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Bopape and another v Moloto 2000 (1) SA 383 (T) (see study unit 10)
In this case, Mr and Mrs Bopape (the second and the first plaintiffs respectively) were married in
community of property. During the subsistence of their marriage, Mr Bopape entered into an
extramarital relationship with Ms Moloto (the defendant). Mr Bopape paid several amounts of
money (inter alia in respect of the purchase of a stand and the building of a house) out of his
business to, or on behalf of, Ms Moloto. These payments were, of course, made without Mrs
Bopape's consent. Ms Moloto was aware of the fact that Mr and Mrs Bopape were married in
community of property and also that Mr Bopape's business formed part of the plaintiffs' joint estate.
After Mrs Bopape discovered that her husband had been having an extramarital relationship with the
defendant for nearly 18 years and that, during this time, he had spent almost R200 000 on her stand
and new house, Mrs Bopape instituted a claim against Ms Moloto for the repayment of all amounts
of money that Mr Bopape had spent on her. Ms Moloto opposed the action and argued that Mrs
Bopape had a remedy in terms of section 15(9)(b) of the Matrimonial Property Act 88 of 1984. In
terms of this section, an adjustment will be effected in favour of the prejudiced spouse upon the
division of the joint estate, if it appears that the joint estate has suffered a loss as a result of a
transaction which was concluded without her consent. On behalf of Ms Moloto it was also argued
that Mrs Bopape could have requested a division of the joint estate in terms of section 20 of the
Matrimonial Property Act. Ms Moloto was therefore of the opinion that, as far as she was concerned,
the payments to her were perfectly valid. (S 15(9)(b) and s 20 of the Matrimonial Property Act are
discussed on pp 101 and 102 of the prescribed textbook respectively.) The court held that the
provisions of section 15(3)(c) of the Matrimonial Property Act (namely, that one spouse may not,
without the other spouse's consent, donate any asset of the joint estate to another person if this
would unreasonably prejudice the other spouse's interest in the joint estate) are couched in
peremptory terms. Non-compliance with the provisions of this section thus results in the nullity of a
transaction, and the result of the nullity is, inter alia, that if an asset of the joint estate has already
been transferred to a third party, the spouse whose consent should have been obtained, can recover
the asset by means of the rei vindicatio. Consequently, the court ruled that Ms Moloto had to repay
to Mr and Mrs Bopape all the money that Mr Bopape had spent on her. The court also pointed out
that there is no reason to limit the remedies of an aggrieved spouse to the provisions of sections
15(9)(b) and 20 of the Matrimonial Property Act. Accordingly, Maritz J said that There is no sound
reason why an aggrieved spouse should suffer prejudice pending the possible eventual division of
the joint estate, which may or may not come about. It may also be prejudicial to an aggrieved spouse
to seek a division of the joint estate in terms of s 20 of the Act.

Du Plessis v Pienaar NO and others [2002] 4 All SA 311 (SCA) (see study unit 9)
The appellant, Mrs du Plessis, who is married in community of property, inherited farms,
equipment and livestock from her father subject to a stipulation that the bequeathed goods were
not to form part of her and her husbands joint estate, and also that they were not to fall within any
possible insolvent estate of her husband, nor vest in the trustee of such estate.
Mr and Mrs du Plessis joint estate was later sequestrated in the Transvaal Provincial Division of
the High Court and the trustees of the insolvent estate (the first and second respondents) laid
claim to Mrs du Plessis separate property. Mrs du Plessis applied to the Transvaal Provincial
Division for declaratory orders that the property did not form part of the insolvent estate,
prohibiting the trustees from selling the property for the benefit of creditors and compelling them
to restore the property to her. The question therefore arose whether Mrs du Plessis separate
property was available to meet the claims of joint creditors of the spouses upon their insolvency.
The Transvaal Provincial Division dismissed Mrs du Plessis claim, as a result of which she
appealed to the Supreme Court of Appeal. The Supreme Court of Appeal found the fact that Mrs
du Plessis owned separate property was relevant only insofar as it affected the spouses inter se
and with regard to their rights upon dissolution of the marriage and that it did not affect the rights
of creditors. The court further said that neither the spouses nor a testator was capable of
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unilaterally altering the ordinary consequences of a marriage in community of property. A spouse

who is married in community of property, and who owns separate property, is in no stronger
position than any other debtor who similarly is not capable of immunising property against the
claims of creditors. The appeal was thus dismissed with costs.
This decision of the Supreme Court of Appeal has therefore brought an end to the uncertainty that
existed in our law concerning the question whether the separate property of one spouse is subject
to attachment for joint debts incurred by the other spouse in a marriage in community of property.

1.2.3 Childs v Childs and another NNO 2003 (3) SA 138 (C) (see study unit 18)
Mr and Mrs Childs got married out of community of property in 1982. Two children were born of
this marriage, who were still minors when Mrs Childs (the plaintiff) issued summons against Mr
Childs (first defendant) for a decree of divorce in 1999. At the trial, it was common cause that
custody of the children should be awarded to Mrs Childs subject to Mr Childs right of reasonable
access. Substantial maintenance was awarded to Mrs Childs in respect of each child. Mrs Childs
also claimed a redistribution of assets in terms of section 7(3) of the Divorce Act 70 of 1979 and
personal maintenance only in the circumstances where her redistribution claim was not granted
in full. Mr Childs tendered one-third of his assets for redistribution to Mrs Childs, but Mrs Childs
claimed that half of Mr Childs estate be transferred to her.
During their 20-year marriage, the parties earned similar sums of money. It was also clear that
Mrs Childs had assisted Mr Child greatly on a financial, social and emotional scale throughout the
marriage. It was submitted on behalf of Mr Childs that there was no evidence to distinguish this
marriage from so many others where the courts have deemed a proportion of one-third to be
adequate compensation to a wife for her contribution to her husbands estate. It was argued on
behalf of Mrs Childs that determination of the redistribution claim should commence with
Beaumont v Beaumont, where the court rejected the one-third approach of the English law. It was
further pointed out on her behalf that the new approach in England is, in any case, to order an
equal division of available assets so as to eradicate discrimination between husbands and wives.
The court accepted this new approach and found no reason to depart from equality on the facts
of the present case. Mrs Childs was awarded half of Mr Childs nett asset value, payable within
90 days of the order. Although Mrs Childs was awarded an amount slightly less than the amount
she had specified as the point at which maintenance would be required, the court held that it
would not be necessary or appropriate for her to be paid personal maintenance. In this regard the
court once again referred to the interrelationship between sections 7(2) and 7(3) of the Divorce
Act.
In regard to the form of the order, the court held that the remarks in Beaumont v Beaumont, to the
effect that the legislature clearly intended the court to have the widest powers in relation to the
form of a redistribution order, were relevant to the present situation. Although Mr Childs may not
have had the amount available in cash, he had the means to obtain that sum of money in order
to meet his obligations.

