Some Acts create exceptions to the rule that a minor cannot incur contractual liability
without his or her guardian's assistance. For example:
(1) Unless the articles of the particular mutual bank provide otherwise, a minor over the
age of 16 years may be a member of or a depositor with any mutual bank. He or she
may, without the consent or assistance of his or her guardian, execute all necessary
documents, give all necessary acquittances, and cede, pledge, borrow against and gen
erally deal with his or her share or deposit as he or she thinks fit.m
(2) Unless the memorandum of association or articles of association of a bank provide
otherwise, a minor over the age of 16 years may be a depositor with a bank. He or she
may, without the consent or assistance of his or her guardian, execute all necessary
documents, give all necessary acquittances, and cede, pledge, borrow against and gen
erally deal with his or her deposit as he or she thinks fit.133
(3) If the rules of a registered friendly society permit this, any minor maybe a member of the
friendly society. Once the minor has turned 16, he or she may execute all necessary

126 See also Cockrell in Van Heerden el al (eds) Boberg's law of Persons a,ut the Family 805-806.
Cockrell further points out that the issue is bound up with the more general question of waiver of
rights in ignor ance of the law. He inter alia refers to Van der Men,,e v Die Meester 1967 (2) SA 714
(SWA) 724 where Muller J conch1ded that "onkunde van die reg ... by 'n geval van afstanddoening
vergewe kan word,
nieteenstaande die beginsel igrwranlilijuris lu.ud excusat, mits sodanige onkunde as waarsk-ynlik
aanvaar word en regverdigbaar is". Kruger and Skelton (eds) Per!;ons122 and Watt Conlrac/.s C,l)lu;ludtd by
Unassist ed Mino, 53 fn 99 support Cockrell's submission that this approach should extend to
ratification by a former minor so that an inference of ratification could be ref"t1ted by proof that the
minor was reason ably and excusably ignorant of the right to repudiate the contract. So do I. (The
view propounded by Cockrell was originally expressed in Boberg Persons and lhe Family 590.)
127 1952 (3) SA 1 (A).
128 On postnuptial alteration of the matrimonial property system, see Heaton and Kruger Family Lawch 8.
129 See the definition of"ci il union" ins l of the Act.
130 1952 (3) SA 1 (A).
131 In te1ms of s 13 of the Ci, I Union Act, the consequences of a civil union match those of a marriage,
except in so far as the Y.Carriage Act 25 of 1961 and the Recognition of Customary Marriages Act 120
of 1998 are concerned. Thus, decisions regarding a civil maniage apply equally co a civil union except
in so far as they relate specifically to the Marriage Act.
132 Mutual Banks Acts 88(1).
133 Banks Act 94 of 1990 s 87(1).
 100 The South African Law of Persons

documents and give all necessary acquittances ,dthout the consent of his or her
guardian.''"'

(v) Misrepresentation by the minor

It is generally agreed that a minor who misrepresents himself or herself to be a major, to
be emancipated, or to have the necessary consent, and who thereby misleads somebody to
enter into a contract with him or her, ought to be liable,•ss but there is no unanimity on
the basis for such liability. The two possible grounds on which the minor could be held
liable are the contract he or she entered into and the delict he or she committed (namely,
the misrepresentation). Each of these bases is considered below.

Contractual liability
Those who advocate contractual liability for a minor who committed a misrepresentation
advance various reasons for their theory. In the first place they point out that the Roman
Dutch writers expressly denied the remedy of restitutio in integrum• to a minor who commit
ted a misrepresentation.187 Restitutio in integrum, it is argued, presupposes a binding contract
and, as the old writers deal with, and deny, the remedy to the fraudulent minor, it is im
plied that there is a binding underlying contract.138
This argument is unconvincing because restitutio in integrum has been relied upon in cir
cumstances where it was unnecessary to do so. Restitutio in integrum should only be used in
respect of a minor's binding contract (that is, in respect of a contract the minor concluded
with the necessary assistance or a contract the minor's guardian concluded on the minor's
behalf).• However, Roman-Dutch practice was also to apply for restitutio in integ,wn in cases
where a minor had entered into an unassisted contract."0 In these circumstances the minor
was in fact not contractually liable and therefore did not have to rely on restitutio in
integrum; the minor could, instead, simply have used the rei vindicatio or a condictio to
recover the performance he or she had rendered in terms of the unenforceable contract.
Invocation of restitutio in integrum in circumstances where it was unnecessary to rely on the
remedy surely does not justify the inference that the minor is contractually liable purely
because of his or her misrepresentation. As Cockre11141 puts it:
[T]he unassisted minor's contract does not require setting aside by restitutio in integrum it is
simply not binding on the minor as a matter of law. How, then, can minors be punished for
fraud by denying them a remedy that is not needed in any event?

131 Friendly Societies Act 25 of1956 s 16.

135 See e.g. Voet Co111menta,y on the Panclects4.4.43, 27.9.13; Van Leeuwen Cm.mra Forerui.s l.1.43.7;JC Vogel
& Co v WA O.-eentle)' (1903) 24. NLR 252; Pleat v \Ian Staden 1921 OPD 91; Fo11chi v BaUtnhatL!tm & Co
1939 CPD 228; Lc11w v MJ& H Trust (Pty) Ltd 1975 (4} SA 268 (T}; Grand Prix Motcrs WP(Ply) Ltd v
Swart 1976
(3) SA 221 (C); Barratt in Barratt (ed.) Persons and tlu: Frimily 60, 61; Boezaart Persons 83; Cockrell in Van
Heerden et al (eds) JJoberg'.1 Law of Perso,is aml the Frtmily 817; Donaldson Mirnm 27-33; Kn,gcr and
Skel ton (eds) Person.1 125; Schafer Child Law 201-202; Wau 1,ontracts Conduded by Unassisted MiMrs
133; Bhana and Visser 2014 THRHR 185.
136 Restit11tio in integrttm is discussed below in this chapter.
137 Voet (',0111111entmy cm the Pa,uler.l.s 4.4.43, 27.9.13; Van Leeuwen CAut,rn. Foremi.11.4.43.7; Fouchi v
Ballen· hau.s,m & Co1939 CPD 228; Louw v MJ & H Trust (Pty) Ltd 1975 (4) SA 268 (T).
138 Plea/. v Van Stadim1921 OPD 91; Pouc/ie v Batle11.ha,u..1en & 1,01939 CPD 228.
139 See e.g. EdeLrtein v &/el.stein 1952 (3) SA I (A} llA where it was said: "Restitution presupposes a binding
contract; therefore one concluded by a minor with the assistance of his guardian".
140 Voet Commentmy 011 the Pa,u/ects4.l.1S; 1Jreytenbacl1 vFrankel 1913 AD 390; Dtt Toit v Lctmt 1918 OPD 99.
141 Cockrell in Van Heerden et al (eds) JJoberg's Law of Persons and tl1e Fa111il.y 818-819, whose statements
arc based 011 Boberg Persons and tlu: Family 600-601. See also Barratt in Barratt (ed.) Persons and the
Family
61; Boe1.aart Persom 84-85; Bradfield Christit'.1 law of Contract 281-282; Cronje LAW.SA vol 20 pan I Per
.mns par 470; Do11aldso11MitU>r.1 29-30; Hahlo and Kahn Soulh Afrira 381; Kruger and Robinson in Rob
inson (ed.) I.aw of Chikfren and Yo1111g Pr.rsons Sl fn 212: Kiuger and Skelton (eds) Persons 125-127;
Schafer Chwl Law 202; Schafer in Clark (ed.) Family Law S,ivire par E71; Watt 1,011trnr.ts Conduiud by
Un r isisted Mino,:i 156; Wt-ssels 1,0ntra,:t pars 830-843; Bhana and ViMer 2014 11fRHR 185.
 Chapter 6: Minority 101

14
In this context the decision in Louw v M] & H Tn1st (Pty) Ltd i should be mentioned.
Judge Eloff held that because the minor had misrepresented himself as emancipated
when he bought a motor cycle from a major without the necessary assistance, he could
not recover the part of the purchase price be had already paid. Judge Eloff further held
that the fact that a fraudulent minor is denied restitutio in integrurn does not mean that he
is contracn1ally bound because of his misrepresentation.Judge Eloff argued that because
the minor is not conn-actually bound, he cannot be ordered to pay the balance of the
purchase price. The minor's misrepresentation therefore does not result in the contract
being enforced against him. It merely results in the minor not being allowed to claim
restitutio in integrurn, and because the minor cannot claim restitutio in integrum he cannot
recover the contractual pay ments he made.
It is submitted that this decision is vrrong.'" It is indeed correct to say that refusing the
minor restitutio in integrurn does not mean that the minor becomes contractually liable.
Once it is agreed that a minor who enters into an unassisted contract cannot be
contractually liable it is clear that the remedy of restitutio in integiurn is not required at all.
As indicated above, if a contract is not enforceable against someone, he or she can simply
recover his or her performance with the rei vindicatio or a condictio. Thus, the court erred
in holding that denying the minor restit·utio in integrurn barred him from recovering the
part of the purchase price he had already paid. The resulc of Judge Eloff's decision is that
the minor was both held bound because he was not allowed to recover the payments he
had made, and not bound because he was not compelled to pay the balance of the purchase
price. This is untenable. Either the minor is conn-actually liable, in which case he cannot
recover what he has performed and is bound to carry out his remaining obligations, or he is
not contractu ally liable, in which case he may recover what he has performed and is not
bound to render further performance. In Louw's case the minor's claim for recovery of
payments already made should therefore have been upheld and the major's counterclaim
for full payment of the outstanding amount should have been dismissed.144 This would not
have left the major without a remedy, for he or she could still have sued the minor in delict
or for unjustified enrichment.115
In the second place those who advocate contractual liability of a minor who commits mis
representation rely on estoppel.1-1& They argue that if someone enters into a contract with a
minor on the strength of the minor's misrepresentation, the minor cannot raise his or her
minority as a defence. Consequently the minor is held liable as if he or she were in fact a
major when the contract was concluded. The other party can therefore simply sue the
minor on the contract and then, by means of estoppel, frustrate any reliance by the minor
on his or her minority. This argument should be rejected on policy grounds: invoking

142 1975 (4) SA 268 (T).

143 See also Bradfield Christie's Law of C,mtmct 281-282; Cockrell in Van Heerden et ril (eds) Boberg'.1 Lllw
of Perscm, 1md the Family 821; Cronje LA\IVSA vol 20 part l Persons par 470; Kruger and Skelton (eds)
Pcrs11n.1 127; but see Scott Unjust Enrichment by Transfer i11 South African Law: Unjust Factors or
Absence uf ugal Ground? (University of Oxford: Thesis, 2005) 196 as cited in Visser Unjustified
Enrichment 549 who is of the view that in Louw v fv!J & H Tmsl (Pty) Ltil restitutio in integrum was the
co1Tect remedy. Du Plessis Un justified Emidnnent 83 is of tile view that some of the objections against
using restit'lllio in integmm are un convincing, but he doubts whether it would be beneficial to rely on
rt,Stitutio in integrum because claims based on enrichment "provide more appropriate protection to the
minor in terms of the quantification of liability". See also Du Plessis Unj11slijie1lEmidm1ent 84.
144 Cockrell in Van Heerden el al (eds) Boberg'.f Law of Pl,rsons rmtl the Family 822 fn 184; Cronje IAWSA
vol 20 part l Persons par 470.
145 These remedies are discussed below in this chapter.
146 Van dcr Vyvcr and Joubert Person. en Fa111ili11reg157; Pauw 1976 THRHR 83-84. The courts have not
yet specifically considered estoppcl as a ground of liability on the part of the minor although it was said in
J<:Vogel & C.i,11 II'...\Creentley (1903) 24 NLR 252 254· that "there can be no doubt that under Roman
Dut.ch Law where 1he minor represents himself to be of age, and by vinm: of the representation enters
into a contract that he 1s generally bound by that representation".
102 The South African Law of
Persons
estoppel to hold the minor to the false impression he or she created and enforcing the
contract against him or her has the undesirable consequence of permitting the minor to
alter his or her capacity to act by committing a misrepresentation even though his or her
fraudulent conduct or omission does not inevitably mean that he or she has the necessary
ability to judge and that he or she therefore does not need the legal protection that is
ordinarily afforded to minors.11'
It is arguable that section 39(2) of the Consumer Protection Act is authority for the view
that a fraudulent minor is contractually liable in so far as agreements in terms of the Act
148
are concerned. In terms of section 39(1) (b) of the Act, an agreement to enter into a
trans action for the supply of goods or services to an unemancipated minor consumer and
an agreement for the supply of goods or services to such a consumer are voidable at the
option of the consumer unless the consumer has the consent of his or her guardian to
11
enter into the agreement or the agreement is ratified. Section 39(2) creates an exception
to this rule. It provides that the rule in section 39(1)(b) does not apply if the minor or
somebody acting on the minor's behalf induced the supplier to believe that the minor had
unfettered capacity to enter into the contract or if the minor or person acting on his or
her behalf tried to obscure or suppress the fact that the minor did not have unfettered
capacity to enter into the contract. Although this section does not expressly state that a
fraudulent minor is contractually liable, the implication of the inapplicability of the rule in
section 39(1)(b) might be that the contract is not voidable at the option of the minor.''°
Accepting this argument would lead to the same policy concern that applies in respect of
invoking estoppel to hold a fraudulent minor to the false impression he or she created and
enforcing the contract against him or her, namely that it is undesirable to permit the
minor to alter his or her capacity to act by committing a misrepresentation.
Delictual liability
It is submitted that delict ought to be the basis on which the fraudulent minor is held
liable.m By making delict the basis of liability, the past judgments in which the minor was
152
held liable for the contract price are not explained. In those judgments there was no
discussion of the ground on which the minor was held liab,le. Consequently, it is doubtful
whether they can seive as authority to substantiate the basis of the minor's liability as being
contractual in namre.
If a minor openly claims to be a major, to have the necessary assistance, or to be
emanci pated, there is no doubt that he or she is committing a misrepresentation.155 The
other party does not have to enquire into the truth of the minor's statement unless he or
she has

147 See also Lomu v M] & H Tru.rt (Pty) Lui 1975 (4) SA 268 (T) 273H; Cockrell in Van Hcerden et al (eds)
Bobergs Law of Persons lmll the Fa.inily 824-825, 826; Cronje I.A vol 20 parl l Pmons par 470; Don
aldson Minim 32; Kruger and Robinson in Robinson (ed.) Law of Chi/.dren and Young Persons 31;
Kruger and Skelton (eds) Perso71S 127; Schafer Child Law 202; Sonnekus Eswppeileerstuk195; Wessels
umiraa pars 830-831.
l 48 See fn 71 above on the transactions t.hal are govcmed by the Act.
149 On lhis section, see above in this chapter.
150 Boezaart Persons 86; Watt Contracts umcluded by Unassisted Mimm 136. Bul see Bhana and Visser 2014
THRHR 193 who argue that, because the section simply states that the rule ins 39(1) "does not
apply", "[t]his could mean either that the contract is valid (rather than voidable) or lhat the common
law regu lating the scenario of the fraudulent minor must apply instead".
151 See also Cockrell in Van Heerden et al (eds) Boberg's Law of Persons and Im Family 826; Cronje LAWSA vol
20 pan l Persons par 470; Donaldson Minors 30; Kruger and Robinson in Robinson (ed.) Law of
Chi/.drm a,ut Young Persons 31; Kruger and Skelton (eds) Persons 127; Schafer Child Law 202; Spiro
Pormt and Chikl 115; Wilie's Principles181; Bhana and Visser 2014 THRHR186.
152 Sec e.g./CVogel & (',0 v WA Oreen.1/ey(1903) 24 NLR 252; Pim/ ti Ian Sta(U!n 1921 OPD 91; Foucl1iv BaJtm
hm,ism & Co1939 CPD 228.
153 Pleat v VanStaden192 l OPD 9l.
 Chapter 6: Minority 103

154
good cause for believing that he or she is in fact dealing with a minor. In the case of a
tacit misrepresentation the issue is whether the minor's conduct amounts to a
misrepresen tation. This depends on the circumstances of each case. If the minor knows
that the other party thinks he or she is a major, is emancipated, or has the necessary
consent and does nothing to remove this erroneous belief, the minor commits a
misrepresentation.m In the case of an erroneous belief that the minor is a major, the
minor must be old enough to be reasonably mistaken for a major.156 However, if the other
party is the minor's blood relation, it is accepted that he or she knew that the minor was in
157
fact a minor.
Once it has been established that the minor committed a misrepresentation, the onus
rests on the minor to prove that the other party was not misled. The misrepresentation
must have been the cause that induced the other party to enter into the contract with the
minor.158 Obviously, the other party must have suffered loss.
(vi) Unjustified enrichment
In terms of Roman and Roman-Dutch law, a minor incurred liability if he or she entered
into an unassisted conn-act and benefited from the contract. The benefit theory was
adopted in our law in Nel v Divine, Hall & co•;• in which it was held that if a contract,
taken as a whole, was to the minor's benefit, the minor was bound by it. u;o This view,
161
although incor rect, was applied fairly consistently by our courts until it was authoritatively
rejected by the Appellate Division in Edelstein v Edelstein. In Edelstein it was correctly held
162

that a minor is not contractually liable whenever a contract is in "a vague and general
way" to his or her advantage,16' but that the minor may be held liable ex lege on the
ground of unjustified en1ichmen,t., ..
Liability on the ground of unjustified enrichment arises if one person obtains a
patrimo nial advantage (that is, is enriched) at the expense of another in the absence of a
legal ground justifying the enrichment.165 The enrichment claim is limited to the lesser of
either the amount by which the enriched person's estate remains enriched at the date of
institu tion of the action (that is, the date of service of the summons) or the amount by
which the

154 Voet Commentary on the Pantlects 4.1.43; Piette v Van Su1tlen 1921 OPD 91; Fouche v Battenlumsen & Co
1939 CPD 228; Louw v Mj & H Trust (Pt)·) Ltd 1975 (4) SA 268 (T).
155 Bradfield Christie's Law ofumtract 280; Cockrell in Van Heerden et al (eds) Boberg'., Law of Persons and the
Family 828; Cro1-ue LAWSA vol 20 part 1 Persons par 470; Kruger and Skelton (eds) Pers,ms 127. See
also s 39(2) of the Consumer Protection Act.
156 Pleat v Vmi Staden 1921 OPD 91; Louw v 1\1] & H Trust (Pty) Lui 1975 (4) SA 268 (T).
157 Voet Gnmrumia.,)' on the Pandecls4.4.43; Pleat v Van St,1den1921 OPD 91.
158 Pleat v Van Staden 1921 OPD 91; Fouche v Ballenhamen & Co 1939 CPD 228; Louw v Mj & H Trust (Pty)
Lui 1975 (1) SA 268 (T).
159 (1890) 8 SC 16.
160 Piior to d1is decision there had been judgments following the Roman-Dutch rule, i.e. that an unassisted
minor is not liable on the contract: see e.g. Gantz v Wagcna,1r (1828) 1 Menz 92; Riggs v Caiff (1836) 3
Menz 76; Foud1ee v De Villiers (1883) 3 EDC 147; and also the later cases Oroenewaui v Rex 1907 TS 47 and
Ta11ne v Foggitt 1938 TPD 43.
161 Sec e.g.JC VogPt & Cov M¼ O,.,.mtley ( 1903) 24 NLR 252; Du Toil v Lotriet 1918 OPD 99; Bwldcley v Clarke
(1923) 44 LR 306; Skead v Colonial Banking & Trust Co Ltd 1924 TPD 497; Silberman v Hodkinson 1927
TPD 562.
162 1952 (3) SA l (A). Prior to this case the Transvaal court had already rejected this approach in Tanm v
Foggitt 1938 TPD -!3.
163 12EF.
164 Capacity to ac1 is nm a requirement for liability based on enrichment. On the issue of which condictio is
t.o be used. see Du Plessis Unjustijied Enrichmeiu 80-82; Visser Unj1Jstified Z.:nric.hment 547-551; Watt Con
tracL1 Co11r/11dNi I,.,- e,-1w. ,isted Mincm 91-92.
165 See e.g. Preloriu; ,_.Ian Zyl 1927 OPD 226; Nmtje v Pool 1966 (3) SA 96 (A); McGmth)' Ret til Ltd v Short
<listance umiers CC[2001] 3 All SA 236 (SCA), 2001 (3) SA 482 (SCA).
104 The South African Law of Persons

other person's estate remains impoverished at that date.'00 In arriving at this amount the
contract price is ignored; it is the actual value of the asset at the time of institution of the
167
action that is at issue. Accordingly, if the value of the asset has decreased by the time the
action is instituted, it is the decreased value that is used. If the asset was lost prior to the
institution of the action, the impoverished party cannot claim anything. If the asset was
alienated, the impoverished party can claim only what is left of the proceeds, unless the
enriched party used the proceeds to obtain necessaries, such as food, clothing,
accommoda tion and medical treatrnent.168 In the latter case, the cost of the necessaries is
the value that is used to determine the amount of the enrichment even if nothing remains
of those necessaries. The reason for this rule is that the enriched party would have had to
pay for the necessaries out of his or her own pocket were it not for the fact that he or she
had the asset or its proceeds. Therefore, the extent of his or her enrichment is equal to the
cost of the necessaries.169
The difference between contractual liability and liability on the ground of unjustified
enrichment can involve a gTeat deal of money. Contractual liability entails that the minor
is liable for the contract price, irrespective of when the action is instituted. In contrast, if
the minor is liable on the ground of urtjusti.fied enrichment, he or she is only liable for the
value of the asset at the time when the action is instituted. The amount for which the
minor may be liable on the ground of unjustified enrichment may therefore be much less
than the contract price.
(vii) R.estitutw in integrwm
If a minor entered into a contract with his or her guardian's consent or if the guardian
validly entered into a contract on the minor's behalf, the minor may still escape contractual
liability by relying on restitutw in integrum.110 R.estitutw in integ,-um is available even if the court
consented to the minor's contract, because the court might have erred or might have been
misled.111

166 Barratt in Barratt (ed.) Persons and the Family 17, 50; Boezaart Persons 78, 79; Bradfield Christie's Law of
Contract 278; Cockrell in Van Heerden et al (eds) Boberg's Law of Persons and the Family 811; De Wet and
Van Wyk Kontraktereg en Handelsreg 61; Du Plessis Unju.stijie,t Enrichment 80-81; Kruger and Robinson
in Robinson (ed.) Law of Chililren and Young Persons 34; Kruger and Skelton (eds) Persons 124;
Sonnekus Ongegronde Verryking 167-168; Van der Vyve,· and Joubert Persone- en Fa111ilicreg 165, 166-167;
Visser Unjus tifwl Enrich111ent 161, 163, 730; Willes Prini:iples 181-182. See further Willes Princifiles
1048-1051. Van den HeeverJA refers to "the time of the action" in Edilstein v Edel,tein 1952 (3) SA l (A)
12F.
167 Barratt in Barratt (ed.) Persons anrl the Famil)' 17, 50; Bradfield Ch,istie'., I.aw of Contract 278; Kruger
and Skelton (eds) Per.sons124; Sonnekus Ongegrornk Vimyking52.
168 Grotius lnleidinge 3.30.3; Edelstein v Edelstein 1952 (3) SA 1 (A); see also Boezaart Persons 78; Cockrell in
Van Heerden et al (eds) Boberg's Law of Persons and the Family 811--814; De Wet and Van Wyk
Kontraktereg en Handel.sreg 61; Du Plessis Unjustified Enrichment 81; Kruger and Skelton (eds) Persons
124; Sonnekus Ongegronde Venyking56; Van der Vyver and Joubert Per.wne- en Familiereg 166; Visser
UnjustifiedEn,'ichment 732-736; Watt Contracts Concluded by Unassisted Minors96-98; Wil/e's Principles
182, 1048-1051.
169 Ba1Tatt in Barratt (ed.) Persons and the Family 52; De Vos Vmykirz,,usrumspreeklikheid 46; Kruger and
Skelton (eds) Persons 124; Sonnekus Ongegrmuk Ver?)·kiiig56; Van der ,·yyer and Joubert Persone- en
Familiereg 166; Willes Principles 182. See further Cockrell in Van Heerden et ttl (eds) Bobergs I.aw of
Pmons and lhe Family 813.
170 See e.g. Voet Commenta1y on the Pandects 4.4.12-4.4.54; Van der Keessel Theses Selectae 133; Van
Leeuwen Cen.rn,·a l'arensis 1.4.43.1-1.4.43.2; Breytenbach v Fmnkel 1913 .-\D 390; Du Toit v Lotriet 1918
OPD 99; Skea(l u Colonial Banking & Trust Co Ltd 1924 TPD 497; Wood v Davies 1934 CPD 250; Rorul
Accident Fund v MyhillNO2013 (5) SA426 (SCA).
171 Voet Commentary on the Pandects 4.4.15; In re Nooitgedacht: Ex partP ll'essels (1902) 23 NLR 81; De Wet
v Bouwerl919 CPD 43.
 Chapter 6: Minority 105

R£stitutio in integrum is an extraordinary remedy and is only available if the contract

was pn,judicial to Lhc minor when it was concluded.17'l Prejudice arising at some later
stage is irrelevant.""
The purpose of restitulio in integrum is to restore the status quo ante (that is, the
previous position). This means that complete restitution from both sides must take place,
placing both parties in the position they would have been in had they never entered into
the con tract. Each party must retum everything he or she received under the conlract, as
well as the proceeds or any advantage derived from the contract. Each party must also
compensate the other for any loss suffered as a result of the contract.'"
As indicated abo\'e in this chapter, restitutio in integrum is only necessary if the minor is
indeed contractually liable. Therefore, if the minor did not have the requisite assistance
when he or she entered into the contract, he or she is not conu·actually liable and need not
seek restitutio in integmmm. If some doubt exists as to whether or not the minor is conlJ·actu
ally liable, the minor could apply for restitutio in integrum, but then the minor would have
6
to prove that the contract was to his or her detriment when it was conclude,d;.
Restittttio in integrum is available not only in respect of contracts: the minor may invoke
77
the remedy whene,·er he or she has suffered prejudice.1 For example, in Landers v &tate
178
Landers restitu.tio in integrum was granted to a minor who had lost his inheritance through
his guardian's failure to protect his interests. R£stitutio in integrum can, however, not be
1 1
invoked to set aside a marriage or escape delictual or criminal liability. "
A minor who misrepresented himself or herself as a major or an emancipated minor or
as having the requisite consent to enter into the contract, and thereby persuaded the other
party to enter into a contract with him or her may not rely on restitutio in integrum'80
Whether an emancipated minor may obtain restilutio in integrum is conu·oversial. It is
submitted that restitutio in integrum should indeed be available to an emancipated minor,
because it is illogical to deny the minor the remedy simply because his or her guardian
consented to his or her entering into all transactions within a particular sphere instead of
just consenting to one particular transaction.1 '
Restitutio in integrum not only affords a cause of action but may also be raised as a defence,
for example, if a minor is sued for performance in terms of a prejudicial contract•.s2

172 See e.g. Voet Ct1111111entary on the Pandr,;ts 4.1.11 et seq, Van Leeuwen (.:.m.sura Fonmsis 1.4.43.1-
1.4.43.2; Skead v Colonial Banking & Tmit Co Ltd 1924TPD 497; WllOil v Davies1934 CPD 250; Road
Accident Fm,d t1 MyhillNO2013 (5) SA-126 (SCA).
173 D 4.4.11.4-4.4.1l.5; Voet Commentwy on the Pandects 4.4.49; Croti,c lnlei,linge 3.48.1l; Sk=l v Colonial
Banking & Tmst Co Ltd 1924TPD 497.
174 Grotius lnkidinge 3.48.5; Voet Commentmy on the PanduLt 4.1.22, 4.4.36-4.4.37; Wood v Diwies 1934 CPD
250.
175 See e.g. Voet Commentmy 011 the Pr.md.erts 4.1.13, 4.4.21, 4.4.52; Van Leeuwen Ce.nsura Frrrensis 1.4.43.1!;
Van der Keessel Theses Se/ectae 128, 133; Brrytmbarh v Frankel 1913 AD 390; 1Jollo Ateljees (F:ins) Bpk fl
Small 1949 ( I) SA 856 (A); Edel,tein v F.delstein 1952 (3) SA I (A).
176 Breytnwach v Fmnkel 1913 AD 390.
177 Voet Cmnmentar,· on the Pmulects4.4.M--4.4.32.
178 1933 NPD 415.•
179 Voet CommmUn)' on the Panrlecls 4.4.45.
180 Voet C,ommenllll'\' on the PanderL, 4.4.43; Van Leeuwen Censtffa. Foremis 1.4.13.7; Fouche v Batten.h<msm & Co
1939 CPD 228; i.ouw 11 Mj & H Trust (Ply) Ltd J975 (4) SA 268 (T).
181 See also Barratt i11 Barratt (ed.) Persons and lhe Family 78; Boezaart Persom 72-73; Boez.aart in Boezaarl
(ed.) Child Lm11in Soulh AJ,un 27, 30; Cockrell in Van Heerden et al (eds) Bobng's Law of Persons 011d the
Fnmily 490; Cronje LAWSA vol 20 pan I Persons par 486; De Wet and Van Wyk K,mtmJl/ereg en. Haru/P.lsreg
69; Van der ,-)Ter and Joubert Pl'fsane- en Familiereg 153-155; Bhana and Visser 2014 THRHR l84. But
see Spiro Parent and Child251 and see Bradfield Christie's Law ofContro(t 287.
182 Van dn BJ! & Cr> v S0/0111011 ( 1877) 7 Buch 25; Skearl fl Colonial Banliing & 'Ji,,st Co l.ld 1924 TPD 497.
106 The South African Law of
Persons
With the assistance of his or her guardian, the minor may apply for restitutio in integi-um be
fore auaining majority, or the guardian may apply on the minor's behalf. If the guardian
fails to assist the minor, a curator ad lite,n may be appointed to assist the minor in the
litigation.'"" Alternatively, the minor may await majority and then institute the action on
his or her own, but in this event he or she has to consider the possibility of prescription of
the claim. Prescription usually takes place three years after the date on which the cause of
action arises but, in the case of a minor, it is delayed until at least a year after the minor
becomes a major.181 If, after attaining majority, the minor ratifies the contract, he or she is
185
barred from obtaining restitutio in int,egrum.
R.estitutio in integrum accorded to a minor differs from other cases of restitution in chat
186
it does not release someone who has bound himself or herself as a surety for the minor.
Thus, ifa minor's guardian has stood surety for the minor's obligations, the guardian would
still have to meet those obligations.
(b) Other agreements
The principle that a minor may improve his or her position but not encumber it without
the consent of his or her guardian also applies to other agreements. Thus, for example, a
real agreement by which a right is transferred to a minor is valid even if the minor is un
assisted,'87 but a real agreement by which a minor attempts co transfer a real right co an
other person without his or her guardian's assistance, is invalid. Likewise, a minor can
enter into an unassisted agreement which extinguishes a debt he or she owes, but a minor
cannot enter into an unassisted agreement by which another person's debt to him or her is
extin guished.'88 Therefore, someone who entered into a contract with a minor cannot
validly render performance in terms of the contract unless the minor is assisted by his or
her guardian. If the other party to the contract does render performance, that party is not
released from his or her duty to perform, but if the minor is enriched by the performance,
the minor may incur liability on the ground of unjustified enrichment.'S'J
If the minor performs without his or her guardian's assistance, the performance is
invalid'90 and can be recovered. The reason for this rule is that although performance
entails an advantage for the minor in so far as his or her indebtedness is terminated, it also
entails a disadvantage because the minor loses his or her right of ownership to whatever
his or her performance consists of. It must, however, be borne in mind that if a minor
entered into a contract with the requisite assistance but rendered performance under that
contract with out assistance, the minor may not recover his or her performance, for in this
case the minor's guardian is taken to have consented not only to the contract but also to the
minor's fulfilling the contract by rendering performance.'9'

183 Grotius lnleidinge 3.48.12.

184 Prescription Act 68 of 1969 s 13(l)(a). On the effect of the lowe,ing of the age of majority on prescrip
tion, see below in this chapter.
185 Voet Commenta,y on the Pandects 4.4.44; Van Leeuwen Cenmra Formsis 1.4.43.8; Van lier Byl & Cov
Solomun (1877) 7 Buch 25; Woljfv Solomon's Trustee (1895) 12 SC 42; Fenni,r ',o/oi,um v Martin 1917
CPD 22; Du Toil v Lotriet 1918 OPD 99; Skead v Colonial Banking & Trust Co Lt1l 1924 TPD 497.
186 Voet Commenta,y on thePandects4.4.39;Van Leeuwen Cens11m Fore1L<is l.4.43.10; Lee lnlr0<luction48.
187 Harvey v &e,11879 OFS 48; Reinecke 1964 THRHR137.
188 Grotius lnleidinge 3.30.11; Voet Co,nmenJary <m thePandects4.4.'22; Van Leeuwen Rooms-Hollands-&gt l.16.8;
Van der Keessel Prae/ecliones l.8.5.
189 It must be noted that the minor's performance is invalid only in so far as it puiports to extinguish the
other pan)"s debl. It may be valid in so far as it is to the minor·s advantage. E.g., if something is
deliv ered to the minor in terms of a contract of sale, delive,J docs not extinguish the other party's
obligation to deliver, but ownership of the asset usually passes 10 tlle minor. In this regard, see
Reinecke 1964 THRHR133-134.
190 D 46.3.14.8.
191 Voet Commentmy on the Pandecl<4.4.2l.
 Chapter 6: Minority 107