1.2.4 Bezuidenhout v Bezuidenhout [2003] 3 All SA 82 (C) (see study unit 18)
The parties in this case, Mr Bezuidenhout (the defendant) and Mrs Bezuidenhout (the plaintiff),
got married out of community of property in 1975. During their marriage, Mr and Mrs
Bezuidenhout had established three companies in which they both held shares. These three
entities became their family business in which they had both worked at certain times during their
marriage. It was common cause that Mr Bezuidenhout was the driving force and decision-maker
in the business, while Mrs Bezuidenhout had provided administrative support and acted as a
sounding-board. Mrs Bezuidenhout, however, had also worked in the home and raised the parties
child. After 25 years of married life, Mrs Bezuidenhout sued Mr Bezuidenhout for divorce. She
also requested a redistribution order in terms of section 7(3) of the Divorce Act 70 of 1979 which
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would give her 50 percent of the parties assets. The issue before the court was what
redistribution of assets, if any, would be equitable and just (as required by s 7(3) of the Divorce
Act), given the contributions of the respective parties.
Mrs Bezuidenhout testified that she was entitled to 50 percent of the assets owing to the fact that
she had contributed significantly to the maintenance and increase of Mr Bezuidenhouts estate
in both the domestic and business domains. Mr Bezuidenhout, on the other hand, was of the view
that to award a redistribution order would be neither just nor equitable owing to the fact that,
although Mrs Bezuidenhout had contributed to the growth of his estate through her contributions
in the domestic domain, her contribution in the family business had been marginal.
After considering the testimonies of both parties, the court came to the conclusion that Mrs
Bezuidenhout did indeed contribute substantially to the maintenance and increase of Mr
Bezuidenhouts estate by the rendering of services and saving of expenses, both in the domestic
and business domains. The court subsequently had to determine what redistribution order would
be just and equitable in the circumstances of this case.
In this regard the court followed the principle set out by the Supreme Court of Appeal in Beaumont
v Beaumont and Katz v Katz, namely to start with a clean slate and then fill in the void by
looking at all the facts, but not limited to an analysis of the contributions of the respective parties.
The court referred to recent English case law in which the courts overturned 25 years of practice
in these types of cases, and substituted a new approach to division of matrimonial assets on
divorce predicated on fairness and the absence of discrimination between husbands and wives.
The court further noted that this was also the trend in Australia and Canada.
The court in casu subsequently summarised the position as follows:
... [T]he traditional role played by a South African housewife in the plaintiffs position cannot
be held against her. It is abundantly clear that both parties did their utmost in their differing
roles and one cannot argue logically that the defendants contribution, because it is
primarily a business contribution, is worth more than the contribution of the plaintiff. The
roles played by the plaintiff in the circumstances of this case, must, ... be given equal
weight and I must be mindful of the historically disadvantaged position occupied by women
in the labour market and the fact that there has traditionally been a gendered division of
labour in the household. A contrary approach would, in my view, amount to gender
discrimination.
The court then held that it was appropriate to interpret section 7 of the Divorce Act in light of the
aforementioned, given sections 39(1) and (2) of the Constitution of the Republic of South Africa
Act 108 of 1996 (see p 460 of your casebook) and the protection of equality before the law and
prohibition against unfair discrimination contained in the Bill of Rights.
After attending to various recent judgements of the Constitutional Court in which the deep
inequality occasioned by womens gender roles has been acknowledged, the court came to the
conclusion that the only way that justice could be served in this matter was by splitting the
proceeds of the marriage on a 50/50 basis. The court said that in doing so it ensured that both
parties would be enabled to maintain the standard of living to which they became accustomed
during the marriage and that Mrs Bezuidenhout would be financially secure for the rest of her life.
The court granted a decree of divorce and ordered Mr Bezuidenhout to pay Mrs Bezuidenhout
a certain sum of money which would result in the parties each owning 50 percent of the
matrimonial assets.

1.2.5 Bannatyne v Bannatyne and another 2003 (2) BCLR 111 (CC) (see study unit 19)
Upon their divorce, the court ordered Mr Bannatyne (the respondent) to pay maintenance to Mrs
Bannatyne (the appellant) for five years and to pay maintenance for their two young children. The
court also ordered him to retain the children on his medical aid scheme and to pay all reasonable
medical expenses incurred on their behalf. Mr Bannatyne did not pay maintenance regularly and
 4

brought an application to the maintenance court for a reduction of the maintenance in terms of
which the maintenance for the children was reduced. After this application, however, he still fell
into arrears with his maintenance payments. He eventually stopped paying maintenance
altogether, removed the children from his medical aid scheme and refused to pay any medical
expenses incurred on their behalf.
Despite several endeavours of Mrs Bannatyne to have the maintenance order enforced by the
maintenance court, Mr Bannatyne made no further maintenance payments. Mrs Bannatyne, who
at this stage was desperate, applied to the High Court for an order that Mr Bannatyne be
committed to prison for contempt of court for failing to comply with the maintenance order. The
High Court granted her application, but Mr Bannatyne was granted leave to appeal against this
decision. The Supreme Court of Appeal set the contempt order aside.
Mrs Bannatyne, however, appealed against this decision to the Constitutional Court. She
contended that the issue at hand was a constitutional one involving the rights of the children as
protected by section 28 of the Constitution. The Commission for Gender Equality which was
admitted as amicus curiae supported her stance and added that the failure of the maintenance
system to operate effectively entrenched and exacerbated the existing inequality between men
and women. Mr Bannatyne argued that the issue was not a constitutional one, but the court
concluded that it indeed was. Section 28(2) of the Constitution enjoins courts to give paramountcy
to the best interests of the child in every matter concerning the child. While the obligation in
terms of section 28(1) to ensure that all children are properly cared for is an obligation that the
Constitution imposes in the first instance on their parents, there is an obligation on the state to
create the necessary environment for parents to do so. A dispute as to whether this was done by
the Supreme Court of Appeal definitely raised a constitutional matter. Furthermore, the
Constitutional Court stated that, as the Commission for Gender Equality had correctly pointed out,
the instant case also raised issues of gender equality.
Mr Bannatyne argued that the High Court did not have the jurisdiction to commit him for contempt
for his failure to comply with an order of the maintenance court. The Constitutional Court pointed
out that courts are empowered to ensure that constitutional rights are enforced. They are thus
obliged to grant appropriate relief to those whose rights have been infringed or threatened. The
Constitutional Court stated that process-in-aid, a remedy whereby a court enforces a judgment
of another court which cannot be effectively enforced through its own process, is an incident of
a superior courts ordinary jurisdiction. This remedy can, however, be used only if it is clear that
the remedies of the other court are not effective. In the instant case it was very clear that the
legislative remedies of the maintenance court were totally ineffective to protect the rights of Mrs
Bannatyne and the best interests of her children.
The Constitutional Court accordingly held that there were sufficient grounds for the High Court
to commit Mr Bannatyne for contempt of court for failing to comply with the order of the
maintenance court. The order made by the Supreme Court of Appeal was, therefore, set aside.
However, in the light of the fact that Mr Bannatyne had, at a very late stage, sold some of his fixed
property and offered to settle the arrears and to pay maintenance regularly, the Constitutional
Court partly set aside the contempt order and referred the matter back to the maintenance court
for further inquiry.

1.2.6 Amod v Multilateral Motor Vehicle Accidents Fund (Commission for Gender Equality
Intervening) 1999 (4) SA 1319 (SCA) (see study unit 19)
In this case, Mrs Amod's (appellants) husband, to whom she had been married by Muslim rites,
was killed in a motor- vehicle accident. She instituted a claim for compensation for loss of support
against the Multilateral Motor Vehicle Accidents Fund. In the court of first instance her claim was
rejected, since the court found that the Fund was not legally liable to compensate her for loss of
support. Her appeal against this decision was upheld.
The Supreme Court of Appeal held that the decisive issue was not whether or not Mrs Amod had
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been lawfully married to the deceased, but whether or not the deceased had been under a legal
duty to support her in a relationship which deserved recognition and protection at common law.
The court analysed the historical origins and evolution of the dependant's action in terms of the
common law and concluded that a dependant who was not legally married to the deceased could
also have an action for compensation for loss of support. This would be the case if
(1) the deceased had had a legally enforceable duty to support the dependant
(2) that duty arose from a marriage solemnised in accordance with the tenets of a recognised
and accepted faith;
(3) that duty deserved recognition and protection for the purposes of a dependant's action
In the light of the ethos of tolerance, pluralism and religious freedom, which evidenced itself in the
new South Africa even before the formal adoption of the interim Constitution of the Republic of
South Africa 200 of 1993, the court concluded that the boni mores of our society today require that
the contractual duty of support which results from a Muslim marriage should be recognised and
be legally enforceable at common law. Therefore, the Fund was ordered to pay compensation for
loss of support to Mrs Amod.
The court emphasised that the marriage in the present case had been a de facto monogamous
one and that it left open the issue of whether dependants would have an action in the case of a
de facto polygynous marriage.
It is very important that you should realise that this decision, like the one in Ryland v Edros (see
pp 34-35 of the prescribed textbook), does not mean that Muslim marriages are recognised for
all purposes. The court merely extended the dependant's action to the surviving party to a Muslim
marriage. Muslim marriages still do not enjoy the same protection and recognition as civil
marriages.

1.2.7 Jackson v Jackson 2002 (2) SA 303 (SCA) (see study unit 20)
In your study guide (pp 190 - 191) there is a discussion on the situation where both parents are
awarded guardianship upon divorce and one parent (usually the custodian parent) wishes to leave
the country with his or her children, but the non-custodian parent withholds his or her consent.
You are also referred to several cases that reflect the courts viewpoint. You have to add to this
list the matter of Jackson v Jackson.
In this case, the father (the custodian parent) wished to emigrate to Australia with his two
daughters. The court referred to the criterion of the best interests of the child and the fact that the
court will not lightly refuse leave for children to be taken out of the country if the custodian parents
decision to emigrate is bona fide and reasonable. He emphasised, however, that the present case
differed from cases such as those mentioned in your study guide. Following the Jacksons divorce
there was no real separation between parent and child of the kind that normally occurs upon
divorce where the access of the non-custodian parent is limited to something of the order of
alternate weekends and in later years shared school holidays. In the present case, both parents
continued to exercise a parenting function in relation to the ordinary day-to-day welfare of the
children. The court made it very clear that [w]ere the children to be taken to Australia the
consequence would be the replacement of the mothers almost equal parenting role with what in
effect would be no more than biannual visits of a few weeks each. He concluded that permission
to take the children out of the country should have been refused because it would not be in the
childrens best interests to be allowed to emigrate to Australia with their father.
It is interesting that it was the father in this case who wished to emigrate with his daughters, while
it is normally the mother who approaches the court with a request of this nature. This raises the
question whether the courts decision would have been the same had it been the mother who
approached the court under circumstances similar to those in this case.

1.2.8 Krugel v Krugel 2003 (6) SA 220 (T) (see study unit 20)
Mr Krugel (the applicant) and Mrs Krugel (the respondent) were divorced and had two minor
 6

children. At divorce they were both made custodians of their minor children, but Mr Krugel was
granted physical custody. Mr Krugel moved to Cape Town and subsequently applied for sole
custody of the children. He argued that the order for joint custody was unworkable because of the
animosity between himself and Mrs Krugel. The application was opposed by Mrs Krugel on the
basis that there were no grounds upon which the court should deprive her of joint custody. She
also brought a counter-application wherein she requested to have her access to the children
extended now that they were residing in Cape Town.
In South Africa there has been a general reluctance to grant joint custody to parents and not only
where there is animosity between the parties. In this case, Judge De Vos referred to previous
decisions on joint custody (Kastan v Kastan, Pinion v Pinion, Corris v Corris and V v V) and
disagreed with the argument that ongoing hostility between the parties is an indication that it
would be better if only one parent were given authority over the children. Judge De Vos proposed
a more liberal approach to the granting of joint custody. She advocated that hostility between
parents should not be a bar to a joint custody order and that parents should have an equal say
in the raising of their children for as long as they are both fit and proper persons. Judge De Vos
came to the conclusion that disagreement and negotiation are part of life and that it is still
preferable for a child to learn to deal with the ups and downs of two involved parents. Unless the
disagreement is of such a nature that the child is either physically or emotionally put at risk,
hostility between the parents should not be an obstacle to joint custody and no child should lose
the right to be cared for by both of his or her parents. The court decided that the interests of the
children would be best served by keeping the joint custody order intact. Mr Krugels application
was dismissed and Mrs Krugels counter-application to have extended access was partly granted.
In this case, the joint custody order was not only seen as an order to promote the rights of
children subsequent to the divorce of their parents, but also as an order which helps to establish
equality between the sexes. Despite the current controversy about the role of joint custody in
promoting equality between men and women, Judge De Vos was convinced that a preference for
joint custody will help to reshape the gender roles within parenthood.

1.2.9 WS v LS 2000 (4) SA 104 (C) (see study unit 20)

This is the first reported case concerning the application of the Hague Convention on the Civil
Aspects of International Child Abduction (hereafter referred to as the Hague Convention) in South
Africa. All you need to know about this decision is the courts interpretation of article 13(b) of the
Hague Convention. Article 13(b) provides that a South African court may refuse to order the return
of a child to his or her country of habitual residence if there is a grave risk that the child's return
will expose him or her to physical or psychological harm or otherwise place him or her in an
intolerable situation.
The court indicated that when a person (usually the respondent) relies on article 13(b), the onus
of proof which rests upon him or her is no heavier than that which applies in ordinary civil cases.
The court further was of the view that the words "grave risk" merely mean that there must be a
serious or well-founded reason why the situation of the child would be intolerable should he or she
be returned. Furthermore, the court stated that the word "otherwise" in article 13(b) indicated that
the decision on whether the child would be placed in an intolerable situation should he or she be
returned, need not necessarily be based on the physical or psychological harm that could occur.

1.2.10 Du Toit and Another v Minister of Welfare and Population Development and Others
2002 (10) BCLR 1006 (CC) (see study unit 23)
In your study guide (p 220) Du Toit and Another v Minister of Welfare and Population
Development and Others 2001 (12) BCLR 1225 (T) is discussed. Please note that this decision
has been confirmed by the Constitutional Court and therefore is now enforceable; in other words,
every court in South Africa is bound by this decision.
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1.2.11 P and Another v P and another 2002 (6) SA 105 (N) (see study unit 23)
G, a minor child, had been living with her aunt and uncle (the plaintiffs) for a period of four years,
even though her parents (the first and second defendants) were still alive and G had regular
contact with them. The court had to decide about the guardianship and custody of and access to
G, as her uncle faced possible relocation to the United States for four years owing to the nature
of his employment and they wanted G to accompany them.
The court referred to section 28 of the Constitution of the Republic of South Africa 108 of 1996
and emphasised that it is the rights of the child and not those of the parents that are defined. The
court came to the conclusion that guardianship and custody should not be viewed as rights
vesting in the parent, but rather as duties imposed on the parent. The court further found that Gs
parents were plainly not in a position to give G what any child needs to develop, and guardianship
and custody were awarded to Gs aunt and uncle for as long as the plaintiffs were resident in the
United States of America. The court also decided that Gs parents were not to be denied their
rights of access and that G had to spend certain holidays with them at the plaintiffs expense.
It is important to note that the court has shifted the emphasis from parental rights to parental
duties with regard to their children.

Amar v Amar 1999 (3) SA 607 (W)