(c) Wills
Once a minor reaches the age of 14 years, he or she may witness a will.'92 A person who is 16
years or older may make his or her own will and in it dispose of his or her property as he or
193
she pleases.
(d) Marriages and civil unions
(i) Civil marriages
1
A minor may enter into a civil marriage if he or she has the requisite consent. 9< All the
guardians of the minor must consent to the marriage, unless the court orders otherwise.195
If a guardian is absent, mentally ill or in any other way incompetent to consent, or if the
minor can for any other good reason not obtain the guardian's consent, the presiding
officer of the Children's Court may grant consent.196 If a guardian or the presiding officer
97
withholds consent, the minor may approach the High Court for consent.'
If the consent of the guardian (s) or the presiding officer is not obtained and the court
does not authorise the marriage, the marriage is voidable. It may be set aside on the appli
cation of either
(1) the minor's parents or guardian before the minor attains majority and within six
weeks from the date on which they become aware of the existence of the marriage; or
(2) the minor before he or she attains majority or within three months thereafter.198
If the marriage is dissolved due to lack of consent, the court m make any order with
regard to the division of the matrimonial property it deems just.' lf the marriage is not
dissolved, the patrimonial consequences are the same as if the minor were of age when the
marriaie was entered into and any antenuprial contract in terms of which the accrual
system' is included is deemed to be valid.'"'
All female minors below the age of 15 years and all male minors must obtain the
consent of the Minister of Home Affairs in addition to obtaining their guardian(s)' consent
to the marriage, unless the court authorises the marriage.202 Because children below the age
of puberty cannot enter into a civil marriage at all, the Minister's power to grant consent
applies only tO marriages of females between the ages of 12 and 15 years and males
between the ages of 14 and 18 years20' ( the age of puberty is 14 years for boys and 12
years for girls). If ministerial consent is not obtained, the marriage is void. The Minister
may, however, subsequently declare the marriage valid if the marriage is desirable and
in the parties'
2 1
interests and in all other respects complies with the Marriage Act 25 of 1961. °'

192 WillsActsl.
193 Wills Acts 4.
194 Thecivil marriage of a minor is discussed more fullyin Heaton and Kruger Family Law16--24.
195 Children's Acts 18(3)(c) and (5); see also Matrimonial Affairs ACL 37 of 1953 s 5(1); Divorce Act 70 of
J979s6(3).
196 Maniage Acts 25(1).
197 Marriage Acts 25(4).
198 Marriage Acts24A.
199 Matrimonial Property Acts 24(1).
200 The accrual system applies in some marriages out of community of property. By virtue of this system
the spouses share their profit at the dissolution of the marriage. On the accrual system, see furthe1·
Heaton and Kruger Family Law ch 7.
201 Matrimonial Property Acts 24(2).
202 Marriage Act s 26(1).
203 Barratt in Ba,i-att (ed.) Persons anrl the Family 66, 67; Boezaart Persons 87; Heaton in Van Heerden et al
(eds) Boberg's Law of Persons anti lhe Family 836 fn 2; Heaton and Kruger fomily Law17; Kruger and Rob
inson in Robinson (ed.) l,a.w of(",hi/.dre11 and Young Persons 16; Kruger and Skelton (eds) Persons 128; Lee
and Honore Family, Things and Succession par 41; Barratt, Mahler-Coetzee and Denson in Barratt (ed.)
Persons and the Family 86; Sinclair assisted by Heaton Law of Maniage 367; Van der Vyver and Joubert Per
sone- en fo111iliereg 172, 486-487; Visser and Potgieter lntrotluclion to Family Law 51; Menge 1956 SAL)450;
Spiro 1960 THRHR 5; Van der Walt 1961 THRHR 119. But see Hahlo Husband and Wife 90; Conradie
1956 SALf 190.
204 Marriage Acts 26(2).
108 The South African Law of
Persons
A minor who has previously entered into a valid civil or customary marriage and whose
marriage has been dissolved by death or divorce may enter into another civil marriage
without consent because he or she attained majority upon entering into the first marriagew5
and the dissolution of the marriage did not revive his or her minority.200
(ii) Customary marriages
A minor who wants to enter into a customary marriage needs the consent of all his or her
guardians, unless the court orders otherwise.207 If a guardian is absent, mentally ill or in
any other way incompetent to consent, or if the minor can for any other good reason not
obtain the guardian's consent, the presiding officer of the Children's Court may grant
consent.m If a guardian or the presiding officer withholds consent, the minor may
approach the High Court for consent.209
If a minor fails to obtain consent from his or her gciardian(s) or the presiding officer
and the court does not authorise the marriage, the marriage is voidable. It may be set aside
on the application of either
(1) the minor's parents or guardian before the minor attains majority and within six
weeks from the date on which they become aware of the existence of the marriage; or
(2) the minor before he or she attains majority or within three months thereafter.210
If the marriage is dissolved due to lack of consent, the court ma make any order with
211
regard to the division of the matrimonial property it deems just. It is unclear what the
patrimonial consequences are if an unassisted minor's customary marriage is not set
aside.212
Unless the court authorises I.he maniage, every minor who wants to enter into a custom
ary marriage must also obtain the written consent of the Minister of Home Affairs."' Minis
terial consent does not release the minor from the need to comply with all the other
requirements for a valid customary marriage, such as obtaining the consent of his or her
guardians.21• If ministerial consent is not obtained, the Minister may subsequently declare
the marriage valid if the marriage is desirable and in the parties' interests and in all other
respects complies with the Recognition of Customary Marriages Act 120 of 1998.215 If
216
such declaration is not obtained, the marriage is void.

205 Marriage Acts 24(2). The secLion refers to a "valid marriage". At the Lime when the Marriage Act was
drafted, the legislature clearly had only a civil maniage in mind. However, because s 2 of the Recog
nition of Customary Ma1Tiages AcL now recognises customary marriages as valid, the phrase "valid mar
riage" should be interpreted LO apply Lo a valid customary marriage, too. Further, as s 6 of the
Recognition of Customary Marriages Act confers "full status and capacity'' on wives in customary mar
riages, and husbands in customary marriages always acquired adult. status and capacity upon entering
into a customary marriage, minors of both sexes now obtain majority status when they enter into a valid
customary marriage.
206 Voet Commenuuy on ti Pmulects4.4.6; Cohen v Sytnet (1897) 14 SC13. See also below in this chapter.
207 Recognition of Customary Marriages Acts 3(1)(") read withs 18(3)(c)(i) of the Children's Act. The
customary marriage of a minor is discussed more fully in Heaton and Kruger Family La:w 219-220, 227-
228.
208 S 3(3)(b) of Lhe Recognition of Ct1stoma1y Maniages Act read withs 25(1) of the Marriage Act.
209 S 3(3)(b) of the Recognition of Customary Marriages Act read withs 25(4) of the Marriage Act.
210 S 3(5) of the Recognition of Customary Man·iages Act read \dth s 24A of the Marriage Act.
211 Recognition of Customa1y Marriages Acts 8(4)(a) read \,ith s 24( I) of the Matrimonial Propel'ly Act.
212 See Heaton and Kruger fomily Law 227-228.
213 Recognition of Customary Marriages Act s 3(4)( a).
214 S3(4)(b).
215 S3(4)(r.).
216 The consequences of failing to obtain the Minister's consem are not governed by the Recognition of
Cnstoma1y Marriages Act. However, by analogy to the position that applies in civil marriages concluded
wiLhouL ministerial consent, customa1y marriages concluded "ithout ministerial consent should be void.
 Chapter 6: Minority 109

(iii) Civil unions

As the Civil Union Act restricts civil unions to persons who have already reached the age
of 18 years,217 a minor cannot enter into a civil union even if he or she is assisted by his or
her guardian.
(e) Medical treatment, operations, HIV tests, and contraceptives218
A minor who is below the age of 12 years may not have medical treatment without his or
her guardian's consent.219 The same applies to an operation on a minor who is below the
age of 12. The guardian's consent to medical treatment is also needed if the minor has
already turned 12 but is immature and does not have the mental capacity to understand the
benefits, risks and social implications of the treatment.m If a minor who has already
turned 12 is sufficiently mature and has the mental capacity to understand the benefits,
risks, social and other implications of the medical treatment, the consent of his or her
guardian is not needed.221 A minor who has already turned 12 may also consent to an
operation if he or she is sufficiently mature and has the mental capacity to understand the
benefits, risks, social and other implications of the oteration, but in such event he or she
must still be "duly assisted" by his or her guardian. In the case of an operation, a minor
over the age of 12 can therefore not independently give consent unless the operation in
issue is a termination of pregnancy.2'l3
A minor's guardian may not refuse to assist the minor in respect of an operation or with
hold consent to medical treatment or an operation on tl1e ground of religious or other
beliefs, unless the guardian can show that there is a medically accepted alternative to the
operation or medical treatment.2'l< If the minor or his or her guardian unreasonably with
holds consent, the Minister of Social Development may give consent.225 The same applies
if the guardian unreasonably refuses to assist a minor over the age of 12 in respect of
an

217 See the definition of"civil union" ins 1 of the Act.

218 On a minor's capacity to consent to medical treatment, operations, HIV treatmelll and contraception in
tenns of the Children's Act, see further Barratt in Barratt (ed.) Persons a11d tM Family 68-70; Boezaan
Persons 89; Bosman-Sadie, Corde and Swanepoel Practical Approt1£.h 187-194; Mahery in Boezaart (ed.)
Cliil,l T,aw in South Africa 261-280; Kruger and Skelton (eds) Persons 131-134; Mahery, Proudlock and
Jamieson Guide to the Chil,lren's Act 9-17; Schafer Child Law 186-198; Schafer in Oark (ed.) Family Law
Service pars E94-E96; Sloth-Nielsen in Davel and Skelton (eds) Commentary 011the Child,-e11sAd 7-62-7-69;
Himonga and Cooke 2007 Tntemational }<tumal of C'Jiil.dren's Rights 323; Nienaber 2008 THRHR 671;
Strode, Slack and Essack 2010 SA}1f 247; Karels and Oosthuizen 2010 (2) .DS 90-91; Ncube and Ross
2010 SAJBI. 67; Malherbe and Govindjee 2010 1HRHR 61; Pieterse 2010 THRHR 230; Durojaye 2011
CTLSA 1; McQuoid-Mason 2014 SAM]466; Savage-Oyekunle and Nienaber 2015 CILSA 98, 2015 AHRLJ
433, 2015 THRHR 363, 541; Van Rooyen, Strode and Slack 2016 SAM}451; Van der Westhuizen 2018
Obiter 791; Kruger 2018 PEL], available at http://dx.doi.org/ 10.l 7159/l727-3781/2018/v2li0a4609;
McQuoid-Mason July 2018 SAJBL 43; Kruger 2018 SAL] 73; Sloth-Nielsen 2018 Stell LR 48;
Buchner
Eveleigh 2019 DeJure 242; Folala and Rudman 2020 AHRLJ667; McQuoid-Mason February 2020 SAM}
100; Strode and Badul 2021 SAMJ20; Toohey and Strode 2021 SAM}16. On consent to force-feeding an
anorexic minor, see Karels and Oosthuizen 2010.DS 70. On consent to research on children, see Strode
and Slack 2011 SAJBL69; Nienaber 2013 SAJP19; Strode, Toohey, Singh and Slack 2015 SAJBL 22; Slack
and Strode 2016 SAJBL 35; Gebrekristos, Shazi, Moodley, Maman and Groves 2020 SAM}526. On the
question whether parents have the dght to authodse medical treatment or an operation which will re
sult in one of their children becoming a so-called "sa\four sibling" for another child of theirs (the so
called "benefactor child"), see Du Plessis, Govindjee and Van der Walt 2014 Obi1£7"224.
219 S 129(1), (4) and (5).
220 S 129(4).
221 S 129(2).
222 S 129(3). The Act does not define the phrase "duly assisted".
223 In tenns of s 5(2) and (3) of the Choice on Tennination of Pregnancy Act 92 of 1996, a pregnant
minor of any age may independently consent to the tennination of her pr.egnancy: see further ch 2
above.
224 S 129(10).
225 S 129(7)(a) and (8).
110 The South African Law of
Persons
operation.226 The Minister may also give consent if the guardian is incapable of consenting,
is incapable of assisting the minor, cannot readily be traced, or is deceased:m If the Minis
ter, the minor or the guardian refuses or is unable to give consent, the High Court or
Children's Court may give consent.,r,s If the treatment or operation is necessary to
preserve the minor's life or to save him or her from serious or lasting physical injury or
disability and the need for the treatment or operation is so urgent that it cannot be
postponed to obtain the requisite consent, the superintendent or, in the absence of the
superintendent, the person who is in charge of the hospital may consent to it.229
A minor may undergo an HIV test only if:
(1) the test is necessary to establish whether a health worker may have contracted HIV
due to contact in the course of a medical procedure with any substance from the mi
nor's body that may transmit HIV;
(2) any other person may have contracted HIV due to contact with a substance from the
minor's body that may transmit HIV, and a court has authorised the test; or
(3) the test is in the child's best interests and the necessary consent has been given for the
test.230
If the minor has turned 12 or is below 12 years of age but is sufficiently mature to under
stand the benefits, risks and social implications of the test, he or she may independently
25
consent to the test. ' If the minor is below 12 years of age and is not sufficiently mature to
understand the benefits, risks and social implications of the test, the consent of his or her
parent or caregiver, the provincial head of social development, or the designated child
protection organisation that is arranging the minor's placement is required.232 If the minor
has no parent or caregiver and no designated child protection organisation is arranging his
or her placement, the superintendent or person in charge of a hospital may consent to the
test.235 If the minor or his or her parent or caregiver is incapable of giving consent, or if
the minor, parent, caregiver, provincial head or child protection organisation unreasonably
withholds consent, the Children's Court may give consent.23''
If the minor is sufficiently mature to understand the benefits, risks and social implica
tions of the test, the test may not be performed until the minor has been properly coun
selled by an appropriately trained person. If the minor is sufficiently mature to understand
the implications of the test result, an appropriately trained person must also provide the
minor with post-test counselling.235 If the minor's parent or caregiver knows about the
test, he or she must also receive pre- and post-test counselling.
If the test results show that the minor is HIV-positive, this fact may not be disclosed
unless the minor gives his or her consent if he or she has turned 12 or is below 12 years of
age but is sufficiently mature to understand the benefits, risks and social implications of
the dis closure.237 If the minor is below 12 years of age and is not sufficiently mature to
understand the benefits, risks and social implications of the disclosure, the consent of his
or her parent or caregiver or the designated child protection organisation that is
arranging his or her

226 S 129(7)(a).
227 S 129(7)(b)-( d).
228 S 129(9).
229 S 129(6).
230 S 130(1).
231 S 130(2)(a).
232 S 130(2)(/J)-(d).
233 S 130(2)(e).
234 S 130(2)(/).
235 S 132(2).
236 S 132(1) and (2).
237 S 133(2)(a).
 Chapter 6: Minority 111

placement must be obtained.238 If the minor is below 12 years of age, is not sufficiently
mature to understand the benefits, risks and social implications, and has no parent or
caregiver and no designated child protection organisation is arranging his or her placement,
the superintendent or person in charge of a hospital may consent to the disclosure.m If the
minor or his or her parent or caregiver is incapable of giving consent, or if the minor,
parent, caregiver or designated child protection organisation unreasonably withholds consent
and disclosure is in the child's best interests, the Children's Court may consent to the clisclo
sure."0
The Act permits disclosure of the minor's HIV-positive status without consent only if Lhe
(1) person who makes the disclosure does so within the scope of his or her powers and
duties in terms of the Children's Act or any other law;
(2) disclosure is necessary for purposes of carrying out the provisions of the Children's
Act;
(3) disclosure takes place for purposes of legal proceedings; or
241
(4) disclosure is made in terms of a court order.
Minors below the age of 12 years require the consent of their guardian to obtain
contracep tives.2'12 The Children's Act does not provide for those cases in which consent
is withheld. However, in its capacity as upper guardian of all minors the High Court has
the power to dispense with consent should the minor's best interests require this. A minor
who has turned 12 may independently buy condoms and receive free condoms on
2
request. -u He or she may also be provided with other contraceptives on request, provided
that he or she receives proper medical advice and undergoes a medical examination to
determine whether there are any medical reasons why a specific contraceptive should not
be provided to him or her.2+< A minor who obtains condoms, contraceptives or
215
contraceptive advice is entitled to confidentialityin this regard.

6.4.2 Capacity to hold certain offices andperform certain functions

On the ground of his or her minority, a person who is below 18 years of age is
incompetent to perform certain functions and to hold certain offices. For example, a minor
cannot be a director of a company2•16 or muntal bank.247 Whether a minor can be the
executor of a de ceased estate has nol been finally settled, but it is submitted that he or she
218
cannot. As emancipation does not terminate minority, an emancipated minor should be
19
disqualified from holding these positions,2 but a minor who has attained majority status
250 21
through entering into a marriage should not be disqualified.
;

238 S 133(2)(b)-(c).
239 S 133(2)(d).
24.0 S 133(2)(,).
241 S 133(1).
242 S 134(1) and (2).
243 S 134(1).
244 S 134(2).
245 S 134(3).
246 Companies Act 71 of 2008 s 69(7)(b).
247 Mutual Banks Acts 38(a).
248 See also Boe7,aart Persons 60; Cronje LAW.SA vol 20 pan 1 Persons par 480; Heaton in Van Heerden et
al (eds) Boberg'., Law of Persons and the Family 853-854; Spiro Parent and Chil.d 158; Van der Vyver
and Joubert Pe, one- enfo.miliei·eg170-171; Van der Vyver 1997 SALJ750.
249 In Ex parte Velkes 1963 (3) SA 584 (C) the question of whether an emancipated minor can become a
company director was left open. Emancipation is discussed below in this chapter.
250 As a person below the age of 18 years cannot enter into a civil union (Civil Union Acts 1), it is
impos sible to obtain majotity status by concluding such a union. On a minor's inability to enter
into a civil union, see further above in this chapter.
251 Boezaart Persons 61; Cronje LAWSA vol 20 part 1 Pm;on.s par 480; Heaton in Van Heerden el al (eds)
Boberg's Law of Persons and the Family 853 fn 61; Kruger and Skelton (eds) Persons 115; Van der Vyver and
Joubert Person£'-en Fa111iliereg170.
112 The South African Law of
Persons
A married parent who is younger than 18 years qualifies as his or her child's guardian,252
but cannot be appointed as the guardian of somebody other than his or her child.m The
same applies to an unmarried parent who is younger than 18 years and has obtained guard
ianship in respect of his or her child in terms of the Children's Act.2""
A minor can act as someone's agent without the consent of his or her guardian since an
agent does not bind himself or herself but instead binds his or her principal.25;

6.4.3 Capacity to litigate

Generally speaking, a minor has limited locus standi in iudicio in civil proceedings. The
minor's guardian may either sue or be sued on the minor's behalf or the minor may sue or
be sued in his or her own name with his or her guardian's assistance.256 As is the case in
respect of capacity to act, the guardian's assistance may be given by way of ratification.'-'7
If the minor does not have a guardian, a curator ad litem is usually appointed to assist the
minor.25ll In Vista University, Bl,oemfontein Campus v Student Representative Counci Vista
Univer sity259 the High Court relied on its powers as upper guardian of all minors and itself
assisted the minors in the particular litigation.
In some civil cases a minor may litigate without assistance. For example, if the High
Court grants the minor venia agendi (that is, permission to conduct litigation) the minor is
treated like a major for purposes of the particular proceedings.260 Other exceptions relate to
maintenance claims against a minor in the Maintenance Court, an application to court for
consent to marry without the consent of the minor's guardian, and certain election dis
261
putes. In criminal proceedings the guardian's assistance is not needed.
If a court makes a costs order against a minor, it is normally the minor who is liable. In
exceptional instances the court may order the minor's guardian to pay the costs either

252 Children's Acts 19(1) and (2) and s 20(a). This rule does not apply to civil union partners, because
only persons who are at least 18 years of age may enter intoa civil union: see above in this chapter.
253 Grotius Inleidinge 1.7.6; Voet GJmmentary on the Parulects 26.1.3-26.1.5; Van dcr Keessel Tl= Selectae 112,
114; Dhanabakium v Sulnmnani.an 1943 AD 160.
254 On the parental responsibilities and rights of unmarried parents, see ch 5 above.
255 Voet Commentary on the Pandects14.3.1.
256 Voet GJmmenta,y an the Pandects 2.4.4, 5.1.11; Grotius lnleidinge 1.8.4; Van Leeuwen R.ooms-Hollatuls-&gt
5.3.5; Van der Keessel Tlu>-SeS Selectae 127; Wolman v Woll/Um 1963 (2) SA 452 (A); President Insu.rana Co Li.d
v Yu Kwmn1963 (3) SA 766 (A). S 14 of the Children's Act entitles the minor to assistance in b1inging a
matter to court. On s 14, see further above in this chapter. If a minor's parent sues in his or her personal
capacity for his or her own loss and in his or her representative capacity for his or her child's loss, the
liable party may not set off any amount it can recover from the parent against the amount it owes to the
minor: Rl)(ul Accident Fund v M.yhill NO2013 (5) SA 426 (SCA).
257 See e.g. Perkins v Danford 1996 (2) SA 128 (C).
258 See e.g. Van Rij v Employers' liability Assurance Cmporati<m Ltd I964 (4) SA 731 (T); F.x parte Visser. In -r,:
Khou, 2001 (3) SA 524 (T). In Ex parte Oppel: In re Appointment of Curator ad LiJem and CuralQT &mis
(2002] 1 All SA 8 (C) (also reported as Ex parte Opj,el 2002 (5) SA 125 (C)) the court held that if the
minor's guardian is alive and available, a curator ad litem will be appointed in exceptional circumstances
only. The court specifically referred to instances "where tl1e guardian refuses to act, where the minor
litigates against the guardian or where there is a clash of interests between that of the minor and that of
the guardian" (31DE). In this case, the application for the appoinanent of a curatm· ad [item was a pre
cursor to havinga curator bonis appointed to administer a large amount of money that had been awarded to
a minor. The judge in Ex parte Oppel was of the view that the minor's parents were obliged to administer
the money. But see Dube NO v &ad Accident Fund 2014 (1) SA 577 (GSJ) where it was found that the
decision in Oppel was wrong.
259 1998 (4) SA 102 (0) (also reported as Virta University (Bloenrfonlein Campus) v Stude11t Represmtalive
Campus Vista 1998 (4) BCLR 514 (0)).
260 Ex parte Go!.dtnan 1960 (1) SA 89 (D).
261 On the exceptions, see Boezaart Persons 90; Boezaart in Boezaart (ed.) Child La,w in South Africa 33;
Cockrell in Van Heerden et al (eels) Boberg'.s law of Person, and the Family 908 el seq. Kruger and Robinson
in Robinson (ed.) law of C,/1i!.dren and Young Persons 34-35: Kruger and Skelton (eds) Persons 134;
Schafer Chikl law 203;Van der Vyver and Joubert Persone- en Fnmiliereg 174 el seq.
 Chapter 6: Minority 113

alone or jointly and se1·erally with the minor. Such an order may be made if the guardian
instituted or defended the litigation frivolously or recklessly or allowed the minor to do
so, or if the guardian acted in a mala fide, unreasonable or negligent manner in respect of
instituting or defending che litigation.262

6.4.4 Capacity to incur delictual and criminal liability

To incur delictual or criminal liability the minor must be accountable. A person is
account able only if he or she has the mental ability to distinguish right from wrong and
to act accordingly.263
In terms of the common law, it is rebuttably presumed that minors between the ages of
seven years and puberty - 14 years for boys and 12 years for girls - are not accountable for
their delicts.264 Boys between 14 and 18 years of age and girls between 12 and 18 years of age
are rebuttably presumed to be delictually accountable.265 In other words, they are consid
ered accountable until the opposite is proved. The different ages at which boys and girls are
presumed to acquire the capacity to be delictually accountable may well amount to unjusti
fiable sex discrimination.266
If the minor's guardian uses the minor as his or her agent or instrument or negligently
fails to prevent the minor from causing damage, the guardian may be held personally liable
for damage the minor causes.267 If the guardian employs the minor, he or she can also incur
vicarious liability for delicts the minor commits ii:i, the course of his or her employment.268
A minor's capacity to be held criminally accountable is governed by the ChildJustice Act
75 of 2008. In terms of the Act, the minimum age for criminal accountability is 10 years;
in other words, a minor below the age of 10 years cannot be held accountable for any
crime he or she commits.269 A child between 10 and 14 years of age is presumed to be
criminally unaccountable.270 Such a child has c1iminal capacity only if the state proves
beyond reason able doubt that when the alleged crime was committed, the child had the
capacity to un derstand the difference between right and wrong and to act in
accordance with that understanding.271 A minor over the age of 14 is criminally
accountable in the same way as an adult.272 When the Child Justice Amendment Act 28 of
2019 comes into operation, the minimum age for criminal accountability will be raised to
12 years and a child between 12 and 14 years of age will be presumed to be criminally
unaccountable.21'

262 See e.g. Orobler II Potgieter 1954 (2) SA 188 (0); Ex parle Hodgerl 1955 (1) SA 371 (D); Ex parle Bloy 1984
(2) SA410 (D); Tshona11Princi/ml, VictoriaGirlsHighSchool2007 (5) SA66 (E).
263 See e.g. Weber v SanlamVersekeringsm.amskapfiy Bpk 1983 (1) SA381 (A).
264 Weberv Sanlam Vmekeringsmaatskappy Bpk 1983 (1) SA 381 (A).
265 On the delictual accountability of children, see further Barratt in Barratt (ed.) Pe,:sons and the Family
72- 73; Boezaart Persons 93-94; Kruger and Skelton (eds) Persons 136-137; Schafer Chiul /,aw 206;
Davel 2001 De Jure 604; Labuschagne 2003 DeJure147;Jansen and Neethling 2017 THRHR 474. For
an argu ment that the criterion for children's capacity to incur delictuaJ liability through fault should
be devel
oped, see Zitzke 2021 SALJ367.
266 See the obiter remark in Eskom Holdings l,td II Hentlriks 2005 (5) SA 503 (SCA) 511G-H. S 9(3) of the
Constitution provides that nobody may be unfairly discriminated against on the ground of sex.
267 Wessels v Prelorius [2008) 1 All SA 131 (SCA).
268 De Beer v Sergeant 1976 (1) SA 246 (T). On the arguments for and against the imposition of vicarious
liability on parents whose children cause damage, see Potgieter 2011 Obiter189.
269 S 7(1) and (3).
270 S 7(2) and (3).
271 Sll(l).
272Onthecriminal accountability of children, see further Barratt in Barratt (ed.) Persons and the Family 73;
Boezaart Persons 94-95; Kruger and Skelton (eds) Persons 136-137; Schafer Child Law 206-210.
273 S 4 of the Amendment Act substitutes subss (1) and (2) of s 7 to raise the age from 10 to 12 years.
On the amendment, see Sloth-Nielsen 2020 SACf 469.
114 The South African Law of Persons

6.5 Termination of minoritym

6.5.1 Attainment of the prescribed age
On 1 July 2007, section 17 of the Children's Act lowered the age of majority from 21 to 18
years of age.m Because the Act does not operate retroactively, the lowering of the age of
majority did not retroactively affect rights that vested in or accrued to a person who was
below the age of21 years before lJuly 2007.
Thus, for example, if a person who was below the age of 21 years obtained a claim
before 1 July 2007, he or she is treated as a minor for the purposes of establishing whether
extinct ive prescription has taken place in respect of the claim, despite the fact that the
Children's Act lowered the age of majority. In terms of the Prescription Act 68 of 1969,
prescription usually takes place three years after the date on which the claim arises but, in
the case of a minor, completion of prescription is delayed until al least a year after the
minor becomes a major.276 Prior to 1 July 2007, this meant that completion of the
prescription period was postponed until at least one year after the minor turned 21. In
Malcolm v P,·emie, Western
11
Cape Government Nd the Supreme Court of Appeal held that, if anything, the fact that the
Children's Act is silent on the effect of the lowering of the age of majority on prescription,
points to the change in the law operating only in cases arising after 1 July 2007. The Su
preme Court of Appeal pointed out that persons who were over the age of 18 when section
17 came into operation, attained majority only on !July 2007 even though they had actually
turned 18 before that date. For this reason, contracts they had entered into withoUL the
required assistance before I July 2007 did not automatically become enforceable against
them on lJuly 2007. Nor did marriages they had entered into without the requisite assist
ance before that date suddenly become valid. There was no reason why the position in
relation to prescription should be any different. The court further held that hardship
would arise if the lowering of the age of majority were retroactively to affect the rule
regard ing extinctive prescription of minors' claims. The court therefore concluded that
lowering of the age of majority did not affect periods of prescription that were
running before section 17 came into operation.278 In APDOL v Read Accident Funa019 the
High Court bad earlier arrived at a similar conclusion in respect of prescription of a
minor's claim in terms of the Road Accident Fund Act 56 of 1996. In terms of this Act,
too, prescription of a claim usually takes place three years after the date on which the claim
arises.'80 However, in the case of a claim by a minor, prescription only starts to run once
the minor becomes a ma jor:"' The court held that the lowering of the age of majority
did not affect any right a minor acquired before the age of majority was lowered to 18
years.

274 On the distinction between Lhe Afrikaans concepts 111eerde,jarigheid (maj01ity) and mondigl1rul (for which
there is no English translation). see M ·er v The Master 1935 SWA 3. Meerdnjarigheid refers to a specific
age Lhat one must reach and is one way of becoming 111011dig, but there are also other ways in which it
can take place, e.g. by marriage. I.e., all majors are 1110,ulig but not all mondiges arc majors.
275 Children's Acts 17.1.July 2007 is the date on which the first barch of sections of I.he Acr. which
included s 17, came into operation: Prod 13 GG 30030 of29June 2007.
276 S 13(1)(a).
277 [2014] 2AIISA251 (SCA), 2014 (3) SA177 (SCA).
278 See also Shang,, v MECJor Education, KwaZulu-Nt,tal 2012 (2) SA 519 (KZD), where I.he KwaZulu-Natal
division of the High Court had earlier arrived at the same conclusion via a different route. An appeal
against the order in Sha11gewas dismissed by I.he Supreme Coun of Appeal on the ground I.hat the
High Court had unnecessarily investigated the effect of s 17 of the Children's Acton the running of
prescrip tion in respect of the panicular respondent's claim, because the facts showed rJ1at the
ordinary three year pc,iod of prescription had not yet expired.
279 2013 (2) SA 287 (GNP).
280 S 23(1).
281 S 23(2).
 Chapter 6: Minority 115

Majority ensues at the beginning of the day of the person's 18th birthday, unless it is to
his or her advantage to prolong minority until the precise moment that corresponds to the
rime of his or her birth.""'' It is doubted whether the exception is ever applied in practice.

6.5.2 Marriage
A person who enters into a valid civil or customary maniage before turning 18 thereby
becomes a major for all purposes. If the marriage is dissolved by death or divorce before
the person reaches the age of 18 years, his or her minority does not revive.m A void
marriage does not terminate minority, and the annulment of a voidable marriage restores a
minor's limited capacity with retroactive effect.28'
The Civil Union Act resu·iccs civil unions to persons who have already reached the age
of 18 years.285 Thus, a minor cannot acquire majority status by entering into a civil union.