In this divorce case both parties were Jewish. Mrs Amar instituted the divorce proceedings and Mr
Amar initially opposed the divorce action. On the day this opposed divorce case came before the
court, the parties came to a settlement which was put into writing and signed by both parties. This
agreement made no provision for any maintenance award to Mrs Amar. The agreement was also not
made an order of court on that day, because the matter was postponed sine die (to an uncertain
date) at Mrs Amar's request. She first wanted to obtain a get (a divorce according to the Jewish
religion) from the Johannesburg Beth-Din, a Jewish Ecclesiastical Court, before the High Court
granted the divorce order. This reason for the postponement of the civil (secular) divorce action was
also incorporated in the written agreement between the parties. It is, however, clear from the facts
that Mr Amar was unhappy with the financial aspects of the written settlement agreement between
the parties. He, therefore, did everything in his power to stall the obtainment of the get and to make
sure that the agreement between the parties in its present form did not become operative. Although
the parties agreed to obtain a get from the Johannesburg Beth-Din, Mr Amar objected to obtaining a
get from this ecclesiastical court, as he is an adherent of a specific branch of Jewish Orthodoxy
known as Sephardi) and the Johannesburg Beth-Din normally grants divorces according to the rules
of another branch of Jewish Orthodoxy (known as Ashkenazi). The Johannesburg Beth-Din really
went out of their way to accommodate Mr Amar and even offered either to pay half the cost of his
aeroplane ticket to Israel so that he could obtain a sephardi get there, or to obtain the services of a
sephardi rabbi in Johannesburg so that the get could be granted here. Mr Amar, however,
persisted in withholding his co-operation in obtaining a get. He made it clear to Mrs Amar that he
would only co-operate in obtaining the get if she was prepared to make certain amendments to the
written settlement agreement between the parties. When the case again came before Goldstein J
two months later, he pointed out that in terms of section 5A of the Divorce Act 70 of 1979, he must
make an order he finds just. He said that the purpose of this section clearly is to create mechanisms
whereby recalcitrant spouses can be encouraged or even pressurised into granting religious divorces
where these are necessary to enable a spouse to remarry. According to him the most effective means
of procuring Mr Amar's co-operation in the granting of the get was to order him to pay Mrs Amar a
monthly amount of maintenance until such time as their marriage was dissolved according to the
Jewish religion. The court, consequently, granted the secular divorce order and ordered Mr Amar to
pay an amount of R1 000 per month as maintenance to Mrs Amar until their marriage was also
terminated according to the Jewish religion.
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Jooste v Botha 2000 (2) SA 199 (T)

2000 (2) SA 199 (T)
In this case the question arose whether the moral duty which the father of
an extramarital child has to provide the child with love, affection and
attention is legally enforceable if he does not have custody of the child.
Van Dijkhorst J stated that neither the common law nor statute recognises
the right of a child (whether legitimate or illegitimate) to be loved,
cherished, comforted or attended to by a non-custodian parent as creating a
legal obligation in that regard. Van Dijkhorst J also referred to the fact that
the Constitution of the Republic of South Africa Act 108 of 1996 does not
expressly state that parents are obliged to love and cherish their children or
to give them attention and interest. He specifically analysed section 28(1)(b)
of the Constitution in terms of which every child has the right to ``parental
care''. He came to the conclusion that the word ``parental'' must be read as
pertaining to a custodian parent. The non-custodian parent of a legitimate
child and the natural father of an illegitimate child who does not have
custody thus fall outside the scope of section 28(1)(b). The court therefore
held that the father of an illegitimate child has no duty to afford the child
love, attention and affection if he does not have custody of the child.

GORY V KOLVER 2007 (4) SA 97 (CC)

The summary of this constitutional court case also relates to study unit 24 (Life
Partnerships).
In this case the constitutional court confirmed an order by the high court declaring section 1(1)
of the Intestate Succession Act 81 of 1987 unconstitutional insofar as it does not provide for a
permanent same-sex life partner to inherit automatically, as a spouse would, when the other
partner dies without a will. The court further upheld the high courts reading in of the words "or
partner in a permanent same-sex life partnership in which the partners have undertaken
reciprocal duties of support" after the word "spouse", wherever it appears in the section. The
constitutional court held that the order of constitutional invalidity should, in the main, operate
retrospectively. It however imposed limitations aimed at reducing the risk of disruption in the
administration of deceased estates and protecting the position of bona fide third parties.
The subsequent enactment of the Civil Union Act has limited the field of application of this
decision, for same-sex couples who enter into a marriage or civil partnership in terms of the
Civil Union Act in any event enjoy all the rights of spouses in a civil marriage (see s 13(1)).
Furthermore, section 13(2) of the Civil Union Act equates any reference to "spouse" in any law
other than the Marriage Act and the Recognition of Customary Marriages Act to a reference to
"civil union partner" (see the summary of the provisions of the Act under the previous
heading

Van der Merwe v Road Accident Fund and Others 2006 (6) BCLR 682 (CC)
While Mr and Mrs Van der Merwe were still married in community of property, Mr Van der
Merwe intentionally knocked Mrs Van der Merwe over with his car. He thereafter reversed
over her while she was lying on the ground. Mrs Van der Merwe sustained grievous bodily
injuries on account of which she claimed damages of nearly R500 000 against the first
respondent (the Fund). The damages included patrimonial (or special) damages for loss of
earnings and earning capacity and hospital and medical expenses and non-patrimonial (or
general) damages in the form of pain and suffering, disfigurement and loss of amenities of life.
The Fund raised a special plea in which it admitted that Mrs Van der Merwe was entitled to
 9

claim non-patrimonial damages, but denied liability to compensate her for any patrimonial
damages by reason of the provisions of section 18(a) and (b) read with section 19 of the
Matrimonial Property Act 88 of 1984. These sections, and more specific section 18(b), in effect
prohibit claims for patrimonial damages between spouses married in community of property.
Section 18(b) reads as follow:
Notwithstanding the fact that a spouse is married in community of property-
(b) he may recover from the other spouse damages, other than damages for
patrimonial loss, in respect of bodily injuries suffered by him and attributable
either wholly or in part to the fault of that spouse.
Mrs Van der Merwe replied to the Funds special plea with the argument that section 18(b) of
the Act unfairly discriminates on the ground of marital status against persons married in
community of property as opposed to persons married under other matrimonial property
systems. She also argued that section 18(b) infringed her right to dignity (s 10 of the
Constitution) and constituted an arbitrary deprivation of property (s 25 of the Constitution).
The Cape high court found that section 18(b) does prevent a claim for delictual patrimonial
loss and that the restriction unfairly discriminates against spouses married in community of
property. It also found that the denial of a right of action to recover patrimonial loss arising
from bodily injury must be seen in the context of the prevalence of domestic violence in this
country. The court found that the prohibition is likely to have a more adverse impact on women
than men and thus constitutes indirect discrimination against women. The court further stated
that the prohibition also impairs the dignity of spouses married in community of property,
especially women. As the court further found that the discrimination is not justifiable under
section 36 of the Constitution, it held section 18(b) to be invalid in so far as it includes the
words other than damages for patrimonial loss. The court therefore made an order that these
words be struck out and replaced by the words including damages for patrimonial loss.
When the constitutional court had to confirm the high courts order of constitutional invalidity,
which the Fund opposed on several grounds, it applied the equality and unfair discrimination
test enunciated in Harksen v Lane NO and Others (1997 (11) BCLR 1489 (CC)). The
constitutional court thereafter came to the conclusion that section 18(b) draws an
impermissible differentiation between spouses married in and spouses married out of
community of property in respect of the right to recover patrimonial damages suffered from
bodily injury attributable either wholly or in part to the fault of the other spouse. The court inter
alia explained that the reason for the differentiation has fallen away when the Matrimonial
Property Act made provision for separate property of spouses married in community of
property. Since the enactment of the Matrimonial Property Act it is no longer futile for spouses
4
married in community of property to claim damages from each other as everything is no longer
owed and owned in common. The court also stated that there is no justification why spouses
married in community of property can institute claims for non-patrimonial damages against
each other, but not for patrimonial damages. The court, therefore, came to the conclusion that
the differentiation is not legitimate and that 18(b) infringes the right to equal protection and
benefit of the law as guaranteed by section 9(1) of the Constitution.
Despite the Funds contention that the infringement of Mrs Van der Merwes right to equal
protection and benefit of the law is reasonable and justifiable because she chose to marry in
community of property, the constitutional court found that there was no legitimate purpose to
validate section 18(b). The constitutional court therefore confirmed the high courts order to
the effect that the words other than damages for patrimonial loss must be struck out of the
section. The constitutional court further ordered that the words such damages do not fall into
the joint estate but become the separate property of the injured spouse must be read in after
the word either wholly or in part to the fault of that spouse. In terms of this new insertion all
damages, including patrimonial damages, will accrue to the separate estate of the injured
 10

spouse. The court, however, limited the operation of its order to claims in which a final court
order has not yet been made. The order will therefore not unrestrictively apply with
retrospective effect.

MINISTER OF HOME AFFAIRS V FOURIE; LESBIAN AND GAY EQUALITY PROJECT

V MINISTER OF HOME AFFAIRS 2006 (1) SA 524 (CC)/2006 (3) BCLR 355 (CC)
In this case, the constitutional court declared the common-law definition of marriage
unconstitutional to the extent that it excludes same-sex couples from the status, benefits and
responsibilities it accords to heterosexual couples. The court also declared the marriage formula
contained in section 30(1) of the Marriage Act 25 of 1961 unconstitutional to the extent that it
relates to heterosexual couples (husband and wife) only (see p 39 of your prescribed
textbook). The decision was, however, suspended for one year to enable Parliament to correct
the constitutional defects. Should Parliament fail to do so on time, the words or spouse will
simply be read in after the words or husband in section 30(1) of the Marriage Act and the
common-law definition will be interpreted to cover a union between two persons of the same sex.
In the latter event, same-sex couples will be able to get married and all the consequences of a
civil marriage will apply to a same-sex couples marriage.

WS v LS 2000 (4) SA 104 (C) (see study unit 20)

This is the first reported case concerning the application of the Hague Convention on the Civil
Aspects of International Child Abduction (hereafter referred to as the Hague Convention) in South
Africa. All you need to know about this decision is the courts interpretation of article 13(b) of the
Hague Convention. Article 13(b) provides that a South African court may refuse to order the return
of a child to his or her country of habitual residence if there is a grave risk that the child's return
will expose him or her to physical or psychological harm or otherwise place him or her in an
intolerable situation.
The court indicated that when a person (usually the respondent) relies on article 13(b), the onus
of proof which rests upon him or her is no heavier than that which applies in ordinary civil cases.
The court further was of the view that the words "grave risk" merely mean that there must be a
serious or well-founded reason why the situation of the child would be intolerable should he or she
be returned. Furthermore, the court stated that the word "otherwise" in article 13(b) indicated that
the decision on whether the child would be placed in an intolerable situation should he or she be
returned, need not necessarily be based on the physical or psychological harm that could occur.

1.2.9 Du Toit and Another v Minister of Welfare and Population Development and Others
2002 (10) BCLR 1006 (CC) (see study unit 23)
In your study guide (p 220) Du Toit and Another v Minister of Welfare and Population
Development and Others 2001 (12) BCLR 1225 (T) is discussed. Please note that this decision
has been confirmed by the Constitutional Court and therefore is now enforceable; in other words,
every court in South Africa is bound by this decision.
1.2.10 P and Another v P and another 2002 (6) SA 105 (N) (see study unit 23)
G, a minor child, had been living with her aunt and uncle (the plaintiffs) for a period of four years,
even though her parents (the first and second defendants) were still alive and G had regular
contact with them. The court had to decide about the guardianship and custody of and access to
G, as her uncle faced possible relocation to the United States for four years owing to the nature
of his employment and they wanted G to accompany them.
The court referred to section 28 of the Constitution of the Republic of South Africa 108 of 1996
and emphasised that it is the rights of the child and not those of the parents that are defined. The
court came to the conclusion that guardianship and custody should not be viewed as rights
vesting in the parent, but rather as duties imposed on the parent. The court further found that Gs
 11

parents were plainly not in a position to give G what any child needs to develop, and guardianship
and custody were awarded to Gs aunt and uncle for as long as the plaintiffs were resident in the
United States of America. The court also decided that Gs parents were not to be denied their
rights of access and that G had to spend certain holidays with them at the plaintiffs expense.
It is important to note that the court has shifted the emphasis from parental rights to parental
duties with regard to their children.

1.2.1 Satchwell v President of the Republic of South Africa and Another 2002 (9) BCLR
986 (CC) ; 2002 (6) SA 1 (CC) (see study unit 5)
The applicant in this case was Ms Satchwell, a judge of the High Court, who has been involved
in a lesbian relationship since 1986. She applied to the High Court to have certain sections of the
Judges Remuneration and Conditions of Employment Act 88 of 1989, as well as certain
regulations pertaining thereto, declared unconstitutional and invalid, insofar as they fail to regulate
the position of parties in a permanent same-sex life partnership. The relevant sections and
regulations confer certain benefits to the spouses of judges to which Ms Satchwells partner had
no claim, owing to her marital status and sexual orientation.
These provisions were declared unconstitutional and invalid insofar as they discriminate against
the partners in a permanent same-sex life partnership (on the grounds of marital status and
sexual orientation). The court held that the relevant provisions should be read as though the
benefits are conferred on a judge and his or her spouse or partner, in a permanent same-sex
life partnership.
When this matter came before the Constitutional Court for confirmation in terms of section
172(2)(a) of the Constitution of the Republic of South Africa 108 of 1996, the High Courts order
was set aside and substituted with an order that the omission of the words or partner, in a
permanent same-sex life partnership in which the partners have undertaken reciprocal duties of
support from these sections and regulations is inconsistent with the Constitution and that they
are to be read as though the benefits are conferred on a judge and his or her spouse or partner
in a permanent same-sex partnership in which the partners have undertaken reciprocal
duties of support. (Note that the Constitutional Court, unlike the High Court, requires the
partners in a same-sex relationship to undertake reciprocal duties of support in order to enjoy the
benefits of these sections and regulations.)

1.2.3 Distillers Corporation Ltd v Modise 2001 (4) SA 1071 (O)

In this case the meaning of the words cannot reasonably know in section 15(9)(a) of the
Matrimonial Property Act 88 of 1984 was scrutinised. Section 15(9)(a) determines, inter alia, that
where a spouse who is married in community of property enters into a transaction with a third
party without the consent of his or her spouse (as required by the Act), and the third party does
not know and cannot reasonably know that the spouse is acting unlawfully, it is deemed that the
transaction concerned was entered into with the required consent. (S 15(9)(a) is discussed on p
104 of the study guide and pp 100-101 of the prescribed textbook.) In the present case the court
held that the words cannot reasonably know imply that the matter must be considered from the
point of view of the reasonable person and that the conclusion at which the reasonable person
would have arrived, must be reached. The reasonable person is a fictitious person who is placed
in the position of the third party. Thus, if the reasonable person could not have known that the
spouse was acting contrary to the Act, the third party would be protected in terms of section
15(9)(a). (You will learn more about the reasonable person doctrine in the Law of Delict module
that is presented on the third level of your studies.)

Jordaan v Jordaan 2001 (3) SA 288 (C)

Upon Mr and Mrs Jordaans divorce, Mrs Jordaan (the plaintiff) requested a redistribution order
 12

in terms of sections 7(3)-(6) of the Divorce Act 70 of 1979. The question arose whether certain
trusts which had been set up by Mr Jordaan (the defendant) during the subsistence of his
marriage to Mrs Jordaan, and a farm he had inherited, could be taken into account in terms of
section 7(5) of the Divorce Act for determining the value of his estate. Mr Jordaan had set up the
trusts to further his own business interests.
Regarding the inheritance, the court made a distinction between the accrual system and
redistribution orders. The court referred to section 5 of the Matrimonial Property Act 88 of 1984,
in terms of which an inheritance, a legacy or a donation which had accrued to a spouse during
the subsistence of the marriage is specifically excluded from the accrual. (Thus, when the accrual
is determined, the value of an inheritance, a legacy or a donation is subtracted from the net end
value of the spouses estate.) Because section 7(3) of the Divorce Act contains no such
exclusions the court held that the farm Mr Jordaan had inherited should be taken into account for
the purposes of a redistribution order, as long as it was just and equitable to do so. On this point,
the court referred to the Van Zummeren case in which it was held that the qualifying factor which
determines whether an asset can be taken into account for the purposes of a redistribution order
is to be found not in the causa (cause/reason) underlying the acquisition of the asset, but rather
in whether the other spouse had made contributions to that specific asset (eg by maintaining
the asset). Contrary to Van Zummeren (see p 161 of the prescribed textbook), Mrs Jordaan had
made no contribution to the farm. The court, however, pointed out that it could hardly have been
expected of Mrs Jordaan, who had had to care for the Jordaans disabled child, to visit the farm
on a regular basis. The court held that she had made her contribution by remaining at home and
caring for her children, thereby enabling her husband to oversee the farming operations.
Regarding the trusts, the court held that Mr Jordaans personal business was intertwined with the
business of his trusts to such an extent that they could hardly be distinguished from each other.
The trusts had been set up solely for Mr Jordaans own financial gain. The court held that it would
5 PVL102-R/101
be just and equitable to take the assets of the trusts into account.