6.5.3 Venia aetatis and release from tutelage

At common Jaw the sovereign (that is, the head of state) could grant a minor a concession
to act as a major. This was known as venia aetatis. The effect of venia aetatis was to make the
minor a major in the eyes of the law with the exception that he or she could not alienate
immovable property or burden it with a mortgage unless this capacity was expressly con
ferred on him or her.286 In South African law venia aetatis was granted in the Free State,
where it was governed by statute and granted by the State President by proclamation in the
287
Government Gazette after the Supreme Court had recommended it. Although the legisla
ture has not repealed venia aetatis and our courts have not expressly decided whether venia
aetatis is obsolete, it is clear that no administrative machinery has existed for dealing with it
for some time.288 It is therefore submitted that venia aetatis can no longer be granted.289
In the past, the Cape courts were willing to grant an order releasing a minor from tutel
age."JO Even though such an order had more or less the same practical effect as venia aetatis,
it was held that the court was actually merely emancipating the minor in its capacity as
upper guardian of all minors.29' Today, in ics capacity as upper guardian of all minors, the
High Court might still be willing Lo release a minor from all or some of the parental re
sponsibilities and rights his or her parents have in respect of him or her. In this sense, so
called "release from tutelage" might still be possible. It has to be borne in mind though that
section 28 of the Children's Act empowers the High Court, a Regional Court dealing with a
divorce matter, and the Children's Court within whose area of jurisdiction the child ordi
narily resides292 to terminate, suspend or circumscribe a person's parental responsibilities

282 Voet Cmnmentmy 011 the Pan,lects 4.4.1; Grotius lnlei<lingt 3.48.9; Van Leeuwen C..enrura F<rrensis 1.1.8.4-
1.1.8.5, 1.4.43.11-1.4.43.12.
283 Voet Gnmnenltiry on /he P<mdects4.4.6; Cohen v Sylner (1897) 14 SC 13.
284 flerning v Berning 1942 1 PH B26 (W). On void and voidable marriages, see Heaton and Kruger Family
Lawch 4.
285 See the definition of "civil union" in s 1 of the AcL.
286 Voet Commentm:,• <m the Paruu.r,L,4.4.5; Van Leeuwen Censura Forensis 1.1.J8.8, Rooms-Hollands-&gt 1.16.11;
Grotius lnleidinge 1.10.3.
287 Ch 89 Law Book of the Orange River Colony 1901.
288 Cronje LAWSA vol 20 part l Persons par 485; De Wet and Van Wyk Kontraktereg en HandAsreg 67 fn 67;
Hahlo and Kahn South Afrim363; Coertte 1937 THRHR195.
289 See also Boezaart Persons 96; Kruger and Skelton (eds) Persons 139; Schafer Chil,l Law 21; Boezaart 2008
DeJure 246.
290 See e.g. In re Cachet (1898) 15 SC 5; Ex parle Esuzte Van Schalkwyk 1927 CPD 268; E.,; parte Curling 1952 l
PH Ml3 (C); Ex parle l'tin den Hever1969 (3) SA 96 (E).
291 Ex parte \ltm dm Hroer 1969 (3) SA 96 (E) 99CD. See also Spiro Pm-enl a,u/ Child 249. For criticism of the
view that IJ1e coun emancipated the minor, see Zeffertt 1969 SAL]407 et seq. See further Cockrell in Van
Heerden et ,,t (eds) Bf>herg's Law of Persons and I.he Family 468.
292 S 28(1) read withs 29(1).
116 The South African Law of
Persons
and rights. With the court's permission, an application for such termination, suspension or
circumscription may be made by the child in respect of whom the parental responsibilities
and rights operate.m In future, the judicial power embodied in section 28 may well, in
practice, replace "release from tutelage" (should the latter mechanism still exist in our
law).291

6.5.4 Emancipation
A minor is emancipated if his or her guardian grants him or her freedom independently to
enter into conn·acts.295 This occurs, for example, where the minor participates in a com
mercial enterprise as an economically independent person. Emancipation can be com pared
to the situation where a minor performs a valid juristic act with the assistance of his or her
guardian. In the latter instance the guardian consents to a specific act, whereas in the case
of emancipation the guardian consents to a range of juristic acts falling within a particular
sphere. Whenever such consent is given the minor incurs liability just like a major.
Either parent may emancipate the child, provided that the parent has guardianship of
296
the child. Whether a minor is emancipated if one guardian emancipates the minor while
the other refuses to allow the minor to be emancipated is unclear. If a minor has no par
ents, the minor's legal guardian may emancipate the minor.297
Emancipation can only be effected by express or implied consent. Mere carelessness on
the part of the guardian does not result in the minor's emancipation.298
Whether or not a minor has been emancipated is a question of fact, which the court must
decide upon after considering all the circumstances of the case. That the minor lives on his
or her own and manages his or her own business are mere factual details which, together
with others such as the minor's age, the relationship between the minor and the guardian,
the nature of the minor's occupation and the length of time for which the occupation has
been carried on, help to establish whether emancipation has in fact taken place. 299 If the
minor lives with his or her guardian rather than on his or her own, stronger evidence will
be required to prove emancipation. 500 The onus of proving emancipation rests upon the
person who alleges that it has taken place.301

293 S 28(3)(c). On termination, suspension and circumscription of parental responsibilities and rights in
terms of s 28, see further ch 5 above.
294 See also Boezaart Persons 97.
295 See, in general, Cairncross v De Vos (1876) 6 Buch 5; Steenkamp v Kam/er 1914 CPD 877; Venur v De
Burghersdorp Stores 1915 CPD 252; Pl.eat v Van Staden 1921 OPD 91; A,nbaker v African Meat Co 1927
CPD 326; Ochberg v Ochberg's &tate 1941 CPD 15; Ahme<l v Coovadia 1944 TPD 364; Die.kens v Daley
1956 (2) SA 11 (N); Graw/ Prix Motors WP (Pty) Ltd v Swart 1976 (3) SA 221 (C); Barratt in Barratt (ed.)
Persons and the Pamiiy 75-79; Boezaart Persons 79--S3; Boezaart in Boei:aart (ed.) Child Law in South Africa
26-28; Cockrell in Van I-Ieerden et al (eds) Boberg's Law of Persons and the Family 473 et seq. Cronje
LAWSA vol 20 pan 1 Persons par 486; De Wet and Van Wyk Kontraktereg en Hande/sreg 64-66; Kruger and
Robinson in Robinson (ed.) L<,w of Children arul Young Persons 27-30; Kruger and Skelton (eds) Persons
139-141; Schafer Child /,aw 21-22; Schafer in Clark (ed.) Family Law Service par E24; Spiro Parent and
Child 249 et seq; Van der Vyver and Joubert Person en Familiereg 151 et seq. Willes Pri,u:ipl.es 191-193;
Steyn 192'7 SAL] 313.
296 Children's Acts 18(4). On the ways in which a parent can acquire guardianship, see ch 5 above.
297 Le Grange v Mostert (1909) 26 SC 321; Pl.eat v Van Staden 1921 OPD 91.
298 See Sesing v Minister of Police1978 (4) SA 742 (W) 745H where "1argoJsays: "There is no justification for
depriving a minor of the law's protection merely because his parencs have failed in their duties and left
him to face life alone and unassisted". See also Watson v Koen h/aBMO1994 (2) SA 489 (0).
299Dama v Bera 1910 TPD 928; Venter v De Burghmdorp Stores 1915 CPD 252; Pkat v Van Stalkn1921 OPD
91;
Ahmed v L,O()l}tuiia1944TPD 364; Dickens v Daley 1956 (2) SA 11 (N).
300 Pleat v Van Staden1921 OPD 91; Dama v Bera 1910 TPD 928; Venter v De Bmghersdorp Stores1915 CPD 252.
301 Ochberg v Ochberg's Esta/e 1941 CPD 15; Sesing v Minister of Po/ire 1978 (4) SA 742 (W); Watson v Koen h/a
BMO 1994 (2) SA 489 (0)
 Chapter 6: Minority 117

It is unclear whether a guardian who emancipated a minor may later revoke the emanci
pation. Obiter dicta in Cohen v Sytner302 and Landmann v Mienie303 support the view that eman
cipation is irrevocable. The better view is that the guardian is entitled to revoke the
emanci pation.'°"'
The question of the effect of emancipation on the minor's capacity to act has not been
authoritatively decided. The issue is whether emancipation applies only to transactions in
connection ·with, for example, the minor's business, or whether the minor may act beyond
the scope of that business. Some cases are authority for the view that emancipation gives
the minor capacity to act in respect of all contracts,"°' except that the minor may not
alienate or encumber immovable property or marry without his or her guardian's
306
consent. In other cases it was held that the minor is emancipated only with regard to
contracts in connection with his or her particular business.807 It seems, however, that in this
respect the courts have confused two common-law institutions, namely tacit emancipation
and general authority. At common law, tacit emancipation terminated minority,308 while
general authority was "no more than advance consent to enter into transactions of a
certain kind, had no effect on the parental power and could be revoked at will".wJ
Be that as it may, it is submitted that as far as modern practice is concerned, the degree
of legal independence a minor has acquired is a question of fact that depends on all the
circumstances of the case. If the minor has been given "complete freedom of action with
regard to his mode of living and earning his livelihood",310 the minor is emancipated for
all purposes except alienation or encumbrance of immovable property and marriage. In
contrast, the minor's capacity to act is restricted to matters connected to his or her
business if his or her guardian has emancipated him or her only for purposes of that
particular business without otherwise having relinquished parental responsibilities and
rights.31'
It was submitted above in this chapter that since restitutio in integrum is available to a
mi nor who concluded a prejudicial contract with his or her guardian's consent, there is no
reason why it should not also be available to an emancipated minor.
The courts seem to assume that an emancipated minor has locus standi in iudicio.312
How ever, it is doubted whether this assumption is correct. Aguardian who consents to a
minor's

302 (1897) 14 SC 13.

303 1944 OPD 59.
301 Ex p(11·te Keroe 1929 OPD 19; Barratt in Barratt (ed.) Pers(ms and the Family 77; Boezaan Persons 82, 90;
Boezaart in Boe:taart (ed.) Child J,aw in South Africa 27; Cronje LAWSA vol 20 part 1 Persons par 486;
Donaldson Minors 80; Schafer in Clark (ed.) F(imily Law Service par E24; Spiro Parent and Chiul 250;
Kruger and Robinson in Robinson (ed.) Law ofChiulren and Young Persons 29; Kruger and Skelton (eds)
Persons 140; Van der Vyver and Joubert Persone- en Fmniliereg 153, 155; Wille'.s Principles 193. See
further Cockrell in Van Heerden et al (eds) Boberg's [,aw of Persons and the Family 487.
305 Cairncross v De Vos (1876) 6 Buch 5; Nangle v Mitchell (1904) 18 EDC 56; Bosch v Titley 1908 ORC 27;
Diclum.rn Daley 1956 (2) SA 11 (N). See also Watson v Koen h/a BMO 1994 (2) SA 489 (0) 493F-G.
306 ExparleVandenHever1969 (3) SA96 (E).
307 Riesle and Rmnbach v McMullin (1907) 10 HCG 381; Ambaker v Afriutn Meat Co 1927 CPD 326; Ochberg v
Ochbe,g's Estate 1941 CPD 15; Almwd v Coovadia 1944 TPD 364. On the distinction between absolute and
relative emancipation, see also Grand Prix Mourrs WP(Pty) Ltd v Swmt 1976 (3) SA 221 (C); Se.<ingv Minis
ter of Policel978 (4) SA 742 (W).
308 Voet Cmnmentm)' on the Ptmde,;ts 1.7.11-1.7.15; Van der Keessel Theses Selectae 107, ll0, 161; Grotius
Jn/eidingel.6.4; Van Leeuwen Censtt1'{1Forensis1.1.9.9-1.1.9.16, Rooms-Hollands-Regtl.13. 4-1.13.6.
309 Cockrell in Van Heerden et al (eds) Boberg's Law of Persons an(L the Family 476; see further Steyn 1927
SAIJ313 et seq; Conradie 1946 SALJ25 et seq. See also (',rand Prix Motors WP (Ply) Ltd v Swart 1976 (3) SA
221 (C); SesingvMi11isterof Policel978 (4) SA 742 (W).
310 Dickens v Daley 1956 (2) SA 11 (N) 16G.
311 Hahlo and Kahn Soulh Africa 365, who refer to relinquishing the reins of "paternal power".
312 See e.g. Cr1imcross v De Vos (1876) 6 Buch 5; Pieruiar v Godden (1893) 10 SC 129; Bosch v Tilley 1908 ORC
27; Da111a v Bera 1910 TPD 928; Venter v De Burghersd01p Stm·e.<1915 CPD 252; Dickens v Daley 1956 (2) SA 11
(N). The question of "·hecher emancipation confers locus sl<mtli in i1uiicio on the minor came before the
court in Ahmed u Coovadia 1944 TPD 364 and Se.ting v Minister of Police 1978 (4) SA 742 (W), but on the
facts of these cases it was unnecessary to decide the question.
118 The South African Law of Persons

entering into a specific individual transaction does not automatically also consent to the
minor's engaging in litigation regarding that transaction. It therefore seems inaccurate to
assume that a minor who has been emancipated automatically has wcus standi in iudicio in
respect of all matters falling within the sphere of the transactions to which his or her
eman cipation relates.m
Whether the rules regarding emancipation will remain relevant remains to be seen, be
cause the lowering of the age of majority will probably reduce the number of cases where
emancipation is at issue."'

313 See also Boezaart Pers1ms82, 90; Cockrell in Van Heerden el al (eds) B 's Law of Persons and the
Family 910 fn 32; Kruge,· and Robinson in Robinson (ed.) Law of C/11/dnm and Young Persons 29;
Kruger and Skelton (eds) Persons 140; Van der Vyver and Jouben Pmunl'-m Fu1mlim,g 155; Boezaart and
De Bruin 2011 DeJure127.
311 See also 13oczaart Pmo11.1·8!1; Heaton in Sutherland (ed.) Future uj 011/tl t1nd Family Law 404.
 MENTAL ILLNESS

7.1 Introduction
The capacity to enter into legal transactions and to litigate independently is very closely
related to a person's mental condition. For this reason, the law precludes a person from
participating in legal interaction independently if he or she has a mental illness to such a
degree that he or she cannot understand the nature, purport and consequences of his or
her acts.1 The law attaches no consequences whatsoever to the expressions of will of a
person with such a mental illness. Thus, such a person has no capacity to act or litigate.2
The object of this restriction is not to punish the person but to protect him or her from
exploitation.

7.2 Definition
At common law, mentally ill persons, as a class, were confined to furwsi, dementes or
lunatici.' These terms clearly relate to persons who aq:i so bereft of their senses that they
cannot grasp the consequences of their acts and cannSt make rational decisions at all.
In modern law the courts ascribe a much wider meaning to mental i1lness.' In Pheasant v
Warne• Chiefjustice Innes held that the test was whether the person's "mind was such that
he could understand and appreciate the transaction into which he purported to enter". In
6
Lange v Lange the Appellate Division (now the Supreme Court of Appeal) held that a
person is mentally ill not only if he or she cannot understand the namre of the transaction
in question, but also if he or she does understand the nature and consequences of his or
her juristic acts but is motivated or influenced by delusions caused by a mental illness.' In
this case, a man had married while suffering from a mental condition which inter alia
caused him to hear imaginary voices. Although at the time of the wedding the man had
understood the nature of the juristic act, the court held that the marriage should be de
clared null and void on account of his mental illness.

l Molyneux v Natal Land and Coloni.za.tion Co Ltd 1905 AC 555 (PC} 561, (1905} 26 NLR 423; P/U!(l,Sant v
Wame 1922 AD 481; Lange v Lange 1945 AD 332; Theron v AA Life Asrurance Association Ltd 1995 (4)
SA 361 (A}; Ee, te Nasionale Bmik van Suide/ike Afrika Bpk v Saayman 1997 (4) SA 302 (SCA};ju,lin v
Wedgwood 2003 (5} SA 472 (W}; Hardie vjan.,en (unreported, WCC case no 19339/2014., 30July 2016}.
2 On mental capacity as an element of the capacity to make a will, see e.g. De Waal et al LAWSA vol 31 Wills
and Succession par 273 fns 4 and 5; Du Toit 2005 SALJ661.
3 See e.g. Voet Commentmy on the Pandeas 27.10.3.
4 For a brief ovetview of the medical (i.e. psychiatric} classification of mental illness, see Swanepoel 2015
PElJ3241-3246.
5 1922 AD 481 488.
6 1945 AD 332.
7 See also Prin.,loo's Curalors Bonis v Crafford and P.riusloo 1905 TS 669; Pheasant v Warm 1922 AD 481; Estate
Rehne v Rl!hru 1930 OPD 80; Levin,, MechanirJ, 1931 EDL 32; l.Jys v Uys 1953 (2) SA 1 (E}; Du Toit 2005
SAL}663-667.

119
120 The South African Law of Persons

7.3 Proving mental illness

Whether or not a person was mentally ill at a specific moment is a question of fact which
must be determined on a preponderance of probabilities.8 It is the person's mental capacity
at the time of the conclusion of the transaction that is at issue.
Medical evidence is usually crucial in proving mental illness. The court must, however,
make its own finding after considering all the evidence and is not bound even by th.e unani
mous opinion of psychiatrists. As judges are not experts in the psychiatric field, a court will
not lightly reject the opinions of expert witnesses. It will only do so if, in its view, the ex
pens have based their opinion upon inadequate knowledge of the relevant facts or have
ignored such fact .'0

7.4 Legal status of a person with a mental illness

The statutory measures relating to mental health care and the certification and administra
tion of a mentally ill person's estate must be clearly distinguished from the legal principles
governing the person's legal status. In general, a mentally ill person's status is determined
by common-law principles as interpreted and extended by the court.s.11 However, as is
explained below in this chapter, section 39(1) of the Consumer Protection Act 68 of 2008
adds a specific rule in connection with agreements that fall within the ambit of this Act.
The measures relating to mental health care and the certification and administration of a
mentally ill person's estate are contained in the Mental Health Care Act 17 of 2002. The
Act is discussed below in this chapter. We first consider the person's legal status.
In so far as a mentally ill person's status is concerned it was pointed out above that the
person has no capacity to act or l.ocus standi in iudicio. Consequently, a mentally ill person
cannot enter into legal transactions or litigate even with the assistance of his or her curator;
the curator must conclude transactions and sue on behalf of the mentally ill person.12 From
this it follows that a mentally ill person, unlike a minor, cannot enter into u.msactions, even
if he or she acquires only rights and the other party incurs only duties."Any transaction a de
facto mentally ill person enters into is void and cannot be ratified.14 The transaction remains
void even if the person dealing with the mentally ill person was unaware of the mental
illness.1; A bona fide third party can therefore not insist on the agreement being carried out
but may have an action based on unjustified enrichment16 because enrichment liability is
not based on contract and capacity to act. A mentally ill person can also be liable on the
basis of negotiorum gestio.17

8 Lange v Lange 1945AD 332.

9 See e.g. S v McBride 1979 (4) SA 313 (W).
10 See e.g. S v Kavin1978 (2) SA 731 CW). See further Du Toit 2005 SAIJ66l.
11 The common-law restrictions on a mentally ill person's status are not unconstitutional: Cockrell Billof Rights
Compendium par 3E31; Heaton in Van Heerden el al (eds) Boberg'., Law of Per m ,and the Fa,nily 105 fn 3.
12 There are certain acts a cunuor cannoL perform on behalf of a mentally ill person: see below in this
chapter.
13 Molyne1c.: v Natal Land and Colonization Co Ltd 1905 AC 555 (PC) 561, (1905) 26 NLR 423.
14 Pheasant v Warne 1922 AD 481; Lange v Lange 1945 AD 332; Phil Markel Bpk v Niemand 1970 (3) SA 455
(C).
15 Molyneux v Natal Land and Colonization Co Lta 1905 AC 555 (PC) 561, (1905) 26 NLR 423.
16 Grotius Inleidinge 3.30.3; Van Leeuwen Censura Faren.sis 1.4.3.2; Molyneux v Naud Land and Coloniuuion Co
Ltd 1905 AC 555 (PC) 561, (1905) 26 NLR 423; Bradfield Christie's Law of Cmitract 288; Cronje T.AWSA vol
20 part 1 Persons par 487; De Vos Vmykingsaanspreeklikheid 96, 220; Du Plessis Unjustified Enrichment 85;
Heaton in Van Heerden el al (eds) Boberg's u,w of Persons and the Family lll; Olivier and Denson in Bar
ratt (ed.) Persons and the Family 97; Wilie's Princij,ks 384. But see Van der Vyver and Joubert Persone-- en
Familiereg 332.
17 Molyneux v Natal Land and Co!.oniz.ation Co Lid 1905 AC 555 (PC) 561, (1905) 26 NLR 423; Cronjc
LAWSA vol 20 part l Persons par 487; Du Plessis Unjustified Enrichment 85; Heaton in Van Heerden et al
(eds) Boberg's Law of Pi•mms and the Family 111; WiUe's Principks 384.
 Chapter 7: Mental illness 121

In terms of the common law, a judicial declaration that a person is mentally ill (that is,
certification) and the appointment of a curator to the person do not, as such, affect the
person's liability and capacity to act.18 ln other words, someone who has not been certified
does not have capacity to act if he or she is in fact mentally ill when the transaction is
entered into, and a person who has been certified has capacity to act if he or she is in fact
not mentally ill at the time the juristic act is performed. The legal position is thus deter
19
mined by whether or not the person was actually mentally ill at a specific moment.
Certifi cation is important only as far as the onus of proof is concerned. 1n the case of an
uncertified person the onus of proof is on the party alleging that the person was mentally
ill at the time the transaction was concluded, because it is ordinarily presumed that
everyone is sane.20 In contrast, in the case of a certified person the onus is on the party
alleging that the person was sane at the conclusion of the u·ansaction, because it is
rebuttably presumed that a certified person is mentally ill. 21 A juristic act that is performed
during a lucidum interuallum (that is, a lucid interval) by a person who has been declared
mentally ill is valid
and enforceable.22
Section 39(1) (a) of the Consumer Protection Act creates a different rule with regard to
transactions governed by the Act.23 It provides that an agreement to enter into a transaction
for the supply of any oods or services and an agreement for the supply of any goods or
services to a consumer • "is void if the consumer is subject to an order of a competent
court holding that person to be mentally unfit and the supplier knew, or could reasonably
have determined, that the consumer was the subject of such an order".25 Thus, this section
renders all such agreements - even those which the person enters into during a lucidum
interoallum - void if the supplier knew or could reasonably have determined that the con
sumer has been declared mentally ill. This rule, which clearly has the objective of protect
ing people with a mental illness, renders all persons who have been declared mentally ill
incapable of entering into agreements with a supplier who knows or could reasonably have
established that the person has been declared mentally ill, and this incapacity operates
regardless of the de facto mental condition of the person at the time of the particular
agreement. In laying down this restriction, the section violates the right to equality and the
right to dignity of persons who have been declared mentally ill. 26 It is submitted that the
scope of this limitation is too broad to render it justifiable in terms of section 36 of the
Constitution since it does not provide for any exception to the rule that the agreement is
void - not even if the agreement is advantageous Lo the consumer.
A marriage or civil union is not automatically dissolved by the mental illness of one of
28
the spouses or civil union partners..,, However, in terms of the Divorce Act 70 of 1979,
mental illness for which there is no reasonable prospect of a cure is a ground for divorce.
If a spouse or civil union parmer's mental illness results in Lhe irretrievable breakdown of
the
marriage or civil union, a divorce may also be sought on this ground.29

18 CertificaLion is discussed below in this chapter.

19 Voet Gnmnenta,y on the Pandecls 27.10.4; Molynrux v Ntital Land and Ccwnizalio11 Co J,ul 1905 AC 555
(PC) 561, (1905) 26 NLR 423; Prinswo's Curators Bo11is v Cm.fford and Prinsloo 1905 TS 669; Pientmr v
Pienaar'.< Cu.-atnr1930 OPO 1i l.
20 Pheasant v Wcmu1922 AD 481; Vermaak v \lermaak 1929 OPD 13; De Villiers v Espw:Ji 1958 (3) SA 91 (T).
21 Primloo's Curato,-s Bo11·is v Cra.fford and Prinsloo 1905 TS 669; Pheasant v Wa,m 1922 AD 481; Vmruuili
v Vm1wak 1929 OPD 13; Levin v Medianidi 1931 EDL 32.
22 See e.g. Prinsloo's Curators Bonisv Crafford and Prinswo1905 TS 669.
23 On the transactions to which the Act applies, see ch 6 fn 74 above.
24 On lhe definition of ··consumer", see ch 6 fn 75 above.
25 On the definition of a "supplier", see ch 6 fn 74above.
26 Ss 9 and 10 of the Constitution of the Republic of South Africa, 1996 protect the right to equality and I.he
right to dignity.
27 Voet Cornme11tmy 011 the Pantkr.,, 23.2.18; Bamt< v Hayward 1911 CPD 203 read " th s 13(2) of the Civil
Union Act 17 of 2006.
28 Divorce Acts 5(1) read withs 13(2) of the Civil Union Act.
29 S 4. On the grounds for divorce, see further Heaton and Kruger Family Lawch 11.
122 The South African Law of
Persons
In a marriage or civil union in community of property, the court may suspend the power
of a mentally ill spouse or civil union partner to deal with the joint estate for a definite or
indefinite period if suspension is essential for the protection of the interest of the other
spouse or civil union parmer in the joint estate.30 At common law, a spouse's mental illness
was not a sufficient reason for ordering boedelscheiding.3' However, in terms of the Matrimo
nial Property Act 88 of 1984, the immediate division of the joint estate may be ordered if
the sane spouse or civil union partner satisfies the court that his or her interest in the joint
estate is being or will probably be seriously prejudiced by the conduct or proposed conduct
of the other spouse or civil union partner, and that no other person will be prejudiced by
the division.32
In a marriage or civil union out of community of property which is subject to the accrual
system, the sane spouse or civil union partner may ask the court to make an order for the
immediate division of the accrual. The order will be made if the applicant satisfies the
court that the conduct or proposed conduct of the other spouse or civil union partner
seriously prejudices or will probably seriously prejudice the applicant's right to share in
the accrual of the estate of the other spouse or civil union partner at the dissolution of the
marriage or civil union, and that no other person will be prejudiced by the order.38
A parent's mental illness does not automatically terminate his or her parental
responsibil ities and rights_,., Exercising its common-law authority as upper guardian of all
minors or its various statutory powers, the court may, however, make an appropriate order
in respect of any or all of the elements of the parent's responsibilities and rights if this is in
the best interests of his or her child.';
The running of prescription against a person cannot be completed while he or she has a
mental or intellectual disability, disorder or incapacity.s6
There are numerous offices a mentally ill person cannot hold.3'
Generally speaking, fault in the form of intention or negligence is a requirement for
criminal or civil liability. As a mentally ill person is doli and culpae incapax, he or she is
not responsible for his or her crimes and delicts.33

30 Matrimonial Property Act 88 of 1984 s 16(2). In those cases wheres 15 of the Mau·imonial Property
Act requires the consent of both spouses or civil union partners for a particular transaction, the sane
spouse or ch I union partner may also, in terms of s 16(1) of the Act, ask the court to dispense "ith
theconsent of the mentally ill spouse or civil union partner on the ground that consent cannot be
obtained and there is good reason to dispense with it. To avoid having repeatedly to invokes 16(1) it
would be advis able to apply for complete suspension of the powers of the mentally ill spouse or civil
union partner in terms ofs 16(2). On ss 15 and 16 of the Matrimonial Property Act, see further Heaton
and Kruger Family Law7l-78.
31 ExparleDixiel950 (4) SA 748 (V,').
32 S 20(1). The court is also authorised to order that community of property be replace<l by another
matri monial property system: s 20(2). On s 20, see further Heaton and Kruger Family l,aw7S-79.
33 Matrimonial Property Act s 8(1). The court may also order that the accrual system be replaced by
another matrimonial property system: s 8(2). On s 8, see further Heaton and Kruger Family Law 99-
100.
34 Voet Gmmum.la1y on lhe PanMcls 1.7.13; Ex j)arte Human 1948 (]) SA 1022 (0); fa j)arle Powrie 1963 (1) SA
299 (W).
35 Parental responsibilities and rights and court interference with parental responsibilities and rights are
discussed in Heaton and Kruger Family Law ch 23. See also ch 5 above, where the parental
responsibili ties and rights of unmarried parents are discussed.
36 Prescription Act 68 of 1969 ss 3(1)(«), 13(1)(a). In Cqam«ne v The MultilatR.ral 1vlotor Vehide Accident, Fund
[1999) 3 All SA 683 (SE) it was held that, for purposes of prescription, an unconscious person is con
sidered to be of unsound mind and elms falls within the ambit of s 13 of the Prescription Act. Tn terms of
the common law, prescription does not run against a person who suffers from a disability, which includes
mental illness: Road Accident Fund v Smith (1998] 4 All SA 429 (SCA). The application of the common-
law rule has, however, been limited or excluded by various Acts, including the Prescription Act.
37 See Roezaart Pmons 130; Kruger and Skelton (eds) Persons 165; Olivier and Denson in Barratt (ed.)
Persons and the Family 97; Van der Vyver and Joubert Pmone- en Familiereg335-336.
38 D 9.2.5.2; Voet Cmnmentnry on the P«nde..ts 27.10.3; Van Leeuwen Gmsum Forensi.s 1.4.3.2, Rooms-Hotlands
R.egt 4.2.2, 4.32.6; R v Holliday 1924 AD 250. On a mentally ill person's capacity to incur <lelictual and
contitiue<l
 Chapter 7: Mental illness 123

7.5 Appointment of a curator39

In terms of our common law, the High CourL may appoint a curator bonis to look after a
mentally ill person's property and to supplement his or her lack of capacity to act.''° In
terms of the Mental Health Care Act, the court also has a statutory power to appoint an
administrator for the care and administration of the property of a mentally ill person or a
person with severe or profound intellectual disability. This statutory power is discussed
below in this chapter.
It is important to note that the fact that a person has been declared mentally ill and that
a curator has been appointed to administer his or her est.ate does not mean that he or she
loses all capacity to act. In Pienaar v Pienaar's Curc.tor41]udge President De Villiers stated:
The mere fact that such a person has been declared insane or incapable of managing his
affairs, and that a curator is appointed to such person, does not deprive him of the right of
administering his own property and entering into contracts and other legal dispositions to the
extent to which he may de facto be capable, mentally and physically, of so doing. Such
mental or physical capacity mayvary 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 cap able of doing so.
Acts that are considered to be of a very personal nature cannot be performed by a curator.
For example, a curator has no locus standi to institute an action for divorce on behalf of a
mentally ill person.42 Nor can a curator make a will43 or exercise parental responsibilities
and rights on behalf of a mentally ill person:1•

criminal liability, see further C1iminal Procedure Act 51 of 1977 ss 78 and 79; Boezaart Persons 132-133;
Burchell Principles of C1imina1 Law ch 20; De Wet Strafreg 113-121; Kruger Bill of Rights C,01n/1endium
pars 3EB13-3EB14; McQuoid-Mason and Naidoo L.Avll.'i'A vol 29 Mental Heallh pars 248-274; Kruger and
Skel ton (eds) Persons 168; Loubser and Midgley (eds) Delict 142; Olivier and Denson in Barratt (ed.)
Persmzs and /he Family IO.I; Van der Vyver and Joubert Persone- en Familiereg 336-348; Wilie's Principles
384; Swa
nepoel 2015 PELJ3248-3252.
39 On curators generally, see Boezaart Pemms 155-163; Heaton and Kruger Family Lo.w ch 24; Kruger and
Skelton (eds) Persons 169-171; Olivier and Denson in Barratt (ed.) Pmons and the Family 98-100; South
African Law Commission Inwpahl.e Adults Issue Paper 18 pars 3-5; South African Law Reform Commission
Assi1led Dec 5ion-making Re/>ort pars 2.26-2.32; Will.e's H'inci/11.P.s 376-381; Neumann June 1998 De Reb-us
62; Robinson 2020 PELJ5-8, available at https://doi.org/10.l7159/1727-3781/2020/v23i0a7341.
40 tvlinister of the Interior v Cowley 1955 (l) SA 307 (N). Rule 57 of the Uniform Rules of Court governs
applications to the High Court for an order declaiing someone to be "of unsound mind and as such
incapable of managing his affairs". The application for appointment of a curator to a mentally ill person
is brought in terms of this rule. On applications in tem1s of rule 57, see further Judin v Wedgwood 2003
(5) SA 472 (W); Ex j,arle Futtei; In re Walter v Roaa Ai:cidenl Fund (unreported, ECPE case no
2422/2008, 17 August 2012); Modiba obo R11ca, In re R11ca v RAF (unreported, GPPHC case no
12610/2013 and case no 73012/13, 27January 2014); Ferguson v RoaaAccidenl Amd (unreported, NWHC
case no 1073/2012, 7 July 2014); Ex parte Stojjberg; In re: X,iba v Roaa Accu/.ent Fund and two 111/.ated
matters (20181 3 All SA 145 (GP); Scott v Scott 2021 (2) SA 274 (KZD); Boezaart Pers<m.<161-163; Catto
in Heaton (ed.) Law of Divorce 502-504; Kruger Bill of Rights Co1nf,e11dium par 3EB20; McQuoid-Mason
and Naidoo LAW. 'A vol 29 i\t[enlal Health pars 293-297; Kruger in Clark (ed.) family Law Servir.e par
F13; South Af1ican Law Reform Com mission Assisted Deci.<inn-making Report pars 2.8, 2.22-2.23, 2.60;
Wilie's PrinciJ,les 830-831; Lerzler and Ver ganoJune 2014 De Rebus30. On the functions, powers and
duties of a curator bnnis, see Administration of Est.ates Act 66 of 1965 ch IV; I''-X parle Du Toit: In re
Ouratorship fatale Schwab1968 (1) SA 33 (T); Ex f>arte Hui.ell 1968 (4) SA 172 (D); Ex parte Thompson
1983 (4) SA 392 (E); Boezaart Persons 157-159; Heaton in Van Heerden et al (eds) Boberg's Lo.w of
Per.sons and the Family 138-140 fn 137; Wilie's Princifh.s 376-378.
41 1930 OPD 171174-175.
42 Ex pa,te AB1910 TPD 1332; Sf>angenberg v DeWaal [2008) 1 All SA 162 (T).
43 Estnl.e Watkins-Pitchford v (',o,mnissioner forlnlan,l RevemlP.1955 (2) SA 437 (A).
44 Voet Commentmy on the Pandects27.J0.10; fa j,arte AB1910 TPD 1332.
124 The South African Law of Persons

In legal proceedings a mentally ill person must be represe ted by a curalm ad litem"" be
cause the law denies locus standi in iudicw to someone who 1s unable to understand the
proceedings.46 If a person lacks the ecessa1:Y m n_tal C P!fity when instructing an atto ney
to litigate on his or her behalf, the mstrucuon 1s mv,ahd. Howev_er, the_ legal proceedings
which follow are of full force and effect if the person s curator ad litem ratifies the legal steps
taken as a result of the instrnction.'8
If necessary, a curator is appointed to care for he mentally,.gill person's perso (that is,
the person's body), either generally or for a specific pu:rose. Such.a cw--ator_ lS called a
curator personae. As the appointment of a curator personae mvolves a senous curtailment of a
51
person's rights and freedoms50 it is not made lightly.

7.6 Mental Health Care Act 17 of 2002

7.6.1 Definition
The fundamental concept in the Mental Health Care Act is that of "mental health care
user", which section 1 defines as "a person receiving care, treatment and rehabilitation
services or using a health service at a health establishment aimed at enhancing the mental
health status of a user, state patient and mentally ill prisoner". In certain circumstances the
phrase extends to a prospective mental health care user, the person's next-of-kin, someone
who has been legally authorised to act on that person's behalf, an administrator appointed
in terms of the Act/2 and the executor of a deceased mental health care user's estate. A
person's mental health status is "the level of mental well-being of an individual as affected
by physical, social and psychological factors and which may result in a psychiatric diagnosis".5'

45 On the functions, powers and duties of a curator ad litem, see Du Pl,.ssis v Strauss 1988 (2) SA 105 (A);
Martin v &ad Accident Fund 2000 (2) SA 1016 (W); Modiba obo RV,Ca In re Rura v RAF (unreported,
GPPHC case no 12610/2013 and case 110 73012/13, 27 January 2014); McQuoid-Mason and Naidoo
LAWSAvol 29 Memai Health par 296; Wilie's Principks 379-380.
46 De Villiers v Esfmch 1958 (3) SA 91 (T). The Director of Public Prosecutions is the official curat.or ad /item
for state patients: Mental Health Gare Acts 1. A state patient is a mentally ill accused in a criminal case
who is detained by virtue of a court order, pending the decision of a judge in chambers.
47 Any contingency fee agreement the mentally ill person concludes " th his or her lawyer is also void: see,
by analogy, Val/aro obo BR v Road Ar.ddeiitFu11d202l (4) SA 302 (CJ), where the person was severely
men tally disabled.
48 Kotu v Sanlam Jnsumnce ltd 1994 (1) SA 237 (C), confinned on appeal in Santam Insurance Ltd v Booi
1995 (3) SA 301 (A); see also Roa.<l Acciiunt Fund v Mdeyick 2007 (7) BCLR 805 (CC), 2008 (1) SA 535
(CC) par (37) (obiter).
49 In certain circumstances a curator f>erso1Ull! may consent to a sterilisation or tennination of pregnancy: see
ch 2 above. In Ex pa,te Dixie1950 (4) SA 748 (v\7) a curator personae was appointed with the sole
function of deciding whether or not an operation should be performed on the patient- In Clarlu: v Hurst
1992 (4) SA 630 (D) the patient had suffered serious and irreversible brain damage as a result of
which he had b en m a coma for years._Th appl cant,_who was h!s " fe, applied to be appointed as
currurix pemmae with the pow_erto authonse d1s ont111uat1on of medical treatment and artificial
feeding of the patient, even though this wou d cause his_death. The court ranted the order. It
emphasised thata curaior f,t!r soruu must always act 111 the best mterests of the patient. It concluded
that in the circumstances of the present case discontinuation of artificial feeding would be in the best
interests of the patient.
50 Hudson v Price1933CPD 367; Martinson v Brown; Cray v ArnL,trong 1961 (4) SA 107 (C).
51 M 111tinson v Brow, Gray v rnistmng 1961 (4) SA 107 (C); Ex parte Pmvrn1963 (1) SA 299 (W). In Hudsonv
Pria 1933 CPD 367_the view was ado ted that a curaJor personne can only be appointed if the person is
declared menially disordered or dcfecuve. This view was correctly rejected in /£x pmte Hill 1970 (3) SA 411
(C).
52 The appointment of an administrator is discussed below in this chapter.
53 S 1.
 Chapter 7: Mental illness 125

7.6.2 Rights of mental health care users

The objects of the Act are the regulation of mental health care, treatment and rehabilita
tion services and the manner in which the property of mentally ill persons and persons
with severe or profound intellectual disabilitf' may be dealt with, and the clarification of
the rights and duties of mental health care users and providers.
The Act inter alia contains a separate chapter setting out specific rights and duties mental
health care users have. 56 These rights and duties operate in addition to the rights other laws
57
confer on mental health care users. Whenever these rights or duties are exercised or per
formed regard must be had to the best interests of the mental health care user.58 The rights
of mental health care users include the right to representation (including legal representa
tion)/9 confidentiality,60 having their person, human dignity and privacy respected,61 and
being provided with care, treatment and rehabilitation services that improve their mental
capacity to develop to their full potential and to facilitate their integration into community
life.G2 Care, treatment and rehabilitation services may not be used as punishment or for the
convenience of other people,63 must be proportionate to the mental health care user's
mental health status, and may intrude only "as little as possible to give effect to the appro
priate care, treatment and rehabilitation".61 Except in urgent cases, mental health care users
must be informed of their rights prior to the administration of any care, treatment and
rehabilitation services.
The Act also prohibits unfair discrimination on the ground of a person's mental health
status,66 and provides that any determination concerning a person's mental health status
must be based solely on factors that are relevant to his or her mental health status and
not on socio-political or economic status, cultural or religious background, or affinity.67 A

54 Severe or profound intellectual disability refers to a "range of intellectual functioning extending from
partial self-maintenance under close supervision, together with limited self-protection skills in a con
trolled environment through limited self care and requiring constant aid and supe1vision, to se\'ercly
restricted sensory and motor functioning and requiring nursing care":s 1.
55 S 3.
56 Ch TTI. On human rights, the Bill of Rights, and the treatment and care of mentally ill persons, see
Kruger Bill of Rights Compendium pars 3EB23-3EB31; Bonthuys 2001 SAL}682-686; Swanepoel 2011 PEL]
127, 2011 Obiter 282. On the serious violations of die rights of mental health care users after the Gauteng
Department of Health terminated a contract with Life Heald1care Esidimeni Hospital and transferred
the health care users to facilities operated by non-governmental organisations, see Maki;:oba The Rr.port
into the Circumstances Surrounding the Deaths of Mentali1• Ill P(uients: Cattleng Province, Dhai 2017 SAJBL 2;
Ferlito & Dhai 2018 SAM]157; Ferlito 2018 SAM}155. On a patient's right to receive or refuse treatment,
see Heat.on in Van Heerden el (U (eds) Boberg'.5 Ln:w of Persons anrl the Family 117 fn 49; Kruger Bill of
Righls Compendium pars 3EB9-3EB12; McQuoid-Mason and Naidoo LAWSA vol 29 Mental HeaJ,th par
240; Snyman 1983j/S193; Oosthuizen, Fick and Els 1995 Mcdici,u and the Law 601; Allen and Allen 1997
SAL] 578 and 724; Kersop and Van den Berg 2016 ObiJer 679; Lund 2016 SAJHR 403; Bilchitz and
Mahomed
2016 SAJHR406; Bilchitz 2016 SAJHR410; Dhanda 2016 SAJHR438; Davidson 2016 SAJHR457.
57 S 7(1).
58 S 7(2).
59 S15.
60 S 13.
61 S8(1).
62 58(2).
63 S ll(l)(c).
64 S8(3).
65 S 17. The information must be gi\'en "in an appropriate manner". The urgent cases arc listed ins 9(1)
(c) and are set out under the next heading below.
66 S 10(1).
67 S 12(1). The same applies if someone's mental health status has to be detem1ined for purposes of
giving effect to the Criminal Procedure Act.
126 The South African Law of Persons

deLermination of a person's mental health status may be made only for purposes that are
directly relevant to his or her mental health status.68
Every person, body, organisation or health establishment which provides care, treatment
and rehabilitation services must take steps to ensure that mental health care users are
protected from exploitation, abuse, degrading treatment, and forced labour.69 The Act
furthermore requires all state organs to determine and co-ordinate the implementation
of their policies and measures in a manner that promotes the rights and interests of
mental health care uscrs.711
Many of the rights set out in the Mental Health Care Act reflect the obliga.tions
imposed on Soutl1 Africa by the Convention on the Rights of Persons with Disabilities.
South Africa ratified the Convention in 2007. The definition of "persons with disabilities"
in article 1 of the Convention includes persons who have "long-term ... mental [or]
intellectual ... impairments which in interaction with various barriers may hinder their full
and effective participation in society on an equal basis with others". In terms of the
Convention, South Africa is obliged, inter alia, to respect the inherent dignity, physical
and mental integrity, and privacy of persons with disabilities." It must also recognise
the right to equality of persons with disabilities, prohibit all discrimination on the basis
of disability, guarantee equal and effective legal protection against discrimination, and
recognise that persons with disabilities enjoy "legal capacity" on an equal basis with others
in all aspects of life.72 Effect ive measures must be taken to prevent persons with
disabilities from being subjected to torture or cruel, inhuman or degrading treatment."
Persons with disabilities must also be protected from allforms of exploitation, violence and
abuse.;.

7.6.3 Care, treatment and rehabilitation

The Act distinguishes between different categories of persons requiring mental health care
on the ground of whether or not they voluntarily submit to mental health care and admis
sion. The basic premise is that care, treatment and rehabilitation services may only be
provided, and a mental health care user may only be admitted to a healtl1 establishment, if
one of the following circumstances is present:
(1) The mental health care user consents to it.
(2) A court or Mental Health Review Board75 authorises it.
(3) Due to the mental health care user's mental illness, any delay in providing the
services may result in:
(a) the mental health care user's death;
(b) irreversible harm to the mental health care user's health;
(c) the mental health care user inflicting serious harm on himself or herself or
somebody else; or
(d) the mental health care user causing serious damage to or loss of his or her own
or somebody else's property.76

68 S 12(2).
69 S ll(l)(a) and(b).
70 S 4(c).
71 Arts 3(a), 17, 22.
72 Arts 3(b), 4(1)(b) and (e), 5, 12(2), 17, 22.
73 An 15.
74 Art 16.
75 Mental Health Review Boanls are established and regulated by ch IV of the Act. For a brief overview
of some of the cases reviewed by the Western Cape Mental Health Review Board, see Bateman 2012
SAM]
72. For a comparative discussion of Mental Health Review Boards in South Africa and the Mental Health
Review Tribunal in the United Kingdom, see Ndou 2017 CILSA 56.
76 S 9(1).
 Chapter 7: Mental illness 127

If the services are provided or the admission occurs in the circumstances of urgency re
ferred to in paragraph (3) above, the health care provider or health establishment must
report this to the Mental Health Review Board. Unless an application is made for
voluntary, assisted or involuntary mental health care within 24 hours, the services may not
be provided for more than 24 hours.77
(a) Voluntary care, treatment and rehabilitation
A person who voluntarily submits to u·eannent and admission while being capable of mak
ing informed decisions in this regard may be treated and admitted without court interven
tion. Such a person is entitled to appropriate care, treatment and rehabilitation senrices or
to be referred to an appropriate health establishment.18
(b) Assisted care, treatment and rehabilitation
A person who is incapable of making informed decisions due to his or her mental health
status but who does not refuse health interventions is referred to as an "assisted mental
health care user".79 Assisted care, treatment and rehabilitation services may only be
adminis tered to a person without his or her consent if the head of a health establishment
approves a written application for the provision of such services, and there is a reasonable
belief at the time of making the application that the mental health care user is suffering
from a mental illness or severe or profound intellectual disability and requires those
services for his or her own or other people's health or safety.80 The application must be
made by the mental health care user's spouse, civil union partner, next-of-kin, partner,
associate, parent or guardian.81 If that person is unwilling, incapable or not available to
make the application, a health care provider may make the application.S'ZIn either case the
applicant must have seen the mental health care user within seven days prior to making the
application.83
Upon receipt of the application the head of the health establishment must have the men
81
tal health care user examined by two mental health care practitioners. • The application
may only be approved if the practitioners agree that conditions for assisted care, treatment
and rehabilitation are present.85 An application for admission to a health establishment may
only be approved if the practitioners agree that admission is necessary and the head of the
establishment is satisfied that the restrictions and inu·usions on the mental health care
user's rights to freedom of movement, privacy and dignity are proportionate to the care,
treatment and rehabilitation services required.86 If the application is approved, the Mental
Health Review Board must be notified. The Review Board must conduct an investigation

77 S 9(2).
78 S 25.See also s 9(1)(ri). Although s 25 does not require that a voluntary patient must have the capacity
to submit to treatment and admission, lack of such capacity"'ould mean that the treatment and
admission are not m1ly voluntary: Davidson 2016 SAJHR 4-78.
79 S l. As Da, dson 2016 SAJHR 479 points out, the Actdoes not define the concept "incapable of making
informed decisions". Nor does it indicate who must decide or which criteria must be applied in deciding
whether a person is incapable of making informed treatment and admission decisions.
80 S 26.
81 S 27(l)(a) of the Act read with s 13(2) of the Civil Union Act. An associate is someone who has a
substantial or mateiial interest in the well-being of a mental health care user or a person who is in "sulr
SLantial contact" with the mental health care user: s I. If the application relates to a minor, it must be
made by the minor's parent or guardian: s 27(1) (a) (i).
82 S27(1)(a)(ii).
83 S 27(l)(b).
84 S 27(4). !\either of the practitioners may be the person who made the application, and at least one of
them must be qualified to conduct physical examinations. "[M]ental health care practitioner" refers to a
psychiatrist. registered medical practitioner, registered nurse, occupational therapist, psychologist, or
social worker who has been trained to provide mental health care, treatment and rehabilitation services:
s l.
85 S 27(7).
86 S 27(8).
128 The South African Law of
Persons
and then either request the head of the health establishment to continue providing services
to the mental health care user or request the person's discharge. The Review Board must
report its findings to the head of the provincial departrnent.8; The mental health care user,
or his or her spouse, civil union parmer, next-of-kin, partner, associate, parent or guardian
may lodge an appeal against the decision of the head of the health establishment with the
Review Board.""
Six months after commencing care, treatment and rehabilitation services, and once a
year thereafter, the head of the health establishment must have the person's mental health
status reviewed and submit a report to the Review Board.s-J If the Review Board decides that
the person must be discharged, all care, treatment and rehabilitation senrices administered
to him or her must be stopped according to accepted clinical practices and he or she must
be discharged unless he or she consents to receiving services.91)
91
If the head of a health establishment has reason to believe that the assisted mental
health care user has recovered the capacity to make informed decisions, the person must be
asked whether he or she will voluntarily continue receiving services.92 If the person is
willing to continue, he or she becomes a user of voluntary senrices. If the person is
unwilling, he or she must be discharged if the head of the establishment is satisfied that
the person is no longer mentally ill. However, if the head of the establishment is of the
view that the person is still mentally ill, the person who applied for assisted senrices for
the mental health care user, and the mental health care practitioner, registered social
worker or nurse administer ing these services must be inforrned93 and advised that they
have 30 days within which to apply for the person's involuntary commitment.9' If an
application for involuntary com mitment is not made within that period, the mental health
care user must be discharged.95
(c) Involuntary care, treatment and rehabilitation
If the mental health care user is incapable of making informed decisions on the need for
care, treatment and rehabilitation services and does not want such services, involuntary
services must be provided to him or her if the head of a health establishment approves a
written application for the provision of such services.96 At the time of making the appli
cation there must be a reasonable belief that the mental health care user has a mental
illness of such a nature that he or she is likely to inflict serious harm on himself or herself
or others, or that care, treatment and rehabilitation services are necessary for the protec
tion of his or her financial interests or reputation.9;
As in the case of assisted services, the application must be made by the mental health
care user's spouse, civil union panner, next-of-kin, partner, associate, parent or guardian,
or, if they are unwilling, incapable or not available to make the application, by a health
care provider.98 The applicant must have seen the mental health care user within seven
days

87 S 28(1)-(3).
88 S 29(1) of the Act read withs 13(2) of the Civil Union Act.
89 S 30(1)-(3).
90 S 30(5)(a).
91 The belief may be based on personal observation, information obtained, or representations made by
the mental health care user:s 31(l).
92S31(1).
93 S31(3).
94 S 31(4). Involuntary commitment is discussed immediately below in thischapter.
95 S 31(5).
96 S 32. See also the definition of "involuntary care, treatment and rehabilitation" ins 1.
97 S 32(b). As the reasonable belief need only exist at the time of making the application, the Act seems to
pemiit involunta1y treatment after the mental health care user has ceased being likely to inflict serious
harm on himself or herself or others or needing care, treatment and rehabilitation services for the pro
tection of his or her financial interests or reputation: Davidson 2016 SAJHR 480.
98 S 33(1) of the Act read \\ith s 13(2) of the Civil Union Act. If the application relates to a minor, it must
be made by the minor's parcm or guardian.
 Chapter 7: Mental illness 129

prior to making the application.99 Upon receipt of the application the head of the health
establishment must have the mental health care user examined by two mental health care
practitioners.100 The application may only be granted if the practitioners agree that condi
101
tions for involunta1)' care, treatment and rehabilitation are present. Up to this point the
procedure is the same as that which applies in respect of assisted services. However, in the
case of involuntaq services the mental health care user must be referred for a 72-hour assess
ment period prior to the further provision of involuntaq services. This assessment is done by
a medical practitioner and another mental health care practitioner. Their task is to evaluate
the mental health care user's physical and mental health status, and to consider whether he
or she must continue receiving involuntaq services and be involuntarily committed.""'
After the assessment, the head of the establishment must discharge the mental health
care user immediately if he or she is of the opinion that the person's mental health status
does not warrant involuntaq care, treatment and rehabilitation. However, if the mental
health care user consents to receiving services, he or she need not be discharged. If the
head of the establishment is of the opinion that the person's mental health status indeed
warrants further involuntary services but does not warrant commitment, the person must
be dis charged subject to the prescribed conditions and procedures for outpatient care,
treatment and rehabilitation, and the Review Board must be informed. If the head of the
establishment is of the opinion that the person's mental health status warrants involuntary
commitment, he or she must submit a written request to the Review Board for approval of
further invol untary care, treatment and rehabilitation on an inpatient basis.'"' If the
Review Board grams the request, the matter must be referred to the High Court.11>< After
conside1ing all the information, the High Court may either order the mental health care
user's immediate discharge or his or her further hospitalisation.'°' If necessary, an
administrator may be appointed to care for and administer the person's financial affairs.106
The mental health care user, or his or her spouse, civil union partner, next-of-kin, partner,
associate, parent or guardian may lodge an appeal against the decision of the head of the
07
health establishment with the Review Board.'
Six months after the commencement of involuntary services, and once a year thereafter,
the head of the health establishment must have the person's mental health starus reviewed,
108
and submit a report to the Review Board. If the Review Board decides that the person
must be discharged, all care, treatment and rehabilitation services must be stopped accord
ing to accepted clinical practices and the person must be discharged unless he or she
consents to receiving services.109

99 S33(1){b).
100 S 33(4). Neither of the practitioners may be the person who made Lhe application, and at least one of
them must be qualified to conduct physical examinations.
101 S 33(7).
102 S 34.
103 S 34(3)(a)-(c). If the head of the establishment subsequently concludes that the mental health care
user is fit to be an outpatient, the person must be discharged subject to the prescribed conditions
and procedures for outpatient care, lreatrnent and rehabilitation, and the Review Board must be
informed: s 34(5).
104 S 34(7)(c).
105 S 36(c).
106 The appointment of such an administrator is discussed below in this chapter.
107 S 35(1) of the Act read withs 13(2) of the Civil Union Act.
108 S 37(1).
109 S 37(5)(a). S 37 applies to persons who are not c1iminally charged. If a person has been criminally
charged and the Re,iew Board finds that he or she does not require involuntary care, treatment and
rehabilitation, an application should be made to the High Court for the person's release: In ;-ejY2016
(1) SA.CR 399 (KZP).
130 The Soulh African Law of Persons

0
If the head of the establishment has reason to believe" that an involuntary mental health
care user has recovered the capacity to make informed decisions, he or she must enquire
whether the person is willing to voluntarily continue receiving services.111 If the person is
willing to continue, he or she becomes a user of voluntary services. If the person is
unwill
ing, he or she must be discharged if the head of the establishment is satisfied that he or she
is no longer mentally ill.112
(d) Report by a member of the police
A member of the police who has reason to believe"' that someone is likely to inflict serious
harm on himself or herself or others because of mental illness or severe or profound
intellectual disability, must arrest that person. The person must be taken to a state
controlled health establishment for assessment of his or her mental health status and
handed over into the custody of the head of the establishment or someone the head desig
11 1
nates. • If, after the assessment, a mental health care practitioner shares the view of the
member of the police, the person must be admitted to the heallh establishment. Within 24
hours of the person's admission an application must be made to obtain invohmtary care,
treatment and rehabilitation services for him or her.m If, in contrast, the mental health
practitioner is of the view that the person is unlikely to cause harm, the person must be
released immediately.116
The police may also be used to locate, apprehend and return an assisted or involuntary
mental health care user who has absconded or is deemed to have absconded from a health
establishment, and when an assisted or involuntary mental health care user is n-ansfe1Ted
117
to another health establishment.

7.6.4 Place of admission

Mental health care users may only be admitted to health establishments.""

7.6.5 Mentally ill prisoners and state patients

The Act also governs the confinement of and provision of mental health care to mentally
119
ill prisoners and state patients. As the relevant provisions apply only to persons who
have committed criminal acts, theyfall outside the scope of this book.

7.6.6 Care and administration of the property of mentally ill persons

If a High Court conducts an enquiry into a person's mental health and the presiding judge
has reason to believe that the person may be incapable of managing his or her property,
the

llO The belief may be based on personal observation, information obtained, or representations made by
the mental health care user:s 38(1).
lll S38(1).
112 S 38(2) and (3).
113 The belief may be based on personal observation or info1mation obtained from a mental health care
practitioner: s 40(1).
114 S 40(1). Bonthuys 2001 SAL] 672-673 questions the legitimacy of police apprehension of mentally ill
persons and doubts whether the police have the necessmy knowledge to enable them to identify
mentally ill persons. She suggeslS that "this function should not be fulfilled by members of the police,
who are currently hard-pressed to fulfil their legitimate policing functions": 673.
115 S 40(2)(a). See alsos 40(3). The application is made in ce,ms of s 33 of the Act.
116 S 40(2)(b).
117 S40(4).
l18 Such establishments include health establishments with maximum-security facilities: s 39(1). Health
establishments are institutions, facilities, buildings or places (incl community health and rehabilitation
centres, clinics, hospitals and psychiatric hospitals) where persons receive care, treatment,
rehabilitative assistance, diagnostic or therapeutic interventions or other health services: s I.
119 Chs VI and VII of the Act.
 Chapter 7: Mental illness 131

judge may initiate an investigation into the person's mental health status and ability to
manage his or her property. The court may exercise this power in any other legal proceed
ings too.120 If the investigation reveals that the person's mental health status is such that he
or she is indeed incapable of managing his or her property, the court makes a recommen
dation regarding the appointment of an administrator and informs the person and the
121
Master of the High Court accordingly. The Master then appoints an administrator to take
care of and administer the person's property, to perform all functions incidental thereto,
and to carry on the person's business or undertaking, if any.'22
The Master may also, upon application by any adult, appoint an administrator in respect
of the property of a mentally ill person or a person with severe or profound intellecnta.l
disability.123 Instead of appointing (or declining to appoint) an administrator, the Master
124
may refer the matter for consideration by a judge in chambers. After considering the
matter, the judge makes a recommendation to the Master on whether or not an administrator
should be appointed. If the judge recommends appointment of an administrator, the
Master appoints the administrator.'25
The power to appoint an administrator does not replace the court's common-law powers
to appoint a curator to a mentally ill or intellectuallydisabled person.

120 S 61(1),
121 S61(3).
122 The administrator's powers, functions and duties are similar to those a curator has in terms of ch IV of
the Administration of Estates Act: s 63. In addition, some of the p1·ovisions of the Administration of
Estates Act apply to an administrator appointed in respect of the estate of a ·mentally disabled person":
Mental Health Care Acts 65. The Mental Health Care Act does nol define "mentally disabled person",
but it presumably signifies a mental health care user and a person who has a severe or profound intel
lectual disability.
123 Ss 59(1) and 60(1).
124 S 60(8).
125 S 60(12)-(13). In te1ms of art 12( 4) of the Convention on the Rights of Persons with Disabilities,
states parties must ensure thal approp,;ate and effective safeguards are included in all measures
relating to the exercise of legal capacity to prevent abuse of disabled persons. These safeguards must
ensure, inur ali<t, that the rights," 11 and preferences of the disabled person are respected and that the
measures are proportional and tailored to the particular person's circumstances. The safeguards must
also be pro portional to the degree to which such measures affect the person's rights and interests.
According to Holness 2014 SAJHR 316, 334-335, the provisions of the Mental Health Care Act
relating to the ap pointment of an administrator do nol comply with the p1inciplc of proportionality
provided for by the Convention.
INABILITY TO ADMINISTER AFFAIRS OWING TO
REASONS OTHER THAN MENTAL ILLNESS

8.1 Introduction
In the previous chapter it was explajned that the High Court has the power to appoint a
curator or administrator to a mentally ill person. In terms of our common law, the High
Court also has the power to appoint a curator to a person who is not mentally ill but is
incapable of managing his or her affairs for another reason, such as a physical or intellec
tual (that is, a mental) disability.' The objective of the appointment of a curator to a person
is to protect the person from exploitation.
Because the status of a person who is subject to curatorship is restricted, the courts are
hesitant to appoint curators.2 AsJudge Blieden pointed out injudin v Wedgwood:'
[T]o appoint a curator to a person without full justification therefor ... constitutes a serious
violation of that person's dignity and status, which is contrary to the provisions of s 10 of the
1
Constitution of the Republic of South Africa .. .'
Appointing a curator to a disabled person without sufficient justification also violates
article 3(a) of the Convention on the Rights of Persons with Disabilities, which requires
states parties to respect the inherent dignity, individual autonomy and independence of
persons with disabilities.5 South Africa ratified this convention in 2007. Unjustified
appointment of a curator further constitutes unfair discrimination on the ground of
disability, which violates section 9(3) and (4) of the Constitution and articles 3(b), 4(1)
and 5 of the Convention on the Rights of Persons with Disabilities.6

1 Voet Commentary on the Pandects 27.10.3; Grotius Jnleidinge 1.11.1-1.11.3; Van Leeuwen C,e11.sura F<n·ensis
l. l.16.28.
2 Miu:hell v Mitche/11930 AD 217; Ex parte Kolz.e1955 (1) SA 665 (C); Ex j,ar/,:Klopper: fn re Klopper1961 (3)
SA 803 (T).
3 2003 (5) SA 472 CW) 47&J-479A; see also Modiba obo Ruw, ln re Ruca v RAF(unreported, GPPHC case no
12610/2013 and case no 73012/13, 27Janua1y 2014).
4 S 10 of the Constitution of the Republic of South Africa, 1996 provides that everyone has inherent
dignityand has the i;ght to have his or her di_gnity respected and protected.
5 In terms of art 1 of the Convention, persons " th disabilities "include those who have lon_g-term
physical, mental, intellectual or sensory impairments which in interaction with various batTiers may
hindei: their
full and effective participation in society on an equal basis with others".
6 S 9(3) and (4) of the Constitution provides that neither the state nor any person may unfairly discrimin
ate direcdy or indii:ectly against anyone on the ground of disability. Art 3(b) of the Convention on the
Rights of Persons wiLh Disabilities provides that non-discrimination is one of the principles of the
Con vention. Art 5(2) of the Convention compels states parties to prohibit all discrimination on the
basis of disability and to guarantee equal and effective legal protection against discrimination to
persons " th disabilities. On the Convention, see also ch 7 above.

133
134 The South African Law of Persons

8.2 Applying to have a curator appointed for a person who is

unable to administer his or her affairs
The court gives a liberal interpretation to the categories of persons who can be placed
under curatorship. F01· example, curatores bonis have been appointed to persons unable
to manage their affairs as a result of a serious illness or the after-effects of a serious
illness;' physical or intellectual disability;8 persons who have disappeared and in respect of
whom a presumption of death has not been pronounced;9 and persons residing in an enemy
country during war.'0 A curator bonis has also been appointed to a p1·isoner of war.11
Advanced age sometimes causes serious illness and physical or intellectual impairment
which may result in the need to appoint a curator.1 Due to aged persons frequently being
more vulnerable, the Older Persons Act l 3 of 2006 lays down general principles which
must guide the implementation of all legislation and all proceedings, actions and decisions
13
by an organ of state regarding an older person or older persons in general. The
provisions of the Act extend beyond the appointment of curators. In many respects, the
principles embodied in the Act echo those that are laid down by the Children's Act 38 of
14
2005 regard ing minors. Thus, for example, the Older Persons Act stipulates that all
proceedings, actions or decisions in a matter concerning an older person must respect,
protect, promote
and fulfil the person's rights and best interests and the rights and principles set out in the
Act; respect the person's inherent dignity; treat him or her fairly and equitably; and protect
him or her from unfair disc1imination on any ground, including his or her health status or
15
disability. An approach which is conducive to conciliation and problem-solving must be
followed in any matter concerning an older person and a confrontational approach must
16
be avoided. Furthermore, a delay in any action or decision must be avoided as far as
possible. ' The Act also deals with abuse of the elderly.18
1

Apart from appointing a curawr bonis, the court may also appoint a curator personae and/ora
curator ad litem for a person who is unable to manage his or her affairs.19

7 Ex f>mte De Villiers 1943 v\i'LD 56; Ex Jimu Stewa,t- ,nne: In re Ma.son 1944 EDL 176; Ex f>arte Van Hassell 1965
(3) SA553 (W); Ex parte Hill1970 (3) SA 411 (C); Ex parteEwing:in re Sheridan1995 (4) SA 101 (0).
8 InreJ Renslntrgli (1835) 3 Meoz 99; In re C,C Rens (1844) 3 Menz 100; Mitchell v Mitchell 1930 AD 217;
l-ludsrm v Price 1933 CPD 367; Ex /lllrle Van DJk 1939 CPD 202; Van den Berg v Van den Berg 1939 'v\lLD 228;
Ex parte Marilz 1944 NPD 339; Ex fmrle Bell1953 (2) SA 702 (0); Ex parte Berman: In re £stale Dhlamini 1954
(2) SA 386 (W); Ex f,a,-ie Tomich 1957 (4) SA 667 (N); Ex pmte Powriel963 (1) SA 299 (W); Nkosi v Ministe>·
ofjusticel964 (4) SA 365 (W); Ex parte Tod 1965 (1) SA 262 (D); Ex par/ejawbs 1965 (3) SA 270 (C); Fran
cescutli v Fmncescutti; Ex jJ<trte Fmncescu.Ui 2005 (2) SA 442 (W).
9 Re McKenzie's Estate 1908 TS 420; Ex parle Thomson 1919 CPD 277; Ex parte Lennon Ltdl929 V','LD 195; Ex
parte l,uhnl935 EDL 40; txfimteShulr,um1955 (1) SA514 (W); ExjJmtePearlm.an 1957 (4) SA666 (N). The
pre sumption of death is discussed in ch 2 above.
10 Expa,uKuhr1940 CPD 327; Exj)(trteBecked943 CPD 164.
11 Ex parlPJones1943 WLD 134.
12 See e.g. Ex pane Celdenhuys 1941 CPD 243; Ex par/e Dit Toit: Inn! Curatorship &late Schwab 1968 (1) SA 33
(T); Ex pa,te Maritz 1944 NPD 339; Rx parte De Klerk 1968 (4) SA 130 (C).
13 S5(l).
14 Seech6 above.
15 S 5(2).
16 S5(3)(a).
17 S 5(3)(b).
18 Ch 5. For criticism of the Act, see Coertse 2013 DeR.ebu.f 195. The Older Persons Amendment Bill, 2017
seeks to extend the protection afforded to older persons. It inserts new provisions relating to the moni
toring and evaluation of services to older persons into the Older Persons Act and provides for the re
moval of older persons to temporary safe care " thout a court order. The Bill also contains stricter and
clearer implementationand compliance measures.
19 See e.g. Martinson v Brown; Gray v Anmtrong 1961 (4) SA 107 (C); fa /mrle Powrie 1963 (1) SA 299 (W);
see also Ex parle Hill 1970 (3) SA 411 (C); Srmtam Insura:nce Ltd v Booi 1995 (3) SA 301 (A); Vallaro oho BR
vRoad Accident Fuwl 2021 (4) SA 302 (GJ). In Taurog v [.,apinsi<y 1943,11..D 100 the person wasso
indifferent to his affairs as to be in danger of suffering se1ious loss. The court held that, even in the absence
of evidence that
conti,iued
 Chapter 8: Inability to administer affairs owing to reasons other than mental illness 135

Although the court is not compelled to appoint a curator to someone who consents to
the appointment, consent is an important factor in deciding whether or not to place the
person under curatorship.20 For any weight to be au.ached to the consent, the person must
be able to understand the nature and effect of the proceedings to place him or her under
curatorship.21 If the person is unable to understand the nature and effect of the proceed
ings, a curator ad litem must first be appointed to represent the person at an inquiry into his
or her mental state.
The court does not regard it as proper that a person personally apply to be placed under
curatorship, because if the person is in fact incapable of managing his or her affairs, he or
she may lack locus standi in iudicio to make the application. Therefore, a family member or
someone else who has an interest in the person's person or property has to make the appli
cation.22
The court in whose area the person is domiciled or owns immovable property has juris
diction to declare him or her incapable of managing his or her affairs and to place him or
her under curatorship.23

8.3 Legal status of a person who is unable to administer his or her

affairs
A person who has been declared incapable of administering his or her affairs and to whom
a curator has been appointed has the capacity to conduct his or her affairs whenever he or
she is in fact mentally and physically able to do so. In other words, the fact that a curat,or
bonis has been appointed in respect of a person's estate does not mean that the person has
been deprived of capacity to act and litigate;24 nor does it mean that the person is
incapable of being held accountable for crimes and delicts.25 In Pienaar u Pienaar's
Curato?' Judge President De Villiers stated as follows:
Here again the curator is merely appointed to assist the person in making legal dispositions in so
far as such assistance is necessary, according to the nature of the incapacity in question, but
the person still retains his contractual and legal capacities and the administration of his
property to the full extent to which he isfrom time to time mentally or physically able to
exercise them.
Accordingly, someone who has been placed under curatorship because of inability to
manage his or her affairs can enter into a valid legal transaction with its normal conse
quences if, at that particular moment, he or she is physically and mentally able to do so.