Van Rooyen v Van Rooyen 1999 (4) SA 435 (C); Godbeer v Godbeer 2000 (3) SA 976
(W); Schutte v Jacobs (Number 1) 2001 (2) SA 470 (W); Schutte v Jacobs (Number
2) 2001 (2) SA 478 (W); Latouf v Latouf [2001] 2 All SA 377 (T); H v R 2001 (3) SA 623
(C) (also reported as Heynike v Roets [2001] 2 AII SA 79 (C)); Jackson v Jackson
2002 (2) SA 303 (SCA)
More and more cases have recently emerged where the divorced custodian parent of a legitimate
child wishes to emigrate with his or her child. If the non-custodian parent refuses to give his or her
permission for emigration, which is required by the Guardianship Act 192 of 1993, the court may
authorise the emigration after considering the following three factors:
1 the interests of the child
2 the right of the custodian parent to carry on with his or her own life after divorce
3 the impact of the emigration on the non-custodian parents access rights
The bona fides of the custodian parent who wishes to relocate is also an important consideration.
The courts, however, emphasise that the best interests of the child constitute the paramount
factor.

1.2.7 Sonderup v Tondelli and Another 2001 (1) SA 1171 (CC) (also reported as LS v AT
and Another 2001 (2) BCLR 152 (CC))
This case also dealt with the application of the Hague Convention on the Civil Aspects of
International Child Abduction. The issues in this case that are relevant for your purposes, are the
Constitutional Courts interpretation of the wording of article 13(b) of the Hague Convention, the
purpose of this Convention and the role played by the best interests of the child.
 13

Regarding the wording of article 13(b) it was held that the words "otherwise place the child in an
intolerable situation" indicate that the harm must be of a serious nature.
6
As far as the purpose of the Hague Convention is concerned, Goldstone J held the following:
"The purpose of the Convention is important. It is to ensure, save in the exceptional cases
[those mentioned on pp 186-187 of the prescribed textbook] ... that the best interests of
a child whose custody is in dispute should be considered by the appropriate court. It would
be quite contrary to the intention and terms of the Convention were a court hearing an
application under the Convention to allow the proceedings to be converted into a custody
application ... . Rather, the Convention seeks to ensure that custody issues are determined
by the court in the best position to do so by reason of the relationship between its
jurisdiction and the child [ie the court of the country from which the child was removed
unlawfully] ..."
The court further held that a South African court seized of an application under the Convention
has to compare two issues, namely:
"the desirability, in the interests of the child, of the appropriate court retaining its
jurisdiction, on the one hand, and the likelihood of undermining the best interests of the
child by ordering her or his return to the jurisdiction of that court, on the other hand."
Regarding the possibility of the Hague Convention on Civil Aspects of International Child
Abduction Act 72 of 1996 being unconstitutional since it obliges our courts to act in a manner
which does not recognise the paramountcy of the best interests of the child, the court held that,
notwithstanding the fact that a child's long-term interests would be protected by custody
procedures in the country of the child's habitual residence, it could be envisaged that the child's
short-term best interests might not be met by immediate return. (These cases are separate from
those instances stated in the Convention in which the court may refuse to order the return of the
child - see pp 186-187 of the prescribed textbook. What the court had in mind were cases which
do not fall under those exceptions but in which the return of the child would still be to the child's
disadvantage.) The Constitutional Court assumed, without deciding the issue, that in such cases
the Convention might require those short-term best interests to be overridden and that, to that
extent, the Act might be inconsistent with the provisions of section 28(2) of the Constitution of the
Republic of South Africa 108 of 1996 - section 28(2) provides that the child's best interests are
of paramount importance in every matter concerning the child. In view of, inter alia, the
importance of the purpose of the limitation on the rights of the child, and the relationship between
the limitation and its purpose, Goldstone J, however, came to the conclusion that the limitation
on section 28(2) of the Constitution is justifiable in terms of section 36 of the Constitution.

1.2.8 Minister of Welfare and Population Development v Fitzpatrick and Others 2000 (3)
SA 422 (CC)
In this case Mr and Mrs Fitzpatrick wished to adopt a child born to a South African citizen. The
Fitzpatricks were British citizens and permanent residents of this country since 1997. Although
it was clear from the facts of this case that it would be in the childs best interests to be adopted
by Mr and Mrs Fitzpatrick, they were prohibited from doing so by section 18(4)(f) of the Child Care
Act 74 of 1983. Section 18(4)(f) provided, inter alia, that in the case of a child born of a South
African citizen, the applicants who are applying for the adoption of the child or one of them must
be a South African citizen. (See 4(a)(d)(iii) on p 199 of the prescribed textbook.) The
Constitutional Court held that section 18(4)(f) did not give paramountcy to the best interests of the
child as entrenched in section 28(2) of the Constitution of the Republic of South Africa 108 of
1996, which provides that the best interests of a child are of paramount importance in every
7 PVL102-R/101
matter concerning the child. For this reason the Constitutional Court held that section 18(4)(f) was
unconstitutional and invalid. (Please note that the requirement under 4(a)(d)(iii) in the prescribed
 14

textbook on p199 is no longer valid.)

1.2.9 Du Toit and Another v Minister of Welfare and Population Development and Others
2001 (12) BCLR 1225 (T)
Ms du Toit and Ms de Vos (the applicants) were the partners in a lesbian relationship. They
wished to become the joint adoptive parents of two minors. Since section 17 of the Child Care
Act 74 of 1983, which formulates the categories of people who may adopt children, fails to
regulate the adoption of a child by the members of a permanent same-sex life partnership jointly,
the children were adopted by Ms de Vos only. The applicants approached the High Court for an
order declaring the provisions of, not only section 17(a), but also sections 17(c) and 20(1) of the
Child Care Act and section 1(2) of the Guardianship Act 192 of 1993 unconstitutional and invalid
insofar as they fail to regulate the position of same-sex life partners.
Section 17, as mentioned above, formulates the categories of people who are competent to adopt
a child while section 20(1) regulates the consequences of adoption. In terms of section 17(a) a
child may be adopted by a husband and his wife jointly and in terms of section 17(c) by the
spouse of the child's parent. (See pp 198-199 of the prescribed textbook.) In terms of section
20(1) the bond between the adopted child and his or her natural parent is terminated by the
adoption order unless the child is adopted by his or her parent's spouse. (See p 202 of your
prescribed textbook.) Section 1(2) of the Guardianship Act, which deals with guardianship of
minor children, grants a father and mother equal and concurrent guardianship over the children
born of their marriage. (See p 205 of the prescribed textbook.) All these provisions only regulate
the position of the parties in a conventional common-law marriage and fail to regulate the position
of same-sex life partners.
Ms du Toit and Ms de Vos indicated that the shortcomings in these provisions discriminated
against them on the grounds of their sexual orientation and marital status and also decried the
fact that they had been denied their inherent dignity. It was further submitted that the challenged
provisions were in conflict with section 28(2) of the Constitution of the Republic of South Africa
108 of 1996, which provides that the best interests of a child are of paramount importance in
every matter concerning the child. In the present case it would be to the minors' advantage to be
adopted by Ms du Toit and Ms de Vos jointly. The provisions thus prevented adoptions which,
as in the present case, served the interests of children. For the above reasons the challenged
provisions were declared unconstitutional and invalid insofar as they failed to regulate the position
of permanent same-sex life partners.
The court ordered specific wording to be read into the provisions so that section 17(a) would
permit adoption of a child by spouses jointly or by the two members of a permanent same-sex
life partnership jointly, and section 17(c) would permit adoption by a married person whose
spouse is the parent of the child or by a person whose permanent same-sex life partner is the
parent of the child. The court further held that section 20(1) of the Child Care Act was to be read
as though it retained the bond between a child and his or her biological parent if that child was
adopted by his or her parent's spouse or permanent same-sex life partner. With regard to
section 1(2) of the Guardianship Act the court ordered that it was to be read as though it granted
equal and concurrent guardianship to both parents if the child was born of their marriage or if the
child was adopted jointly by both partners of a permanent same-sex life partnership.
8
This decision has not yet been confirmed by the Constitutional Court and is thus not yet
enforceable.
1.2.10 Satchwell v President of the Republic of South Africa and Another 2001 (12) BCLR
1284 (T) and CCT 45/01
The applicant in this case was Ms Satchwell, a judge of the High Court, who has been involved
in a lesbian relationship since 1986. She applied to the High Court to have certain sections of the
Judges Remuneration and Conditions of Employment Act 88 of 1989, as well as certain
regulations pertaining thereto, declared unconstitutional and invalid, insofar as they fail to regulate
 15