a person suffers from a mental or physical disability, it can appoint a mrator ad litem to investigate his or
her condition and report on whether he or she is capable of managing his or her affairs. On the different
types of curators and their functions, see further ch 7 above.
20 Mitchell v Mitchell 1930 AD 217; Ex parleVan Dyk 1939 CPD 202; Ex pa,·te Eell 1953 (2) SA 702 (0); Ex parte
Bemum: In re Estate Dhlamini 1954 (2) SA 386 ("W); fa parte Derksen1960 (1) SA 380 (N); Nkosi v Minister of
Justice1964 (4) SA 365 (W); Ex parte Van der Linde1970 (2) SA 718 (0); fa fm,tt Wilson: In re Morison
1991
(4) SA 774 (T);judin v Wedgwood.2003 (5) SA 472 (W).
21 Ex parte Van Dyk 1939 CPD 202; Ex fmrte Bell1953 (2) SA 702 (0).
22 Ex parte Geldenlmys 1941 CPD 243. A creditor does not have a sufficient interest to bring an
application for the appointment of a cumtor ad /item in respect of his or her debtor:Judin v Wedgwood
2003 (5) SA 472 (W).
23 Ex f1arte Derksen 1960 ( 1) SA 380 (N); Ex parle Berry. In-re Ben)' 1961 (4) SA 79 (D); Ex parlP.De Villiers 1976
(4) SA 576 (0).
24 Thecompletion of prescription of a claim by or against someone who has been placed under curatorship
is, however, delayed until a year after the curatorship has come to an end: Presc1;ption Act 68 of 1969
s 13( I).
25 Sec also Boezaart Pe, ons 141; Cronje LAW'IA vol 20 part l Persons par 488 fn 22; Heaton in Van
Heerden el al (eds) Br1berg's Law of Persons and the Family 143; Olivier and Denson in Barratt (ed.)
Per.sons and the Family 114.
26 1930 OPD 171 175; see also Voet Commentary on ihePandel'ts27.l0.13; Exparle Hmner 1946 OPD 163.
136 The South African Law of
Persons
Thus, for example, it has been held that such a person may marry without his or her cur
ator's consent (whether in or out of community of property)/' make a will,2$ enter into a
contract,"'; and litigate.50 If it is found that the person lacked the capacity to understand the
nature or consequences of a particular transaction when he or she entered into it, he or she
is not bound by the transaction and the transaction is void because of the lack of capacity."
Consequently, the person's capacity to enter into valid legal transactions may differ from
day to day but remains a question of fact.
Since a person who has been placed under curatorship due to a disability does not lose
his or her capacity to act or to litigate and can enter into a valid legal transaction whenever
he or she is able to do so, the current legal position probably does not violate article 12(2)
of the Convention on the Rights of Persons with Disabilities. This article obliges states
parties to recognise that persons with disabilities enjoy "legal capacity" on an equal basis
with others in all aspects of life. Whether the current position complies with article 12(3)
to
(4) is less clear. These sub-articles require states parties, inter alia, to "take appropriate
measures to provide access by persons with disabilities to the support they may require in
exercising their legal capacity" and to ensure that "measures relating to the exercise of
legal capacity respect the rights, will and preferences of the person". Currently, a curator's
decisions replace those of the person who has been placed under curatorship unless the
person is in fact able to make decisions in the particular field; for example, a curawr
personae makes decisions on the person's person whenever the person is unable to do so. It
may be that this substituted decision-making does not fully comply with article 12.32

27 Pie1uuirv Pienaar's Cumtorl930 OPD 171; Miidzell v Mitche/l 1930 AD 217. But see Sonnekus 2009 THRHR
141-143, 145 who states that a person whose estate is administered by a mrator bonis may enter into a
marriage without the consent of the curator but may not enter into an antenuptial contract without such
consent.
28 Spies v Smith 1957 (1) SA 539 (A}.
29 Ex pa,u De Rruin1946 OPD ll0.
30 De Villiers v fapach1958 (3) SA 91 (T).
31 See e.g. Grotius lnleidinge 1.11.5, 3.30.3; Van Leeuwen Censura Forensis 1.4.3.2, R.ooms-Hollaruls-&gt
4.2.3; Van der Keessel Prae/ec.tiones3.30.3; &rste Nasionale Bank van Suidelike Afi-ilta Bpk v Saayman
1997 (4) SA 302 (SCA); Francesculli v Francescutti; Ex parteFrancesc1itti 2005 (2) SA 442 (W).
32 Holness 2014 SAJHR 313 argues that the present system of curatorship must be replaced, as it violates art
12. See also Robinson 2020 PELJ26, available at https://doi.org/10.17159/1727-3781/2020/v23i0a6217.
On an 12, see further ch 7 above and South African Law Reform Commission Assist,ed Decisi.on"lnaking
Rej>ortch 3.
 INFLUENCE OF ALCOHOL AND DRUGS

As in the case of mental or physical incapacity, intoxication can affect a person's legal status.
The issue of the effect of intoxication on status normally arises in the context of a person's
capacity to act or his or her capacity to be held accountable for crimes and delicts. The rules 1
relating to intoxication apply not only to the effects of alcohol but also to those of any drug.
The influence of alcohol or drugs affects capacity to act only for as long as it lasts. Thus,
it usually results in only a temporary loss of capacity to act.2 If, however, a person
becomes incapable of managing his or her affairs because of continuous abuse of alcohol
or drugs, he or she may be placed under curatorship.5
As to the degree of the influence of alcohol or drugs that is required for the Law to con
sider a person's capacity to act to be affected, Judge Rumpff held in Van Metzinger v Baden
horst' that it is insufficient if the person was merely more easily persuadable or more willing
to enter into a transaction. What is required is that the person must have been unaware that
he or she was entering into a transaction or must have had no idea of its provisions. Accord
ingly, the mere fact that a person is under the influence of alcohol or drugs or is rendered
reckless by his or her consumption of alcohol or drugs does not mean d1at the transaction
is not legally binding. The influence of alcohol or drugs must be such as to deprive the
person of his or her powers of reasoning.1 A transaction which is concluded under these
circumstances is void ab initio and cannot be ratified.6 The onus of p_roof is on the party who
alleges that the person was under d1e influence of alcohol or drugs.'
A person who is under tlle influence of alcohol or drugs can be held liable on the
ground of unjustified enrichment or negotiorum gestw because such liability is not based on
the existence of a valid agreement.8
As the influence of alcohol or drugs often diminishes a person's ability to appreciate the
consequences of his or her actions, it can affect his or her capacity to be held accountable
for delicts and crimes.9

l Bradfield Christie's !,aw of Contract 290; Olivier and Denson in Barratt (ed.) Pewms and the Family 102;
Cronje LAWSA vol 20 part l Persons par 489; De Wet and Van Wyk Kontraktereg en Handefareg 57;
Heaton in Van Heerden et rd (eds) Boberg's Lttw of Persons and the Family 143 fn 152; Van dcr Vyver and
Joubert Persone- en Fainiliereg 413.
2 Voet Onnmentary on the Prmdec/s 18.1.4; Grotius Inleitlinge 3.14.5; Van Leeuwen Censu.m Formsis 1.4.19.3;
Van der Linden Rechtsgeleertl, Practicaal, en Koopmans Hmulboek 1.14.3; Dennis v Kupfel (1896) 11 EDC 63;
Donovan v Rowbothmn (1905) 19 EDC 38; Goodman v Pritchard (1907) 28 NLR 227; Van Metzinger v Ba
denlwrst 1953 (3) SA 291 (T).
3 Ex parte Derilsen 1960 (1) SA 380 (N). On the appointment of a curator to a person who is incapable of
managing his or her affairs, see ch 8 above.
4 1953 (3) SA 291 (T).
5 Goodman v Pritdiard (] 907) 28 NLR 227; \Ian Metzinger v Badenlwrst 1953 (3) SA 291 (T).
6 Ibid.
7 Ibid
8 Cronje LAWSA vol 20 part l Pmons par 489; De Vos Venykingsaan.!j>reeklikheid 96, 220; Heaton in Van
Heerden et al (eds) Boberg's Law of PersO'ns ,md the Family 145. See also Van der Vyver and Joubert
Person
en F(imiliereg 413-414.
9 Further on the delictual and criminal liability of an intoxicated person, see Boezaart Persons 154-155;
Loubser and Midgley (eds) Delict143; Olivier and Denson in Barratt (ed.) Pemms rma the Fmnily 104.

137
 [ill
PRODIGALITY

10.1 Introduction
Prodigals are persons with normal mental abilitr who squander their assets in an irrespon
sible and reckless way due to some defect in their power of judgement.' To protect such
people and their families from their prodigal tendencies their status can be restricted by an
order of courtt. The reason for a person's prodigality is of no real importance, but from the
case law it appears that prodigality often goes together with alcoholism, drug addiction
and/or gambling.'
Unlike mental illness: prodigality as such does not affect a person's status. It is only
once the person has been declared a prodigal and has been prohibited (interdicted) from
managing his or her affairs that his or her capacities are restricted.
Any interested party (including the prodigal personally/ may apply to court for an order
declaring the person to be a prodigal, interdicting the person from administering his or her
estate, and requesting the appointment of a curator bonis to administer the person's
0
estate.

1 For common-law definitions of prodiglllity, see Vot-t Cormnmtmy on the Pandtc/.s 27.10.6; Grotius
fnleidinJill
1.11.4; Van Leeuwen Rooms-Holland.s-l?egt1.16.13; Van der Keessd Praelection,is1.ll.1.
2 See e.g. Masin of the Suf,rtme Court v Fam1r 1906 TS 748; LocJ,WOO<l v Lockwood 1935 EDL l; fa pmu McJ.indm
1945 OPD 96; Yamt v Yartd 1952 (4) SA 182 (T); Traubv Traub1955 (2) SA 671 (C); Delius v n,Jim 1960
(l)
SA 270 (N).
3 See e.g. Re CJ1<<m (1892) 9 SC 61; M,uterof the Sujmme Court v Fmrer1906 TS 748; l.odmx)O(/ v LockWOO<I
1935 EDI. L; Gillie v Ci/lid938 CPD 513; Yr.red v Ytire<l 1952 (4) SA 182 (T); Ex parteWilding1953 (J) SA
633 (C): D,Liw· v Deli11.11960 (l) SA 270 (N).
4 See ch 7 abo\-e.
5 For examples, see R, O,r.;m (1892) 9 SC 61 (brother); Inn,Nliller: fa pane Ivld,e (1892) 9 SC 414
(daughter): M,ister of the Supreme Co11rt v P,.m,r1906TS 748 (Master); Ex parte Y11rr 1927 CPD 366 (prodigal);
C1//1t v C1//1t 1938 CPD 513 (fo,mer spouse); £. f><,rte McLindm 1945 OPD 96 (prodigal and spouse
jointly); F:x parte 111/i/ ing l 953 ( I) SA 633 (C) (spouse); Delius v Oelius1960 ( I) SA 270 (N) (spouse).
6 Tn 1he past it was Lh practice of our courts to confer upon a prodigal's t11mlor bonis the sarnc powers as
tl1ose granted to a mentally ill person's r11rator bo11tt in terms of s 65 of the Mental Disorders Act 38 of
1916. Although 1h15section was not directly applicable 10 prodigllls, the courts found in it a useful
summa1y of the powe1-s that should be conferred upon the curator and, instead of setting out those
powers in each case, the courts simply 1·efe1Tcd 1.0s 65: C,llie v Ci/lie L938 CPD 513; Ex /mrtt Tolmie & }11/Jilfl:
in re EstateLi11ku1/er 1939 WLD 36; Ex pa.rte Mr.!,indm 1945 OPD 96; Delim v Delius 1960 (1) SA 270 (N).
S 65 was repealed by the Ad ministrntion of Estates Act 66 of 1965, which currenlly regulates the powers
and duties of curators: see ch
IV. In £x pane D1tTo,t: In re Curatorsh,p Es/ale Schwab1968 (1) SA 33 (T) BoshoffJ was of the opinion that
it is
no longer necessary to confer upon the e11rator bom.s all the powers mentioned in the nm,•repcaled s 65,
while Fannin] stated in Ex pane Huie/I 1968 (4) SA 172 (D) that the cou1t order ought to specify the
powen conferred on the curator. Jn lix f><trte Tlunnpson 1983 (4) SA !192 (E) Smalberger.I held that, since
Hu/ell's case, it had become pl'aclice to confer upon a curator the powc,·s set out in that case, but that Lhis
did not mea.11 tJ1at such powers were exhausti\'e. In Ex parte 77,omp,on the court ga\·e the curators the
further power of makingsuch giflS and loans to his children and grandchildren on behalf of tl1e person
placed under cu ratorship as the Master may consider reasonable 111 the circumstances. The latter case
did not deal with a
prodigal but with the general powen of a ruratorbonis.
It is S\lbmittcd that prodigality docs 1101. fall within the scope of ''severe or profound intellectual
disability" and that an admi11istrator can accordingly not be appointed to a prodigal in tenns of ch Vlll of
the Mental Health Care Act 17 of 2002. On the Mental Health Olre Act, see ch 7 above.

139
140 The South African Law of
Persons
The case law reflects that _it usually is a family member, particularly the prodigal's
spouse, who applies for the order.' The application is made by way of notice of motion
and support ing affidavits. The respondent must be notified of the application so that he or
she may oppose it on the return day.8 The applicant may ask that the rule nisi serve as an
interim interdict restraining the respondent, pending a final order, from administering his
or her estate. Because such an interdict has serious and far-reaching consequences for the
prodigal, it will be granted only "in exceptional circumstances, where there is some
pressing and im mediate urgency".
A prodigal is not mentally incapacitated and will normally be fully able to understand
the nature and implications of the application to appoint a curator bonis to administer his
or her estate. Accordingly, a curator ad litem ·will be appointed co assist a prodigal in
exceptional cases only.'0
As the rights of third arties are also affected by a declaration of prodigality, the coun
order must be published. 1 In Delius v Delius" it was required that the order be published in
the Government Ga:,.ette and a local newspaper.
A prodigal's status is not automatically fully reinstated when he or she abandons his or
her prodigal tendencies; nor does a marriage or civil union discharge a prodigal from
15
curatorship. A prodigal regains full capacity only when he or she is discharged from
curatorship by a court order.14

10.2 Legal capacity

The limitations on an interdicted prodigal's legal capacity relate to his or her participation
in commercial dealings and handling finances." For example, an interdicte prodigal is
barred from being a director of a company'6 or a trustee of an insolvent estate.''

7 E.g. Lockwood v Lockwootll935 EDL l; Ya,-ed v Yared 1952 (4) SA 182 (T); Ex parte Wilding1953 (1) SA 633
(C). If a marriage or civil union is in community of property and one spouse or civil union partner
squanders the joint estate, the other spouse or civil union partner may apply !O the court for immediate
division of the joint estate: Matrimonial Property Act 88 of 1984 s 20; Ch I Union Act 17 of 2006 s
13(2). Alternatively he or she may invokes 16(2) of the Mat,imonial Property Act (read with s 13(2) of
the Civil Union Act in the case of a civil union), which empowers the court !O suspend the power of a
spouse or civil union parmer to deal with the joint estate for a definite or an indefinite period if this is
essential for the protection of the interest of the other spouse or civil union partner in the joint estate.
In a marriage or ch l union that is subject to the accrual system, the court may be asked to order the
immediate div ision of the accrual in terms of s 8 of the Matrimonial Property Act (read \\ th s 13(2) of
the Civil Union Act in the case of a civil union) if the conduct of one of the spouses or civil union
partners seriously prejudices or will probably seriously prejudice the other's right !O share in the accrual
al the dissolution of the marriage or civil union.
8 LorJcwood v Lockwoocl 1935 EDL l; Master of the Supreme C-0'Urt v Farrer 1906 TS 748; Yai-ed v Yared 1952
(4) SA 182 (T).
9 Delius v Oeli11s 1960 (1) SA 270 (N) 272A-B. See also Ex parte Wilding1953 (1) SA 633 (C).
10 Ex parte McLinden 1945 OPD 96; Delius vDelius1960 (l) SA 270 (N).
11 Grotius lnleidinge l.11.4; Van Leeuwen Rooms-Hollands-Regt l.12.3, 1.16.13, 2.7.8, Censura Forensis
1.1.16.28; Van der Keessel Prae/,ectiones l.ll.4; Groenewegen Tractalus 45.1.6; Voet Commentary on the Pan
dects 27.10.8; Van der Linden &chtsgelard, Practicaal,, en Koopmans Handboek 1.5.8; Delius v Delius 1960
(1) SA 270 (N).
12 1960 (1) SA 270 (N).
13 Vedeski v Vedeski 1923 WLD 31.
14 Van de,· Keessel Pmekcti.oms 1.11.4; Grotius InleidingJ l.ll.4; Voec Co11111W1Uary on thePandects27.I0.7.
15 Boezaart Persons 143; Kruger and Skelton (eds) Persons 145; Olivier and Denson in Barratt (ed.) Penans
and the Famil)' 106.
16 Companies Act 71 of2008 s 69(7) (b).
17 Insolvency Act 24 of 1936s 55(c).
 Chapter 10: Prodigalit-y 141

10.3 Capacity to act

Merely declaring someone to be a prodigal is nor enough to limit the person's capacity to
act: the declaration must be coupled with an order restraining the person from administer
ing his or her estate.'' The effect of an order that interdicts a prodigal from administering
his or her estate is that the prodigal's legal position becomes analogous to that of a minor,
rather than that of a mentally ill person.19 Like a minor, an interdicted prodigal has limited
capacity to act and may not independemly enter imo juristic acis by which he or she incurs
obliga tions.20 An interdicted prodigal can either enter into cransaccions assisted by his or her
21
curator or the curator can act on his or her behalf.
It must be remembered that a mentally ill person's incapacity to act is a result of his or
her mental illness and not of the court order declaring him or her to be mentally ill,
whereas an interdicted prodigal's capacity to act is restricted by the coun order and not by
a mental defect.Z"Z In Phil Markel Bpk v Niemand23 it was said that a prodigal's capacity to act
is curtailed because he or she lacks the necessary judgement to know which obligations he
or she should be party to, and not because he or she cannot take pan normally in the
creation of an obligation. In the case of interdicted prodigals and of mentally ill persons,
the pur pose of the restriction on their capacity to ace is protective, even though the reason for
the protection differs. In the case of an interdicted prodigal - as in the case of a minor - the
reason is the person's lack of judgement (onoordeelkundighei<I).
An interdicted prodigal's curator must honour transactions the prodigal validly con
cluded before being interdicted,"' because up till then the prodigal had full capacity to acL
If an interdicted prodigal enters into a legal transaction with a third party in disregard of
the court order interdicting him or her from dealing with his or her estate, he or she
may be prosecuted for contempt of court. lo respect of the validity of the particular
transaction the position is the same as in the case of a minor: the prodigal's curator
may ratify or repudiate it." If the transaction is ratified, it is binding. lf repudiated, the
other party must return whatever the interdicted prodigal has delivered or id,"
butmay hold the inter dicted prodigal liable on the basis of unjustified enrichment.

18 Grotius lnleidingt 1.11.4; Van der Keessel Prael,ction,s 1.11.4; Croenewegen 'J'raetmus 45.1.6; & Chmn
(1892) 9 SC 61; CiUit v Cillie 1938 CPD 513; Ex f,art.t klcLindm 1945 OPD 96; F.x parte Wilding 1953 (1) SA
633 (C); Delius vDelius 1960 (1) SA 270 (N).
I9 Voet Commmta,y on t/1, Pmuilrls 27.10.9; Phil Murlul Bpk v l\'iemand 1970 (3) SA 455 (C). On the position
of a minor, see ch 6 above.
20 Voet Commmlm)' on lht Pandms27.10.9; Phil Morlttl Bplt v l•,iemand 1970 (3) SA 455 (C).
21 Voet Commentary on th, Pantlects27. L0.9; Boezaart Persons 144; Cronje M IVSA vol 20 pan 1 Pm,,ns par 490;
De Wet and Van Wyk Kontraklereg en flmulelsreg 58; Hahlo and Kahn So111./J. Africa 387; Heaton in Van
Heerdcn d al (eds) Bo/Jerg's Law of Persons anti tht Family 153; Kruger and Skelton (eds) Pm,,ns I47; Olivier
and Denson in Barrau (ed.) Persons aiul the Family 106-107; W1ll,,'s Pri1uipl.es385.
22 Grotius lllkidinge 1.11.4; Voet Commmtar)' on the Paruk<ts 27.10.7; Phil M l Bplt v Ximand 1970 (3) SA
455 (C).
23 1970 (3) SA 455 (C).
24 Voet Commentmy on the Pande,ts27.10.7; Phil Morkel Bpk v Niemand 1970 (3) SA 455 (C).
25 S v B,;·m1968 (3) SA 70 (A).
26 Phil Morlul Bpk v Niemand 1970 (3) SA 455 (C); Boezaan P=ns 144; Bradfield Oiristu'< Law of Contrart
292; Cronje LAWSA vol 20 pan l Persons par 490; Heaton in Van Hcerden et al (eds) Bobn-g's Law of
Per sons rmd the Family 153, 154; Kruger and Skelton (eds) Persons 147; Van der Vy\'er and Joubert
Pnsmu,. en fomilimg 360; Wilk'.s Principles 385.
27 Heaton in Van Heerden tl al (eds) Boberg's Law of Ptrsons and the Family 154; Kruger and Skelton (eds)
Persons 148; Olivier and Denson in Barratt (ed.) Person.rand lht Family 107; Van der Vy,.-er and Joubert
Person en FamilinPg 361.
28 Bradfield Oiristit's Law of Contra<J 292; Cronje I.AWSA vol 20 part l Persons par 490; De \'os VtnJ·hings
aanspiuklikMid 96, 220; Heaton in \'an Heerdcn et al (eds) Boberg'.<Law of Persons and IM Famil; J54;
Kruger and Skelton (eds) Persons 148; Olivier and Denson in Barratt (ed.) Persons ,md /ht Family 107;
Van der Vyver and Joubert Pm,,n-t- m Familiereg 361. But see Du Plessis Unjustifitd Enrirhmt11l 85 who states
that the rcsticutionaryconsequences of a contract a prodigal concluded \\ithout the consent of hisor her
curator are unclear if the contract is repudiated by the curator.
142 The South African Law of Persons

If an interdicted prodigal misrepresenrs himself or herself as a person having full

capacity to act or as having his or her curator's consent, the question arises whether he or
she can be held contractually liable on the ground of that misrepresentation. Holding an
interdicted prodigal liable on the contract ,vould defeat the object of the interdict
prohibiting him or her from dealing v.rith his or her estate (just like holding a fraudulent
minor contractually liable would defeat the object of limiting the minor's capacity to act29)
and is therefore not supported.!-0
Although there was some controversy among Roman-Dutch writers on whether an inter
dicted prodigal may enter into a valid marriage without his or her curator's consent,"
modern South African writers are in agreement that the curator's consent is not necessary."'
The same should apply in respect of a civil union.
A prodigal's curator cannot make a will on behalf of the prodigal. Nor can the curacor
assist the prodigal in making one.'' Whether the prodigal has the capacity personally to
make a will is unclear. The common-law position seems to be that a prodigal can execute a
valid will provided that it benefirs his or her descendanrs or otherwise deals with his or her
property equitably.""' However, as the interdict deprives the prodigal of the power to make
any disposition of his or her prop rty whatsoever, it was considered safer to obtain permis
sion from the state to make a will.'" To what state body application had to be made was
not indicated. It seems that currently there is none in South Africa that can give the
necessary consent. In Ex parte F"" it was held that the Supreme Court (now the High
Court) does not have the power to consent to a prodigal's making a will. The enactment of
the Wills Act 7 of 1953 did not solve the problem, for the Act does nor clearly indicate
whether a prodigal has the capacity LO make a will. Section 4 permits "[e]very person"
above the age of 16 years to make a will unless, at the time of making the will, that person
is "mentally incapable of appreciating the nature and effect of his act". As a prodigal is
usually not "mentally incap able of appreciating the nature and effect of his act" it seems
that section 4 empowers him or her to make a \\ II in which he or she can, presumably, like
any other person who has the capacity to make a will, dispose of his or her property as he
or she likes.' In contrast, it may

29 On the liability of a minor who has committed a misrcprescntaciou, see ch 6 above.

30 See also Boezaart Persons 145; Heaton in Van Heerden et al (eds) &berg's Law of Persons and the Family154;
Kruger and Skelton (eds) Persons 148; Olivie1· and Denson in Banatl (ed.) Persvns antl the Family 107;
Van der Vyver and Joubert Persone- enFmniliereg362.
31 Voet Commenta,y on tJ,e Parukcts 23.I.3 and Kcrsteman Woorden-Boek 90 (sv "curatele") submit Lhat such
consent is required, while Brouwer De Jure Connubiamm l.4.18 (see also Van Bijnkershoek Obseroatioms
1iw1ult11ariae2.1536; Van Leeuwen Rwms-Holiaruls-Regt 4.2.3 fn (e)) advocates the opposite view.
32 Cronje LA\ Avol 20 pan l Persons par 490; Heaton in Van Heerden et al (eds) Boberg's Law of Persons<ind
the Family 155; Kruger and Skelton {eds) Persons 149;Joubert in Clark (ed.) Family Law &rvia: par A31;
Olivier and Denson in Barratt (ed.) Persons «nd the Family 107; Van der Vyver and Joubert Persone- en
Fami liereg 362; Wilk's Principks 385-386; Sonnekus 2009 TH.R.HR 139-140. See further Pienoar v
Pien.aar'sCura
tor 1930 OPD 171; Mitchell v Mitchell 1930 AD 217; Ex parte Hamer 1946 OPD 163. A prodigal's capacity
to marry is discussed in more detail in Heaton and Kruger Family Law ch 3.
33 Boezaart Pers<tns145; Cronje LAWSA vol 20 part I Persons par 490; Heaton in Van Heerden et al (eds)
Boberg's Law of Persons and the Family 158 fn 209; Kruger and Skelton (eds) Persoru 149; Oljvier and
Denson in Bar ratt (ed.) Persons and the Family 107-108; Spiro Parent.an,l Child 112; Van der Vyver and
Joubert Per.,;one-en Fa,nili.ereg 364.
34 See the authority referred to in Ex parte F1914 WLD 27; Phil Mamet Bpk v Niem.and 1970 (3) SA 455 (C)
458GH.
35 See Lhe discussion in ExparteFl914 WLD 27.
36 1914 WLD 27.
37 Cronje LAWSA vol 20 part l Persons par 490; De Waal et al LAVI vol 31 Wills and Sucussion par 273 fn 2;
Heaton in Van Heerden et aJ (eds) Boberg's Law of Persons. and the F1mily 158; Lee and Honore Family,
17,ings and Succession par 563 fn 2; Olivier and Denson in Barratt (ed.) Per.,;ons and the Family 108; Van
der Merwe and Rowland E,Jreg211.
Chapter 10: Prodigality 143
 144 The South African Law of Persons

be argued that section 4 has to be interpreted in light of the com on-law provisions equi
ing the prodigal's will to benefit his or her descendants or otherwise deal eqwtably with
38
Im or her property. The solution lies in enacting legislation which deprives an interdicted
prodigal of the capacity to make a will without the consent of the court (or the Master of
the High Cou.rt), and -at the s-ame time authorises the court (or the Master) to give such
59
consent, or legislation which provides that a prodigal's estate has to devolve according to
the rules of intestate succession. 0 However, such legislation would be premised on the
notion that placing limitations on a prodigal is constitutionally justifiable, which, it is sub
1
mitted, is doubtful.•
If the arguments in Phil Markel Bph v Niemand '2 are applied consistently, a will the prod igal
executed before being interdicted as a prodigal remains valid because the prodigal had the
required capacity to act when the will was executed.
An interdicted prodigal retains parental responsibilities and rights in respect of his or
her child.·'5 This means, inter alia, that a prodigal can consent to his or her child's maniage
without obtaining his or her curator's consent'' and, incongruously, apparently retains
conu·ol of the child's estate.'5

10.4 Capacity to litigate

In principle, an interdicted prodigal may not embark on litigation without his or her
curator's consent because, through such litigation, he or she might incur liability for costs
which would lead to a disposition of his or her estate and would therefore be in breach of
the interdict prohibiting him or her from administering his or her estate.'16 An interdicted
prodigal may, however, sue unassisted for diyorce, and for an order to have his or her
curator dismissed or the curatorship set aside!'

10.5 Capacity to be held accountable for crimes and delicts

Prodigality and an order interdicting a prodigal from administering his or her estate do not
affect the prodigal's capacity to be held accountable for crimes and delicts he or she com
mits.•R

38 Beinan 1953 SALJ283 294 doubts whether the Wills Act affords a prodigal 1.he capacity to make a will.
39 Cronje LA'WSA vol 20 part 1 Persons par 490; Heaton in Van Hcerdcn et al (eds) Boberg's L1iw of Persons
and
tlui Family L58.
40 Boezaart Persons 145; Van derVyver and Joubert Persnne-en Fa111iliereg364.
41 The constiLUtionality of the limitations is discussed below in this chapter.
12 1970(3)SA455(C).
43 Phil MIJl'kel 8/>k u Niemand 1970 (3) SA 455 (C); Boczaarl Persom145; Cronje LAl-v.iA vol 20 part I Pmons
par 490; Heaton in Van Heerden et nl (eds) Boberg'.1 uiw of Perso1u mul the Family 157; Kruger and
Skelton (eds) Persons 149; Olivier and Denson in Barratt (ed.) Perso1 1 and the Family 107;
Wilie'sPrinciples385.
44 Boezaart Persons 145; Cronje f,A WSA vol 20 part l Persons par 490; Hahlo Hmband and Wife 92; Heaton
in Van Hecrden et al (eds) Boberg's Law of Pmmis and t/u,Family 157 fn 203; Kruger and Skelton (eds)
Pe, ons 149; Olivier and Denson in Barratt (ed.) Persons and the fomily 107.
45 Boezaarl Persons 145-146; Cronje LAWSA vol 20 part l Persons par 490; Heaton in Van Heerden et al
(eds) Boberg's I.aw of Pewms aiul the Family 157 fn 203; Kruger and Skelton (eds) Pei:so11s 149; Olivier
and Denson in Barratt (ed.) Persons and the Family 107.
46 Heaton in Van Hecrden el al (eds) JJobcrg's Law of Pewms and the Family 157 fn 204; Kruger and
Skelton (eds) Personi 149. This explanation was originally put forward by Boberg (Persons mid the
fomily 179 fn 90). But see Van dcr Vyver and Jouberl Persont- en fomiliereg 364 and Wil/e'.s
P1·incifiles385 who suggest that an interdicted prodigal may litigate unassisted.
47 Ribbe1u v Ribbem 1965 I PH115 (T).
48 Voet Cmmnentrll)' 011 the Pa,u/eel.J 27.10.9; Boczaart Person.i 116; Cronje LA A vol 20 part 1 Per.was par
190; Heaton in Van Heerden ,t 11/ (eds) Bobei-g's Law of Pcrs01 1 rmd the Family 156-157; Kruger and
Skelton (eds) Personi 149; Olivier ,1nd Denson in Barratt (ed.) Persons a11rl the Family 109; Van der
Vyvcr and Jou bcrt Pe1!011e- m fo.mili11rr,g 364-365; WiUe's Principks 385 fn 149.
144 The South African Law of
Persons
10.6 Constitutional implications of interdiction as a prodigal
It is submitted that the limitations placed on interdicted prodigals are unconstitutional.
The interdict preventing the prodiJsal from administering his or her estate infringes his or
49 5
her rights to dignity and privacy. It might be argued that the infringement is reasonable
and justifiable in the case of a prodigal with dependants to support, as society is justified
in
requiring a person who has dependants "to conform to socially acceptable sp<;nding pat
terns lest his dependants become a charge upon society through his profligacy":' However,
distinguishing between prodigals with dependants and those without dependants fal s foul
of the right to equality before the law and equal protection and benefit of the law:' It is
submitted that the duty of support is an insufficient justification for the infringement of
the prodigal's constitutional rights and that the limitations placed on all prodigals are
unconsti tutional.53

49 S 10 of the Constitution of the Republic of South Africa, 1996.

50 S 14 of the Constitution.
51 This view was advanced by Boberg in 1977 already as a general justification for the imposition of limita
tions on the status of an interdicted prodigal: Boberg Persons and the Family 180.
52 S 9( 1) of the Constitution.
53 See further Cockrell Bill of Rights ComfJeiulium par 3E35; Heaton in Van Heerden et al (eds) Boberg's Law
of Pet-sons and the Family 157 fn 203. See also Boezaart Persons 142 fn 120.
 INSOLVENCY

11.1 Introduction
A person is insolvent if his or her liabilities exceed his or her assets (in other words, when he
or she has more debts than assets). If the person's estate is sequestrated by the High Court as
a result of this state of affairs, the sequestration affects the person's legal capacity, capacity to
act and capacity to litigate. The limitations that are imposed on the insolvent do not have the
object of punishing him or her but of protecting others.1
When a person is declared insolvent and his or her estate is sequestrated, he or she is
divested of the estate, which then vests in the Master of the High Court until such time as
a trustee is appointed. When the trustee is appointed the insolvent estate vests in the
trustee.' In the case of spouses or civil union partners whose marriage or civil union is
subject to community of property, the joint estate is sequestrated and both of the spouses
or civil union partners are rendered insolvent by the sequestration order.' Even if the order
refers only to sequestrating the joinl estate, all assets of both of the spouses or civil union
partners fall into the insolvent estate. This applies even to property which is excluded
4
from the joint estate.
In general all property the insolvent acquires during insolvency also vests in the
insolvent estate.5 Some assets do, however, fall outside the insolvent estate. They include:
(1) Earnings the Master of the High Court has allowed the insolvent to keep for his or
her own and his or her dependants' support.6

Because protection of the public is the rationale for the disabilities and disqualifications imposed on the
insolvent, the limitations on the insolvent's rights do not violate the Bill of Rights: Boezaart Persons 148
fn 168; Cockrell Bill of Rights unnpendium par 3E36; Heaton in Van Heerden et al (eds) Boberg's Law of
Persons and tlie Family 219 fn 60. Sec also Podlas v Cohen and Bry·den 1994 (3) BCLR 137 (T), 1994 (4)
SA
662 (T).
2 Insolvency Act 24 of 1936 s 20(1)(ci). Some years ago, moves were afoot to replace the Insolvency AcL
After an investigation lasting more than a decade, the South African Law Commission published a /<eflort
on the Review of the Law of fosolvmcy Project 63 in 2000. Vol 2 of the report contains a draft Insolvency Bill
which embodies the Commission's recommendations on tJ1e reform of our insolvency law. The Bill has
not yet been tabled in Parliament.
3 See e.g. DeWet v jurgms 1970 (3) SA 38 (A); Ba.denlwrsl v Bekker 1994 (2) SA 155 (N); Du Plessis v Pie-
naar [2002) 4All SA311 (SCA), 2003 (1) SA671 (SCA); VogetvKleynha11s2003 (2) SA148 (C). In
thecaseofa maniage out of community of property, the solvent spouse's property vests in the trustee as if
the property were part of the insolvent. estate, and the trustee has the power to deal with the property as
if it were pan
of the insolvent estate: Insolvency Acts 21(1). However, the solvent spouse is not prohibited from deal
ing with his or her property. If he or she alienates his or her property, the alienation is valid unless, and
until, the trustee of the insolvent estate successfully attacks it: Mot,al,a v Moller 2014 (6) SA 223 (GJ).
S 21(13) of the Insolvency Act includes a heterosexual life partner in the definition of a spouse. How
eve,·, if an insolvent life partner is still legally married, it is his or her spouse's estate - and not that of
his or her life partner- which vests in the Master and trustee: cJiaplin v Gregory 1950 (3) SA 555 (C).
4 Bade11horst v Bek/u,,-1994 (2) SA 155 (N); Du P/&5.fis v Piennar(2002] 4 All SA 311 (SCA), 2003 (l) SA 671
(SCA).
5 Insolvency Acts 20(2)(h).
6 Insolvency Acts 23(5).
146 The South African Law of
Persons
145
146 The South African Law of
Persons
(2) 7

(3)
Pension money.
Compensation the insolvent receives for loss or damage as a result of defamation or
(4) personal injury.8
Certain personal belongings such as clothes, bedding, household furniture, tools and
9
(5) other essential means of subsistence.
Certain life insurance policies.10

11.2 Legal capacity

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

11.3 Capacity to act

Even though the trustee of an insolvent estate administers the estate this does not mean
that the insolvent loses all capacity to act. The insolvent may still enter into contracts,
provided that he or she does not thereby purport to dispose of property of the insolvent
estate." However, the insolvent needs the written consent of the trustee to enter into a
conu-act which adversely affects or is likely to adversely affect the insolvent estate.I< The
insolvent also needs the trustee's consent to carry on, be employe in or have any interest
in the business of a trader who is a general dealer or manufacrurer.1>
If the insolvent enters into a contract in breach of these provisions, the contract is never
theless valid if the following requirements are met:
(1) The property the insolvent disposed of was acquired after sequestration.
(2) The disposition was for valuable consideration.
(3) The person with whom the insolvent transacted was unaware and had no reason to
suspect that the estate was under sequestration.16
17
Other contracts in breach of the limitations are voidable at the instance of the trustee.

11.4 Capacity to litigate

18
The insolvent does not lose all capacity to litigate when his or her estate is sequestrated.
Upon sequestration, all civil proceedings by or against the insolvent are stayed until a
19
trustee is appointed to act on behalf of the insolvent estate. Once a uustee has been

7 Insolvenc.-y Acts 23(7).

8 Insolvency Acts 23(8).
9 Insolvency Acts 82(6). The insolvent's household furniture, tools and other essential means of subsistence
are excluded only to the extent that his or her creditors or the Master of the High C.ourt allow him or her to
keep them for personal use.
10 Long-term Insurance Act 52 ofl998 s 63(1).
11 Companies Act 71 of 2008 s 69(8) (b) (i) and Mutual Banks Act 124 of 1993s 38(b)(i), respectively.
12 Insolvency Act ss 55(a) and 58(a).
13 Insolvency Acts 23(2).
14 Ibid.
15 Insolvency Acts 23(3). If the trustee refuses consent, the insolvent may appeal to the Master of the
High Court.
16 Insolvency Acts 24(1).
17 WL Ca,roll & Co v Ray Hall Motors (Ply) Ltd 1972 (4) SA 728 (T).
18 See e.g. Grevlel' " Landsdown 1991 (3) SA 175 (T); Marais v Engl.er f'A1thworks (Pty) Ltd; Engler
Ear/hWQrns (Pty) Ltd v Nfo,·ais 1998 (2) SA 450 (E); Vogel v Kley,ihans 2003 (2) SA 148 (C).
19 Insolvency Acts 20(l)(b).
 Chapter 11: Insolvency 147

appointed, the trustee institutes claims on behalf of the insolvent estate and defends
claims instituted against it.20 In respect of claims that do not relate to the insolvent estate,
the insolvent retains locus standi in iudicio. The insolvent may, in particular, in his or her
own name and without the trustee's consent or cooperation, sue or be sued in respect of:
(1) Any matter relating to his or her status or any right in so far as it does not affect the
21
insolvent estate.
(2) Any claims arising from contracts concluded after sequestration that are not detri
mental to the insolvent estate.22
(3) Any claims to recover a pension to which he or she is entitled.tt
(4) Actions for compensation in respect of defamation or personal mJury he or she
suffered. The insolvent must, however, have the court's consent to institute an action
against the trustee of the insolvent estate on the ground of malicious prosecution or
defamation."
(5) Remuneration for work done or professional services rendered by the insolvent or
on his or her behalf after sequestration."
(6)
Actions against the insolvent for any delict he or she committed after sequestration."6
(7)
Actions to recover property or institute a claim in favour of the insolvent estate
should the trustee refuse, neglect or decline to do so.27
(8)
Actions against the trustee of the insolvent estate for maladministration or improper
disposal of assets of the insolvent estate or the improper recognition of obligations to
the detriment of the insolvent estate.28
If the insolvent embarks upon unnecessary litigation, the court may order the insolvent to
provide security for his or her opponent's costs before proceeding. However, the mere
fact that someone is insolvent does not warrant an order for security for costs against him
29
or her.

11.5 Capacity to be held accountable for crimes and delicts

Insolvency does not affect the insolvent's capacity to be held accountable for crimes and
delicts. However, if the insolvent commits a delict after sequestration, the compensation
must be paid out of those assets the insolvent acquired after sequestration that fall outside
the insolvent estate.30

20 Mears v Rissik, Mackmzie and Mears· Trus'-ee 1905 TS 303; Mulaw/.zi v Old Mutual Assuranc.e Gnnpan)' (Scuth
Africa) Ltd; National Director of Public Pn,secutions v Mulatulzi [2017] 3 All SA 520 (SCA), 2017 (6) SA 90
(SCA).
21 Insolvency Acts 23(6).
22 Insolvency Acts 23(6) read \\ th s 23(2).
23 Insolvency Acts 23(7).
24 Insolvency Acts 23(8).
25 Insolvency Act s 23(9). This is subject to s 23(5), which entitles the trustee to claim so much of the
insolvent's earnings as the Master of the High C.Ourt determines is not required for the support of
the insolvent and his or her dependants.
26 Insolvency Acts 23(10).
27 The insolvent has locus standi in iudicio in respect of these matters because he or she retains a reversion
ary interest in his or her insolvent estate: see e.g. Mea,·s v Rissik, Mackenzie and .Mears' Trustee 1905 TS 303;
Nieuwoudt v The Master1988 (4) SA 513 (A); Vogel v Kl.rynhans2003 (2) SA 148 (C).
28 Ecker vDean 1938 AD 102; Grev/er v l.andsdcwn 1991 (3) SA175 (T).
29 See e.g. Ed,ervDcan 1938AD 102; HobsonvAbibl98l (1)SA556 (N).
30 Insolvency Acts 23(10).
148 The South African Law of
Persons
11.6 Rehabilitation
The legal limitations sequestration places on the capacity of an insolvent person come to
an end when he or she is rehabilitated by an order of the High Court" or once ten years
have elapsed since the sequestration.32 Rehabilitation also discharges all debts the insolvent
incurred prior to sequestration.ssIt is the insolvent - not his or her estate - who is rehabili
34
tated. Consequently, the estate of a person who died while insolvent cannot be rehabili
35
tated.

31 Insolvency Acts 129(1). Rehabilitation may be subject to conditions: s 127(2). The court has a
discretion either to grant or to refuse the application for rehabilitation: Ex part.eFoum (2008) 4 All
SA350 (D).
32 Insolvency Acts 127A(l).
33 Insolvency Acts 129(1)(b).
34 Acar" Pi,..,.r.e1986 (2) SA 827 (W); Vengadesan NO 1.1 Shaik 2014 (3) SA 14 (KZD).
35 Vengadesan NO" Shail< 2014 (3) SA 14 (KZD); Sharrock LAWSA vol 11 Insolvency par 353 fn 1. But see
Ex pa,te Estate Cane 1931 (1) PH C6; Ex part.e Estate Swailes' Executnrs 1938 CPD 9; Ex parte Feinherg's
Ex.ecuuns 1907 TS 960; Ex parte Moolman NO1943 TPD 258; Ex parte Van Driel's Estate1934 TPD 137;
MO<Jdky NO" MilneNOl965 (1) SA 154 (D).
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 TABLE OF CASES

Page
A
AvC 1986 (4) SA227 (C).............................................................................................................60
AB, Ex parte 1910 TPD 1332......................................................................................................123
AB v Minister of Social Development 2017 (3) BCLR 267 (CC),
2017 (3) SA570 (CC).......................................................................................................6,52,53
Acar v Pierce 1986 (2) SA 827 (W)..............................................................................................148
Ahmed v Coovadia 1944 TPD 364......................................................................................116, 117
Alam v Minister of Home Affairs 2012 (5) SA 626 (ECP)....................................................43, 45
Alexander, Ex parte 1956 (2) SA 608 (A)..................................................................................29
Alexkor Ltd v The Richtersveld Community 2003 (12) BCLR 1301 (CC),
2004 (5) SA 460 (CC)....................................................................................................................5
Amalgamated Engineering Union v Minister of Labour 1965 (4) SA94 (W)........................... 4
Ambaker v African Meat Co 1927 CPD 326......................................................................116, 117
APDOL v Road Accident Fund 2013 (2) SA 287 (GNP)...........................................................114
Arse v Minister of Home Affairs 2012 (4) SA 544 (SCA)............................................................43
AS v CS 2011 (2) SA 360 (WCC)....................................................................................................40
Atkin v Estate Bowmer 1913 CPD 505..........................................................................................59
Auret v Hind (1884) 4 EDC 283....................................................................................................96

B
B v E 1992 (3) SA 438 (T)..............................................................................................................57
B v P 1991 (4) SA 113 (T)..............................................................................................................76
BvS 1995 (3) SA571 (A).............................................................................................................76
Baddeley v Clarke (1923) 44 NLR 306....................................................................95, 96, 98, 103
Badenhorst v Bekker 1994 (2) SA 155 (N).................................................................................145
Baker v Baker 1945 AD 708............................................................................................................45
Balsillie et Uxor, Ex parte 1928 CPD 218.....................................................................................19
Barclays National Bank Ltd, Ex parte 1972 (4) SA 667 (N)........................................................15
Barnard v Miller [1963) l All SA 560 (C), 1963 (4) SA 426 (C)..............................................69
Barnes v Hayward 1944 CPD 203.................................................................................................121
Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism
2004 (7) BCLR687 (CC), 2004 (4) SA490 (CC)....................................................................5
Beaglehole, Re 1908TS 49............................................................................................................29
Becker, Ex parte 1943 CPD 164...................................................................................................134
Bell, Ex parte 1953 (2) SA 702 (0).....................................................................................134, 135
Berger v Aiken 1964 (2) SA 396 (W)....................................................................................31, 32
Berman: In re Estate Dhlamini, Ex parte 1954 (2) SA 386 (vV)....................................134, 135
Berning v Berning 1942 1 PH B26 (W)....................................................................................115
Beny: In re Berry, Ex parte 1961 (4) SA 79 (D)........................................................................135
Bethell v Bland 1996 (2) SA I94 (W)...........................................................................................76
Blieden, Ex parte 1965 (1) SA 474 (W)........................................................................................15
Blignaut, Ex parte 1963 (4) SA 36 (0)..........................................................................................96
Bloy, Ex parte 1984 (2) SA410 (D)...........................................................................................113
153
154 The South African Law of
Persons
Page
Boedel Steenkamp, Ex parte 1962 (3) SA 954 (0).....................................................................13
Booysen, In re 1880 Foord 187...............................................................................................28, 31
Bosch v Tilley 1908 ORC 27.......................................................................................................117
Botha v Rich 2014 (7) BCLR 741 (CC), 2014 (4) SA 124 (CC)...................................................6
Botha v Thompson 1936 CPD l.....................................................................................................13
Bothma v Bothma 1940 (1) PH B9 (0).........................................................................................46
BRvLS2018 (5) SA308 (KZD)...................................................................................................73
BR v TM; In re: LR [2015] 4All SA 280 (GJ), 2016 (3) SA 417 (GJ)......................................56
Breytenbach v Frankel 1913AD 390..........................................................................100, 104, 105
ButtarvAult 1950 (4) SA229 (T)...........................................................................................91, 92

C
Cachet, In re (1898) 15 SC 5.....................................................................................................115
Cairncross v De Vos (1876) 6 Buch 5.................................................................................116, 117
Carelse v Estate De Vries (1906) 23 SC 532................................................................................69
Carvalho v Carvalho 1936 SR 219.................................................................................................46
Central Authority v TK 2015 (5) SA 408 (GJ).............................................................................43
Centre for Child Law v Director-General: Department of Home Affairs
[2020] 4 All SA 76 (ECG), 2020 (8) BCLR 1015 (ECG), 2020 (6) SA 199 (ECG)................8
Centre for Child Law v Director-General: Department of Home Affairs
(2021] ZACC 31.........................................................................................................................8, 9
Chaplin v Gregory 1950 (3) SA555 (C)......................................................................................145
Chinatex Oriental Trading Co v Erskine 1998 (4) SA 1087 (C).................................43, 44, 45
Chisholm v East Rand Proprietary Mines Ltd 1909 TH 297......................................................16
Chodos, Ex pane 1948 (4) SA 221 (N).......................................................................................32
Christian Lawyers Association of South Africa v The Minister of Health
(Reproductive Health Alliance as Amicus Curiae 2005 (1) SA 509 (T)
(also reported as Christian Lawyers' Association v Minister of Health
[2004] 4 All SA 31 (T), 2004 (10) BCLR 1086 (T))...............................................5, 21, 23, 24
Christian League of Southern Africa v Rall 1981 (2) SA 821 (0).......................6, 12, 17, 23, 26
Cillie v Cillie 1938 CPD 513................................................................................................139, 141
CJD, Ex pane 2018 (3) SA 197 (GP).............................................................................................52
Clarke v Hurst 1992 (4) SA 630 (D)..........................................................................................124
CM v NG [2012] 3 All SA 104 (WCC), 2012 (4) SA 452 (WCC).......................................76, 77
Coeczee v Singh 1996 (3) SA 153 (D)..........................................................................................76
Cohen v Sytner (1897) 14 SC 13...............................................................................108, l15, ll7
Commissioner for Inland Revenue v Friedman 1993 (1) SA 353 (A)......................................4
Confirmation of Three Surrogate Motherhood Agreements, In re 2011 (6) SA 22 (GSJ)..52
Crookes v Watson 1956 (1) SA 277 (A).........................................................................................19
Curling, Ex parte 1952 1 PH Ml3 (C).......................................................................................115
Cuthbert, In re 1932 NPD 615...............................................................................................29, 31

D
D v K 1997 (2) BCLR 209 (N)................................................................................................64, 65
Dama v Bera 1910 TPD 928................................................................................................116, 117
Daniels v Campbell 2004 (7) BCLR 735 (CC), 2004 (5) SA 331 (CC)........................................6
Davids, Ex parte 1948 (1) SA 1018 (W).................................................................................30, 31
De Beerv Estate De Beer 1916 CPD 125................................................................................93, 96
De Beer v Sergeant 1976 (1) SA 246 (T)...........................................................................92, 113
De Bruin, Ex pane 1946 OPD 110.............................................................................................136
De.Jager, Exparte 1950 (4) SA 583 (E)........................................................................................14
De Klerk, Ex pane 1968 (4) SA 130 (C)...................................................................................134
De Villiers, Ex parte 1943 v\lLD 56..............................................................................................134
 Table of cases 155

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De Villiers, Ex parte 1976 (4) SA 576 (0)..................................................................................135
DeVilliersvEspach 1958 (3) SA91 (T)....................................................................121, 124,136
DeVos v Die Ringskommissie van die NGK1952 (2) SA 83 (0)..................................................4
De Wet v Bouwer 1919 CPD 43..................................................................................................104
De Wet vJurgens 1970 (3) SA 38 (A).......................................................................................145
De Winnaar, Ex parte 1959 (1) SA 837 (N)........................................................................14, 15
DeliusvDelius 1960 (1) SA270 (N)..........................................................................139, 140,141
Dempers and Van Ryneveld v SA Mutual Co (1908) 25 SC 162...............................................29
Derksen, Ex parte 1960 (1) SA 380 (N).............................................................................135, 137
Dhanabakium v Subramanian 1943AD 160............................................................67, 92, 95, 112
Dickens v Daley 1956 (2) SA 11 (N)..................................................................................116, 117
Director of Public Prosecutions, Transvaal v Minister ofJustice and Constitutional
Development 2009 (7) BCLR 637 (CC), 2009 (4) SA 222 (CC)..............................................6
Dixie, Ex pane 1950 (4) SA 748 (W)...............................................................................122, 124
Docrat v Bhayat 1932 TPD 125.....................................................................................................67
Donelly, Ex parte 1915 WLD 29.............................................................................................41, 42
Donovan v Rowbotham (1905) 19 EDC 38...............................................................................137
Dorward, Ex pane 1933 NPD 17.................................................................................................29
DrakensbergpersBpkvSharpe 1963 (4) SA615 (N)..................................................................44
Dreyer v Sonop Bpk 1951 (2) SA 392 (0)....................................................................................97
Du Plessis v Pienaar [2002) 4 All SA 311 (SCA), 2003 (1) SA 671 (SCA)............................145
Du Plessis v Strauss 1988 (2) SA 105 (A)..................................................................................124
Du Toit: In re Curatorship Estate Schwab, Ex parte 1968 (1) SA 33 (T)............123, 134, 139
Du Toit v Lotriet 1918 OPD 99................................................93, 95, 96, 98, 100, 103, 104, 106
Dube v Road Accident Fund 2014 (1) SA 577 (GSJ)...............................................................112

E
Ev E 1940 TPD 333........................................................................................................................62
Ecker v Dean 1938 AD 102..........................................................................................................147
Edelstein v Edelstein 1952 (3) SA 1 (A).......................40, 92, 93, 94, 95, 99, 100, 103, 104, 105
Eerste Nasionale Bank van Suidelike Afrika Bpk v Saayman
1997 (4) SA302 (SCA)....................................................................................................119, 136
Eilon v Eilon 1965 (1) SA 703 (A).........................................................................................41, 44
Engelbrecht, Ex parte 1956 (1) SA 408 (E)................................................................................29
Erskine v Chinatex Oriental Trading Co 2001 (1) SA 817 (C)...............................................44
Eskom Holdings Ltd v Hendriks 2005 (5) SA 503 (SCA).....................................................113
Estate Baker v Estate Baker (1908) 25 SC 234............................................................................39
Estate Cane, Ex parte 1931 (1) PH C6.......................................................................................148
Estate Lewis v EstateJackson (1905) 22 SC 73...........................................................................13
Estate Rehne v Rehne 1930 OPD 80...........................................................................................119
Estate Russell, Ex parte 1926 WLD 118.................................................................................29, 30
Estate Swaites' Executors, Ex pane 1938 CPD 9.......................................................................148
Estate Van Schalkwyk, Ex parte 1927 CPD 268........................................................................115
Estate Watkins-Pitchford v Commissioner for Inland Revenue 1955 (2) SA 437 (A)...........123
Ewing: In re Sheridan, Ex parte 1995 (4) SA 101 (0).............................................................134

F
F, Exparte 1914WLD 27.............................................................................................................142
Fv L 1987 (4) SA 525 CW) (also reported as D v L 1990 (1) SA 894 (W)).........57, 60, 67, 69
FB v MB 2012 (2) SA 394 (GSJ)...................................................................................................89
Feinberg's Executors, Ex parte 1907 TS 960............................................................................l 48
Ferguson v Road Accident Fund unreported, Nv\lHC case no 1073/2012, 7July 2014..........123
Fillis vJoubert Park Private Hospital (Pty) Ltd 1939 TPD 234..................................................98
FinlayvKutoane 1993 (4) SA675 (W).........................................................................................34
156 The South African Law of
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Fish Hoek Primary School v GW 2010 (2) SA 141 (SCA).........................................................74
Fish Hoek Primary School v Welcome 2009 (3) SA 36 (C).......................................................74
Fitzgerald v Green 1911 EDL 432....................................................................................56, 59, 60
Fortoen, Ex parte 1938WLD 62...................................................................................................97
Fouche v Battenhausen & Co 1939 CPD 228...............................96, 97, 98, 100, 102, 103, 105
Fouchee v De Villiers (1883) 3 EDC 147...................................................................................103
Fourie, Ex parte [2008] 4 All SA 350 (D)...................................................................................148
Fourie v Minister of Home Affairs 2005 (3) BCLR 241 (SCA), 2005 (3) SA 429 (SCA).........40
Fozard v Fozard 1923 CPD 62.......................................................................................................46
Francescutti v Francescutti; Ex parte Francescutti 2005 (2) SA 442 (W)........................134, 136
Frankel's Estate v The Master 1950 (1) SA 220 (A)...................................................................39
Friedman v Glicksman 1996 (1) SA 1134 (W)......................................................................17, 19
FS v.IT 2011 (3) SA 126 (SCA)................................................................................................72, 87
Futter, In re Walter v Road Accident Fund, Ex parte
unreported, ECPE case no 2422/2008, 17 August 2012.....................................................123

G
G v Superintendent, Groote Schuur Hospital 1993 (2) SA 255 (C).......................................23
Gabavana v Mbete [2000] 3 All SA 561 (Tk)...............................................................................33
Gantz vWagenaar (1828) 1 Menz 92..........................................................................................103
GC Rens, In re (1844) 3 Menz 100.............................................................................................. 134
Geldenhuys, Ex parte 1941 CPD 243..................................................................................134, 135
Gerdener, Ex parte 1933 CPD 29................................................................................................29
Gin v S 1966 (2) PH H335 (E).....................................................................................................60
Glass et Uxor, Ex parte 1948 (4) SA 379 (W)..............................................................................45
Gliksman v Talekinsky 1955 (4) SA 468 (W)...............................................................................69
GM v KI 2015 (3) SA 62 (GJ).........................................................................................................71
Godfrey v Campbell 1997 (1) SA 570 (C)....................................................................................92
Goldman, Ex parte 1960 (1) SA89 (D).....................................................................................112
Gonsalves v Gonsalves 1985 (3) SA 507 (T)..........................................................................33, 34
Goodman v Pritchard (1907) 28 NLR 227...............................................................................137
Govender, Ex parte 1993 (3) SA 721 (D)...................................................................................29
Gqamane v The Multilateral Motor Vehicle Accidents Fund [1999) 3 All SA 683 (SE)........122
Gradidge v Gradidge 1948 (1) SA 120 (D).................................................................................59
Graham, Ex parte 1963 (4) SA 145 (D) ...........................................,..........................................32
Grand P1ix Motors WP (Pty) Ltd v Swart 1976 (3) SA 221 (C)..................93, 95, 100, 116, 117
Grevler v Landsdown 1991 (3) SA 175 (T)........................................................................146, 147
Greyling v Greyling 1978 (2) SA 114 (T)......................................................................................32
Grindal v G1indal 1997 (4) SA 137 (C)..................................................................................42, 43
Grobler v Potgieter 1954 (2) SA 188 (0).....................................................................................113
Groencwald v Rex 1907 TS 47....................................................................................................103

H
Halbert, Ex parte 1912 EDL 167..................................................................................................31
Hamer, Ex parte 1946 OPD 163........................................................................................135, 142
Hardie vJansen unreported, WCC case no 19339/2014, 30July 2016.................................119
Harvey v Reed 1879 OFS 48.........................................................................................................106
Heard, Ex parte 1947 (1) SA 236 (C)..........................................................................................29
Henning's Executor v The Master (1885) 3 SC 235..................................................................46
Hill, Ex parte 1970 (3) SA 411 (C)...................................................................................124, 134
Hobson v Abib 1981 (1) SA556 (N).........................................................................................147
Hodgen, Ex parte 1955 (1) SA 371 (D)....................................................................................113
HollowayvStander 1969 (3) SA291 (A).....................................................................................58
Hopkins v Estate Smith 1920 CPD 558.........................................................................................13
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HPP, Ex parte; Ex parte DME (2017] 2 All SA 171 (GP) (also reported as
Ex parte HP 2017 (4) SA 528 (GP))..................................................................................52, 53
Hudson v Price 1933 CPD 367...........................................................................................124, 134
Hulett, Ex parte 1968 (4) SA 172 (D)..............................................................................123, 139
Hulton, Ex parte 1954 (1) SA 460 (C)........................................................................................91
Human, Ex parte 1948 (1) SA 1022 (0)....................................................................................122
Human v Human 1975 (2) SA 251 (E).......................................................................................33
Hutchison's Executor v The Master (Natal) 1919 AD 71.........................................................42

I
Iv C unreported, KZDHC case no 11137/2013, 4 April 2014...................................................71
Iv S 2000 (2) SA 993 (C)·•••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••76
Investigating Directorate: Serious Economic Offences v Hyundai Motor Distributors
(Pty) Ltd: in re Hyundai Motor Distributors (Pty) Ltd v Smit 2001 (1) SA 545 (CC)...........6

J
J v Director General, Department of Home Affairs 2003 (5) BCLR 463 (CC)........................51
J vJ 2008 (6) SA 30 (C)...................................................................................................................80
J Rensburgh, In re (1835) 3 Menz 99..........................................................................................134
Jacobs, Ex parte 1936 OPD 31.....................................................................................................69
Jacobs, Ex parte 1950 (1) SA 129 (T)...........................................................................................14
Jacobs, Ex parte 1965 (3) SA 270 (C).......................................................................................134
James, Ex parte 1947 (2) SA 1125 (T)........................................................................................29
JC Vogel & Co vWA Greentley (1903) 24 NLR 252........................................100, 101, 102, 103
Jones, Ex parte 1943 WLD 134....................................................................................................134
Jones v Santam Bpk 1965 (2) SA 542 (A)..................................................................................92
Judin vWedgwood 2003 (5) SA472 (W).........................................................119, 123,133,135
.JY, In re 2016 (1) SACR 399 (KZP)............................................................................................129
K
Kv M [2007] 4 All SA 883 (E).......................................................................................................64
Kaiser, Ex pa1te 1902 TH 165........................................................................................................39
Kakuva v Minister van Polisie 1983 (2) SA 684 (SWA)...............................................................28
Kannemeyer: Ex parte Kannemeyer, In re (1899) 16 SC 407.............................................30, 31
Keeve, Ex parte 1929 OPD 19......................................................................................................117
Kerkhof, Ex parte 1924 TPD 711...................................................................................................31
KF, Ex parte 2019 (2) SA 510 (GJ)...............................................................................................52
Kirby, In re (1899) 16 SC 245........................................................................................................29
Klopper: In re Klopper, Ex parte 1961 (3) SA 803 (T).............................................................133
KLVC v SDI [2015] 1 All SA 532 (SCA)...............................................................................71, 72
Kotze v Santam Insurance Ltd 1994 (1) SA 237 (C).................................................................124
Kramer v Findlay's Executors (1878) 8 Buch 51..........................................................................69
Krasin v Ogle [1997] 1 All SA 557 (W)........................................................................................76
Kruger, Ex parte 1976 (1) SA 609 (0)..........................................................................................15
Kuhr, Ex parte 1940 CPD 327.....................................................................................................134

L
Labistour, In re 1908 l\TLR 227......................................................................................................29
LambvSack 1974 (2) SA670 (T).................................................................................................67
Land and Agricultural Bank of South Africa v Parker 2005 (2) SA 77 (SCA)............................4
Lange v Lange 1945 AD 332...............................................................................................l 19, 120
Le Grange v Mostert (1909) 26 SC 321......................................................................................116
Lenferna v Lenfema unreported, SCA case no 120/13, 2 December 2013..........................40
158 The South African Law of
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Lennon Ltd, Ex parte 1929 WLD 195......................................................................................134
Levin v Mechanich 1931 EDL 32.......................................................................................119, 121
Leviny v Leviny (1908) 25 SC 173...............................................................................................41
Lloyd v Menzies [1956) 2 All SA 155 (D), 1956 (2) SA 97 (D)................................................69
LM v GK 2013JDR 0918 (GSJ)....................................................................................................83
Lockwood v Lockwood 1935 EDL l...................................................................................139, 140
Louvis v Diconomos 1917 TPD 465................................................................................................4
Louw, Ex parte 1972 (1) SA 551 (0)................................................................................................... 15
Louw v & H Trust (Pty) Ltd 1975 (4) SA 268 (T)..................93, 95, 100, 101, 102, 103, 105
LS v AT 2001 (2) BCLR 152 (CC) (also reported as Sonderup v Tondelli
2001 (1) SA 1171 (CC))..............................................................................................................66
Luhn, Ex parte 1935 EDL 40.....................................................................................................134
Lupacchini v Minister of Safety and Security [2011) 1 All SA 138 (SCA).................................4

M
MvM 1962 (2) SA114 (GW).......................................................................................................49
M v R 1989 (1) SA 416 (0)................................................................................................ 61, 63, 64, 65
M v S (Centre for Child Law Amicus Curiae) 2007 (12) BCLR 1312 (CC)
(also reported as S v M (Centre for Child Law as Amicus Curiae
2008 (3) SA 232 (CC), 2007 (2) SACR 539 (CC))......................................................64, 66, 86
M vV (Born N) [20ll)JOL 27045 (WCC)....................................................................55, 72, 80
MabulavThys 1993 (4) SA 701 (SEC).......................................................................................33
Macdonald v Stander 1935 AD 325.............................................................................................60
Mackay v Ballot 1921 TPD 430....................................................................................................58
Maclean, Ex pane 1968 (2) SA 644 (C).......................................................................................28
Macleod, Ex pane 1946 CPD 312.................................................................................................44
Mahala v Nkombombini 2006 (5) SA 524 (SEC)........................................................................34
Maharaj v Parandaya 1939 NPD 239............................................................................................58
Makholiso v Makholiso 1997 (4) SA 509 (Tk)............................................................................82
Malcolm v Premier, Western Cape Government [2014) 2 All SA 251 (SCA),
2014 (3) SA 177 (SCA)........................................................................................................5, 114
Malebjoe v Banm Methodist Church of South Africa 1957 (4) SA 465 (W)..............................4
Maneli v Maneli 2010 (7) BCLR 703 (GSJ)................................................................................83
Mankahla v Matiwane 1989 (2) SA 920 (C)................................................................................33
Mankayi v Anglogold Ashanti Ltd 2011 (5) BCLR 453 (CC), 2011 (3) SA 237 (CC)...............5
Mansingh v General Council of the Bar 2014 (l) BCLR 85 (CC), 2014 (2) SA 26 (CC).........5
Marais, Ex parte 1960 (2) SA 197 (GW)......................................................................................14
Marais v Engler Earlhworks (Pty) Ltd; Engler Earthworks (Pty) Ltd v Marais
1998 (2) SA 450 (E).................................................................................................................146
Marais v Tiley 1990 (2) SA 899 (A).............................................................................................29
Maritz, Ex parte 1944 NPD 339..................................................................................................134
Marshall v National Wool Industries Ltd 1924 OPD 238...............................................93, 95, 97
Martienssen, Ex parte 1944 CPD 139...........................................................................................32
Martin v Road Accident Fund 2000 (2) SA 1016 (W)..............................................................124
Martinson v Brown; Grayv Armstrong 1961 (4) SA 107 (C)...........................................124, 134
Mason v Mason (1885) 4 EDC 330...............................................................................................41
Master of the Supreme Court v Farrer 1906 TS 748......................................................139, 140
Mayer v Williams 1981 (3) SA 348 (A)........................................................................................59
Maylett v Du Toit 1989 (l) SA 90 (T)..........................................................................................92
Mazzur v Cleghorn & Harris Ltd 1917 CPD 291...................................................................93, 98
Mbanjwa v Mona 1977 (4) SA 403 (Tk).......................................................................................33
McCallum v Hallen 1916 EDL 74...............................................................................93, 96, 97, 98
McCarthy Retail Ltd v Shortdistance Carriers CC [2001) 3 All SA 236 (SCA),
2001 (3) SA 482 (SCA)............................................................................................................103
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McKenzie's Estate, Re 1908 TS 420............................................................................................134
McLinden, Ex parte 1945 OPD 96.............................................................................139, 140, 141
McMillan v McMillan 1943 TPD 345.....................................................................................45, 46
Mears v Rissik, Mackenzie and Mears' Trustee 1905 TS 303....................................................147
MeyervThe Master 1935 SWA3................................................................................................114
Minister of the Interior v Cowley 1955 (1) SA 307 (N).............................................................123
Minister of Welfare and Population Development v Fitzpatrick
2000 (7) BCLR 713 (CC), 2000 (3) SA 422 (CC).....................................................................66
MitchellvMitchell 1930AD217.................................................................133, 134,135,136,142
Mitchell v Mitchell 1963 (2) SA 505 (D).......................................................................................59
Mnyama v Gxalaba 1990 (1) SA 650 (C).......................................................................................33
Modiba obo Ruca, In re Ruca v RAF unreported, GPPHC case no 12610/2013
and case no 73012/13, 27January 2014................................................................123, 124, 133
Molyneux v Natal Land and Colonization Co Ltd 1905 AC 555 (PC),
(1905) 26 NLR 423..................................................................................................119, 120, 121
Moodley v Milne 1965 (1) SA 154 (D)........................................................................................148
Moolman, Ex parte 1943 TPD 258...........................................................................................148
Moore v Moore 1945 TPD 407......................................................................................................45
Mort v Henry Shields-Chiat 2001 (1) SA 464 (C).........................................................................98
MotalavMoller2014 (6) SA223 (GJ).......................................................................................145
MS, Ex parte; In re Confirmation of Surrogate Motherhood Agreement
(2014] 2 All SA 312 (GNP).........................................................................................................52
Mulaudzi v Old Mutual Assurance Company (South Africa) Ltd;
National Director of Public Prosecutions v Mulaudzi (2017] 3 All SA
520 (SCA),
2017 (6) SA90 (SCA)...............................................................................................................147