the position of parties in a permanent same-sex life partnership. The relevant sections and
regulations confer certain benefits to the spouses of judges to which Ms Satchwells partner had
no claim, due to her marital status and sexual orientation.
These provisions were declared unconstitutional and invalid insofar as they discriminate against
the partners in a permanent same-sex life partnership (on the grounds of marital status and
sexual orientation). The court held that the relevant provisions should be read as though the
benefits are conferred on a judge and his or her spouse or partner, in a permanent same-sex
life partnership.
The Constitutional Court (Case number CCT 45/01:currently unreported) recently set aside this
order and substituted it with an order that the omission of the words or partner, in a permanent
same-sex life partnership in which the partners have undertaken reciprocal duties of support from
these sections and regulations is inconsistent with the Constitution and that they are to be read
as though the benefits are conferred on a judge and his or her spouse or partner in a permanent
same-sex partnership in which the partners have undertaken reciprocal duties of support.
(Take note that the Constitutional Court, unlike the High Court, requires the partners in a samesex
relationship to undertake reciprocal duties of support in order to enjoy the benefits of these
sections and regulations.)
1.2.11 Jooste v Botha 2000 (2) SA 199 (T)
In this case the question arose whether the moral duty which the father of an extramarital child
has to provide the child with love, affection and attention is legally enforceable if he does not
have custody of the child. Van Dijkhorst J stated that neither the common law nor statute
recognises the right of a child (whether legitimate or illegitimate) to be loved, cherished, comforted
or attended to by a non-custodian parent as creating a legal obligation in that regard. Van
Dijkhorst J also referred to the fact that the Constitution of the Republic of South Africa 108 of
1996 does not expressly state that parents are obliged to love and cherish their children or to give
them attention and interest. He specifically analysed section 28(1)(b) of the Constitution in terms
of which every child has the right to "parental care". He came to the conclusion that the word
"parental" must be read as pertaining to a custodian parent. The non-custodian parent of a
legitimate child and the natural father of an illegitimate child who do not have custody thus fall
outside the scope of section 28(1)(b). The court consequently held that the father of an illegitimate
child has no duty to afford the child love, attention and affection if he does not have custody of
the child.

1.1 MB v NB 2010 (3) SA 221 (GSJ)

This case pertains to study unit 12 (The accrual system), especially 2 When and how the
accrual sharing takes place on pp 128-129 of your study guide.
In this case, the parties were married out of community of property with application of the
accrual system. From sections 3 and 8 of the Matrimonial Property Act 88 of 1984, it is
apparent that during the subsistence of the marriage a spouse has a contingent right to share
in the accrual in the other spouses estate and that this right becomes a vested right or a claim
upon the dissolution of the marriage through death or divorce. This, however, poses a problem
upon divorce since assets need to be evaluated at some stage before the date of divorce to
determine if one spouse will have an accrual claim against the other and for which amount. In
casu the court held that litis contestatio (the point at which the parties enter the trial stage, that
is at the closing of the pleadings) is to be used as the date to determine the value of the
accrual in the spouses respective estates.
1.2 LEGAL AID BOARD v R AND ANOTHER 2009 (2) SA 262 (D)
This case pertains to study unit 26 (Childrens rights and parental authority), especially 1
Childrens rights on pp 265-266 of your study guide.
This case deals with the appointment of a legal representative for a minor in terms of section
28(1)(h) of the Constitution of the Republic of South Africa, 1996. In this case, SR, a minor
 16

child, whose parents were involved in a divorce action about her care, requested help.
Following this request, the Legal Aid Board appointed a senior attorney to represent SR. The
childs mother objected to the appointment on the ground that only the childs lawful guardian,
a person who has parental responsibilities and rights in respect of the child or the court can
appoint a legal representative for the child. However, the court held that the Legal Aid Board
had the authority to provide legal assistance to a child at the expense of the State in terms of
section 28(1)(h) in certain circumstances. The court further held that the Legal Aid Board could
appoint a legal representative for the child without authority from a third person or from the
court, since substantial injustice would have resulted if SR was not afforded legal
representation.

MB v NB 2010 (3) SA 221 (GSJ)

This case pertains to study unit 12 (The accrual system), especially 2 When and how the
accrual sharing takes place on pp 128-129 of your study guide.
In this case, the parties were married out of community of property with application of the
accrual system. From sections 3 and 8 of the Matrimonial Property Act 88 of 1984, it is
apparent that during the subsistence of the marriage a spouse has a contingent right to share
in the accrual in the other spouses estate and that this right becomes a vested right or a claim
upon the dissolution of the marriage through death or divorce. This, however, poses a problem
upon divorce since assets need to be evaluated at some stage before the date of divorce to
determine if one spouse will have an accrual claim against the other and for which amount. In
casu the court held that litis contestatio (the point at which the parties enter the trial stage, that
is at the closing of the pleadings) is to be used as the date to determine the value of the
accrual in the spouses respective estates.

1.2 LEGAL AID BOARD v R AND ANOTHER 2009 (2) SA 262 (D)
This case pertains to study unit 26 (Childrens rights and parental authority), especially 1
Childrens rights on pp 265-266 of your study guide.
This case deals with the appointment of a legal representative for a minor in terms of section
28(1)(h) of the Constitution of the Republic of South Africa, 1996. In this case, SR, a minor
child, whose parents were involved in a divorce action about her care, requested help.
Following this request, the Legal Aid Board appointed a senior attorney to represent SR. The
childs mother objected to the appointment on the ground that only the childs lawful guardian,
a person who has parental responsibilities and rights in respect of the child or the court can
appoint a legal representative for the child. However, the court held that the Legal Aid Board
had the authority to provide legal assistance to a child at the expense of the State in terms of
section 28(1)(h) in certain circumstances. The court further held that the Legal Aid Board could
appoint a legal representative for the child without authority from a third person or from the
court, since substantial injustice would have resulted if SR was not afforded legal
representation.

GOVENDER AND ANOTHER v MAITIN AND ANOTHER 2008 (6) SA 64 (D)

This case pertains to study unit 10 (Marriage in community of property administration of the
joint estate), especially 3 The different forms of consent on pp 107-108 of your study guide.
In this case the applicants were married in community of property and wanted to conclude a
contract with the respondent to purchase immovable property from him. According to section
15(2)(b) of the Matrimonial Property Act 88 of 1984 the other spouses written consent
attested by two competent witnesses is required by the spouse who wants to conclude such a
transaction. The first applicant signed the agreement to purchase immovable property from
the respondent. Subsequently, the second applicant signed a counter-offer that was made by
the respondent, but the first applicant never signed this second agreement (ie the counteroffer).
 17

In their application the applicants relied on section 15(9) of the Matrimonial Property Act 88 of
1984 to enforce the agreement with the respondent. Section 15(9)(a) of the Matrimonial
Property Act protects a bona fide third party who enters into a transaction with a person who is
married in community of property if the third party does not know, and cannot reasonably be
expected to know that the persons spouse had to consent to the transaction or that the
necessary consent was not obtained. In such an event the transaction is deemed to have
been entered into with the required consent. (See the prescribed textbook pp 81-82.) In this
case the applicants averred that the agreement was binding on the respondent irrespective of
whether or not he knew that consent was required from both the applicants in order to enter
into a valid agreement.
The court held that the legislatures intention in enacting section 15(9) was not to provide a
weapon to spouses married in community of property to enable them to enforce transactions
against bona fide third parties where the spouses themselves acted against the peremptory
provisions of section 15(2).