N
Naki v Director General: Department of Home Affairs (2018] 3 All SA 802 (ECG)................8
Nangle v Mitchell (1904) 18 EDC 56..........................................................................................117
Natal Fresh Produce Growers Association v Agroserve (Pty) Ltd 1990 (4) SA 749 (N)...........21
Natal Land and Colonization Co Ltd v Pauline Colliery and Development
Syndicate Ltd 1904 AC 120.........................................................................................................19
National Gambling Board v Premier, KwaZulu-Natal 2002 (2) BCLR 156 (CC),
2002 (2) SA 715 (CC)....................................................................................................................5
NAVv MVM and Minister of Home Affairs unreported, GP case no 15664/2017,
16 February 2018......................................................................................................................... 11
Naville v Naville 1957 (1) SA 280 (C)............................................................................................46
Nefler v Nefler 1906 ORC 7...........................................................................................................46
Ne!v Divine, Hall & Co (1890) 8 SC 16.....................................................................................103
Nell v Nell 1990 (3) SA 889 (T)..............................................................................................64, 66
Nepgen vVan Dyk 1940 EDL 123..................................................................................................32
Neuhaus v Bastion Insurance Co Ltd 1968 (1) SA 398 (A).....................................................92
Nicol v Nicol 1948 (2) SA 613 (C).................................................................................................45
Nicolson, Re 1908 TS 870...............................................................................................................31
Nieuwoudt v The Master 1988 (4) SA 513 (A)..........................................................................147
Nkosi v Minister ofJustice 1964 (4) SA 365 (W)...............................................................134, 135
Nokoyo v AA Mutual Insurance Association Ltd 1976 (2) SA 153 (E)..............................67, 83
Nooitgedacht: Ex parte Wessels, In re (1902) 23 NLR 81.........................................................104
Norge v Pool 1966 (3) SA 96 (A)................................................................................................103

0
0 v O 1992 (4) SA 137 (C).............................................................................................................64
OB v LBDS (2021) 2 All SA 527 (WCC).......................................................................................45
Och berg v Ochberg's Estate 1941 CPD 15.........................................................................116, 117
Odendaal, Ex parte 1928 OPD 218.............................................................................................14
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Oppel: In re Appointment of Curator ad Litern and Curator Bonis, Ex parte
[2002) 1 All SA 8 (C) (also reported as Ex parte Oppel 2002 (5) SA 125 (C))..............112
Oxton, Ex parte 1948 (1) SA lOll (C)......................................................................................39

p
P v P [2007] 3 All SA 9 (SCA), 2007 (5) SA 94 (SCA)..............................................................64
Padi v Botha 1996 (3) SA 732 ('W).............................................................................................30
Panaar, Ex parte 1908 CTR 544....................................................................................................29
Parker, Ex parte 1947 (3) SA 285 (C).........................................................................................29
PD v MD 2013 (1) SA 366 (ECP)...........................................................................................80, 81
Pearlman, Ex parte 1957 (4) SA 666 (N)..................................................................................134
PerkinsvDanford 1996 (2) SA 128 (C)..............................................................................98, 112
Petersen v Kruger 1975 (4) SA 171 (C)......................................................................................55
Petersen v Maintenance Officer (2004] 1 All SA 117 (C), 2004 (2) BCLR 205 (C)
(also reported as Petersen v Maintenance Officer, Simon's Town Maintenance
Court 2004 (2) SA 56 (C))....................................................................................................5, 69
Pharmaceutical Manufacturers Association of South Africa: In re Ex pane President
of the Republic of South Africa 2000 (3) BCLR 241 (CC), 2000 (2) SA 674 (CC)................5
Pheasant v Warne 1922 AD 481..................................................................................119, 120, 121
Phil Morkel Bpk v Niemand 1970 (3) SA 455 (C)............................................120, 141, 142, 143
Pienaar v Godden (1893) 10 SC 129.........................................................................................117
Pienaar v Pienaar's Curator 1930 OPD 171.............................................121, 123, 135, 136, 142
Pieters, Ex parte 1993 (3) SA 379 (D)..................................................................................29, 31
Pinchin v Santam Insurance Co Ltd 1963 (2) SA 254 (W)...................................12, 17, 18, 26
PleatvVanStaden 1921 OPD91.......................................................................100, 102,103,116
Podlas v Cohen and Bryden 1994 (3) BCLR 137 (T), 1994 (4) SA 662 (T)..........................145
Potgieter et Uxor, Ex partel943 OPD 4......................................................................................96
Powrie, Ex parte 1963 (1) SA 299 CW).....................................................................122, 124, 134
President Insurance Co Ltd v Yu Kwam 1963 (3) SA 766 (A).................................................112
Pretorius v Precorius 1967 (2) PH Bl 7 (0)...........................................................................15, 18
Pretorius vVan Zyl 1927 OPD 226..............................................................................................103
Prinsloo's Curators Bonis v Crafford and Prinsloo 1905 TS 669.....................................119, 121

Q
QG v CS [2021] JOL 50542 (GP)...........................................................................................52, 73
QG v CS Unreported, GPPHC case no 32200/2020, 17June 2021.........................................76
Quintrell, Ex parte 1922 TPD 14...........................................................................................45, 46

R
R v Holliday 1924 AD 250...........................................................................................................122
R v Isaacs 1954 (1) SA 266 (N).....................................................................................................59
R v Pie 1948 (3) SA 1117 (0)........................................................................................................60
R v Sephuma 1984 (3) SA 982 (T)..............................................................................................27
R v Swanepoel 1954 (4) SA 31 (0)..........................................................................................60, 61
Rakhavha v Road Accident Fund 2019JDR 1249 (GP)...............................................................83
Readings, Ex parte 1958 (4) SA 432 (C)......................................................................................45
Rhode v Minister of Defence 1943 CPD 40.................................................................................94
Ribbens v Ribbens 1965 1 PH F5 (T).........................................................................................143
Riesle and Rombach v McMullin (1907) 10 HCG 381...........................................................ll 7
Rifkin v Rifkin 1936 WLD 69........................................................................................................46
Riggs v Calff (1836) 3 Menz 76..................................................................................................103
Road Accident Fund v Mdeyide 2007 (7) BCLR 805 (CC), 2008 (1) SA 535 (CC)..............124
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Road Accident Fund v Mtati 2005 (6) SA 215 (SCA) (also reported as
Road Accident Fund v M obo M (2005] 3 All SA 340 (SCA))....................................17, 18, 26
Road Accident Fund v Myhill 2013 (5) SA 426 (SCA).............................................104, 105, 112
Road Accident Fund v Smith (1998) 4 All SA 429 (SCA).........................................................122
Rogers v Erasmus 1975 (2) SA 59 (T)...........................................................................................15
Rookminia: In re Sardha, Ex parte 1964 (4) SA 163 (D)............................................................28
Rousseau v Norton (1908) 18 CTR 621........................................................................................96
Rowan v Faifer 1953 (2) SA 705 (E)..............................................................................................67
Roxa v Mtshayi 1975 (3) SA 761 (A).............................................................................................92
RRS v DAL unreported, wee case no 22994/2010, 10 December 2010.................................71
Rungasamy, Ex parte 1958 (4) SA 688 (D)............................................................................28, 29

s
S v Beyers 1968 (3) SA 70 (A)......................................................................................................141
S v Coetzee [1993] 4 All SA 531 (T)..............................................................................................27
SvDeBlom 1977 (3) SA513 (A).................................................................................................98
S vJeggels 1962 (3) SA 704 (C)...............................................................................................60, 61
S vJulies 2017JDR 0573 (NCK)...................................................................................................73
S v Kavin 1978 (2) SA 731 (W).....................................................................................................120
S v L 1992 (3) SA 713 (E)..........................................................................................58, 63, 64, 66
SvMcBride 1979 (4) SA313 (W)...............................................................................................120
S v Mzayifani 2012JDR 0119 (ECP)...............................................................................................73
S v S 1993 (2) SA 200 (W)..............................................................................................................76
SvSnyman 1968 (2) SA582 (A)..................................................................................................59
Sager v Bezuidenhout 1980 (3) SA 1005 (0)................................................................................... 67
Saiid v Schau 1972 (1) SA 491 (T).............................................................................................33
Santam Insurance Ltd v Booi 1995 (3) SA 301 (A).......................................................124, 134
Schoeman v Rafferty 1918 CPD 485..............................................................................................96
Schreiber v Paper (1906) 20 EDC 34...........................................................................................98
Scott v Scott 2021 (2) SA 274 (KZD).........................................................................................123
Secretary for Inland Revenue v Brey 1980 (1) SA 472 (A).........................................................69
Seedat's Executors v The Master (Natal) 1917 AD 302.............................................................39
Seetal v Pravitha 1983 (3) SA 827 (D).......................................................................61, 62, 64, 65
Sekeleni v Sekeleni 1986 (2) SA 176 (Tk)....................................................................................33
Sengadi v Tsambo [2019) l All SA 569 (GJ) (also reported as LS v RL
2019 (4) SA 50 (GJ))...................................................................................................................34
SesingvMinisterofPolice 1978 (4) SA 742 (W).............................................................116, 117
Shange v MEG for Education, KwaZulu-Natal 2012 (2) SA 519 (KZD)...................................114
Shields v Shields 1946 CPD 242.............................................................................................15, 18
Shulman,Exparte 1955 (1) SA514 (W)...................................................................................134
Sibisi, Ex parte 2011 (1) SA 192 (KZP).................................................................................75, 77
Silberman v Hodkinson 1927 TPD 562.......................................................................................103
Skead v Colonial Banking & Trust Co Ltd 1924 TPD 497.............95, 97, 98, 103, 104, 105, 106
Smith v Smith 1952 (4) SA 750 (0).............................................................................................. 41, 44
Smith v Smith 1962 (3) SA 930 (FC)............................................................................................43
Spangenberg v De Waal (2008] 1 All SA 162 (T)....................................................................123
SpiesvSmith 1957 (1) SA539 (A).............................................................................................136
Spies' Executors v Beyers 1908 TS 473..........................................................................................69
Steenkamp v Karnfer 1914 CPD 877...........................................................................................116
Steinberg v Cosmopolitan National Bank of Chicago 1973 (4) SA 564 (RA)..........................44
Stewart v Botha [2007) 3 All SA 440 (C), 2007 (9) BCLR 1012 (C),
2007 (6) SA 247 (C)....................................................................................................................17
Stewart-Wynne: In re Mason, Ex parte 1944 EDL 176...............................................................134
162 The South African Law of
Persons
Page
Stoffberg, Ex parte; In re: Xaba v Road Accident Fund and two related matters
[2018] 3 All SA 145 (GP)........................................................................................................123
Stoter, Ex parte 1996 (4) SA 1299 (E)........................................................................................29
Strauss, Ex parte 1949 (3) SA 929 (0)................................................................................................ 14
Stuttaford & Co v Oberholzer 1921 CPD 855..............................................................................98
Sukovs v Van der Walt [1998] 3 All SA 664 (0)......................................................................... 41, 44
SW v F 1997 (1) SA 796 (0)................................................................................................................ 86
Swanepoel, Ex parte 1953 (l) SA 280 (A)...................................................................................14

T
Tv M 1997 (1) SA54 (A)...............................................................................................................76
Tanne v Foggitt 1938 TPD 43...................................................................................................103
Tate vJurado 1976 (4) SA 238 (W).............................................................................................67
Taurog v Lapinsky 1943WLD 100...............................................................................................134
Ten Brink v Motala 2001 (1) SA lOll (D).................................................................................95
The Colonial Government v William Meldrum (1890) 11 NLR 139.........................................98
Theron v AA Life Assurance Association Ltd 1995 (4) SA 361 (A).........................................119
Thesen's Steamship Co Ltd, Ex parte 1944 CPD 165..............................................................29
Thompson, Ex parte 1983 (4) SA 392 (E).......................................................................123, 139
Thomson, Ex parte 1919 CPD 277...........................................................................................134
Tjollo Ateljees (Eins) Bpk v Small 1949 (l) SA 856 (A)...............................................3, 95, 105
TM v CM unreported GP case no 2019/24763, 11 September 2019......................................34
Tod, Ex parte 1965 (1) SA 262 (D)..........................................................................................134
Tolmie &Japhet: In re Estate Linklater, Ex parte 1939 WLD 36...........................................139
Tomich, Ex parte 1957 (4) SA 667 (N)....................................................................................134
Toumbis v Antoniou 1999 (1) SA 636 (W)..........................................................................43, 45
Trollip v Du Plessis 2002 (2) SA 242 (W).....................................................................................34
Tseola v Maqutu 1976 (2) SA 418 (Tk)..................................................................................33, 34
Tshona v Principal, Victoria Girls High School 2007 (5) SA 66 (E)........................................113

u
Uys v Uys 1953 (2) SA 1 (E)........................................................................................................119
United Democratic Movement v Speaker, National Assembly
2017 (8) BCLR 1061 (CC), 2017 (5) SA300 (CC)....................................................................6

V
VvH [1996] 3AJJSA579 (SEC)..................................................................................................76
V v R 1979 (3) SA 1006 (T)..........................................................................................................51
Vallaro obo BR v Road Accident Fund 2021 (4) SA 302 (GJ)........................................124, 134
Van Dam, Ex parte 1973 (2) SA 182 (W)..............................................................................67, 76
Van den Berg v Van den Berg 1939 WLD 228.........................................................................134
Van den Bever, Ex parte 1969 (3) SA 96 (E).................................................................115, ll 7
Van der By! & Co v Solomon (1877) 7 Buch 25..............................................................105, 106
Van der Harst v Viljoen 1977 (1) SA 795 (C).......................................................................62, 67
Van der Linde, Ex pane 1970 (2) SA 718 (0).............................................................................. 135
Van der Merwe v Die Meester 1967 (2) SA 714 (SWA)............................................................99
Van Oriel's Estate, Ex parte 1934 TPD 137...............................................................................148
Van Dyk, Ex parte 1939 CPD 202......................................................................................134, 135
Van Dyk v SAR & H 1956 (4) SA410 (W)............................................................................95, 96
Van Hasselt, Ex parte 1965 (3) SA 553 (W)..............................................................................134
Van Heerden vJoubert 1994 (4) SA 793 (A)..................................................................23, 29, 30
Van Lutterveld v Engels 1959 (2) SA 699 (A).................................................................56, 58, 60
Van Metzinger v Badenhorst 1953 (3) SA 291 (T)...................................................................137
 Table of cases 163

Page
Van Oudtshoorn v Northern Assurance Co Ltd 1963 (2) SA 642 (A)...................................92
Van Rensburg v Ballinger I 950 (4) SA 427 (T).........................................................................43
Van Rijv Employers' Liability Assurance Corporation Ltd 1964 (4) SA 731 (T)..................112
Van Zyl v Bolton 1994 (4) SA 648 (C).........................................................................................21
Van Zyl v Getz (2020) 3 All SA 730 (SCA)................................................................................69
Vedeski v Vedeski 1923WLD 31................................................................................................140
Velkes, Ex parte 1963 (3) SA 584 (C)........................................................................................111
Vengadesan v Shaik 2014 (3) SA 14 (KZD).............................................................................148
Venterv De Burghersdorp Stores 1915 CPD 252............................................................116, 117
Vermaak vVermaak 1929 OPD 13..............................................................................................121
Verster, Ex parte 1956 (1) SA 409 (C).......................................................................................29
Visagie, Ex parte 1940 CPD 42...............................................................................................14, 15
Visser: In re Khoza, Ex pane 2001 (3) SA 524 (T)..................................................................112
Vista University, Bloemfontein Campus v Student Representative Council,
Vista University 1998 (4) SA 102 (0) (also reported as Vista University
(Bloemfontein Campus) v Student Representative Campus Vista
1998 (4) BCLR514 (0))..........................................................................................................112
VN v MD 2017 (2) SA 328 (ECG).................................................................................................81
Voget v Kleynhans 2003 (2) SA 148 (C)...................................................................145, 146, 147
Voice of the Unborn Baby l\PC v Minister of Home Affairs
[202l)JOL 49991 (GP), 2021 (4) SA 307 (GP)...............................................................23, 33

w
W v S 1988 (1) SA 475 (N)···········........................................................................................76, 83
Watson v Koen h/a BMO 1994 (2) SA 489 (0)................................................................116, 117
WebbervWebber 1915AD 239.............................................................................................41, 44
Weber v Santam Versekeringsmaatskappy Bpk 1983 (1) SA 381 (A)......................................113
Welsh: In re Estate Keegan, Ex parte 1943 WLD 147..................................................................32
Wessels v Pretorius (2008] 1 All SA 131 (SCA).........................................................................113
Wessels v Ten Oven 1938 TPD 26................................................................................................92
WH, Ex parte (2011] 4 All SA 630 (GNP), 2011 (6) SA 514 (GNP)..........................................52
Wicks v Fisher 1999 (2) SA 504 (N) (also reported as W v F 1998 (9) BCLR 1199 (N))...........76
Widdicombe, In re (1929) 50 NLR 311.......................................................................................31
Wiehman v Simon 1938 AD 447...................................................................................................58
Wilding, Ex parte 1953 (1) SA 633 (C).....................................................................139, 140, 141
Wilken v Brebner 1935 AD 175......................................................................................................4
Williams vWilliams 1925 TPD 538.................................................................................56, 59, 60
Wilson: In re Morison, Ex parte 1991 (4) SA 774 (T)...............................................................135
WL Carroll & Co v Ray Hall Motors (Pty) Ltd 1972 (4) SA 728 (T).......................................146
Wolffv Solomon's Trustee (1895) 12 SC 42.............................................................................106
\1Volman v Wolman 1963 (2) SA 452 (A)...................................................................................112
Wood v Davies 1934 CPD 250.......................................................................................95, 104, 105

y
Yared vYared 1952 (4) SA 182 (T)....................................................................................139, 140
YM v LB 2010 (6) SA 338 (SCA)....................................................................................63, 64, 66

z
Ziedler, Ex partel897 HCG 136...................................................................................................31
 TABLES OF STATUTES

Page Page
A Bird1s and Deadls Registration Act
Administration of Estates Act 51 ofl 992 (continuea)
66 of 1965..........................................................15 section 14(1).....................................................32
chapter 4.........................................................123 section 14(3).....................................................32
section 44..........................................................15 section 14(4).....................................................32
section 63........................................................131 section 15....................................................28, 32
section 65........................................................139 section 15(1).....................................................28
section 80(1).....................................................96 section 15(2).....................................................28
section 94..........................................................15 section 15(3).....................................................32
section 16..........................................................32
B section 17....................................................28, 32
section 17(2).....................................................28
Banks Act 94 of 1990...............................................4 section 18......................................................8, 32
section 87(1).....................................................99 section 18(1).....................................................32
Basic Conditions of Employment Act 75 section 18(2).....................................................32
ofl997 section 20(1).....................................................33
section 43....................................................96, 97 section 22..........................................................28
section 43(1).....................................................96 section 24(1).....................................................12
section 43(3).....................................................96 section 25(1)..................................................... 11
Bills of Exchange Act 34 of 1964 section 25(l )( b)................................................... 11
section 5(3)........................................................92 section 25(l)(c).................................................11
section 25(1)(lA).............................................11
Births and Deaths Registration Act section 25(2)...............................................11, 12
51 of 1992.....................................8, 9, 10, 32, 33 section 26(1)......................................................11
annexure 2A.......................................................9 section 26(2)...............................................11, 12
annexure 2B......................................................9 section 28(2).....................................................28
section 1........................................................9, 33 regulations 3-5...................................................8
section 4..............................................................8 regulation 3(1)...................................................8
section 5..............................................................8 regulation 3(2)...................................................8
section 9............................................................10 regulation 3(3)...................................................8
section 9(1).........................................................8 regulation 4..................................................9, 10
section 9(3A)..................................................8, 9 regulation 4(1)....................................................8
section 9(6).........................................................9 regulation 4(2)...................................................8
section 9(7).........................................................8 regulation 4(3)...................................................8
section 9(8).........................................................8 regulation 5(1)...................................................8
section 10..........................................................10 regulation 5(2)...................................................8
section lO(l)(a)..................................................9 regulation 5(3)...................................................9
section 10(1)(b)................................................9 regulation 8(1)...................................................8
section I0(2).......................................................9 regulation 8(2)...................................................8
section l 1.........................................................10 regulation 8(3)...............................................· 3
section 11(1)............................................10, 11, 82 regulation 12(1).................................................8
section 11(4)....................................................10
section 11(4A)...................................................l C
0
section 11(5)....................................................10
section 12(l)........................................................9
section 12(2).......................................................9
section 14....................................................28,
32
165 Ch
ild
Table of cases 165
Jus
tic
eA
ct
75
of2
00
8
...................................................................................
11
3
s
e
c
t
i
o
n

7
(
1
)
...................................................................
9
2
,
1
1
3
s
e
c
t
i
o
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7
(
2
)
...............................................................................
1
1
3
166 The South African Law of Persons

Page Page
Child justice Act 75 of2008 (continued) Children's Act 38 of2005 (contin-ued)
section 7(3)...............................................92, ll 3 section 19( I).............................................69, 112
section 11(l)....................................................113 section 19(2).......................................70, 74, 112
ChildJustice Amendment Act 28 of2019.......113 secLion 19(3)......................................................69
section 4.........................................................113 section 20........................................49, 56, 70, 73
section 20(a)...................................................112
Children's Act 38 of2005......................5, 9, 49, 50, section 21.................................49, 70, 72, 73, 74
51, 70, 86, 134 section 21(1).........................................72, 73, 74
schedule 4...................................................57, 70 section 2l(l)(a)...........................................70, 73
section 1............................................................83 section 21(I) (b)..................................71, 72, 73
section l (1)...................................49, 50, 53, 55, section 21(4).....................................................74
67, 68, 75, 76 section 22..........................................................74
section 2(b).......................................................87 section 22(1).....................................................74
section 6......................................................55, 87 section 22(2)......................................................74
section 6(1).......................................................87 section 22(2A)...................................................75
section 6(2)(a)..........................................55, 61, 86 section 22(3).....................................................75
section 6(2)(b)................................................87 section 22(4)......................................................75
section 6(2)(c)..................................................87 section 22(4)(b)..................................................75
section 6(2) (c[)................................................87 section 22(5).....................................................75
section 6(2)(e)...................................................87 section 22(6)(a)................................................75
section 6(2)(jJ...................................................87 section 22(6)(b)................................................. 75
section 6(3).......................................................87 section 22(7).....................................................75
section 6(4).......................................................87 section 23..........................................................76
section 6(5).......................................................87 section 23(1)...............................................76, 77
section 7......................................................81, 87 section 23(2).....................................................76
section 7(1)...........................................75, 76, 78 section 23(4).....................................................77
section 8(1).......................................................86 section 24..........................................................77
section 9............................................................78 section 24(1).....................................................77
section 10.......................................76, 78, 79, 87 secLion 24(2)......................................................77
section l J..........................................................87 section 24(3).....................................................77
section 12..........................................................87 section 26.......................................52, 55, 71, 76
section 12(1).....................................................87 section 26( J)....................................................10
section 12(2)(a)..........................................88, 91 section 26(2).....................................................10
section 12(2)(b)................................................88 section 26(2)(b)..............................................52
section 12(3).....................................................88 section 28..........................................74, 115, 116
section 12(4).....................................................88 section 28(1)...................................................115
section 12(5)....................................................88 section 28(2).....................................................77
section 12(8)....................................................88 section 28(3)(c)..............................................116
section 12(9)....................................................88 section 29(1)......................................75, 76, 115
section 12(10)..................................................88 section 29(3).....................................................75
section 13..........................................................88 section 30(2).....................................................79
section 13(1).....................................................88 section 30(3)...............................................74, 80
section 13(2)...............................................49, 89 section 30(4)...............................................74, 80
section 30A........................................................79
section 14....................................................89, 91
section 30A(l)..................................................79
section 15..........................................................89
sect.ion 30A(2)...................................................79
section 15(2).....................................................89
section 30A(4)...................................................79
section 16..........................................................89 section 30A(5)..................................................80
section 17.....................................42, 70, 85,114 section 31(1).....................................................79
section 18..........................................................73 section 31(1)(a).................................................79
section 18(1).....................................................77 section 31(1) (b) (i)...........................................79
section 18(2).....................................................67 section 31(]) (b) (ii).........................................79
section 18(2)(d)................................................16 secLion 31(1)(b)(iv)............................................79
section 18(3).....................................................68 section 31(2)......................................................80
section 18(3)(c)........................................79, 107 section 33( I)..............................................80, 81
section 18(3)(c) (i)........................................108 section 33(2).....................................................80
section 18(3)(c)(v)............................................95 section 33(3).....................................................81
section 18(4).............................................79, 116 section 33(4).....................................................81
section 18(5)......................................79, 95, 107 section 33(5)..............................................80, 82
section 19.......................................49, 56, 69, 73 section 34..........................................................81
 Table of statutes 167

Children's Act 38 of 2005

(continued)
Page Page
Children's Act 38 of 2005 (conimued)
section 34(1)(a)...............................................81 section 242(2)(a).......................................77, 83
section 34(1) (b)..............................................81 section 242(2) (b)............................................77
section 34(4)...................................................81
section 34(5)...................................................81
section 36.......................................................58
section 37..................................................62, 65
section 38..................................................49, 82
section 38())...................................................82
section 38(2) .......,..........................................82
section 39(1)...................................................49
section 39(6)...................................................49
section 40...........................................49, 51, 52
section 40(]) (a)................................................. 51
section 40(1)(b)..............................................51
section 40(2)...................................................51
section 40(3)...................................................51
section 40(3)(b)..............................................51
section 41(1)...................................................52
section 41(J) (a)........................................... 52, 53
section 41()) (b)........................................52, 53
section 41(2).......................................52, 54, 73
section 45(3)(a)...............................................79
section 45(3)(d')..............................................79
section 45(3)(g)...............................................79
section 129(1)................................................109
section 129(2)...............................................109
section 129(3)................................................109
section 129(4)................................................109
section 129(5)................................................109
section 129(6)................................................110
section 129(7) (a)..................................109, 110
section 129(7)(b)...........................................110
section 129(7)(c)..........................................ll0
section 129(7)(d')..........................................110
section 129(8)...............................................109
section 129(9)...............................................110
section 129(10)............................................109
section 130(1)...............................................J
10
section 130(2)(a)...........................................110
section l30(2)(b)...........................................110
section 130(2) (c)..........................................1J0
section 130(2)(d')..........................................1
JO
section 130(2)(e)...........................................110
section 130(2) (/)...........................................110
section 132(1)...............................................110
section 132(2)...............................................110
section 133(1)................................................111
section 133(2)(a)..........................................110
section 133(2)(b)............................................. 11l
section 133(2)(c)...........................................111
secrion 133(2)(d')..........................................Jll
section l 33(2)(e}.......................................... l 11
section 134(1).........................................85, 111
section 134(2)........................................85, 111
section 134(3)................................................111
section 23l(J)(d)............................................77
section 231(7)(a)............................................77
section 233.....................................................49
section 242(l).................................................77
 168 The South African Law of Persons

section 242(2}(c).............................................77 22
section 242(2) (d)............................................77Page section 2(1)( c)..............................................20 Page
section 242(3).................................................77 section 2(2)....................................................20
section 292(1) section 4.........................................................20
........................................................................ section 5(1)....................................................21
53 section 5(2).......................................21, 24, 109
section 292(l )( c) section 5(3).............................................21, 109
........................................................................ section 5(4).....................................................22
53 section 5(5)(a).................................................22
section 293( I) section 5(5)(b)................................................22
........................................................................ section l O(I )( a)................................................. 20
53 section 10(1)(b)..............................................20
section 294 section 10(1)(c)..............................................20
........................................................................ Civil Proceedings Evidence Act 25 of 1965
53 secLion 3.........................................................56
section 295(a)
Civil Union Act 17 of2006.....................49, 70, 99
........................................................................
section I............................42, 99, 109, 115, 127
53
section 13.................................................15, 99
section 295(c) (iv)...........................................53
section 295(c)(v).............................................53 section 13(1)..................................................57
section 296(1).................................................53 section 13(2)....................11, 22, 25, 31, 40, 51,
section 297(1) (a)......................................51, 121,127,128,129,140
53
section 297( l) (b)...........................................53
section 297(1) (c)............................................53
section 297(1) (d')...........................................53
section 297(1) (/)............................................53
section 297(2).................................................54
section 298(1).................................................54
section 299(a)..................................................... 54
section 299(b).................................................54
section 299(c).................................................54
section 300(l)..................................................54
section 300(2)
........................................................................
21
section 300(3)
........................................................................
21
section 30l (2)
........................................................................
21
section 301(3)
........................................................................
21
section 313................................................57,
70
Children's Amendment Bill
18 of 2020............................51, 68n, 70, 7J,
72,
73, 75, 78,
79,88
Children's Status Act 82 of 1987.................65,
67
section 1...................................................57,
58
section 2.........................................................62
section 3(1).....................................................67
Choice on Termination of Pregnancy Act
92 of 1996............................................5, 20,
54
section 1...................................................20,
21
section 2(1)(a)
........................................................................
20
section 2(l}(b)...........................................20,
168 The South African Law of Persons

Page Page
Co-operatives Act 14 of2005................................4 Consumer Protection Act
Companies Act 71 of2008....................................4 68 of 2008 (contin-ued)
section 69(7)(b)....................................111, 140 section 5(2)(d)................................................93
sect.ion 69(8)(b)(i).........................................146 section 5(2)(e)................................................93
section 5(2)(/).................................................93
Constitution of the Republic of South Africa section 5(2)(g)................................................93
200 of 1993.....................................................23 section 5(3).....................................................93
chapter 3........................................................23 section 39(1)................................................120
section 13.......................................................65 section 39(1)(a)............................................121
section 30.......................................................86 section 39(1) (b)................................93, 94, 102
Constitution of the Republic of section 39(2).........................................102, 103
South Africa, 1996..........................5, 22, 23, 86 Criminal Law (Sexual Offences and Related
Bill ofRights................5, 23, 55, 65, 87, 89,125 Matters) Amendment Act 32 of2007
chapter 2..........................................................5 section 14.......................................................27
schedule 4......................................................88 section 60.......................................................59
section 1(a).......................................................5
section 2...........................................................5 Criminal Procedure Act 51 of 1977..................125
section 9....................11, 15, 24, 40, 69, 85, 121 section 78.....................................................123
section 9(1)............................21, 22, 58, 61,144 section 79.....................................................123
section 9(3)...............10, 22, 24, 40, 58, 69, 133 Customary Initiation Act 2 of2021.....................88
section 9( 4)............................................40, 133
section 10........10, 22, 24, 55, 69, 121, 133, 144 D
section 11............................................22, 23, 24 Dissolution of Marriages on Presumption
section 12.......................................................86 of Death Act 23 of 1979.................................31
section 12(1).............................................22, 24 section l..........................................................31
section 12(2).................................22, 23, 24, 65 section 2..........................................................31
section 12(2)(b)..............................................24
section 14....................................22, 24, 65, 144 Divorce Act 70 ofl979.......................................121
section 15(1)..................................................24 section 2(1)(b)................................................39
section 27(l)(a)........................................22, 24 section 4........................................................121
section 28.................................................65, 86 section 5(1)....................................................121
section 28(1)...................................................86 section 6(3)..................................................107
section 28(1)(a)................................................... 9 section 13.......................................................39
section 28(1) (b)......................21, 55, 61, 65, 86 Domicile Act 3 of 1992.........40, 41, 42, 44, 45, 46
section 28(1)(d)........................................21, 86 section l....................................................42, 45
section 28(1)(h)..............................................89 section 1(1)....................................42, 43, 46, 47
section 28(2)..........................10, 21, 22, 55, 60, section 1(2).........................................43, 44, 46
61, 65,69, 78,86 section 2..........................................................46
section 30.......................................................24 section 2(1)...............................................46, 47
section 34.......................................................89 section 2(2).....................................................46
section 35.......................................................86 section 2(3).....................................................46
section 36...............................................58, 121 section 3(1).........................................41, 42, 46
section 38.......................................................89 section 3(2).....................................................42
section 39(2)...................................................55 section 5.........................................................41
ection 104(1) (b)(i)......................................88 section 8(2).....................................................40
section 167(3)(b)..............................................5
section 167(5).................................................33 F
section 168(3) (b).............................................5 Friendly Societies Act 25 of 1956
section 169(1)...................................................5 section 16......................................................100
section l 70.......................................................5
section 172(2)(a).............................................33 G
Consumer Protection Act General Law Amendment Act 62 of 1955
68 of 2008.......................................................93 section 33(1).............................................14, 15
section 1.........................................................93 General Regulations Regarding Children, 2010
section 5(l)(a)................................................93 regulation 8(3)(a)...........................................75
section 5(1)(b).................................................93 regulation 10(1).............................................80
section 5(1)(c)......................................................93 regulation 11 (1).............................................81
section 5(1)(d)................................................... 93
section 5(2).....................................................93 I
section 5(2)(a)..................................................... 93 Identification Act 68 of 1997
section 5(2)(c).................................................93 section 13(1)...................................................28
 Table of statutes 169

Page Page
Immovable Property (Removal or Modification Marriage Act 25 of 1961...............................99, 107
of Restrictions) Act 94 of 1965........................15 section 24A............................................107, 108
section 2(1)......................................................15 section 24(2)..................................................108
Income Tax Act 58 of 1962 section 25(1)..........................................107, 108
section 1..............................................................4 section 25(4)..........................................107, 108
Inquests Act 58 of 1959.............................23, 31, 32 section 26(1)..................................................107
section 2(1).......................................................32 section 26(2)..................................................107
section 3(2).......................................................29 Matrimonial Affairs Act 37 of 1953
section 5(2).......................................................29 section 5(1).....................................................107
section 6............................................................29 Matrimonial Property Act 88 ofl984.................122
section 16..........................................................30 section 8..........................................................122
section 16(1)....................................................30 section 8(1).....................................................122
section 16(3)....................................................30 section 8(2).....................................................122
section 18(1)....................................................30 section ]5.........................................................122
section 18(2)....................................................30
section 16........................................................122
section 18(2A)..................................................30
section 16(1)....................................................122
section 18(3)....................................................30 section 16(2)...........................................122, 140
Insolvency Act 24 of 1936.................................140 section 20...............................................122, 140
section 20(1) (a)............................................145 section 20( I)..................................................122
section 20(1) (b).............................................146 section 20(2)..................................................122
section 20(2) (b).............................................145 section 24(1)..........................................107, 108
section 21(1)..................................................145 section 24(2)...................................................l 07
section 21(13)................................................145
section 23(2)...........................................146, 147 Menr.al Disorders Act 38 of 1916
section 23(3)..................................................146 section 65.......................................................139
section 23(5)...........................................145, 147 Mental Health Care Act
section 23(6)..................................................147 17 of 2002..........................5, 120, 123, 124, 126
section 23(7)..........................................146, 147 chapter 3........................................................125
section 23(8)..........................................146, 147 chapter 4........................................................126
section 23(9)..................................................147 chapter 6...........................................................30
section 23(10).................................................147 chapter 7........................................................130
section 24(1)...................................................146 chapter 8........................................................139
section 55(a)..................................................146 section 1........................124, 125,127,128,130
section 55(c).................................................... 140 section 3.........................................................125
section 58(a).................................................... 146 section 4(c)......................................................l26
section 82(6)..................................................146 section 7(1).....................................................125
section 127A(l)..............................................148 section 7(2).....................................................125
section 127(2)................................................148 section 8(1)....................................................125
section 129(1).................................................148 section 8(2).....................................................125
section 129(1)(b)...........................................148 section 8(3).....................................................125
Intestate Succession Act81 of 1987 section 9(1).....................................................126
section 1 (2).....................................................82 section 9(l)(a)................................................127
section 9(l)(c)................................................125
L section 9(2).....................................................127
Labour Relations Act 66 of 1995........................93 section 10(1)..................................................125
section 11(1) (a)..........................................126
Law Book of the Orange River Colony 1901.. .115 section 11(I) (b).............................................. 126
chapter 89........................................................15 section 11() )( c)............................................125
Law of Succession Amendment Act section 12(1)..................................................125
43 of 1992.........................................................82 section 12(2)..................................................126
Long-term Insurance Act 52 of 1998 section 13.......................................................125
section 55...................................................91, 97 section 15.......................................................125
section 63(l)...................................................146 section 17.......................................................125
section 25........................................................127
M section 26.......................................................127
section 27(l)(a)..............................................127
Maintenance Act 99 of 1998................................67 section 27(1)(a) (i)........................................127
section 15(3)(a) (ii)..........................................68 section 27(l)(a)(ii).........................................127
section 15(3)(a) (iii)........................................67 section 27(1)(b).............................................127
section 21.........................................................67 section 27(4)...................................................127
170 The South African Law of Persons

Page Page
Mental Health Care Act 17 of2002 (continued') National Health Act 61 of2003 (continued)
section 27(7)...................................................127 section 55..........................................................50
section 27(8)...................................................127 section 56..........................................................50
section 28(1)...................................................128 section 60..........................................................50
section 28(2)...................................................128 sect.ion 62..........................................................27
section 28(3)...................................................128 section 66..........................................................27
section 29(1)..................................................128 section 67..........................................................27
section 30(I)...................................................128
section 30(2)..................................................128 Natural Fathers of Children Born out of
section 30(3)..................................................128 Wedlock Act 86 of 1997...................................67
section 30(5)(a)..............................................128 section 2(1).......................................................67
section 31(1)...................................................128 section 2(2).......................................................67
section 31(3)...................................................128
0
section 31(4)...................................................128
section 31(5)...................................................128 Older Persons Act 13 of 2006..........................134
section 32........................................................128 chapter 5.........................................................134
section 32(b)...................................................128 section 5(1).....................................................134
section 33........................................................130 section 5(2).....................................................134
section 33(1)..................................................128 section 5(3)(a)................................................134
section 33(1) (b).............................................. 129 section 5(3)(b)..............................................134
section 33(4)...................................................129
section 33(7)..................................................129 p
section 34.......................................................129 Prescription Act 68 of 1969................................114
section 34(3)(a)..............................................129 section 3(1)(a).................................................. 122
section 34(3)(bl..............................................129 section 13........................................................122
section 34(3)(c)..............................................129 section 13(1)...................................................135
section 34(5)..................................................129 section 13(1)(a)..............................106, 114, 122
section 34(7)(c)..............................................129 section 23(1)...................................................114
section 35(1)..................................................129 section 23(2)...................................................114
sect.ion 36(c)....................................................129
section 37........................................................129 Promotion of Equality and Prevention of
section 37(1)..................................................129 Unfair Discrimination Act 4 of2000
section 37(5)(a)..............................................129 section 1 (1)................................................24, 85
section 38(1)..................................................130 section 6......................................................24, 85
section 38(2)....................................................130 section 8............................................................24
section 38(3)..................................................130 section 8(b).......................................................88
section 39(1)..................................................130
sect.ion 40(1)....................................................130 R
section 40(2) (a).............................................. 130 Recognition of Customary Marriages Act
section 40(2)(b).............................................130 120 of 1998........................................................99
section 40(3)....................................................130 section 2.........................................................108
section 40(4)...................................................130 section 3(1)(a)................................................108
section 59(1)...................................................131 section 3(3)(b)................................................108
section 60(1)......................................................I section 3(4)(a)................................................. 108
section 60(8)...................................................131 section 3(4)(b)................................................108
section 60(12).................................................131 section 3(4)(c)................................................108
section 60(13).................................................131 section 3(5).....................................................108
section 61(1)...................................................131 section 6..........................................................108
section 61(3)...................................................131 section 8(4)(a)................................................108
section 65.......................................................131
Reform of Customary Law of Succession and
Mutual Banks Act 124 of 1993..............................4 Regulation of Related Matters Act11 of 2009
section 38(a)...................................................111 section 8............................................................82
section 38(b)(i)...............................................146
section 88(1)....................................................99 Road Accident Fund Act 56 ofl 996...............114

N
s
Sterilisation Act 44 of 1998..................................25
National Credit Act 34 of 2005..........................93
section 2(1).......................................................25
National Health Act 61 of 2003...........................28 section 2(3)(a)..................................................25
section 1............................................................27 section 2(3)(b)..................................................25
section 7(1) (e).................................................. 27 section 2(3)(c)(i)..............................................25
 Table of statutes 171

Page Page
Sterilisation Act 44 of 1998 (continued')
Afi;can Charter on the Rights and
section 2(3)(c) (ii)............................................25 Welfare of the Child (continued')
section 3(l)(a)...................................................25 article 4(2)........................................................90
section 3{l)(b)............................................25, article 15...........................................................97
26 Convention 138 of the International
section 3( l) (c).................................................25 Labour Organisation of 1973.........................97
section 3(2).......................................................25
section 3(5).......................................................26 Convention on the Rights of the
section 3(7).......................................................25 Child.....................................................87, 90, 97
section 4............................................................25 article l 2...........................................................90
article 32...........................................................97
w
Wills Act 7 of 1953.............................................142 Convention on the Rights of Persons
section l....................................................85, 107 withDisabilities........................................87, 126
section 2D(l) (b)..............................................82 article 1...................................................126, 133
section 2D{l) (c)..............................................13 article 3(a)..............................................126, 133
section 4...........................................85, 107, 142 article 3(b)..............................................126, 133
article 4(1)......................................................133
PROVINCIAL LEGISLATION article 4(1)(b).................................................126
Free State Initiation School Health Act article 4(l)(e)..................................................126
1 of2004............................................................88 article 5...................................................126, 133
article 5(2)......................................................133
Eastern Cape Customary Male Initiation article 7(1)........................................................87
Practice Act 5 of2016.......................................88 article 7(2)........................................................87
Limpopo Initiation Schools Act 6 of2016.........88 article 7(3)........................................................87
article 12.........................................................136
Uniform Rules of Court article 12(2)....................................................136
rule 14(2)............................................................4 article 12(3)...................................................136
rule 57............................................................123 article 12(4)....................................................136
article 15.........................................................126
International Instruments article 16.........................................................126
African Charter on the Rights and article 17.........................................................126
Welfare of the Child...........................87, 90, article 12(2)...................................................126
97 article 12(4)....................................................131
article 3(1)........................................................90 article 22.........................................................l 26
article 4(1)........................................................90
 INDEX

Page
Page
A
Birth (continued)
Abandoned baby registration....................................................8-12
registration of birth...........................................9 viability.............................................................7-8
Abortion seeTermination of pregnancy Birth certificate.......................................................8
Access to court Bodily integrity.........................................64, 65, 66
children's right.................................................89 Born-alive rule..........................................................7
Administration of deceased estate Burial...............................................................33-34
presumption of death.................................30-31
Adoption C
parental responsibilities and rights...............83 Capacity to act
by unmarried father.........................................77 definition.............................................................36
child (in/ans)........................................85, 90-91
Adulterine child.....................................................50
insolvent person.............................................146
African Charter on the Rights and Welfare
intoxicated person.........................................137
of the Child......................................................90
mentally ill person..................................120-121
Age of majority.......................................5, 114-115
minor..................................................85, 92-111
Agent, minor as..................................................112
person unable to administer affairs....135-136
Alcohol prodigal...................................................141-143
influence on legal status...............................137 Capacity to be held accountable for
A.ntenuptial contract c1imes and delicts
minor's contract...............................................96 definititm.............................................................37
ratification..........................................................99 child (infans).....................................................92
Artificial fertilisation insolvent person...............................................147
definition............................................................50 intoxicated person.........................................137
husband's consent, absence of.......................51 mentally ill person..........................................122
information regarding genetic parents.........52 minor...............................................................113
registration of child's birth.............................10 prodigal...........................................................143
relationship between child and birth Capacity to litigate
mother..........................................................51 gmeralty................................................... 36-37
relationship between child and gamete child (i11Jans)...................................................91
donor.......................................................51-52 emancipated minor...............................1l 7-118
same-sex parents................................................51 insolvent person.....................................146-147
status of child.....................................................51 mentally ill person...........................................120
surrogacy............................................................50 minor.......................................................112-113
terminology........................................................51 person unable to administer affairs....135-136
Assisted fertilisation/reproduction.........................51 prodigal............................................................143
Care see alsoParental responsibilities and
rights
B definition............................................................68
Baby seeChild (in/ans) unborn child...............................................18-19
Bank Cerebral palsy................................................17-18
minor's banking account.................................99 Child (in/ans) see also Maintenance; Minor;
Birth Parental responsibilities and rights;
interests of unborn child seeUnborn child Proof of parentage; Unborn child
definition............................................................90
and legal personality.....................................7-8
capacity to act.......................................85, 90-91
173
174 The South African Law of Persons

Page Page
Child (infans) (contim1-ed) Coma seeContinuous unconsciousness
capacity to be held accountable for crimes Commorientes..................................................... 32
and delicts....................................................92 Company......................................................2n, 3-4;
capacity to litigate............................................91 see alsoDirector of
constitutional rights seeChildren•s rights company Condoms
domicile............................................................46 seeContraceptives Constitution
donation to.......................................................91 of the RSA
legal capacity.............................................35-36 children's rights...............................................86
legal personality, beginning of......................7-8
jurisdiction in constitutional matters.............511
name.............................................................9-12
and the law of persons....................................5-6
registration ofbirth......................................8-12
Contact...................................................................68
removal from South Africa............................79
Continuous unconsciousness
unmarried parents seeChild born of
unmarried parents termination of medical treatment and
Child born of married parents artificial feeding.......................................l 24n
definition......................................................... 49 termination of pregnancy................................22
Contraceptives
putative marriage.....................................4911, 83
Child born of unmarried parents seealso provision to minor....................................85, 111
Parental responsibilities and rights; relevance in proving paternity.........................61
Proof of pa.rentage Contract
definition......................................................... 49 capacity seeCapacity to act
adoption............................................................83 minor's liability see Minor's contract
adulterine child................................................50 unborn child, on behalf of.......................18-19
artificial fertilisation..........................................51 Corporeal things.....................................................2
changing status..........................................82-83 Corpse
incestuous child................................................50 burial or cremation....................................33-34
intestate succession..........................................82 post-mortem......................................................29
natural child.....................................................50 sexual act with/violating.................................27n
registration of birth...............................8n, 9-10 Costs order against minor.........................112-113
subsequent marriage of parents......10-11. 82-83 Credit-worthiness..................................................2n
surname........................................................9-10 Cremation........................................................33-34
terminology.......................................................49 Criminal capacity seeCapacity to be held
testate succession..............................................82 accountable for crimes and delicts
Child labour....................................................96-97 Curator ad lite-m
Child marriage................................................87-88 mentally ill person..........................................124
Children's 1ights minor...............................................................112
access to court...................................................89 person unable to administer affairs.....134-135
access to health information....................88-89 prodigal............................................................140
African Charter.................................................90 unborn child.................................... 5-6, 15, 23
best interests of the child................................87 Cu1·ator bonis
Children•s Act 38 of2005...........................86-89 mentally ill person...........................................123
child•s views to be considered.........................87 missing person..........................................31, 134
circumcision and virginity testing.............87-88 person unable to administer affairs.............134
Constitution.......................................................86 prodigal...................................................139-140
detrimental social, cultural and religious Curator personae
practices.................................................87-88 mentally ill person..........................................124
disabled child...................................................87 person unable to administer affairs.....134-135
legal proceedings..............................................87
Customary initiation..............................................88
legal representation..........................................89
Customary marriage
persons entitled to enforce rights..................89
UN Convention.................................................90 rninor...............................................................108
Civil union
dissolution on presumption of death.............31 D
insolvent partner............................................145 Death see alsoPresumption of death
mentally ill partner.................................121-122 definition................................................... 27-28
minor cannot enter.................................99, 109 brain death..................................................27-28
prodigal partner.............................................142 burial or cremation....................................33-34
subsequent union after chiJd•s birth.......10-11 certificate...........................................................28
ending of legal personality.......................27-28
 Index 175

Page Page
.
 176 The South African Law of Persons

Page Page
Death (continued') Domicile (continued)
of father matrimonial property system...............6, 39-40
change of child's surname..........................11 mentally incapacitated person.................46-47
funeral arrangements................................33-34
military staff......................................................45
inquest....................................28, 29-30, 31, 32
minor...........................................................42, 46
proof of death...................................................28
more than one domicile.................................41
registration........................................................32
no domicile.......................................................41
reporting......................................................28, 32
sequence of deaths...........................................32 permanent residence distinguished...............41
violating grave or corpse...............................27n prisoner.......................................................45, 46
Dependant's action for loss of support refugee..............................................................43
unborn child ............................................16-l7 standard of proof............................................41
Deportation wife....................................................................43
effect on domicile...........................................44 Donation
Dignity.....................5, 6, 10, 22, 24, 33, 55, 69, 87, to child (in/ans)................................................91
]21, ]25, 126,127, 133, 134, 144 to minor............................................................92
Diplomat Double-barrel surname.....................................9-10
domicile.......................................................45, 46 Drugs
Director of company influence on legal status...............................137
insolvent person...............................................146
minor...............................................................111
E
prodigal............................................................140
Disabled person Earning capacity..................................................2n
children's rights...............................................87 Emancipation of minor.............................116-118
Convention on the Rights of Persons Embryos........................................................2n, 14n
with Disabilities.................................126, 133 Employment of a minor.................................96-97
mental disability see Mentally disabled Equality............................5, 6, lln, 15,21, 22, 24,
person 40, 57n, 58, 61, 69, 70,
pre-natal iruury...........................................17-18 85, 121, 126, 144
iights.......................................................125-126 Estoppel
Divorce minor's unassisted contract....................O1-102
change of child's surname...............................11 Exceptio non adirnpleti contractus...........................94
mentally ill spouse..................................121-122
Exceptio ptwium concubentiu1n.........................60-61
unborn child..............................................18-19
Executor, minor as............................................111
guardianship and care...........................18-19
maintenance..........................................15-16
Domicile F
definition................................................................41 Father see a./,so Unmarried father
assigned domicile..............................................46 death of
common-law rules replaced by 1992 Act........40 change of child's surname.........................11
deportation from South Africa......................44 paternity see Proof of parentage
diplomat......................................................45, 46 Female circumcision and genital mutilation.....88
domicile of choice
Fideicornmissum..................................................14-15
d.efinition............................................................42
Foetus
conditions for acquiring..............................43
right to life.................................................23-24
intention to settle indefinitely.............44-45
lawful presence.......................................43-44 viability............................................................7-8
minor............................................................42 Foreign government or business
persons able to acquire.........................42-43 domicile of officers and employees..........45, 46
domicile of dependence..................................43 Forename
domicile of origin......................................41-42 change of....................................................11-12
fugitive from justice...........................................44 registration at birth...........................................9
general principles............................................41 Friendly society, minor's memberi;hip
illegal alien.........................................................43 of...............................................................99-100
legal importance..........................................39-40 Fugitive from justice
legislation..........................................................40 domicile............................................................44
lex domicilii, matters detennined by..........39-40 Funeral arrangements....................................33-34
 Index 177

Page Page
G Intestate succession
Gamete donor see alsoArtificial fertilisation; child born of unmarried parents....................82
Surrngacy unborn child.....................................................13
exclusion of parental responsibilities and Intoxication
rights.......................................................?S-74 influence on legal status...............................137
known sperm donor..........................................73
registration of child's birth.............................10 J
Gestation period....................................................59 Judicial notice of paternity tests .................. 66- 67
Grandparents Jurisdiction in constitutional matters.................5n
duty to support child born of unmarried Juristic persons..............................................2n, 3-4
parents......................................................5, 69
Grave, violation of...............................................2711
L
Guardianship see alsoParental responsibilities
and rights Law and rights, relationship between...............1-2
definition...........................................................68 Law of persons: definition........................................l
parent under 18 years as guardian...............112 Legal capacity..............................................2, 35-36
unborn child..............................................18-19 Legal object
definition............................................................... 2
H categories.........................................................2-3
Legal personality
Health information
beginning........................................................7-8
children's right...........................................88-89 ending.........................................................27-28
HIV testing of minor...................................110-ll l juristic persons....................................... 2n, 3 4
natu1·al persons....................................................3
I Legal representation
Ignorantia iuris hand excusat...........................98-99 children's right.................................................89
Ill person Legal subject
curatorship.............................................134-135 definition.............................................................. 2
Illegal alien categories..........................................................3-4
domicile.............................................................43 status..................................................................35
Illegitimate child seeChild born of unmanied unborn child ............................................ 26- -27
parents Lex dom.icilii, matters determined by.............39-40
In vitrofertilisation............................................211, 50 Life insurance
Incest child (in/ans).....................................................91
incesntous child................................................50 minor.................................................................97
parentage of child born of..............................10 Locus standi seeCapacity to litigate
termination of pregnancy................................20
Infans seeChild (in/ans) M
Initial.ion schools....................................................88 Maintenance see alsoParental responsibilities
Inquest ........................................ 28, 29-30, 31, 32 and rights
Insolvent person child born of unmarried parents............68-69
definition..........................................................145 grandparents' duty.......................................5, 69
assets excluded from insolvent unborn child of divorcing parents...........15-16
estate...................................................145-146 Male circumcision...................................................88
capacity to act.................................................146 Marriage
capacity to be held accountable for crimes after child's birth ......................... 10-11, 82-83
and delicts...................................................J child marriage.......................................... 87- -88
47 dissolution on p1·esumption of death..............31
capacity to litigate ................................146---147 insolvent spouse.............................................145
legal capacity............................................35, 146 mentally ill spouse..................................121-122
rehabilitation...................................................148 minor............................................107-108, 115
sequestration of estate...........................145-146 minority status, termination of.....................115
spouse or civil union partner........................145 person incapable of administering affairs.....136
Insurance contract prodigal spouse.....................................14011, 142
child (in/ans)....................................................91 Matrimonial property system,
minor.................................................................97 husband's domicile determining..........6, 39-40
Intellectual property...............................................3
 Index 177

Page Page
Medical treatment and operations Minor (continued)
mentally ill person.....................................124n age of puberty......................................107, l 13
minor ....................................................109-l10 bank account..........................................99-100
Mental health care user capacity to act...................................85, 92-111
definition...............................................................124 capacity to hold office and perform
absconding from health establishment.......130 functions............................................111-112
admission to health establishment.......126, 130 capacity to incur delictua.l and
arrest and assessroem..................................130 criminal liability.......................................l 13
care, treaunent and rehabilitation capacity to litigate.................................J J2-113
assisted care......................................127-128 constitutional rights see Children's rights
involuntary care................................128-130 contraceptives........................................85, l l
voluntary care...........................................127 1
Convention on the Rights of Persons contractual liability see Minor's contract
with Disabilities........................................126 domicile..........................................................46
police powers................................................130 donation to.....................................................92
prisoner or state patient...............................130 emancipation ....................................... 116--118
protection from exploitation...............125-126 employment of......................................... 96 97
rights....................................................125-126 extinguishmem of debt................................106
unfair discrimination............................125-126 HIV testing...........................................110-1ll
Mentally disabled person see impact of minority status................................85
alsoMental health care user marriage
care and administration of property.....130-131 civil marriage....................................107-108
Convention on the Rights of Persons civil union...........................................99, 109
with Disabilities................................126, 133 customary marriage..................................108
curator, unjustified appointment of...........133 term_inates minority status.......................115
curatorship...........................................134-135 medical u·eatrnent and operations........109-110
domicile...................................................46-47 performance without guardian's
legal starus ............................................135-l36 assistance.................................................. l 06
sterilisation...............................................25-26 prescription against..................................5, 114
termination of pregnancy..............................22 sterilisation.....................................................25
Mentally ill person see also Mental health termination of minority
care user attainment of prescribed age..........114-115
definuion.......................................................119 emancipation...................................116----118
capacity to act.......................................120-121 marriage...................................................115
capacity to be held accountable for venia aetatis and release from
crimes and delicts...................................122 tutelage........................................115-116
capacity to litigate........................................120 termination of pregnancy ............... 5-6, 21-
care and administration of property.....130-131 22 transfer of real right...............................106
consumer u·ansactions................................121 witnessing or making will............................107
curator, appointment of......................123-124 Minor•s contract
divorce/division of property................121-122 assistance by guardian
domicile....................................................46-47 antenuptial contract..................................96
expert evidence...........................................120 coun intervention......................................96
legal capacity..................................................35 employment contract..................................96
legal Status............................................120-122 express or tacit con.sent...........................96
Iucid interval................................................121 form of assistance......................................95
marriage or civil union.........................121-122 guardian•s liability...............................97-98
medical treatment and operations............124n insurance contract.....................................97
parental responsibilities and rights..............122 requirement for minor's conn11ctual
prescription againsL.....................................122 liability.............................................92, 95
prisoner or state paticnt..............................130 bank account..........................................99-100
proving mental illness..................................120 emancipated minor......................................117
Military staff CSlOppel..............................................101-102
domicile.........................................................45 misrepresentation by minor
Minor see also Child (in/ans) con.sumer contract...................................102
definition.................................................................92 contractual liability..........................100-102
age of majority......................................114-l15 delicrual liability................................l02-103
restituti.o in in.tcgiwn.............. 100-10l, 104-106
178 The Sou th African Law of Persons

Page Page
Minor's conu·act (continued) Parental responsibilities and rights (continued)
statutory exceptions regarding capacity agreement................................................74-75
to incur liability..................................99-100 background.....................................................67
unassisted conrract best interests of the child..............................78
conferring rights on minor........................92 both unmarried parents having
consumer contract.................................93-94 due consideration of views and wishes
decision to repudiate or honou,·...............94 of other co-holders...............................80
imposing duties on minor..........................93
guardianship and care..........................79-80
inchoate contract........................................93
independent exercise of responsibilities
minority as defence....................................94
and rights..............................................79
minor's performance, recovery of.............95
ratification.............................................98-99 parenting plan.....................................80-82
unjustified enrichmem...........................103-104 surrender or transfer of responsibilities
Misrepresentation and rights prohibited..............................80
minor's liability.....................................100-102 care..................................................................68
prodigal's liability.........................................142 child's views.............................................78-79
Missing person see alsoPresumption of death contact.............................................................68
curator bonis.............................................. 31, 134 factors to be considered................................78
Afqnstra................................................................. 3 general mies on exercising......................77-79
Mutual bank, minor's membership of................99 guardianship...................................................68
legislation........................................................67
N maintenance..............................................68-69
Name of child..................................................9-12 mentally ill parent.........................................122
Nascilurus fiction mother's responsibilitiesand rights.........69-70
dependant's action for loss of support......16 17 prodigal parent.............................................143
guardianship and care..............................18-19 subsequent marriage of parents..............82-83
inheritance...............................................12-13
unmarried father's responsibilitiesand rights
intestate succession.........................................13
on adoption................................................77
maintenance after birth.............................15-16
assignment by court..............................75-77
operation of...............................................12-13
pre-natal injury..........................................17-18 automatic acquisition..........................70-74
rule or fiction ...........................................26 27 parenlal agreement.............................74-75
sterilisation.................................................25-26 sperm donor........................................73-74
termination of pregnancy..........................19-24 Parents see also Parental responsibilities and
testate succession.......................................13-15 rights; Proof of parentage
whether nasciturus legal subject...............26- -27 excluded persons...........................................55
Natural child........................................................50 parenting plan.........................................80-82
Natural person......................................................3 Pater est quem nuptiae dt!monstrant ......... l 611, 56- -58
Negotiorwn ge.stio Paternity see also Proof of parentage
guardian's liability..........................................98 acknowledgement of......................................10
in/ans's liability...............................................91 Performance, right to...........................................3
intoxicated person's liability.........................137 Permanent life partnership...........................70-71
mentally ill person's liabilicy........................120 Permanent residence..........................................41
!orms of law........................................................1 Person unable to administer affairs
Notice of birth.......................................................8 curator, unjustified appointment of............133
curatorship.............................................133-134
0 legal status............................................135-136
Objective law........................................................... 1 Personal intellectual objects..............................2n
Older person
Personality property..............................................3
curatorship.............................................134-135
Pre-natal injury..............................................17-18
Orphan
registration of birth..........................................9 Pregnancy see alsoTermination of pregnancy
brain-<lead woman........................................27n
p Premawre baby....................................................7
Parental responsibilities and rights Prescription
definitum............................................................. 67 against mentally ill person...........................122
adoptive parents..............................................83 against minor............................................5, 114
 Index 179

Page Page
Presumption of death Proof of parentage (cantinued)
common-law procedure..............................28-29 factors to be considered (continued)
dissolution of marriage or civil union............31 scientific tests see below
distribution and administration of sterility.......................................................60
estate......................................................30-31 mother's choice.......................................60-61
factors to be considered..................................29 paurest quemnuptiae dnnonstrant.......16n, 56-58
rebuttable presumption...................................30 persons disqualified from being parent........55
rule nisi...........................................................29 presumptions of paternity........................56-58
setting aside court order............................31-32 rebmtal of presumption
statutory procedure....................................29-30 child roay rebut..........................................57
time period.................................................28-29 onus of proof.............................................58
Presumptions of paternity..............................56-58 persons entilled to rebut.....................56-57
Prisoner relevant factors seefactors to be
rlomicile .............................,............,..........45, 46 considered above
mental health care.........................................130 time for rebutting factors to be
Prisoner of war considered.............................................56
curatorship...................................................134 same-sex union.........................................57-58
Privacy........................................22, 24, 63, 65-66, scientific tests
125,126,127, 144 acceptance of results............................61-62
Prodigal available tests.............................................61
defimuon........................................................139 best interests of the child.........................63
application for order.....................................140 constitutional issues.............................65-66
capacity to act........................................141-143 court's power to order ..............,........61-66
capacity to be held accountable for deceased person........................................66
crimes and delicts.....................................143 judicial notice......................................66-67
capacity to litigate.........................................143 Maintenance Court...............................64-65
constitutional implications of motherless tests..........................................62
interdiction...........................................6, 144 refusal of
curator ad litem...............................................140
effect on credibility..............................62
cumtor bonis
sex during period of conception.......57, 58, 59
appointment........................................139-140 when parentage issue arises....................54-55
discharge ...............................,...................140
Public servant
powers....................................................13911
domicile....................................................45,
director of company......................................140
46
marriage or civil union.......................140n, 142
Putative marriage
misrepresentation by....................................142
status of child.........................................49n, 83
parental responsibilities and rights..............143
persons entitled to apply for order........139-140
publication of court order.............................140 R
regaining full capacity...................................140 Rape
tnistee.............................................................140 parentage of child born........................O, 55-56
will..........................................................142-143 termination of pregnancy..............................20
Proof of parentage Ratification
best interests oft11e child..................55-56, 57, minor's unassisted contract......................98-99
60-61,6 66 prodigal's cont.ract.......................................141
cautionary rule...........................................58-59 Refugee
child born after dissolution of marriage........57 domicile..........................................................43
child born of married woman...................56-58 Registration of births
child born of unmarried woman....................58 abandoner! child..............................................9
child conceived before marriage....................57 birtl1 certificate.................................................8
corroboration of mother's evidence..........58-59 child born of rape or incest..........................10
factors to be considered child born of unmarried parcnts........8n, 9-10
absence of sexual intercourse.....................59 documents required.........................................8
contraceptives.............................................61 forename and surname..............................9-12
exuptio pluriu111concitbentium.............60-61 gamete;: donor....................................................0
gestation peiiod..........................................59 late registration.............................................8-9
physical features..........................................61 notice of birth..................................................8
persons entitled to register.............................8
180 The SouLh African Law of Persons

Page Page
Registration of births (cornmuea) Surrogacy (contin-iua)
requirement.......................................................8 partial surrogacy.............................................54
time limit..........................................................8 relationship between child and birth
Registralion of deaths..........................................32 motJ1er ................................................. 53--54
Rehabilitation of insolvent................................148 relationship between child and
Remarriage commissioning parents..............................53
chjld's surname..............................................11 termination of agreement.............................54
&stittdi.oin i1iugru1n termination of pregnancy........................21, 54
contract prejudicial to minor................104-106 valid agreement, requirements for..........52-53
emancipated minor..............................105, 117
minor's unassisted contract............................95 T
misrepresentation by minor..................100-101
Right t0 life....................................................23-24 Termination of pregnancy
consent of pregnant woman....................21-22
constillltional challenge...... 5-6, 21-22, 23-24
s foetus's right to life..................................23-24
Sequestration of insolvent estate...............145-146 grounds for.....................................................20
Simultaneous death.............................................32 mentally disabled or unconscious woman.....22
Slavery...................................................................3 minor................................................5-6. 21-22
Spenn donor seeGamete donor 11ascilums fiction.......................................19-20
State patient persons entitled to perform...........................20
definrtiim....................................................124n pregnant woman's rights...............................22
mental health care........................................130 rape or incest.................................................20
Status of legal subject..........................................35 surrogate mother......................................21, 54
Sterilisation.....................................................25-26 unmarried father or same-sex partner,
Stillbirth opposition of.............................................24
burial order......................................................33 Testate succession
medkal waste..................................................33 child born of unmarried parents..................82
no legal personality..........................................7 unborn child............................................13----15
reporting........................................................32 Trade secrets....................................................... 211
Stipulatio alteri....................................................19 Transformative constiuitionalism.....................5-6
Subdivision of land Trustee
unborn heir.....................................................15 insolvent person as.......................................146
Subject-object relationship....................................I prodigal as....................................................140
Subject-subject relationship.................................1 Tutelage, release from..............................115-116
Subjective law.......................................................1
Sumame
change for good or sufficient reason........11-12 u
child born ofunmanied parents..............9-10 UN Convention on the Rights of the Child.....90
death or divorce..............................................J 1 Unborn child
double-barrel................................................9-10 cumtorad litem.................................. 5-6, 15, 23
of husband or civil union partner, dependant•s action for loss of support....16-17
assumption of..........................................11n guarruanship and care.............................18-19
mother's remarriage......................................11 intestate succession.........................................13
registrntion at birth......................................9-12 maintenance after birth...........................15-16
unmarried mother marrying someone else....11 nascilurus fiction.......................................12-13
woman's former surname, resumption of....lln pre-natal injury.........................................17-18
Surrogacy sterilisation................................................25-26
definition.......,..................................................50 tem1ination of pregnancy.........................19-24
commercial arrangements...............................53 testate succession......................................13-15
commissioning parents whether a legal subject............................26-27
genetic link t0........................................6, 53 Unjustified enrichment
persons entitled to be................................53 injmlS's liability...............................................91
contact with child............................................53 mentally ill person's liability.......................120
form of artificial fertilisation...........................50 minor's liability....................................103-104
information concerning genetic parents....53-54 missing persons case......................................32
invalid agreement, effect of...........................54 prodigal's liability........................................141
 Index 181

Page Page
Unmarried father see
alsoParent.al V
responsibilities and rights; Proof Venia aetatis................................................................15
of parentage Venia agendi.............................................................112
acknowledgement of paternity.......................10 Virginity testing.....................................................88
adoption of child..............................................77
opposing termination of pregnancy..............24 w
regiso·ation of child's birth...........................9-10 Will see alsoTestate succession
stanis of child seeChild born of minor's capacity to witness or make.............107
unmarried parents prodigal'swill.........................................142-143
surname of child..........................................9-10