2.2 THE PENSION FUNDS AMENDMENT ACT 11 OF 2007 AND THE FINANCIAL
SERVICES LAWS GENERAL AMENDMENT ACT 22 OF 2008
The above-mentioned Acts relate to study unit 16 (Consequences of divorce general),
specifically 3.1 Pension interests on p 169 of your study guide.
Take note of the shortcomings of the Divorce Act with regard to the division of pension
interests that are set out on p 131 in your textbook: namely that the Act does not make
provision for growth or the payment of interest on the portion of the pension benefit which is to
be paid to the non-member spouse. The pension benefit apportioned to the non-member
spouse will be worth very little by the time it is paid to him or her. The amendment to the
Pension Funds Act addresses this shortcoming in a way.
The Pension Funds Amendment Act came into operation on 13 September 2007 and changed
the position with regard to payment of the pension benefit in terms of section 7(8) of the
Divorce Act in the following way:
The non-member spouse no longer has to wait until the member retires before his or her (that
is the non-members) share of the pension benefit accrues to the non-member according to a
divorce order. The non-member now has the following options:
(a) he or she can request the pension fund to pay the benefit in cash to him or her; or
(b) request that the benefit is transferred to an approved pension fund of his or her choice.
(section 37D (1)(e)(iii))
The Amendment Act, unfortunately, does not make it clear whether this provision applies
retrospectively, that is, with respect to divorce orders made prior to 13 September 2007 or
whether it only applies to divorce orders made after 13 September 2007. Consequently, the
legislature thought it proper to inter alia address this uncertainty in the Financial Services
Laws General Amendment Act 22 of 2008. This Act came into operation on 1 November 2008
and makes it clear that the provision (that the non-member spouse may upon divorce take his
or her apportioned benefit or have it transferred to an approved pension fund) is indeed
retroactive. It provides as follows:
Any portion of the pension interest assigned to the non-member spouse in terms of a
decree of divorce or decree for the dissolution of a customary marriage granted prior to
13 September 2007 are for purposes of any law other than the Income Tax Act, 1962,
... deemed to have accrued to the member on 13 September 2007...

2.3 J v J 2008 (6) SA 30 (C)

This case pertains to study unit 20 (Interests of the children of divorcing parents) on pp 201-
212 and study unit 26 (Childrens rights and parental authority), especially 2.3.2 Custody on
p 269 and 2.4 Judicial interference with parental authority on pp 270-271 in your study guide.
 18

In terms of section 30(2) of the Childrens Act, the parent with care has the right to regulate
the childs life and decide on matters pertaining to education and religious upbringing. If the
parent with care considers any action or decision concerning the child which will significantly
affect the child, the parent with care must inform the child and the co-holder of parental
responsibilities and rights (in casu the parent with contact) regarding his or her decision in
terms of section 6(5) of the Childrens Act.
The court held that a custodian parent (parent with care) who is obliged to give consideration
to the views of the non-custodian parent (parent with contact) is not bound by such views.
Once the custodian parent has considered the non-custodian parents views he or she may
act independently. Failure to consider the views of the non-custodian parent or to inform the
child and co-holder of parental responsibilities and rights does not invalidate the decision or
action but merely opens the possibility for review of such decision or action.

2.5 GUMEDE v PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA 2009 (3) BCLR
243 (CC)
The case pertains to study unit 22 (Customary marriages), especially 4 The proprietary
consequences of the marriage and control of the matrimonial property on pp 226-227 in your
study guide.
The case dealt with the constitutionality of sections 7(1) and (2) of the Recognition of
Customary Marriages Act 120 of 1998. The court held that sections 7(1) and (2) discriminate
against parties in customary marriages concluded prior to the promulgation of the Recognition
of Customary Marriages Act. The constitutional court declared section 7(1) and part of section
7(2) of the Recognition of Customary Marriages Act unconstitutional and invalid to the effect
that section 7(2) of the Act is applicable to all monogamous customary marriages. This implies
that all monogamous customary marriages entered into prior to 15 November 2000 are in
community of property and profit and loss. Only the proprietary consequences of polygamous
customary marriages concluded prior to 15 November 2000 are still determined by customary
law.
The court further confirmed that section 7(3) of the Divorce Act is applicable to customary
marriages irrespective of when the marriage was concluded. Article 7(3) regulates
redistribution orders upon divorce.

2.6 HASSAM v JACOBS NO AND OTHERS [2008] 4 All SA 350 (C)

This case pertains to study unit 23 (Muslim marriages), especially 2 Recognition of Muslim
marriages on pp 239-240 in your study guide.
The applicant was married to the deceased according to Muslim law. After her husbands
death she claimed a share in his estate. The respondent, in his capacity as executor of the
estate, rejected the applicants claim that she could inherit intestate from the estate of the
deceased. The executor argued that the applicant did not qualify as a survivor or spouse in
terms of the Intestate Succession Act 81 of 1987 or the Maintenance of the Surviving Spouses
Act 27 of 1990 since the marriage was polygynous. The applicant sought an order declaring
that she was the spouse of the deceased and that the surviving spouses in a polygynous
Muslim marriage enjoy the same privileges as surviving spouses in a de facto monogamous
Muslim marriage in terms of the provisions of the Intestate Succession Act and the

2.7 GOVENDER v RAGAVAYAH [2009] 1 All SA 362 (C)

This case pertains to the decision in the Hassam-case above.
The applicant was married in terms of Hindu law. Upon her husbands death the applicant was
denied a share in his intestate estate. The applicant requested the court to declare that for the
purposes of the Intestate Succession Act the word spouse should include a widow married
by Hindu law. The court held that the word spouse in the Intestate Succession Act should
 19

include a spouse to a monogamous Hindu marriage. The court thus made an order similar to
that in Daniels v Campbell. However, with regard to the decision of the constitutional court in
Hassam, the Act should also be applicable to surviving spouses in a de facto polygynous
Hindu marriage.

2.9 GORY v KOLVER 2007 (4) SA 97 (CC)

The summary of this constitutional court case also relates to study unit 24 (Life
Partnerships).
In this case the constitutional court confirmed an order by the high court declaring section 1(1)
of the Intestate Succession Act 81 of 1987 unconstitutional insofar as it does not provide for a
permanent same-sex life partner to inherit automatically, as a spouse would, when the other
partner dies without a will. The court further upheld the high courts reading in of the words "or
partner in a permanent same-sex life partnership in which the partners have undertaken
reciprocal duties of support" after the word "spouse", wherever it appears in the section. The
constitutional court held that the order of constitutional invalidity should, in the main, operate
retrospectively. It however imposed limitations aimed at reducing the risk of disruption in the
administration of deceased estates and protecting the position of bona fide third parties.
The subsequent enactment of the Civil Union Act has limited the field of application of this
decision, for same-sex couples who enter into a marriage or civil partnership in terms of the
Civil Union Act in any event enjoy all the rights of spouses in a civil marriage (see s 13(1)).
Furthermore, section 13(2) of the Civil Union Act equates any reference to "spouse" in any law
other than the Marriage Act and the Recognition of Customary Marriages Act to a reference to
"civil union partner" (see the summary of the provisions of the Act under the previous
heading).2